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THE LAW 
 
 IN ITS RELATIONS 
 
 TO PHYSICIANS 
 
 By 
 ARTHUR N. TAYLOR, LL. B. 
 
 Of the New York Bar 
 
 New York 
 
 D. Appleton and Company 
 
 1900 
 
Copyright, 1900 
 By D. APPLETON AND COMPANY 
 
PEEFACE. 
 
 IJpox casually looking over tlie pages of a current 
 legal journal the author's attention was caught by the 
 report of a recent case in which a physician, not under- 
 standing his rights in a certain matter, had violated 
 well-established legal principles and was held by the 
 jury to respond in substantial damages. 
 
 The ideas suggested to the mind of the author by 
 this case were, first, the necessity that the physician 
 be informed regarding his legal rights and liabilities, 
 and, second, the inaccessibility to him of such informa- 
 tion — which ideas in turn suggested the plan worked out 
 in the following pages. 
 
 That portion of the field occupied in common by the 
 legal and medical professions known as medical juris- 
 prudence has received the attention of many able writers 
 of both professions, with the result that nearly every 
 question of law requiring elucidation as to its medical 
 aspect has been worked out and is accessible to the 
 lawyer. But, upon the other hand, that portion of the 
 field occupied by the two professions which relates to 
 
iv THE LAW IN ITS RELATIONS^ TO PHYSICIANS. 
 
 the needs of the physician in his own practice has heen 
 singularly neglected, so that the physician is left with- 
 out reliable information regarding his legal rights and 
 liabilities, and, what is equally serious, without the 
 opportunity of having recourse to such information ex- 
 cept as stress of circumstances may drive him to seek 
 legal advice in some particular case. 
 
 The object of this work is to place within the reach 
 of every physician a systematic treatment of those ques- 
 tions of law which present themselves most frequently 
 in his ordinary professional work, and which he may 
 at any moment be required to know; and to show the 
 relation between the different questions of law, together 
 with the reasons upon which they are based, in such a 
 way that the ph3^sician may not only understand his 
 rights in a given case which has been adjudicated, but 
 will, by understanding the general principles upon 
 which those rights are based, be able to apply those 
 principles to new facts and conditions, and determine 
 the rights and accountabilities of the several parties 
 interested as unexpected or uncontemplated emergen- 
 cies arise. 
 
 A. N. T. 
 
 32 Nassau Street. Nkw York. 
 
CONTENTS 
 
 CHAPTER 
 
 Introduction 
 
 I. — The right to practise medicine and surgery 
 II. — Contract of physician with patient 
 III. — Contract of patient with physician 
 IV. — Rights and liabilities of third parties 
 V. — Right to compensation 
 VI. — Recovery of compensation 
 VIL— Civil malpractice, including general 
 
 OF physician to patient 
 VIII.— Criminal liability .... 
 IX. — Privileged communications 
 
 liability 
 
 FAQE 
 1 
 
 8 
 59 
 75 
 
 80 
 140 
 171 
 
 239 
 385 
 480 
 
THE LAW 
 IN ITS RELATIONS TO PHYSICIANS. 
 
 INTEODUCTIOIT. 
 
 Origin and Development of Our Laws. — Our system 
 of laws, like our language, was brought with us from the 
 mother country, where it had slowly developed during 
 the centuries that saw the crude, barbaric Briton become 
 the civilized and enlightened Englishman. 
 
 Like the Englishman of modern times, our law rep- 
 resents not alone development but also the reception and 
 assimilation of foreign material from widely separated 
 sources. When the Britons gave way to the more power- 
 ful Saxons the laws of the Druids commingled with and 
 became a part of the Saxon laws and customs ; the sub- 
 sequent arrival of the Danes brought additional ele- 
 ments ; afterward the invasion of the Eomans, and final- 
 ly the conquest of the Normans, brought much of the 
 civil law of continental Europe and many customs for- 
 
2 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 eign to those of our northern ancestors; among these 
 was the feudal system upon which is based our present 
 law of real estate. Not only was the law greatly changed 
 in substance by this latest arrival, but in outward form 
 as well, Norman-French being the language in which 
 all public proceedings were recorded and in which the 
 records of the courts were kept from the time of William 
 I to that of Henry III. The Latin language was sub- 
 stituted by Henry III, and from that time the Law 
 Latin was used until the fourth year of George II, ex- 
 cept during the time of Cromwell, that sturdy character 
 evidently deeming good, terse English a better medium 
 for expressing the law of a great nation. It is undoubt- 
 edly by reason of this slow development and liberal ad- 
 mixture of elements from such widely separated sources 
 that both our language and our system of laws have 
 acquired their wonderful degree of flexibility that is 
 shown in the readiness with which they meet the re- 
 quirements of our constantly changing and developing 
 conditions. 
 
 General Divisions of the Law. — Our laws are divided 
 into two kinds — the common law, or lex non scripta, and 
 the statute law, or lex scripta. 
 
 Common Law Described. — The Latin names of these 
 two general divisions of the law are in a measure his- 
 torically descriptive. The lex non scripta, or common 
 law, being those general and particular customs which 
 
INTRODUCTION. 3 
 
 have existed time out of mind, or, according to the an- 
 cient legal expression, "time whereof the memory of 
 man rimneth not to the contrary," undonbtedly had 
 their origin at a time when writing was unknown in 
 western Europe, some of them being said to descend 
 from the Gallic Druids. Blackstone, who wrote at about 
 the middle of the eighteenth century, describing the 
 common law, said : " This is that law by which proceed- 
 ings and determinations in the king's ordinary courts of 
 Justice are guided and directed. This, for the most part, 
 settles the course in which lands descend by inheritance ; 
 the manner and form of acquiring and transferring 
 property; the solemnities and obligations of contracts; 
 the rules of expounding wills, deeds, and acts of parlia- 
 ment; the respective remedies of civil injuries; the sev- 
 eral species of temporal offenses; and the manner and 
 degree of punishment; and an infinite number of mi- 
 nute particulars which diffuse themselves as esitensively 
 as the ordinary distribution of common justice re- 
 quires." * It was to this branch of the law that Lord 
 Coke referred when he said : " Eeason is the soul of the 
 law; and when the reason of any particular law ceases, 
 so does the law itself." f Such a system of law, it will 
 be observed, can not be reduced to writing in the form 
 of a code without having its entire nature changed. The 
 
 * Cooley's Blackstone, 67. + Coke Litt., 70 b. 
 
4 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 universal application of the principles and customs of 
 which it consists would be destroyed, and the system 
 would become crystallized into a set of fixed rules in- 
 capable of organic growth and development. There is, 
 however, some method of recording necessary to secure 
 stability and certainty to this branch of the law, and this 
 is accomplished by preserving the records of the courts 
 of highest jurisdiction, which show the history of each 
 case determined and illustrate the application of the 
 principles of law governing it. These records are kept 
 as precedents to guide the courts in the future applica- 
 tion of law to similar facts coming before them for adju- 
 dication. 
 
 Common Law of the United States. — The common 
 law of England was not found to be entirely suited to 
 the altered conditions on this side of the Atlantic, and 
 was therefore only adopted so far as it was applicable 
 to our situation. The term common law as used in the 
 United States may be generally said to include all of the 
 law of England existing at the time of the settlement of 
 the colonies which was found applicable to our condi- 
 tions. 
 
 In contemplating the great age of our common law 
 and the identity of its development with that of our 
 parent nation, one can not help regarding it with a feel- 
 ing of veneration and sympathizing with the Mississippi 
 lawyer who, upon seeing the common-law rights of 
 
INTRODUCTION. 5 
 
 dower * and courtesy f wiped out by the legislature of 
 his State, exclaimed : " Venerable relics of antiquity, 
 you have come down to us from a former generation. 
 You have survived the wreck of empires and change of 
 dynasties. Born way back in the womb of Time, whereof 
 the memory of man runneth not to the contrary, you 
 have outlived the War of the Eoses, passed safely through 
 the Protectorate, crossed the ocean, survived the great 
 American Eevolution, and rode out the storm of the 
 late great war. "Whatever attendants were absent from 
 the bridal altar, you two at least were always there; 
 and when the bride and groom mutually murmured, 
 * With all my worldly goods I thee endow,' you as priest 
 and priestess sealed the covenant. Like shades you've 
 followed the twain blended into one, and whenever 
 either fell one of you administered the balm of conso- 
 lation to the survivor. If pure religion and undefiled 
 be to visit the fatherless and the widow in their afflic- 
 tion, thy mission has been akin to it. Venerable priest 
 and priestess of the common law, farewell! You have 
 been pleasant in your lives, and in your death have not 
 been divided." X 
 
 * Dower is the estate which the wife takes upon the husband's 
 death in one third of all the real property of which he was seized 
 during the marriage relations. 
 
 ■f Courtesy is the life estate which the husband takes upon the wife's 
 death in all of her real property, provided she had given birth to a living 
 child. This last condition is usually eliminated by American statutes. 
 
 X Soliloquy of an old lawyer, November, 1880, from Annotated Code 
 of Mississippi, 1892. 
 
6 THE LAW IK ITS RELATIONS TO PHYSICIANS. 
 
 Statute Law. — The statute law, or lex scripta, con- 
 sists in England of all of the enactments of parliament, 
 or, as an English writer of the eighteenth century, in the 
 more courtly language of the times, said, it consists 
 of those " statutes, acts, and edicts made by the king's 
 majesty, by and with the advice and consent of the 
 lords spiritual and temporal, and commons in parlia- 
 ment assembled." In the United States the statute law 
 includes all positive enactments of the various legisla- 
 tive bodies. 
 
 Whenever a question arises as to the application of a 
 statute to a given condition not coming clearly within 
 the purport of its meaning, the aid of the common law 
 is invoked by the courts in interpreting and construing 
 the act; it therefore will be seen that the common law 
 forms the fundamental groundwork of our entire 
 system. 
 
 Reason the Foundation of Law. — Eeason being the 
 soul of our law, as very aptly stated by Lord Coke, it 
 necessarily follows that a clear comprehension of the law 
 is based upon a knowledge of the reason underlying the 
 law, and that one can not really know the law without 
 first Icnowing the reason therefor. 
 
 In writing the following pages the author has en- 
 deavored to keep this fundamental truth in mind, and 
 has, whenever possible, first developed the general prin- 
 ciple, giving the reason supporting the same, and then 
 
INTRODUCTION. 
 
 illustrated its application by particular cases. When- 
 ever that course seemed impracticable, he has endeav- 
 ored to show the principle governing in the particular 
 case and the reason for its application. 
 
CHAPTEE I. 
 
 THE RIGHT TO PRACTISE MEDICINE AND SURGERY. 
 
 No Restrictions except by Statute. — The common 
 law * of England did not recognize the inability of the 
 public to discriminate for themselves between the quali- 
 fied and the unqualified practitioners of medicine and 
 surgery, and therefore imposed no restrictions upon the 
 free exercise of the art of healing ; the necessity of such a 
 restriction was, however, recognized at an early date, 
 and in the third year of the reign of Henry VIII a 
 law was enacted prohibiting any person from practising 
 medicine or surgery in London, or within seven miles 
 thereof, without first being examined, approved, and 
 admitted by the Bishop of London or the Dean of Paul's, 
 who should call to their aid four doctors of physic and, 
 for surgery, other expert persons in that faculty. The 
 statute further provided that no person should prac- 
 tise outside of London and a seven-mile radius thereof 
 without being first examined and approved by the bishop 
 of his diocese, or his vicar-general, similarly assisted, 
 
 * For the distinction between common law and statute law, see 
 Introduction, p. 2. 
 
THE RIGHT TO PRACTISE MEDICINE. 9 
 
 saving those practising under privileges conferred by 
 the Universities of Cambridge or Oxford. Seven years 
 later a charter was granted to the College of Physicians 
 in London vesting in it the right of examining and 
 admitting to practice formerly granted to the Bishop 
 of London and Dean of Paul's. 
 
 Other laws relating to the subject were enacted from 
 time to time, but, owing to their character, they were 
 not applicable to the condition existing in the United 
 States, and consequently never became law here. 
 
 Statutory Restrictions in the United States. — In the 
 United States the legislature of each State has authority 
 to prescribe qualifications which must be possessed by 
 those practising medicine and surgery within its borders, 
 and it may be said without exception that the legis- 
 lature of each State has exercised this right to a greater 
 or less degree. An elaborate treatment at this point 
 of the statutes of the several States would be incon- 
 sistent with the size and scope of this work, yet a brief 
 resume will, it is thought, be of sufficient value to the 
 practitioner to justify devoting to that purpose the neces- 
 sary space. 
 
 General Classification of Requirements. — The quali- 
 fications prescribed by the several States to entitle one 
 to begin the practice of medicine and surgery vdthin 
 their respective jurisdictions may be generally classed 
 under the four heads following: : 
 
10 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 I. The candidate must have a diploma from a medi- 
 cal college in good standing, the length of the course 
 being specified in many States, and ordinarily being 
 three or four years. In addition, he must pass a satis- 
 factory examination before a board of examiners, the 
 subjects to be covered by this examination being fre- 
 quently specified. 
 
 This is the rule in Arizona, Connecticut, Delaware, 
 District of Columbia, Florida, Georgia, Idaho, Illinois,* 
 Iowa, Louisiana, Maryland, Minnesota, Montana, New 
 Hampshire, 'New Jersey, ISIew York, North Carolina,! 
 Pennsylvania, South Carolina, and Utah. 
 
 II. The candidate must pass a satisfactory examina- 
 tion as in the first class, but he is not required to 
 have a diploma from a medical college. In some States 
 of this class the time he shall have spent in the study 
 of medicine is designated. 
 
 The follomng are the States within this class: 
 Alabama, Arkansas, Maine, Massachusetts, Mississippi, 
 North Dakota, Oregon, Tennessee, Texas, Virginia, 
 Washington, and West Virginia. 
 
 * In Illinois graduates of legally chartered medical colleges of the 
 State, in good standing, as may be determined by the State Board of 
 Health, may be granted certificates without examination. Laws 1899. 
 
 \ In North Carolina, a license or other satisfactory evidence of 
 standing as a legally qualified practitioner of another State shall be 
 accepted in lieu of a diploma as entitling the applicant to be examined. 
 Laws 1809. 
 
THE RIGHT TO PRACTISE MEDICINE. H 
 
 III. The candidate may either present an acceptable 
 diploma or, if he has no diploma, he may be examined 
 as to his qualifications to practise medicine and surgery. 
 
 This is the method of admitting candidates in Colo- 
 rado, Missouri, New Mexico, Ehode Island, Vermont, 
 and Wisconsin. 
 
 IV. The applicant must hold a diploma issued by 
 a proper medical college, which must be satisfactorily 
 shown to belong to him. 
 
 This qualification is prescribed in California, In- 
 diana,* Kansas, Kentucky, Michigan, Nebraska, Nevada, 
 Ohio, Oklahoma Territory,! South Dakota, and Wyo- 
 ming. 
 
 Indian Territory has a peculiar arrangement which 
 in effect allows the Indians to follow their own customs 
 in regard to doctors or medicine men of their own race, 
 but in the Cherokee and Choctaw Nations provides 
 for the examination of those not citizens of the nation 
 who desire to settle therein to practise medicine. The 
 law also requires the candidate to secure the indorse- 
 ment of four or more citizens of the nation residing 
 
 * In Indiana, if the college issuing the diploma presented is not rcc 
 ognized as maintaining a sufficiently high standard of medical education, 
 the applicant shall have the privilege of being examined as to his quali- 
 fications to practise medicine and surgery. 
 
 f In Oklahoma Territory, the candidate may be admitted upon ex- 
 amination if he has been actually engaged in the practice of medicine 
 not less than five years. 
 3 
 
12 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 in the vicinity in which he desires to practise medi- 
 cine. 
 
 There is no law protecting the residents of the Creek 
 Nation from incompetent practitioners. 
 
 Additional Requirements. — In addition to the re- 
 quirements classified under these four heads there are 
 certain other requirements which are almost universally 
 imposed — viz., that the candidate shall be twenty-one 
 years of age, of good moral character, and have a good 
 general education. In some States it is provided that he 
 shall never have been convicted of a felony.* 
 
 Removal to Another State. — There seems to be very 
 little disposition manifested in the statute laws of the 
 various States to facilitate the moving of a regularly 
 licensed physician from one State to another. Several 
 of the States make special arrangements for licensing 
 regularly qualified physicians of sister States who change 
 their residence and practice to those States, but in each 
 case satisfactory evidence is required of the same or a 
 similar degree of proficiency as that established to entitle 
 other candidates to practise within the particular State. 
 
 Proving Diploma. — Whenever a candidate is ad- 
 mitted to practise medicine and surgery by virtue of a 
 diploma, it is usually necessary for him to submit the 
 diploma to some board appointed for the purpose of 
 
 * A felony may be generally defined as an offense that is punishable 
 by capital punishment or by being imprisoned in the State prison. 
 
THE RIGHT TO PRACTISE MEDICINE. 13 
 
 passing upon the qualifications of candidates, together 
 with an affidavit that he is the lawful possessor of such 
 diploma, that he has attended the full course of study- 
 required for the degree, and that he is the person named 
 in the diploma. 
 
 Issuing and Filing Certificate or License. — If upon 
 examination of the papers submitted the board finds 
 that the candidate has fulfilled the requirements of the 
 law, they issue a certificate showing him to be entitled to 
 practise medicine and surgery within that particular 
 county or State. If the candidate is admitted upon ex- 
 amination, a like certificate is issued. In either case the 
 law usually provides that this certificate shall be filed 
 with some county officer in the county in which the physi- 
 cian resides and practises. The filing of this certificate 
 with the county officer designated is an essential part of 
 the requirements, and a physician is not entitled to prac- 
 tise and receive the benefits thereof until his certificate is 
 so filed. The law generally provides that in case a physi- 
 cian removes to some county other than that in which he 
 first filed his certificate he shall file a properly authenti- 
 cated copy of the certificate in the county to which he 
 removes; this copy will ordinarily be furnished by the 
 officer with whom the certificate is originally filed upon 
 the payment of a small fee.* 
 
 * As to the physician's right to attend patients in other counties 
 without first filing his certificate in such other counties, see p. 32. 
 
14 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Enforcement of the Law. — In a very few States no 
 penalty is prescribed for a violation of the law, but in 
 nearly all States the law is enforced by fines, usually 
 with an alternative penalty of imprisonment, and some- 
 times by fine and imprisonment conjunctively. The 
 amount of the fine and the duration of the imprison- 
 ment is largely discretionary with the court, certain lim- 
 its being prescribed for his direction, fixing the mini- 
 mum and maximum amount of fine to be imposed and 
 designating the longest and shortest- periods of impris- 
 onment to which the offender shall be committed.* The 
 smallest amount of fine fixed by any State is ten dollars, 
 and the largest amount allowed to be imposed in any is 
 five hundred dollars; the extreme periods of imprison- 
 ment vary from ten days to one year. In a few States, 
 however, the payment of the fine is enforced by impris- 
 onment until paid. 
 
 Recovery of Fee prohibited by Statute. — The stat- 
 utes of several States expressly provide that any physi- 
 cian practising medicine unlawfully shall not be per- 
 mitted to recover any fee or compensation for his serv- 
 ices.! The right of the physician to recover for such 
 
 * In North Carolina the discretion of the court as to the period of 
 time for which the offender shall be committed is unlimited. 
 
 f Such provision exists in Alabama, Georgia, Kansas, Kentucky^ 
 Louisiana, Maryland, Michigan, Nebraska, North Carolina, Rhode 
 Island, Virginia, and Vermont. 
 
THE RIGHT TO PRACTISE MEDICINE. 15 
 
 services in States where there is no express prohibition 
 of recovery has been the subject of judicial determina- 
 tion, and is fully treated in Chapter VI of this work. 
 
 Privileges to Non-resident Physicians. — While every 
 physician is, or at least ought to be, familiar with the 
 statutes regulating the practice of medicine and surgery 
 in his own State, it is also greatly to his interest to be 
 informed upon the laws of the neighboring States, at 
 least so far as they extend privileges to him as a legally 
 qualijfied practitioner of a sister State. 
 
 Privilege of Attending Cases. — The States of Con- 
 necticut, District of Columbia, Indiana, Kentucky, 
 Maine, Massachusetts, Mississippi, New Hampshire, 
 New Jersey, New York, North Carolina,* Ohio, Penn- 
 sylvania, Ehode Island, and Wyoming accord to non- 
 resident physicians and surgeons the privilege of prac- 
 tising within their border, but they are not permitted 
 in any case to maintain an office or have a place for 
 meeting patients generally within such States. In sev- 
 eral of these States f the non-resident physicians' visits 
 are restricted to " a particular case." The exact mean- 
 
 * In North Carolina the privilege is expressly limited so as not to 
 permit physicians resident in a neighboring State to " regularly prac- 
 tise " in that State. 
 
 •|- In Kentucky, Maine, Massachusetts, and Rhode Island, the visit is 
 restricted to a " particular case " ; in Kentucky, to a " particular case or 
 family " ; in the District of Columbia, such physicians are permitted to 
 attend " specified cases." 
 
16 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing of this restriction does not seem to have been judi- 
 cially determined. 
 
 Before exercising the privilege in Mississippi the 
 practitioner must procure a license from the State board 
 of health, which license is granted to him without ex- 
 amination, and as a matter of right, upon his showing 
 himself to be a legally qualified practitioner of another 
 State. The privilege given by Indiana, 'New Hamp- 
 shire, New York, Ohio, Pennsylvania, and Wyoming is 
 restricted to physicians living " on the border of a 
 neighboring State. ^' The law of New Hampshire, how- 
 ever, permits non-resident physicians, irrespective of 
 their place of residence, to attend their regular patients 
 while sojourning in the State; it also allows landlords 
 of summer hotels to employ physicians unlicensed in the 
 State as hotel physicians to care for their guests or 
 employees. New Jersey allows a physician of another 
 State to take temporary charge of the practice of a 
 physician of that State, a written request being first 
 made to the State board of medical examiners. 
 
 Privilege of Consultation. — It is expressly provided 
 that legally qualified physicians and surgeons from other 
 States may meet in consultation with resident physicians 
 in twenty-four States, to wit: Connecticut, Delaware, 
 District of Columbia, Georgia, Idaho, Indiana, Louisi- 
 ana, Maryland, Minnesota, Montana, Nebraska, New 
 Hampshire, New Jersey, New York, North Carolina, 
 
THE RIGHT TO PRACTISE MEDICINE. 17 
 
 North Dakota, Ohio, Pennsylvania, South Carolina, 
 Tennessee, Utah, Virginia, West Virginia, Wisconsin, 
 and Wyoming. The law of Georgia restricts such con- 
 sultation to " a special case," and expressly provides 
 that a non-resident physician shall not be permitted to 
 engage in a continuous practice or consultation, in con- 
 nection with a resident physician or surgeon. 
 
 It will be observed that not all of the States which 
 allow non-residents to attend patients within their bor- 
 ders expressly give them the right to meet resident phy- 
 sicians in consultation : but applying the general maxim 
 of law. Major continet in se minorem, it may be stated 
 generally that any non-resident physician having the 
 right to enter a State to practise medicine has also the 
 right to meet a resident physician there in consultation. 
 
 Judicial Construction of Statutes. — The statutory 
 enactments of the various States have from time to time 
 been construed by the courts of the respective States or 
 of the United States ; but these decisions, being usually 
 based upon the particular wording or meaning of the 
 statute in question, are ordinarily of little interest out- 
 side of the State in which they are rendered. Some of 
 these decisions, however, either involve a principle of 
 extended application or construe statutes which exist so 
 generally as to render them of sufficient value to justify 
 an examination. 
 
 Constitutional Validity of Medical Acts. — The con- 
 
18 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 stitutional validity of the laws prescribing requirements 
 for those practising medicine and surgery has been at- 
 tacked in nearly every State in the Union upon the gen- 
 eral grounds that : 
 
 They invade natural rights. 
 
 They interfere with vested rights. 
 
 They discriminate against persons engaged in the 
 same business or profession, and deny them the equal 
 protection of the law. 
 
 Or, they are ex post facto. 
 
 Our courts, both State and Federal, have, however, 
 almost universally upheld the constitutionality of these 
 acts, conceding them to be invalid only where they con- 
 tained some specially objectionable feature. 
 
 The authority of the legislature to enact a law of the 
 character of those under consideration is included in the 
 police power of the State. The police power is very 
 broad ; it has been judicially defined to be that inherent 
 and plenary power in the State which enables it to pro- 
 hibit all things hurtful to the comfort and welfare of 
 society. It extends to the protection of the lives, limbs, 
 health, comfort, and convenience as well as the property 
 of all persons within the State, and to accomplish this 
 end persons and property are subjected to all kinds of 
 restraints and burdens.* 
 
 * Lakevicw vs. Rose Hill Cemetery, 10 III, 191, State vs. Noyes, 4*7 
 Mc, 189. 
 
THE RIGHT TO PRACTISE MEDICINE. 19 
 
 That the practice of medicine and surgery is a voca- 
 tion that very nearly concerns the comfort, health, and 
 even life of nearly every person can not be questioned, 
 and therefore a wholesome restraint upon those unpre- 
 pared to exercise these important functions is clearly 
 the right of the State and its duty as well. 
 
 Nearly every State makes special provisions for 
 licensing those who had been engaged in the practice of 
 medicine and surgery in that State for a certain length 
 of time prior to the enactment of the law. The validity 
 of such provisions is attacked on the ground that they 
 create special privileges and allow those who have exer- 
 cised the right for the prescribed time to continue its 
 exercise without submitting to examination or present- 
 ing a diploma ; while all who have not practised for such 
 period are obliged to be specially examined as to their 
 qualifications or present diplomas, or both. The answer 
 to this attack is, that if in the wisdom of the legislature 
 the experience gained in practising five or ten years, or 
 any other period fixed upon, within the State is equiva- 
 lent by way of preparation to the course prescribed for 
 those about to undertake the practice of medicine and 
 surgery, it shall be lawful and will be considered no 
 discrimination to fix these two standards. 
 
 It has been observed heretofore that many States ex- 
 tend to non-resident physicians and surgeons the right 
 of being called into the State in consultation, and some- 
 
20 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 times the right to extend their practice into the State 
 without being examined or licensed. This has also been 
 attacked as being an unjust discrimination and contrary 
 to the fourteenth amendment of the Federal Constitu- 
 tion. It will be found that such laws do not permit such 
 non-resident physicians to have an office or place for 
 meeting patients within the State, and that they usually 
 impose further restrictions. It therefore can not be said 
 that such non-resident physicians enjoy the same privi- 
 leges and immunities as a duly licensed resident practi- 
 tioner, and the law is therefore not subject to the objec- 
 tion urged. An Ohio court has upheld the constitution- 
 ality of the act, but based its reason for so doing on other 
 grounds. In considering the question, the court said: 
 "We discover nothing unreasonable in the regulations 
 adopted by the statute in question for the admission of 
 persons to the practice of medicine, nor any valid objec- 
 tion to the provision excepting therefrom physicians 
 residents of other States. Physicians called in consulta- 
 tion are usually the most eminent and skillful that can 
 be procured; and those residing on the border of an 
 adjoining State, with a practice extending into this State, 
 can include only those who have a legal standing and es- 
 tablished practice in their own State, and which the law 
 regards a sufficient evidence of their capacity and char- 
 acter to admit them to continue their practice here." * 
 * France vs. State, o1 0. St., 1 ; 47 N. E. Rep , 1041. 
 
THE RIGHT TO PRACTISE MEDICINE. 21 
 
 Constitutional Objections to Particular Acts. — Cer- 
 tain features of those acts have at times been found to 
 be objectionable; as, for instance, a law which allowed 
 certain privileges to a particular school of medicine, or 
 which imposed certain burdens upon another school, 
 would be unconstitutional.* A law punishing a duly 
 qualified physician for what is styled " unprofessional 
 conduct " in advertising himself as a specialist in cer- 
 tain diseases would be unconstitutional; for, while such 
 conduct might be contrary to professional ethics, it would 
 in no way be injurious to the public morals or a menace 
 to the general welfare, f And so a law requiring all who 
 had not practised four years in one place to procure and 
 pay for a license, but exempted those who had practised 
 for this period from such expense, would be unconstitu- 
 tional because of the burden imposed upon one class and 
 not upon all. J 
 
 But against the main body of the statute law upon 
 the subject, as it stands in the several States, there seems 
 to be no valid constitutional objection which can be 
 urged. 
 
 Doctor, Physician, and Surgeon Defined. — The mean- 
 ing of the term doctor, or physician and surgeon, as used 
 in the law, is not confined to any particular school or 
 
 * Gee Woo vs. State, 86 Neb., 241 ; 54 N. W. Rep., 513. 
 
 + Ex parte McNultv, 17 Cal., 164. 
 
 X State vs. Tennoyer, 65 N. H., 113 ; 18 Atl. Rep,, 878. 
 
22 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 schools, but is considered in the broad sense of one who 
 professes the art of healing. Justice Daly, in a well-con- 
 sidered case, said : " The legal signification of the term 
 doctor is simply a practitioner of physic. The system 
 pursued by the practitioner is immaterial. The law has 
 nothing to do with the merits of particular systems. 
 Their relative merits must become the subject of inquiry 
 when the skill or ability of a practitioner in any given 
 case is to be passed u]3on as a matter of fact." * 
 
 The supreme court of Wisconsin, thirty years later, 
 following the reasoning of this decision, held that a stat- 
 ute providing for the organization of a county medical 
 society included as well the organization of homoeopa- 
 thists as of any other school, f 
 
 The question of whether one who " practises bone- 
 setting and reducing sprains, swellings, and contractions 
 of the sinews, by friction and fomentation," is a practi- 
 tioner of medicine and surgery, was considered in the 
 supreme court of Massachusetts in 183 5. J The court 
 was of the opinion that while such a practice does not 
 amount to a general exercise of the functions of the 
 science of either medicine or surgery, it forms an impor- 
 tant part of the practice of surgery, and renders the 
 practitioner amenable to the laws affecting the physi- 
 
 * Corsi vs. Maretzek, 4 E D. Smith, 1. 
 f Raynor vs. State, 62 Wis., 289. 
 J Hewitt vs. Charier, 16 Pick, 353. 
 
THE RIGHT TO PRACTISE MEDICINE. 23 
 
 cian and surgeon; also one who gave electric treatment 
 was held to be engaged in the practice of medicine and 
 surgery. The court said : " It is quite unnecessary, we 
 think, that, in order to practise medicine within the 
 meaning of the statute, the practitioner should give 
 internal remedies." * The services of a clairvoyant are 
 within the meaning of the term " medical or surgical 
 services."' f 
 
 The law of Illinois, in force in 1887, provided that 
 " no person shall practise medicine in any of its depart- 
 ments in this State without the qualifications required 
 by this act." The question arose whether or not this in- 
 cluded midwifery. The court was of the opinion that 
 obstetrics was an important department of medicine, 
 and that it was 'included within the terms of the stat- 
 ute. J 
 
 Moreover, the supreme court of Nebraska, in a well- 
 considered opinion rendered in 1894, held that a Chris- 
 tian Scientist, in the exercise of his practice, came within 
 the statute which provides that any person shall be con- 
 sidered as practising medicine " who shall operate on, 
 profess to heal, or prescribe for, or otherwise treat any 
 physical or mental ailment of another." * 
 
 * Davidson vs. Bohlraan, 87 Mo. App., 5*76. 
 
 ■f Bibber vs. Simpson, 59 Me., 181. 
 
 X People vs. Arendt, 60 111. App., 89. 
 
 « State vs. Buswell, 40 Neb., 158 ; 58 N. W. Rep., 728. 
 
24 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In a more recent case^, however, arising in Rhode 
 Island, the court held that the term " practice of medi- 
 cine," as used in their statutes, must be understood in 
 the ordinary or popular sense of determining the physi- 
 cal condition of the patient and treating his disease or 
 injury by the ordinary or material remedies, and that it 
 could not be so construed as to include in its meaning 
 the treatment of the Christian Scientist, which takes 
 account neither of physical symptoms and conditions 
 of the patient nor of the application of remedial sub- 
 stances.* 
 
 While several of these decisions were based upon 
 the wording of particular statutes, it may be laid down 
 as a general rule that the term doctor, physician, and 
 surgeon, or practitioner of medicine and surgery, as le- 
 gally used, is broad enough to include all those who 
 profess and practise the art of healing in its several 
 branches.! 
 
 Decision of Examining Board, when Conclusive. — 
 The authority conferred upon the examining board is 
 usually both ministerial and judicial in its character; 
 by the law of most States the decisions of the board in 
 refusing or in revoking licenses to practise are made sub- 
 ject to review on appeal to the circuit or district court. 
 The law usually provides the manner of taking this ap- 
 
 * State vs. Mylod (R. I.), 40 Atl. Rep., Y53. 
 f See joos^, p. 39, et seq. 
 
THE RIGHT TO PRACTISE MEDICINE. 25 
 
 peal^ but is sometimes silent upon the subject; this fail- 
 ure, however, to provide for the manner of appealing does 
 not affect the right to appeal. Whenever the law pro- 
 vides that the proceedings of the board may be reviewed 
 upon appeal, it will be necessary for the party who is 
 not satisfied with their decision to bring the matter be- 
 fore the court in the manner provided by the statute ; * 
 but when the statute makes no provision whatever for 
 an appeal from the decision of the board, his remedy is by 
 mandamus. A writ of mandamus is a command issu- 
 ing from a court of law in the name of the State directed 
 to some inferior court, officer, or person, requiring him or 
 them to do some particular thing therein specified. In 
 theory, a writ of mandamus will issue only to compel the 
 performance of a ministerial act, but will not review any 
 judicial proceeding or interfere with the performance of 
 a function requiring the exercise of judgment and dis- 
 cretion. Should, however, a board refuse to give a can- 
 didate a fair examination because of his views regarding 
 any particular school of medicine, or should, when exam- 
 ined, refuse to pass him for a like reason, or refuse to 
 accept his diploma for a similar reason, then mandamus 
 would lie; but if, after giving him a fair examination, 
 they determine that his knowledge of medicine is not 
 sufficient to entitle him to practise, or if, after hearing 
 
 * State, Norcross vs. Board of Medical Examiners, 25 Pac. Rep., 440 ; 
 10 Mont., 162. 
 
26 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 evidence against a legally qualified practitioner in tlie 
 manner provided by law, they decide he has been guilty 
 of an offense justifying the revocation of his certificate 
 or license, such decisions are not subject to review under 
 a writ of mandamus. In New Jersey the board has re- 
 fused to register the applicant on the ground that his 
 diploma was not issued by a reputable school or college 
 of medicine and surgery. Under a writ of mandamus 
 the court refused to consider the evidence as to whether 
 the judgment of the board was correct, because the board 
 had acted in a judicial capacity in arriving at this con- 
 clusion.* 
 
 In Missouri the supreme court, in considering prac- 
 tically the same facts, rendered the same decision; the 
 judge, however, in delivering the opinion, said : " It is 
 thought best to say this in conclusion, that, notwithstand- 
 ing what has been said relative to the discretionary pow- 
 ers of the board of health, that [sic] according to the 
 express terms of the provision in section 2, such discre- 
 tionary power does not extend to discriminating against 
 any particular school or system of medicine, and that, 
 should such discrimination ever occur, the limits of dis- 
 cretionary power will have been passed." f 
 
 Summing up, it may be stated generally that the 
 
 * State ex rel. Kirchgessner vs. Board of Health, etc., 22 Atl. Rep., 
 226. 
 
 f State ex rel. Granville vs. Gregory, 83 Mo., 123. 
 
THE RIGHT TO PRACTISE MEDICIJ^E. 27 
 
 action of the examining board is not final. If the stat- 
 ute gives the right of appeal, the court having jurisdic- 
 tion will review the proceedings of the board, and by its 
 judgment rectify errors, should any be found. And the 
 right to review the grounds of refusal on appeal is not 
 confined to cases of refusal for unprofessional and dis- 
 honorable conduct, but, where the statute provides for 
 appeal in " all cases of the refusal of a certificate," the 
 court may examine, or direct the examination, of a can- 
 didate as to his competency.* Where no right of appeal 
 is given by statute, a writ of mandamus will lie to compel 
 the board to do those things which the law makes it their 
 duty to do, and even to rectify a manifest injustice re- 
 sulting from an abuse of their discretionary powers, f 
 
 Illustrations. — It will be observed from the forego- 
 ing that it is the purpose of the law to guard against 
 arbitrary and unjust or unfair conduct on the part of the 
 examining board. A case arose in New Hampshire some 
 years ago very aptly illustrating this. A candidate 
 applied to the board for a license to practise medicine, 
 surgery, and midwifery; he produced a diploma which 
 fulfilled the requirements of the law, but the board 
 refused to grant the license on the ground that he was 
 
 * State vs. District Court of First Judicial District, 48 Pac. R., 1104 
 (Mont.l. 
 
 \ Illinois State Board of Deutal Examiners vs. People, 123 HI., 227! 
 13 N. E. Rep., 201. 
 
28 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 not worthy of public confidence. The board has the 
 power nnder the law of New Hampshire, " upon due 
 notice and hearing, to revoke any license granted by it, 
 when improperly obtained, or when the holder has, by 
 conviction of crime or for other cause, ceased to be 
 worthy of public confidence." The court held that the 
 board had no right to refuse the applicant a license 
 solely upon the ground that he was " not worthy of 
 public confidence," without first giving him due notice 
 and a fair hearing. If then facts were fairly proved by 
 evidence adduced showing him to be unworthy of public 
 confidence, the license would be properly refused.* 
 
 And so, when the board established a rule that every 
 medical college should by a certain date furnish the 
 board with a list of its matriculates and the basis of their 
 matriculation, and in the event that any college failed 
 to comply with this request it should not be considered 
 " in good standing," the court held that this rule could 
 not be enforced against an applicant who had grad- 
 uated from a college in good standing which had not 
 complied with the rule, if it was shown that the college 
 had no notice of the rule until after the date fixed, f 
 
 A Medical College can not Arbitrarily Refuse Exam- 
 ination. — While the following illustration is not strictly 
 pertinent to the subject in consideration, it shows how 
 
 * Gage vs. Censors, 63 N. H., 92. 
 
 f State ex rd. Johnson vs. Lutz, 136 Mo., 633; 38 S. W. Rep., 323. 
 
THE RIGHT TO PRACTISE MEDICINE. 29 
 
 the courts apply the policy above illustrated to protect 
 students from the arbitrary action of medical colleges as 
 well as applicants from the unjust discrimination of 
 examining boards. A medical student who had paid his 
 fees and fulfilled all of the other conditions entitling 
 him to present himself for final examination, was in- 
 formed by the secretary of the faculty that he would not 
 be allowed to present himself for final examination, nor 
 would he be granted a degree of doctor of medicine. 
 Upon a writ of mandamus the matter was brought be- 
 fore the court and an order issued requiring the exami- 
 nation of the student. The opinion of the court is both 
 interesting and instructive, and is therefore quoted from 
 at length. " In answer to this application the respond- 
 ent (the medical college) presents no ground whatever 
 for its action, but insists that it has the right arbitrarily, 
 without any cause, to refuse the relator (the student) 
 his examination and degree. It seems to us clear that 
 such a position can not for a moment be entertained. 
 The circulars of the respondent indicate the terms upon 
 which students will be received, and the rights which 
 they were to acquire by reason of their compliance with 
 the rules and regulations of the college in respect to 
 qualifications, conduct, etc. When a student matricu- 
 lates under such circumstances, it is a contract between 
 the college and himself that, if he complies with the 
 terms therein prescribed, he shall have the degree, which 
 
30 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 is the end to be obtained. This corporation can not take 
 the money of the student, allow him to remain and waste 
 his time (because it would be a waste of time if he can not 
 get a degree) and then arbitrarily refuse, when he has 
 completed his term of study, to confer upon him that 
 which they have promised — namely, the degree of doctor 
 of medicine, which authorizes him to practise that so- 
 called science. It may be true that this court will not re- 
 view the discretion of the corporation in the refusal for 
 any reason or cause to permit a student to be examined 
 and receive a degree ; but where there is an absolute and 
 arbitrary refusal there is no exercise of discretion. It is 
 nothing but a willful violation of the duties which they 
 have assumed. Such a proposition could never receive 
 the sanction of a court in which even the semblance of 
 justice was attempted to be administered." * 
 
 Qualification of Previous Practice. — The particular 
 period of practice of medicine which shall be accepted 
 by the examining board or other body having authority 
 to grant licenses, as tantamount to a proper diploma or 
 satisfactory examination, is fixed and described by the 
 statute of each State recognizing such mode of qualifi- 
 cation, and in order to determine whether in any given 
 State a candidate is qualified by his former practice to 
 
 * People, Cecil vs. Bellevue Hospital Medical College, 38 N. Y. S. R., 
 418; 14 N. Y. Supp., 490. 
 
THE RIGHT TO PRACTISE MEDICINE. 31 
 
 receive a license to continue in his practice recourse must 
 be had to the statute of that State. If by a fair inter- 
 pretation of the meaning of the statute the candidate 
 has fulfilled the requirements, nothing remains but to 
 grant the license or certificate; if, on the other hand, it 
 does not appear that the candidate has fulfilled the re- 
 quirements of the statute, such license or certificate 
 should be refused. A recent case of some interest arose 
 in Ehode Island, where the law provides that a physician 
 should have " reputably and honorably " engaged in the 
 practice of medicine prior to January 1, 1892. The ap- 
 plicant, who was in the shoe business, took up the study 
 of medicine by himself during the year 1889. In the 
 latter part of that year he began to practise, after which 
 time he gave his whole attention to the practice of medi- 
 cine, leaving hi^ shoe business to the management of 
 clerks, and continued his practice up to January 1, 1892, 
 some of his patients being satisfied with his services and 
 some not. The court said : " There is no evidence that 
 on January 1, 1892, he had come to be regarded by the 
 community in which he practised as a skillful and suc- 
 cessful practitioner, and therefore had acquired the hon- 
 orable reputation as a physician necessary to qualify 
 him to practise contemplated by statute. The decision 
 of the health board in denying a certificate is eon- 
 firmed." * 
 
 * Paquin vs. State Board of Health, 33 Atl. R., 870. 
 
32 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In Ohio the question arose some years after the pas- 
 sage of an act providing that ten years of continuous 
 practice of medicine should qualify a physician for a 
 continued practice, whether time spent in, the practice of 
 medicine since the act should be included as part of the 
 ten years. The majority of the court were of the opin- 
 ion it should he, and it was accordingly so held.* 
 
 Registration of Certificate. — It will be remembered 
 that the law generally provides that the physician must 
 register his certificate or license with some designated 
 county officer in the county in which he resides, or, if he 
 is a non-resident, in the county in which he intends to 
 practise ; but with the exception of one or two States the 
 statute is silent as to the right of a physician to attend 
 patients in counties other than the one in which his cer- 
 tificate is recorded. Whether or not this right does exist, 
 and if so to what extent, is a very important question, 
 but as the matter is regulated by statutes which differ 
 in the several States no general rule can be laid down 
 for all States; an examination, however, of decisions 
 which have been rendered on the subject in several States 
 will, it is hoped, lead to a clear understanding of the 
 governing principle. 
 
 A case was decided in the supreme court in !N'ew 
 York in 1890 upon the following facts : A physician, 
 
 * Wirt vs. Cutler, 81 Ohio St., 34*7. 
 
THE EIGHT TO PRACTISE MEDICIKE. 33 
 
 duly licensed by the State board and registered in Kings 
 Comity, made numerous visits to a patient living in 
 Westchester County. The court said : " ISTo new registry 
 is needed to visit a patient out of the county. The fact 
 that a physician gives two days in a week out of his 
 county to see patients does not make a new practice in 
 a new county, unless intended as a cover for a real 
 change of place. It is simply practising medicine in 
 Kings County with patients in another county." * The 
 court intimated that the opening of an office or estab- 
 lishing a place of meeting patients in another county 
 would not be a violation of the law, but no court in the 
 State seems to have expressly committed itself to this 
 extent. 
 
 In Texas the law requires the physician to register 
 his certificate with the clerk of the district court in. the 
 county in which he may '^reside or sojourn." Under 
 this statute the practitioner must, upon changing his 
 residence to another county, register his certificate again 
 with the proper officer in the county to which he has 
 removed, f 
 
 And so in Pennsylvania, under a similar statute, a 
 practitioner who is properly registered in one county 
 and opens and maintains an office in another county 
 
 * Martiner vx. Kirk, .55 Hun., 474. 
 f Hilliard vs. State, 7 Tex. App., 69. 
 
34 THE LAW [N ITS EELATIONS TO PHYSICIANS. 
 
 must register his certificate in such other county as a 
 " sojourner/' * 
 
 It seems fair to conclude from these cases that in 
 all States having statutes similar to those construed, 
 providing that a license or certificate shall be granted by 
 a State board which shall be good in any part of the 
 State, and which must be filed with the proper county 
 officer in the county in which the practitioner resides, 
 the practitioner may safely have and attend jDatients 
 outside of the county in which his certificate or license is 
 filed ; but it can not be safely advised that he would have 
 the right to open an office outside of his county, or have 
 a regular place of meeting patients without the county, 
 or even associate himself in partnership with a physician 
 where the partnership office was located without the 
 county, until he had filed or registered his certificate or 
 license in such other county, f 
 
 In Indiana the license to practise was formerly not 
 granted by a State board and recorded in the particular 
 county in which the physician intended to practise, but 
 the license itself was granted by the clerk of the district 
 court of the county in which the physician intended to 
 
 * Ege vs. Commonwealth, 9 Atl R., 4Y1. 
 
 ■t In Illinois, the general character of the law of which conforms to 
 the above rule, it is expressly provided that " any person practising in 
 another county shall record the certificate in like manner " in such 
 other county. Laws 1899, 
 
THE RIGHT TO PRACTISE MEDICINE. 35 
 
 practise. The law of that State was therefore construed 
 much more strictly, necessitating that a license be taken 
 out in every county into which the physician's practice 
 extended.* 
 
 Chief-Justice Elliott, of the supreme court of Indi- 
 ana, in an opinion in which he held the law to be as 
 above stated, expressed his opinion regarding a qualifi- 
 cation of this construction in the following words : " It 
 may be that there are cases where the law would hold that 
 the statute does not apply in its full rigor, as where 
 there is an emergency demanding prompt action, or 
 where there is a professional visit for consultation, or 
 the call is made because of some special skill or ability of 
 the physician in a particular branch of his profession." f 
 
 * The following is the substance of the Indiana law as it was en- 
 acted in 1897 and amended March 3, 1899: " The applicant must be a 
 bona fide resident of the county and State. Two freeholders must make 
 affidavit as to the moral character of the applicant, and to the identity 
 of the applicant and the person mentioned in the diploma. The State 
 board of medical registration and examination will examine the same, 
 and, if satisfactory, issue its certificate ; then the county clerk is author- 
 ized to issue a license to practise medicine, surgery, and obstetrics with- 
 in the State of Indiana, In case of change of residence this license 
 may be filed with the clerk of another county and a new license ob- 
 tained. A license will permit its owner to practise in any county in the 
 State, but it must be Prom the clerk of the county in which the appli- 
 cant resides. If there be a change of residence, however, a new license 
 must be obtained. In case a diploma is not considered Avorthy of rec- 
 ognition, the applicant is given an opportunity to pass an examination." 
 — From 3fedical and Surgical Monitor, March 15, 1899, p. 98. 
 
 f Orr vs. Meeks, 111 Ind., 40. 
 
36 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Wght yesiTs later, in 1894, a case was decided by the 
 appellate court of Indiana approving of Justice Elli- 
 ott's remarks so far as they relate to emergency cases, 
 but refusing to hold that the law would permit a physi- 
 cian to enter the county and practise " because of some 
 special skill or ability of the physician in a particular 
 branch of his profession/' In this case the physician 
 was called from an adjoining county to perform an am- 
 putation immediately necessary to save the patient's life, 
 he being the nearest physician with the requisite skill. 
 After performing the operation he attended the patient 
 and dressed the wound several times. The court held 
 that, the county seat being sixteen miles away, to which 
 place it would have been necessary to go for a license, 
 it would have been impracticable to have obtained the 
 license before performing the operation, and therefore 
 the physician was legally justified in amputating the 
 leg, but that his subsequent visits were unlawful.* 
 
 In States in which the license to practise is issued 
 by a county officer entitling the physician to practise in 
 that county, as it formerly was in Indiana, instead of by 
 a State officer or board, it will be necessary to procure a 
 license in each county into which the physician's prac- 
 tice extends. 
 
 * Board of Commissioners of Adams Co. vs. Cole, 9 Ind. App., 474; 
 36 N. E. Rep., yi2. 
 
THE RIGHT TO PRACTISE MEDICINE. 37 
 
 Excusable Failure to Register Certificate. — There 
 are certain circumstances under which the physician is 
 legally excusable for failing to properly file his certifi- 
 cate before practising. Such circumstances may result 
 through ignorance of law or inadvertence on the part 
 of the physician, as, where he honestly endeavored to 
 comply with the law, but through error filed the certifi- 
 cate with the wrong officer.* 
 
 Or through ignorance of fact, as, where the physi- 
 cian delivered his certificate with the proper fee for 
 recording the same to a third party, who promised to 
 record it at once, but through sickness or other cause 
 failed to keep his promise, f 
 
 Or such circumstances may result from the neglect 
 or carelessness of the officer whose duty it is to register 
 the certificate, as, where the physician applied to the 
 proper officer to be registered, but was informed by the 
 officer that he could not register him for he had no book 
 in which to enter the record.;!; 
 
 Under any of these circumstances the physician must 
 have acted in good faith in his original endeavor to com- 
 ply with the law, and if he desires the protection of the 
 law to continue he must, as soon as he learns of the fail- 
 
 * Mayor, etc., of City of New York vs. Bigelow, 34 N. Y. .Supp., 92 ; 
 86 N. Y. S. R., 163; 13 Misc., 42. 
 
 f Pettit vs. State, 28 Tex. App., 240; 14 S. W. Rep., 127. 
 % Parish vs. Fobs, '75 Ga., 439. 
 
38 THE LAW IN ITS RELATIONS TO PHYSICIAN'S. 
 
 Tire of his effort to comply, use all due means to secure 
 the prompt filing or recording of his certificate. 
 
 Itinerant and Traveling Doctors, Who are. — The 
 
 statutes of several States contain provisions relating to 
 itinerant or traveling doctors, which either impose bur- 
 dens upon them or exclude them entirely from the right 
 to practise. While the question of who comes within the 
 meaning of these statutes must be determined in the 
 light of the particular statute, the law generally is very 
 well illustrated by the two cases following : 
 
 A statute in Texas is as follows : " From every physi- 
 cian, surgeon, oculist, or medical or other specialist of 
 any kind, traveling from place to place in the practice 
 of his profession, an annual tax of fifty dollars in each 
 county where he may practise his profession " shall be 
 collected. A medical specialist having two offices, one 
 at his home and one in an adjoining county, where he 
 meets patients twice each month, is not within the mean- 
 ing of this law. The court said : " Here the physician 
 or specialist had two places of business; part of his time 
 he spent at one and the other part of his time at the 
 other place. This does not carry with it the idea of 
 itinerancy, or traveling from place to place, as we under- 
 stand the meaning of this term, within the provisions of 
 the law." * 
 
 * Hairston vs. State, 36 Tex. Crim. Rep., 470; 3*7 S. W. Rep., 858. 
 
THE RIGHT TO PRACTISE MEDICINE. 39 
 
 Rhode Island, among other restrictions upon the 
 medical profession, provides that nothing shall " author- 
 ize any itinerant doctor to register or to practise medi- 
 cine in any part of the State." A physician who resided 
 in Boston, and made a specialty of the treatment of ca- 
 tarrh, made regular visits to Providence in the practice 
 of his specialty. The evidence showed that he had also 
 been accustomed to visiting Worcester, New Bedford, 
 Springfield, and Lowell, Massachusetts. The State 
 board of health decided that he was to be regarded as an 
 itinerant doctor, within the meaning of the statute. 
 Upon review of the decision by the supreme court the 
 conclusion of the board was approved of and affirmed.* 
 
 These two cases show facts not very greatly differing, 
 yet it is evidently between the two that the line of de- 
 marcation must be drawn. 
 
 What Constitutes practising Medicine. — It has been 
 observed that the law does not exclusively recognize any 
 particular system of medicine or class of practitioners, 
 the legal signification of the term doctor being simply 
 a practitioner of physic. The statutes of several States 
 have defined what shall constitute practising medicine, 
 with a tendency to extend rather than restrict the judi- 
 cial definition of the term. 
 
 It has been held that one exercising the functions 
 
 * Evans vs. State Board of Health, 33 Atl. R., 87S (R. I.). 
 
40 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 of a clairvoyant in the treatment of disease is rendering 
 " medical services."' * x\lso one practising Christian 
 Science comes within the meaning of the statute making 
 it unlawful for one not duly qualified to " operate on, 
 profess to heal, or prescribe for or otherwise treat any 
 mental or physical ailment of another." f Midwifery 
 has been held to form an important department of sur- 
 gery, and to come within the meaning of an act prohib- 
 iting the practice, by persons not qualified, of medicine 
 and surgery in any of its branches. J And so one giving 
 electric treatment comes within the law regulating the 
 " practice of medicine and surgery." * And also one 
 who professes and practises bonesetting and reducing 
 sprains, swellings, and contractions of the sinews, by 
 friction and fomentation, comes within the operation 
 of the statute regulating the "practice of physic and 
 surgery." | j 
 
 While the definitions given seem plain and explicit, it 
 is often a very nice question whether one, not having the 
 legal qualification to practise medicine and surgery, has 
 performed acts which will render him amenable to the 
 
 * Bibber va. Simpsou, 59 Me., 181. 
 
 ■I- State vs. Buswell, 40 Neb., 158; 58 N. W. Rep., 728. See 
 State vs. Mylod, ante, p. 24. 
 
 X People vs. Arendt, 60 111. App., 89. 
 
 * Davidson vs. Bohlman, 37 Mo. App., 576. 
 II Hewitt vs. Charier, 16 Pick, 353. 
 
THE EIGHT TO PRACTISE MEDICINE. 41 
 
 law. Whether or not a particular case comes within 
 the law is usually a question of fact for the jury to de- 
 termine. Upon what evidence a jury will find that one 
 has or has not practised medicine it is impossible to say 
 with any degree of certainty, there being so many things, 
 aside from the testimony given, that the jury may take 
 into consideration. The best manner of illustrating this 
 is by examining the facts upon which juries have passed 
 and considering their verdicts. 
 
 Illustrations. — In the case of Eichardson vs. State, 
 decided in Arkansas in 1886, the State introduced the 
 following evidence to show that the defendant practised 
 medicine : 
 
 Miss Alice Stewart said : " I am acquainted with J. 
 K. Eichardson. I was acquainted with Mrs. Hattie 
 Groff. I was present on two occasions when J. K. Eich- 
 ardson was at Mrs. Goff's when Mrs. Goff requested me 
 to get some money of hers and give it to J. K. Eich- 
 ardson. Mrs. Goff was afflicted with dropsy and cancer. 
 Dr. Brandon treated her for dropsy. I saw J. K. Eich- 
 ardson there with Dr. Brandon at Mrs. GofE's several 
 times, with H. Brandon. J. K. Eichardson came sev- 
 eral times by himself and applied medicine and plasters 
 to Mrs. Goff's cancer. I understood that J. K. Eichard- 
 son had charge of the money that I handed him at the 
 request of Mrs. Goff." Upon cross-examination witness 
 said: "I might have sworn on the trial before of this 
 
4:2 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cause, that I did not know anything about a contract 
 with J. K. Kichardson and Mrs. Goff ." 
 
 The defendant offered in his behalf a deposition by 
 H. Brandon, who said : " That during the fall and sum- 
 mer of last year (1885) I was practising medicine in 
 the city of Eureka Springs, Arkansas. That while there, 
 perhaps in the latter part of September or October, 1885, 
 I met Dr. J. K. Eichardson, who was not eligible to the 
 practice of medicine. At the time he spoke to me he 
 claimed to be a student of medicine, and said he wished 
 to continue his studies under me ; that if I would furnish 
 him the books, and give him all the instructions I could, 
 he would compensate me as much as he could; said he 
 had but little money, but was in possession of a very 
 excellent remedy for curing cancer. I told him if he 
 would give me his treatment for cancer that I would get 
 the books and take him as a student and give him in- 
 structions as much as possible, to which we agreed. He 
 then went into my office as a student of medicine. While 
 he was with me I treated several cases of cancer, among 
 whom was a Mrs. Goff. I agreed to doctor her for five 
 dollars a week, which she paid. At different times I told 
 Dr. Eichardson to go and see the case and report to me 
 the condition of the same. I told him on several occa- 
 sions that if any one wanted to pay him any money he 
 might receive it and report the same to me, which he 
 did on one or two occasions. Mrs. Goff paid him some 
 
THE RIGHT TO PRACTISE MEDICINE. 43 
 
 money, which he turned over to me. Dr. Eichardson 
 never collected any money that he did not turn over to 
 me while he was in my office to my knowledge." 
 
 In this case the jury apparently disregarded the depo- 
 sition of Dr. Brandon and, looking alone to the evidence 
 given on behalf of the State, found that the defendant 
 treated Mrs. Goff for a certain disease and received 
 money for the same.* 
 
 In the case of Nelson vs. State, decided in Alabama 
 in 1893, the evidence showed that the defendant, being 
 called to attend a child who was sick, responded to the 
 call and administered medicines; that he called once or 
 twice, but did not make any charge and did not receive 
 any pay; that he was called doctor by his neighbors. 
 Defendant in his own behalf testified that he called upon 
 the child and administered certain herbs that he found 
 in the woods ; that he did not claim to be a physician or 
 represent himself to be one, and that he made no charge 
 for his visits, and received nothing therefor. The jury 
 found the defendant guilty of practising medicine; but 
 the supreme court, in reviewing the case on appeal, re- 
 versed the judgment and sent the case back to the cir- 
 cuit court for a new trial. 
 
 Justice Coleman, in delivering the opinion, said : " It 
 was the duty of the court to instruct the jury, as a matter 
 
 * Richardson vs. State, 4*7 Ark., 562. 
 
44 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 of law, what acts amounted to a violation of the statute, 
 and it was for the jury to ascertain whether the facts 
 existed. We are of the opinion that it is not a violation 
 of the statute for a person who does not solicit patron- 
 age, who does not hold himself out as a physician, and 
 does not pretend to be a physician, but simply advises or 
 gives medicine to sick persons, merely as a neighbor or 
 friend, and makes no charge, and does not expect any 
 compensation for his services." * 
 
 In the case of State vs. Hale, tried in Missouri in 
 1852, the evidence did not show that the defendant re- 
 ceived any compensation for the services in question. 
 The court refused to instruct the jury " that unless they 
 believed from the evidence that the defendant received 
 compensation for his services as a physician, that they 
 must find him not guilty," but instructed " that unless 
 the jury believes from the evidence that the defendant 
 practised medicine for compensation and reward, then he 
 is not guilty, but the State is not required to prove the 
 actual receipt of such compensation," upon which in- 
 struction the jury found the defendant guilty. The stat- 
 ute upon which this prosecution was based was as fol- 
 lows : " No person or copartnership of persons shall fol- 
 low the practice of law or medicine, in whole or in part, 
 as a business in this State without first obtaining a li- 
 
 * Nelson vs. State, 91 Ala., 79 ; 12 So. Rep., 421. 
 
THE RIGHT TO PRACTISE MEDICINE. 45 
 
 cense to follow such profession according to the provi- 
 sions of this act." The supreme court, in reviewing the 
 case on appeal, held that the instruction given to the 
 jury by the trial court correctly stated the law. applicable 
 to the case.* 
 
 It will be observed from these illustrations that 
 in all three cases the Juries found the defendants guilty. 
 In the Kichardson case the supreme court, upon appeal, 
 criticised the verdict, and intimated that it was an in- 
 justice, but, finding no error of law in the trial, it de- 
 clined to interfere with the verdict. In the Nelson case 
 the supreme court found that the trial judge had erred 
 in giving or refusing to give certain instructions to the 
 jury, and therefore sent the case back for a new trial 
 with statements of law relative to the evidence adduced, 
 which probably resulted in a different verdict on the new 
 trial. While in the Hale case the supreme court ex- 
 pressed its approval of the instruction given, and af- 
 firmed the judgment without any comments upon the 
 verdict. 
 
 A ease apparently in conflict with the Hale case 
 comes from Ehode Island; the Ehode Island case is, 
 however, based upon a statute providing that the unqual- 
 ified practitioner shall not practise medicine or surgery 
 "for reward or compensation." Under such a stat- 
 
 * State vs. Hale, 15 Mo., 60*7. 
 
46 THE LAW IX ITS RELATIONS TO PHYSICIANS. 
 
 ■ute. the instruction that " if the jury find that the de- 
 fendant received no reward or compensation for his serv- 
 ices, they must find for the defendant/' is proper, and 
 the court -would commit an error if he refused to give 
 such an instruction.* 
 
 In view, however, of the statute existing in Rhode 
 Island there is nothing in this case really in conflict with 
 the law as expressed in State vs. Hale. 
 
 In the case of Benham vs. State, arising in Indi- 
 ana, the evidence showed that the defendant issued circu- 
 lars signed Dr. ,in which he claimed that his "treat- 
 ment " of his " patients " would effect a " complete 
 cure " of the opium habit. He also issued a number of 
 letters from former patients addressed to him as " Doc- 
 tor,'' testifying to the efficacy and success of his " treat- 
 ment " of the opium habit. The heading of the bills and 
 receipts given by him to his patients was : " Office of Dr. 
 
 , No. Street, , Indiana." The counsel 
 
 for defendant contended that the opium habit was not a 
 disease; the jury, however, rendered a verdict of guilty, 
 and the supreme court, upon reviewing the case, was of 
 the opinion that the verdict was fairly sustained by the 
 evidence, f 
 
 In a Michigan case, a party who exhibited upon a 
 sign " Dr. , Magnetic Healer," and who was called 
 
 * State vs. Pirlot, 38 Atl. R., 656 (R. I.). 
 
 t Benham vs. State, 116 Ind., 112; 18 N. E. Rep., 454. 
 
THE RIGHT TO PRACTISE MEDICINE. 47 
 
 to visit and treat sick persons, and who made a certifi- 
 cate of death and a report of infectious diseases, was 
 found to be holding himself forth as a medical practi- 
 tioner.* 
 
 The selling of patent or proprietary medicines by one 
 who does not pretend to diagnosticate a disease is in no 
 way a violation of an act prohibiting the practice of 
 medicine and surgery; yet if one examines patients, diag- 
 nosticates their diseases, and then prescribes or sells his 
 own proprietary remedies, he is practising medicine, not- 
 withstanding the ostensible and apparent motive of the 
 defendent may be the sale of his medicines, f 
 
 And a man who travels from place to place with a 
 band of music or other means of collecting people to- 
 gether for the purpose of selling them medicines, and in 
 his speeches, advertisements, and pamphlets sets forth 
 the sj'^mptoms of disease and prescribes ten different 
 remedies as capable of curing all of such diseases, is 
 practising medicine. + 
 
 In 1831 the supreme court of Ohio held that pre- 
 scribing and administering medicine to two people for 
 a fee sufficiently shows the party to have acted in the 
 capacity of a physician.* And in 1879 the court of 
 
 * People vs. PhippiT), 10 Mich., 6 ; 87 N. W. Rep., 888. 
 
 f State vs. Van Doran, 109 N. C, 864; 14 S. E. Rep., -62. 
 X People vs. Blue Mountain Joe, 129 111., 370. 
 
 * Jordan vs. Overseers of Dayton, 4 Ohio, 294. 
 
48 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 appeals of Texas held that the proof of attending and 
 prescribing for a single case by one not legally qualified 
 to practise medicine was sufficient to support a convic- 
 tion for unlawfully practising medicine.* 
 
 In accordance with the spirit manifested in the above 
 decision, the supreme court of Nova Scotia held that 
 one who applied plasters to tumors and cancers and gave 
 directions for poulticing them was practising medicine, f 
 
 It will be clearly seen from the preceding illustra- 
 tions that it is the policy of the law to protect the peo- 
 ple from the ignorance and unskillfulness of the pre- 
 tender or quack in all branches of medicine. The law 
 does not, however, go to the extent of including within 
 its restrictions one who professes to cure by manipula- 
 tion of the hands, by rubbing, kneading, and pressure, 
 such treatment being considered by the courts to be 
 harmless, if not beneficial, and to not come within the 
 scope of the practice of either medicine or surgery. J 
 
 In the trial of a case in the United States circuit 
 court, of the sort above considered, the question arose 
 whether or not the patient, who was called as a witness, 
 could be compelled to produce the medicine he had re- 
 ceived from the defendant charged with practising medi- 
 cine unlawfully. The court held that he could not. 
 
 * Antle vs. State, 6 Tex. App., 202. 
 
 f Provincial Medical Board vs. Bond, 22 N. S., 153. 
 
 J Smith vs. Lane, 24 Hun, 632. 
 
THE RIGHT TO PRACTISE MEDICINE. 49 
 
 Had, however, the case been one of malpractice, it is 
 altogether probable that he would have been required to 
 produce the medicine.* 
 
 Emergency Cases. — The statutes of many States ex- 
 cept from their operation services rendered in case of 
 emergency. The question of what is an emergency was 
 considered by the supreme court of California, in 1886, 
 in the case of People vs. Lee Wah. 
 
 In this case two women who had been unable to ob- 
 tain relief from their physicians called upon defendant 
 and stated their ailments. He prepared herbs of his own 
 selection and delivered them to the women, who took 
 them as directed. The instructions given by the trial 
 judge to the jury, which were approved by the supreme 
 court, state the law fully as to what is an emergency. 
 The following is an extract from these instructions : 
 " Two ladies have testified before you and stated that 
 their condition was deplorable; that they consulted in 
 vain other physicians; and that they regarded them- 
 selves, and were regarded by their friends and physi- 
 cians, as incurable, and that they repaired to this de- 
 fendant as a last resort. The ladies stated upon their 
 part it was an emergency — an exigency in which death 
 on the one hand, and submitting themselves to that treat- 
 ment on the other, were the only alternatives. I instruct 
 
 * United States vs. Williams, 5 Cranch. C. C, 62. 
 
50 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 you that the emergency contemplated by the statute is 
 not such as this case suggests. It means a case in which 
 the ordinary medical practitioners of the schools provid- 
 ed for by the statutes, who are provided with the proper 
 diplomas, and have submitted themselves to the proper ex- 
 amination, are not readily obtainable. This is an emer- 
 gency — as where the exigency is of so pressing a char- 
 acter that some kind of action must be taken before such 
 parties can be found. ... If, however, a party is satisfied 
 that another school of physicians or another individual 
 can render him more efficient aid — more beneficial serv- 
 ices than others — and he therefore seeks his aid, that is 
 not such an emergency as the statute contemplates." * 
 
 License from Irregularly appointed Board. — A physi- 
 cian can not be prosecuted for practising medicine and 
 surgery unlawfully because his license is granted by a 
 board of medical examiners which is improperly consti- 
 tuted, the appointment of the members being irregular, 
 or even unconstitutional. Such a body would be a de 
 facto board, and the certificates or licenses issued by it 
 would be sufficient to protect the parties to whom they 
 were issued from prosecution under the statute, f 
 
 Improper Refusal of Certificate no Defense. — In a 
 prosecution for practising medicine and surgery without 
 
 * People vs. Lee Wah, 71 Cal., 80 ; 11 Pac. Rep., 851. 
 f Brown vs. People, 11 Colo., 109; 17 Pac. Rep., 104; Harding ««• 
 People, 10 Colo., 387; 15 Pac. Rep., 727. 
 
THE RIGHT TO PRACTISE MEDICINE. 51 
 
 a certificate tlie defendant can not show as a de- 
 fense that the board of examiners acted improperly 
 or unlawfully in refusing to grant him a certifi- 
 cate.* 
 
 Revocation of License. — The power to revoke as well 
 as to grant licenses is generally conferred upon the ex- 
 amining board. The law conferring this power upon the 
 board has been attacked upon the ground that it is un- 
 constitutional, being a judicial function, and therefore 
 only to be vested in the courts ; but such objections have 
 been universally held to be ill founded. The grounds 
 usually designated by the statute upon which the board 
 is empowered to revoke a certificate or license are " un- 
 professional, dishonorable, and immoral conduct." The 
 careful examination of a few cases of this character will 
 best show what conduct the courts consider as being un- 
 professional, dishonorable, and immoral. 
 
 Advertising. — The word "unprofessional," as used 
 in those statutes, has been judicially defined as being 
 synonymous with dishonorable and not referring to 
 matters of professional ethics, f as it is considered un- 
 professional from an ethical point of view for a physi- 
 cian to advertise himself or his business; yet, if the 
 advertisements contained no objectionable matter, such 
 
 * Krowenstat vs. State, 1 5 Ohio Cir. C. R., 73. 
 
 •|- State vs. State Medical Examining Board, 32 Minn., 324 ; 20 
 N. W. Rep., 238. 
 
52 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 advertising would not be ground for revoking his certifi- 
 cate. 
 
 If, however, such advertisement contained matter 
 which the physician knew to be false, and it was made 
 for the purpose of deceiving and imposing upon the pub- 
 lic, such conduct would be " unprofessional and dishon- 
 orable " in the sense contemplated by the statute. For 
 instance, an advertisement which asserted the physi- 
 cian's ability to speedily cure all chronic nervous, blood, 
 and skin diseases of both sexes, also all diseases of the 
 eye and ear, without injurious drug or hindrance from 
 business ; all old, lingering constitutional diseases, where 
 the blood is impure, causing ulcers, blotches, sore throat 
 and mouth, pains in the head and bones, cured for life, 
 etc., was held to be "unprofessional conduct of the 
 grossest kind." * 
 
 Misrepresenting: the Character of Disease. — The stat- 
 utes of Ontario provide that a license may be revoked 
 for "infamous or disgraceful conduct in a professional 
 respect." A physician represented to patients in the last 
 stages of consumption that they were suffering from 
 catarrhal bronchitis and that he could cure them, by 
 strength of which representation he obtained money 
 from them. The court said : " It was certainly conduct 
 disgraceful in the common judgment of mankind, and 
 
 * State vs. State Board of Medical Examiners, 34 Minn., 391 ; 26 
 N. W. Rep., 125. 
 
THE RIGHT TO PRACTISE MEDICIXE. 53 
 
 much more in a professional respect." Moreover, it is a 
 very serious question whether such conduct does not 
 amount to the crime of obtaining money under a false 
 pretense.* This question is examined under the head 
 of Criminal Liability. 
 
 Concealing a Foetus. — A case of considerable inter- 
 est once arose in Montana, and because of its interest it 
 is discussed at length. 
 
 A complaint was filed with the State board of medi- 
 cal examiners for the purpose of revoking the defend- 
 ant's license for unprofessional, dishonorable, and im- 
 moral conduct. The complaint stated in substance that 
 the defendant placed in the furnace a package contain- 
 ing a headless foetus, about seven months old, with in- 
 tent to destroy the same and conceal its birth; that at 
 the coroner's inquest over the foetus the defendant testi- 
 fied that he had been called to attend a woman who suf- 
 fered a miscarriage ; that while being delivered the head 
 of the infant became detached; that the patient from 
 whom the foetus was taken asked not to have her name 
 made public ; he therefore refused to disclose the name, 
 but stated that on the following day he would state the 
 name to the coroner, who would use his discretion in the 
 matter. That on the following day defendant refused 
 to disclose the name of the patient, because she had left 
 the State, and, without her presence to explain her con- 
 
 * Re Washington, Q. B., 23 Ont. Rep., 299. 
 
54 THE LAW m ITS KELATIONS TO PHYSICIANS. 
 
 dition at the time the foetus was taken from her, his an- 
 swer would incriminate him. The defendant was tried 
 by the board of medical examiners and found gidlty 
 and his license revoked. He appealed to the district 
 court, and was there tried and found guilty. From that 
 court an appeal was taken to the supreme court, which. 
 Justice Harwood dissenting, reversed the decision of 
 the district court, basing the reversal upon the follow- 
 ing reasoning: 
 
 Examining the complaint carefully, it will be found 
 that it states that defendant placed in the furnace a 
 headless foetus, with intent to destroy the same and con- 
 ceal its birth. Conceding that the evidence fully sustains 
 this allegation, there is no unprofessional, dishonorable, 
 or immoral conduct shown. It is well known that prema- 
 ture deliveries are liable to occur through accident or 
 physical weakness of the mother, and at such times the 
 attendance of a physician is necessary. In this case 
 neither the complaint alleges nor the evidence shows that 
 the miscarriage was procured by the defendant, and the 
 law will not presume him to have been guilty of a crimi- 
 nal act. It is quite natural that the defendant should 
 have become possessed of the foetus, and when so pos- 
 sessed of it due regard to sanitary laws required that he 
 should destroy it. There can consequently be nothing 
 unprofessional, dishonorable, or immoral in putting the 
 foetus into the furnace. As to his desire to conceal its 
 
THE RIGHT TO PRACTISE MEDICINE. 55 
 
 birth, such a desire, instead of being reprehensible, is 
 quite laudable and wholly professional, for it is a doctor's 
 duty to preserve secret all knowledge which comes to him 
 in a professional capacity. 
 
 As to the second specification in the complaint, which 
 charges that the defendant refused to disclose the name 
 of the patient because she desired that it should not be 
 made public, the question is not whether the defendant 
 was legally justified in withholding the name, but 
 whether he acted unprofessionally, immorally, and dis- 
 honorably in so doing. In view of the fact that he be- 
 lieved it to be his duty to withhold this information, until 
 legally compelled to give it, there is much difficulty in 
 seeing how his conduct was unprofessional, 'dishonorable, 
 or immoral. 
 
 The third charge in the complaint, which alleges 
 that the defendant refused to disclose the name of the 
 mother on the ground that she had left the State, and 
 without her presence to explain her condition at the time 
 of the miscarriage his answer would incriminate him, 
 presents a very nice question for consideration. Were 
 this a criminal trial such a statement could not be taken 
 as evidence against the defendant, but, as pointed out 
 by Justice Harwood, in his dissenting opinion, there is 
 a broad field of human action between moral rectitude 
 and honorable conduct and that of crime, and, while such 
 a refusal to testify could not be used as evidence of crime. 
 
56 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 it indicates that he seeks to avoid the light of investiga- 
 tion, and thereby casts dishonor upon himself. 
 
 There was, however, no specific charge in the com- 
 plaint of acts amounting to unprofessional, dishonorable, 
 or immoral conduct, nor was any evidence introduced 
 tending to show such conduct. The court was therefore 
 of the opinion that the conduct of the defendant in re- 
 fusing to give the mother's name was consistent with 
 that of an innpcent man made overcautious by fear, 
 knowing that his actions were liable to be the subject of 
 judicial investigation, and that in the absence of the 
 mother he would be unable to show his innocence.* 
 
 Effect of Former Adjudication. — It is a well-settled 
 principle of law that a trial and judgment by a tribunal 
 having jurisdiction is a bar to further proceedings upon 
 the facts considered in the former trial; a court would 
 accordingly hold that the trial and acquittal of a physi- 
 cian by the State board of health upon the charge of 
 " making statements and promises calculated to deceive 
 and defraud the public " would be a bar to an investi- 
 gation by the same body for making " claims and prom- 
 ises which are false and fraudulent," where the evidence 
 in the two cases is identical, f 
 
 A trial and acquittal by a medical society is, however, 
 no bar to an investigation under the statute by the State 
 
 * State vs. Kellogg, 14 Mont., 426 ; 36 Pac. Rep., 957. 
 f People vs. McCoy, 30 111. App., 272. 
 
THE RiaHT TO PRACTISE MEDICINE. 57 
 
 board of health for the purpose of revoking the physi- 
 cian's license. Nor would' an acquittal upon an indict- 
 ment for procuring an abortion act as a bar to a similar 
 investigation by the board of health, the proceedings of 
 the court and those of the medical board being entirely 
 distinct and independent and having different objects 
 and results in view : the one having regard to the general 
 welfare and criminal justice of the State, and the other 
 simply and exclusively to the respectability and charac- 
 ter of the medical profession, and the consequences con- 
 nected with or necessarily flowing from it.* 
 
 Practice in revoking License. — The policy of the law 
 to protect the physician from arbitrary or unjust treat- 
 ment by the examining board has been considered in con- 
 nection with their refusal to grant licenses; the same pol- 
 icy to guard against injustice is manifested in cases of 
 revocation of license. Where the examining board re- 
 vokes the license of a physician without first giving him 
 reasonable notice of the charge against him, and the time 
 and place of the trial thereof, the revocation will, upon 
 appeal, be declared null and void, and the physician will 
 be protected in continuing his practice while the appeal 
 is pending, f 
 
 Where a physician is tried by an examining board and 
 
 * Re Smith, 10 Wend , 449. 
 
 f State vs. Schultz, 11 Mont., 429 ; 28 Pac, Rep., 643; State vs. 
 Weyerhorst, 11 Mont., 434 ; 28 Pac. Rep., 644. 
 
58 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 his license revoked, and he takes an appeal from the 
 judgment of the board, but continues to practise while 
 the appeal is pending, and is during that time convicted 
 of practising without a license, such conviction should be 
 reversed if his appeal results in a reversal of the order 
 revoking his license.* 
 
 Repeal of Statutes restricting Practice. — All statutes 
 restricting the practice of medicine are enforced by pen- 
 alties prescribed for their violation, and sometimes by 
 provisions disabling the unqualified physician from re- 
 covering for his services. It now remains to consider the 
 effect of a repeal of such statutes. As to the criminal 
 feature of such acts, it is a well-settled point of law that 
 the repeal of a law creating a criminal offense renders 
 the law inoperative as to offenses committed before its 
 repeal ; if, therefore, a prosecution is pending for the un- 
 lawful practice of medicine, and the act making such 
 practice unlawful is repealed, the prosecution must im- 
 mediately abate. And this rule holds good even if the of- 
 fender has been convicted but not yet sentenced. 
 
 The removal of the inability clause imposed to pre- 
 vent the collection of fees does not as a general thing 
 enable one to collect for services rendered while such law 
 was in force, f 
 
 * State vs. Kellogg, 14 Mont., 451, 36 Pac. Rep., 107Y. 
 f For a full treatment of the effect of such repeal upon the right to 
 collect fees, see p. 181, e( seq. 
 
CHAPTER II. 
 
 CONTRACT OF PHYSICIAN WITH PATIENT. 
 
 Contract Defined and Classified. — A contract has 
 been defined by an eminent law writer of the eighteenth 
 century as " an agreement upon sufficient consideration 
 to do or not to do a particular thing." * This agreement 
 may be express or implied. Where the particulars of the 
 agreement are averred and mutually agreed upon, the 
 contract is said to be an express contract ; but where 
 no particular terms are set forth, the law will take into 
 consideration the relations of the parties, and will, by 
 implication, create for them such an agreement as rea- 
 son and justice would dictate. The contract is then 
 said to be an implied contract. Such contracts may 
 exist without our knowledge or volition, and, as a mat- 
 ter of fact, do arise from nearly every transaction into 
 which we enter, thus constituting much the greater num- 
 ber of contracts by which we are bound. 
 
 Express contracts are either written or verbal. Writ- 
 ten contracts are, as the name implies, reduced to writ- 
 
 * Blackstone. 
 5 59 
 
60 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing and signed by the parties to be bound; while oral 
 contracts are formulated only by word of mouth, and 
 may be made either in the presence of witnesses or when 
 the contracting parties only are present. In the absence 
 of statutes which provide that certain contracts must 
 be in writing, an oral contract is in all respects as bind- 
 ing as a written contract, the only advantage of the 
 latter being the much greater ease and certainty with 
 which the exact agreement is proved. 
 
 It will be readily understood from the preceding that 
 whenever a physician or surgeon undertakes the treat- 
 ment of ^ patient certain contracts are created by the 
 law founded upon the relation of the parties. These 
 contracts will be taken up and considered in the order in 
 which they naturally follow. 
 
 Contract implied from Exercise of Professional 
 Duties. — By merely undertaking the treatment of a pa- 
 tient the physician impliedly contracts with that pa- 
 tient that he has such skill, science, and information as 
 will enable him properly and judiciously to perform the 
 duties of his profession.* This is a contract which the 
 law creates irrespective of any statutes prescribing quali- 
 fications for the practice of medicine, and one which was 
 implied at common law before statutes existed upon the 
 subject. The exact degree of this skill and knowledge 
 
 * Wood vs. Clapp, 4 Sneed (Tenn.), 65. 
 
CONTRACT OF PHYSICIAN WITH PATIENT. 61 
 
 which the physician is required to possess has many 
 times been the subject of judicial consideration. It 
 would be manifestly unjust to the physician or surgeon 
 to require him to possess the highest degree of knowl- 
 edge or skill, while, on the other hand, the public wel- 
 fare requires that the standard be kept well above that 
 of the tyro or quack. The courts have accordingly 
 held in all eases submitted to them that he is by this 
 implied contract required to be possessed of "proper," 
 " reasonable," " ordinary " knowledge and skill.* But 
 whether or not the proper degree of knowledge and skill 
 is brought to the particular ease must be determined 
 from the circumstances. 
 
 Advanced State of Medical Science to be considered. 
 — It is a well-settled proposition of law that in judging 
 of the degree of knowledge and skill in any given case 
 due regard must be had to the advanced state of the 
 profession at the time.f If, for instance, an operation 
 were to be performed upon the eye of a person whose 
 physical condition was such as to render it unsafe to 
 put him. under the influence of general angestheties, it 
 would be evidence of culpable ignorance and lack of 
 
 * Reber vs. Herring, 115 Pa. St., 599; Barnes vs. Means, 82 111., 
 379 ; Gramm vs. Boener, 56 Ind., 497; O'Hara vs. Wells, 14 Neb., 40.S ; 
 Vanhooser vs. Berghoff, 90 Mo. 487, 8 West., 205; Quinn vs. Donovan, 
 85 111., 194; Peek vs. Martin, 17 Ind., 115. 
 
 f McCandles vs. McWha, 22 Pa. St., 261. 
 
62 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 skill for the operator to proceed by using other than 
 local anaesthetics; whereas about twenty years ago rec- 
 ognized authorities on the subject laid down the rule that 
 chloroform should alwa3rs be administered.* 
 
 Opportunities of Location to be considered. — It will 
 also be manifest that the opportunities and location of 
 the physician, and more particularly the surgeon, are a 
 very important factor in determining the degree of 
 skill and proficiency which he should be reasonably ex- 
 pected to attain. In the larger cities the physician and 
 surgeon has the opportunity of attending the hospitals 
 and clinics, of witnessing and taking part in the most 
 difficult and complicated operations, and of attending 
 lectures and consultations whereby he is kept in con- 
 stant touch with the ablest and most advanced of his 
 profession; whereas in the small towns and country 
 districts the physician and surgeon has fewer opportu- 
 nities of observation and practice, especially in the line 
 of surgical work, and can not reasonably be held to pos- 
 sess so high qualifications as his more favored profes- 
 sional brother. 
 
 The law takes this condition into consideration in 
 determining the degree of skill and knowledge which a 
 physician impliedly contracts to possess, and accordingly 
 requires that he have the average skill and ability ordi- 
 
 * Wells, Treatise on the Eye, ed. of 1880. 
 
CONTRACT OP PHYSICIAN WITH PATIENT. 63 
 
 narily possessed by men of his profession in similar lo- 
 calities* 
 
 Test applied to all acting as Physicians.— This test 
 of professional knowledge and skill is not applied to the 
 regular qualified practitioner alone, but to any person 
 who holds himself out as a healer of diseases, and who 
 accepts employment as such.f Should, for example, one 
 represent himself as qualified to treat and operate upon 
 patients, who was ignorant of the most rudimentary 
 principles of medicine and surgery, the law would ex- 
 tend to him no indulgence because of his unfortunate 
 lack of scientific training, but in case deleterious results 
 attended his treatment the same test would be applied 
 in his case as in the case of the regularly qualified physi- 
 cian and surgeon practising in the same locality and at 
 the same time— that is, he would be required to exercise 
 at least the ordinary skill and ability possessed by physi- 
 cians and surgeons in similar localities. Failing in this, 
 he would be held to respond in damages to the extent 
 of the injury suffered by reason of his incompetency. 
 
 Contracts to Use Care and Diligence.— The physi- 
 cian and surgeon also impliedly contracts that he will 
 use reasonable and ordinary care and diligence in the 
 
 * Whitsell vs. Hill, 101 la., 629, 70 N. W. Rep., 150, 81 L H A 
 830; Pelky vs. Palmer (Mich.), 3 Det. L. N, 198; Small vs. Howard' 
 128 Mass., 131. ' 
 
 f Nelson vs. Harrington, 72 Wis., 591. 
 
e4 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 exercise of his skill and the application of his knowl- 
 edge to accomplish the purpose for which he is em- 
 ployed.* It is patent that a physician and surgeon may 
 he possessed of a very superior degree of knowledge and 
 skill and yet fail in the successful treatment of a case 
 hy not using the proper care in applying his knowledge 
 or exercising his skill. For example, a physician of 
 superior learning and skill might in the hasty or indif- 
 ferent examination of a patient fail to observe symptoms 
 characteristic of the disease from which the patient is 
 suffering, and treat him for a different ailment with 
 disastrous results, while a physician with less skill and 
 learning could hy a more careful examination of the 
 patient detect the true condition, and by applying the 
 generally recognized remedies effect a cure. 
 
 To determine what is ordinary care and diligence 
 no absolute rule can be prescribed. Justice Story, in 
 referring to the impossibility of a fixed standard or test, 
 said : " Different things may require very different care. 
 The care required to build a common doorway is quite 
 different from that required to raise a marble pillar, 
 but both come under the description, ordinary care." f 
 And so in the treatment of patients, that which in one 
 case might be ordinary care would perhaps in another 
 
 * Carpenter vs. Blake, 50 N. Y., 696. 
 f Storj on Bailments, § 429. 
 
CONTRACT OF PHYSICIAN WITH PATIENT. 65 
 
 be gross negligence. The question is peculiarly one of 
 fact, and can only be determined by taking into consid- 
 eration the condition of the patient in the particular 
 case, together with all of the attendant circumstances. 
 If, after such an examination, it is found that the care 
 and diligence exercised are those which an ordinarily 
 careful physician, practising in a similar locality, would 
 have exercised in a like case, then it is fair to conclude 
 that the legal requirement of ordinary care and dili- 
 gence has been fulfilled. 
 
 Degree of Care not Necessarily Proportionate to 
 Character of Injury treated. — It must not be inferred 
 from the foregoing description of ordinary care and dili- 
 gence that the degree of care and diligence or care and 
 skill necessary to be exercised in a particular case must 
 be proportionate to the severity of that case. Such a doc- 
 trine has been urged but has been very wisely rejected by 
 the courts.* If such a rule were adopted the conclusion 
 would naturally and logically follow that a physician 
 and surgeon is legally required to exercise care and skill 
 adequate to the severity of all cases which he under- 
 takes. Such a test is manifestly absurd and beyond the 
 possibility of human acquirements. 
 
 Refusal of Proffered Assistance does not Alter im- 
 plied Contract. — The fact that a physician or surgeon 
 
 * Utley vs. Barnes, 70 111., 162. 
 
66 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 refuses to accept the proffered assistance of other medi- 
 cal men does not increase his liability or responsibility, 
 but simply amounts to an implied declaration that he 
 possesses the ability which the law requires of him.* 
 
 Physician's Contract unaltered where Services are 
 Gratuitous. — Nor does the fact that a physician makes 
 no charge and receives no compensation for treating a 
 particular case alter In any degree the amount of knowl- 
 edge, care, and skill which it is incumbent upon him to 
 have and exercise, f In instructing a jury upon this 
 question. Justice Pryor stated the law, together with 
 the reason upon which it is based, so fully and clearly 
 that we can do no better than to use his words : " It ap- 
 pears that the plaintiff was a charity patient; that the 
 defendant was treating her gratuitously. But I charge 
 you that this fact in no way qualifies the liability of 
 the defendant. Whether the patient be a pauper or a 
 millionaire, whether he be treated gratuitously or for 
 reward, the physician owes him precisely the same meas- 
 ure of duty and the same degree of skill and care. He 
 may decline to respond to the call of a patient unable 
 to compensate him; but if he undertake the treatment 
 of such a patient he can not defeat a suit for malprac- 
 tice nor mitigate a recovery against him upon the prin- 
 
 * Potter vs. Warner, 91 Pa. St., .S62. 
 f Du Bois vs. Decker, 130 N. Y , 325. 
 
CONTRACT OF PHYSICIAN WITH PATIENT. 67 
 
 eiple that the skill and care required of a physician are 
 proportioned to his expectation of pecuniary recom- 
 pense. Such a rule would be of the most mischievous 
 consequence, would make the health and life of the 
 indigent the sport of reckless experiment and cruel in- 
 difference." * 
 
 This rule must, however, be understood with the 
 qualification that a party who undertakes the gratuitous 
 treatment of another incurs no liability unless he pro- 
 fesses to be a physician and undertakes the treatment as 
 such. For if he merely gives his advice or assistance 
 as a friend or neighbor he incurs no professional respon- 
 sibility, f Where, for example, one not a physician, em- 
 ployed in the capacity of a midwife, attempted to treat 
 the infant's eyes, and by reason of the inefficient reme- 
 dies used the child became blind, the law would not hold 
 the midwife as contracting to possess the same skill 
 and learning as it would a regular physician who had 
 gratuitously undertaken the same case. J 
 
 Dentist's Contract implies Knowledge, Skill, and 
 Care. — It may be observed in passing that a dentist 
 implies by the exercise of the duties of his profession 
 that he is possessed of the same amount of knowledge 
 and skill in his profession, and will exercise the same 
 
 * Becker vs. JaninskL, 27 Abb. N. C, 45. 
 f McNevins vs. Lowe, 40 111., 209. 
 X Higgins vs. McCabe, 126 Mas?., 13. 
 
68 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 degree of care and diligence in their application, as that 
 impliedly contracted for by the physician in the medi- 
 cal profession.* 
 
 Contracts to Use Best Judgment. — In addition to 
 the contract of the physician implying that he is pos- 
 sessed of learning and skill and will exercise reasonable 
 care and diligence in the treatment of his patients, it 
 also implies that in all cases of doubt he will use his 
 best judgment. The contract is not that his Judgment 
 will be infallible, but simply that it shall be a reason- 
 ably good judgment, and that in all cases of doubt he 
 will fully exercise it. 
 
 In the abstract this rule appears to mean very lit- 
 tle, but when it comes to the particular case; when the 
 physician finds his patient suffering, perhaps, with con- 
 ditions symptomatic of several diseases; when by the 
 exercise of his best knowledge and skill, or, for that mat- 
 ter, the best knowledge and skill of the most enlightened 
 of his profession, he can not determine the patient's 
 exact condition; then the rule has a real meaning to 
 him. In i^uch an emergency it can not fail to be a 
 great comfort and relief to know that an intelligent and 
 careful exercise of his best judgment is all that is re- 
 quired. 
 
 If, by way of showing a further application of the 
 
 * Simonds vs. Henry, 89 Me , 155. 
 
CONTRACT OP PHYSICIAN WITH PATIENT. 69 
 
 rule, a surgeon is requested by a patient to perform a 
 certain operation which, in the opinion of the surgeon, 
 is unwise, unnecessary, or will result injuriously to the 
 patient, it becomes his duty to give the patient the bene- 
 fit of his judgment, whether it is asked for or not*, and 
 if the surgeon fails to advise against such operation, but 
 acts as requested, he becomes liable to the patient in 
 damages for whatever injuries result to him by reason 
 of such unnecessary or unwise operation. But, if the 
 patient is of mature years and of sound mind, and upon 
 being advised of the impropriety of such operation still 
 insists upon its performance, the surgeon may accept the 
 judgment of the patient, and, if the operation is skill- 
 fully and properly performed, he can not be held re- 
 sponsible to the patient because its result is injurious.* 
 
 Contracts to Follow Established Modes of Practice. 
 — The physician and surgeon also impliedly contracts 
 with his patients that in his treatment of them he will 
 comply with the established modes of practice. 
 
 Such a method or system of treatment must, how- 
 ever, be upheld by a consensus of opinion among mem- 
 bers of the profession before the practitioner is bound 
 to accept and follow it in his practice. f 
 
 There are probably many cases in which the physi- 
 
 * Gramm vs. Boener, 56 Ind., 497. 
 •f Jackson vs. Burnham, 20 Col., 533. 
 
YO THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cian and surgeon possessing the skill and ability required 
 by law can not by the exercise of due care and diligence 
 determine the particular disease or condition from which 
 the patient is suffering. In such case, if he uses ordi- 
 nary*care and skill, and by the exercise of his best judg- 
 ment determines upon a particular disease, and then 
 applies the recognized remedy or mode of treatment for 
 that disease, he is fulfilling his contract with the pa- 
 tient and doing all the law requires of him in the par- 
 ticulars considered. But if he experiments with some 
 other mode of treatment he does so at his peril. Justice 
 Goddard, in the case of Jackson vs. Burnham, said: 
 " 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." * 
 
 Duty to Instruct Patient and Nurse. — It is also in- 
 cumbent upon the physician and surgeon to give all 
 reasonable and necessary instructions for the proper 
 treatment and care of the particular disease or injury 
 for which he is treating the patient; and should injury 
 result from his failure to exercise this precaution he 
 will be held to respond in damages, f This obligation 
 extends not only to giving instructions for the period 
 
 * Jackson vs. Burnham, 20 Col., 533. 
 f Carpenter vs. Blake, 60 Barb., 488. 
 
CONTRACT OF PHYSICIAN WITH PATIENT. 71 
 
 during which the physician is attending the patient, but 
 also for the period of convalescence immediately follow- 
 ing. Therefore a physician should^, upon dismissing his 
 patients, carefully tell them what to avoid, and advise 
 them to exercise that care which in his judgment is 
 best calculated to restore their natural health and 
 strength.* 
 
 The physician should not, however, be held to an- 
 ticipate and advise against improbable conduct on the 
 part of the patient. Where, for instance, a patient who 
 is under the care of a physician at a hospital leaves the 
 hospital without informing the physician of his intent 
 so to do, it will be unjust to hold the physician to the 
 duty of anticipating the patient's departure and advis- 
 ing him to remain, f 
 
 Does not Contract to Cure. — Without a special con- 
 tract to that effect the physician and surgeon is never 
 considered as guaranteeing that he will effect a cure, or 
 even benefit his patients. J A physician may, however, 
 enter into such a contract by express agreement provid- 
 ing that he shall be paid only in case he effects a cure, 
 and such a contract, when entered into, will be binding 
 though no definite sum is named as the compensation 
 
 * Beck vs. German Klinik, 18 la., 696, 1 L. R. A., 568. 
 f Richards vs. Willard, 176 Pa. St., 181, 35 Atl. Rep., 114. 
 X Styles vs. Tyler, 64 Conn., 432, 30 Atl. Rep., 166; Leigliton vs. 
 Sargent, 21 N. II., 460 ; Haire vs. Reese, 1 Phil. (Pa.), 138. 
 
72 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 for perl'orming the cure.* When no specified sum is 
 agreed upon, the physician will, upon performing the 
 cure, be entitled to a reasonable amount for such serv- 
 ices, to be determined in the ordinary manner. 
 
 Continiiation of Attendance. — A physician may by 
 special contract, when undertaking the treatment of a 
 case, limit his attendance to a longer or shorter period, 
 or may at any time during the treatment of the case 
 discontinue his attendance by first giving reasonable no- 
 tice of his intention so to do ; but if he does not limit his 
 attendance by express contract or give such reasonable 
 notice of his intention to discontinue his visits, he is 
 bound to continue his visits as long and as frequently as 
 the requirements of the case may demand, and he is 
 held to the use of ordinary care and skill in determining 
 when his visits may be safely discontinued, f 
 
 Contagious Disease. — It is the duty of the physician, 
 and he impliedly contracts, to protect his patients in all 
 reasonable ways from contagious and infectious dis- 
 eases. If he himself has such a disease, and with knowl- 
 edge of his condition visits his patients without appris- 
 ing them of the fact, and thus communicates the disease 
 
 * Mack vs. Kelly, 3 Ala., 387. 
 
 t Ballou vs. Prescott, 64 Me., 305 ; Boom vs. Reed, 69 Hun, 426 ; 
 Barbour vs. Martin, 62 Me., 536 ; Williams vs. Gilman, Vl Me., 21 ; 
 Dashiell vs. Griffith, 84 Md., 363; Becker vs. Janinski, 27 Abb. 
 N. C, 45. 
 
CONTRACT OF PHYSICIAN WITH PATIENT. 73 
 
 to them, he is clearly guilty of a breach of duty. 
 Moreover, it is his duty, in passing from patients who 
 are afflicted with an infectious and dangerous disease to 
 others who are not so affected, to take such precautions 
 as experience may have shown to be necessary to prevent 
 the communication of infection, and he will be held re- 
 sponsible for his failure so to do.* When the physician 
 has effected a cure of a patient afflicted with a contagious 
 or infectious disease, it becomes his duty to employ all 
 proper and necessary means to disinfect the premises, 
 and the law will protect him in fulfilling such duty, even 
 though it may involve destruction of property, f 
 
 Contract for Medical Treatment Includes Surgical 
 Cases. — A physician who enters into a contract with 
 a patient or with a third party, agreeing to give " med- 
 ical " treatment or to " perform the duties of a physi- 
 cian " for a certain period of time, there being no express 
 understanding regarding surgical cases, or nothing to 
 show that it was clearly the intent that surgical cases 
 should be excluded, will be required under the contract 
 to perform surgical operations as well as to give general 
 medical treatment during the period. J 
 
 Privileged Communications. — Last, but by no means 
 
 * Piper va. Menifee, 54 Am. Dec., 54*7, 12 B. Monroe, 465. 
 f Seavey vs. Preble, 64 Me., 120. 
 
 X Wetherell vs. Marion Co., 28 Iowa, 22 ; Clinton Co. vs. Ramsey, 
 20 111. App , 511. 
 
74 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 least in importance, the physician contracts with his pa- 
 tients that he will preserve sacred and inviolable all 
 knowledge which comes to him in a professional way. 
 So sacred is this knowledge held that in many States the 
 physician is not required to disclose the same in a court 
 of justice without the patient's consent. Knowledge of 
 this sort is technically known in the law as privileged 
 communications. The questions arising under this 
 privilege being many and varied, they are made the sub- 
 ject of a separate chapter.* 
 
 Importance of the Foregoing Principles. — By way of 
 general observation it may be said that the foregoing 
 contracts and obligations implied on behalf of the physi- 
 cian form nearly the whole groundwork of the law reg- 
 ulating the subject of civil malpractice, and if the physi- 
 cian carefully remembers and applies these rules he may 
 hope to escape being required to face an injured patient 
 in a court of justice, and certainly to avoid being 
 mulcted in damages. 
 
 * See chap, ix^ Privileged Communications. 
 
CHAPTEE III. 
 
 CONTRACT OF PATIENT "WITH PHYSICIAN. 
 
 Contract Implied on the Part of the Patient. — A con- 
 tract on the part of the patient, as well as on the part 
 of the physician, is created by law. Such contract, like 
 the one of the physician, is based upon and grows out 
 of the relations of the parties, and is in its nature com- 
 plementary to the contract of the physician. 
 
 Contract to Pay Physician's Fees. — The right of the 
 physician to charge and recover compensation for his 
 services is very seldom the subject of an express agree- 
 ment between the physician and patient; yet the physi- 
 cian is quite as secure in this right as though it were 
 fixed by formal agreement, it having been long settled 
 that where a person avails himself of the benefit of 
 services done for him, even though without his positive 
 authority or request, the law supplies the formal words 
 of contract and presumes him to have promised an 
 adequate compensation. It may therefore be laid down 
 as a general rule that whenever a patient employs or 
 receives the services of a physician he is bound to pay a 
 reasonable compensation for such services.* 
 
 * Crane vs. Baudoine, 65 Barb., 260; Peck vs. Martin, 17 Ind., 115. 
 6 '?5 
 
76 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 A notable exception to this rule formerly existed 
 under the law of England, which treated the services of 
 'the physician as honorary and gratuitous, and did not 
 permit him to recover compensation therefor unless 
 the patient was bound by a special agreement to pay. 
 The services of the surgeon were not considered of the 
 same honorary character, and he was therefore able 
 to recover his fees without a special agreement. Un- 
 der the medical act passed in the twenty-first and 
 twenty-second years of the reign of Victoria, physicians, 
 if duly registered, are entitled to recover reasonable 
 compensation for their services without any express con- 
 tract providing for such compensation, thus being 
 placed on the same footing in this regard as physicians 
 in the United States. 
 
 Liable for Subsequent Visits. — It will be remem- 
 bered that a physician undertaking the treatment of a 
 case is bound to continue his visits as long as the condi- 
 tion of the patient requires his attention. The counter- 
 part of this obligation may be found in the implied con- 
 tract which the law creates requiring the patient to pay 
 the physician not only for the first visit, which he has 
 expressly requested, but for all further visits or services 
 which the physician and surgeon makes or renders by 
 reason of the necessities of the case.* 
 
 * Dale vs. Donaldson Lumber Co., 48 Ai'k., 188. 
 
CONTRACT OP PATIENT WITH PHYSICIAN. 7^ 
 
 Liable for Fee of Consultant. — The patient is bound 
 not only to pay the attending physician, but also the 
 physician who is called to a consultation, and this has 
 been held to be the law notwithstanding there is an 
 agreement between the attending physician and patient 
 that the attending physician shall pay the expenses of 
 such consultation.* 
 
 The reason for this rule may be readily seen. It 
 has been observed that where a party knowingly and 
 without objection permits another to perform services 
 for him, the law implies a promise to pay what the 
 services are reasonably worth. Consequently, when a 
 physician is called to a consultation, even though it be 
 by the attending physician, it is fair for him to presume 
 that the consultation is for the benefit of the patient, 
 and to rely upon the promise of payment which the law 
 makes for the patient. The agreement of the attend- 
 ing physician to pay the consultant is unusual and 
 exceptional, and being contrary to the ordinary presump- 
 tion of law the consultant will not be bound unless he 
 has notice of such arrangement before or at the time of 
 rendering the services. 
 
 It is doubted, however, whether a patient is bound 
 by an implied contract to pay for medical services of a 
 physician called in by her attending physician for the 
 mere purpose of convincing her that he is doing all that 
 
 * Shelton vs. Johnson, 40 Iowa, 84 ; Garrey vs. Stadler, 67 Wis., 512. 
 
78 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 can be accomplished for her, where such physician, in 
 fact, rendered no services for her and was not called in 
 at her request.* 
 
 It is pertinent to state at this point that should the 
 patient be required to pay the consulting physician after 
 the attending physician has agreed to defray this ex- 
 pense, the patient may recover the amount so paid by 
 him from the attending physician, or he may treat it 
 as a counterclaim and deduct the amount from fees 
 earned by the attending physician. ■ 
 
 Contract of Obedience. — It is a well-settled proposi- 
 tion of law that it is the duty of the patient upon plac- 
 ing himself in the hands of a physician to follow strictly 
 all instructions and conform to the necessary prescrip- 
 tions and treatment, if they are such as a physician or 
 surgeon of ordinary skill and care would adopt or sanc- 
 tion. As a disregard of this obligation results to the 
 injury of the patient only, it does not give the physician 
 a cause of action against the patient; yet if the patient 
 endeavors to recover damages from the physician for 
 injuries which he claims result from unskilled treat- 
 ment, the physician and surgeon may, by showing that 
 the patient is guilty of such negligence or disobedience, 
 prevent his recovery, f 
 
 * Schrader vs. Hoover, SI la., 654, 54 N. W., 463. 
 f Haire vs. Reese, 1 Phila. (Pa.), 138 ; Davis vs. Spicer, 2V Mo. App., 
 279 ; Jones vs. Angell, 95 Ind., 376. 
 
CONTRACT OF PATIENT WITH PHYSICIAN. Y9 
 
 Sunday Contracts. — In the absence of statutes to 
 the contrary, any contract executed on Sunday is as 
 valid and binding as though executed on a week day. 
 Each State has, however, passed laws requiring the ob- 
 servance of Sunday. In all States labor is prohibited, 
 and in most States the transaction of business is made 
 unlawful upon the Sabbath. In those States which go 
 so far as to prohibit labor onl}^, one is free to enter into 
 contracts and to execute promissory notes and other in- 
 struments which are perfectly valid ; but in those States 
 which prohibit the transaction of business, any instru- 
 ment or contract made or entered into on Sunday is in- 
 valid and can not be enforced even though one of the 
 parties may have performed his part of such contract. 
 If, for instance, in a State prohibiting the transaction 
 of business on the Sabbath goods are sold and delivered 
 on Sunday, or services are rendered on that day, the 
 party receiving the goods or enjoying the benefit of the 
 services is under no obligation to pay for them. 
 
 These statutes, however, unanimously except from 
 their operation contracts made to carry out works of 
 necessity or charity, and the courts have held, whenever 
 the question has been raised, that the contract of the 
 physician falls within this exception, and that it is bind- 
 ing in all respects both upon him and upon the patient.* 
 
 * Smith vs. Watson, 14 Vt., 332 ; Aldrich vs. Blackstone, 128 
 Mass., 148. 
 
CHAPTER IV. 
 
 EIGHTS AND LIABILITIES OF THIRD PARTIES. 
 
 Who are Third Parties. — The term third party, as 
 used in this article, means any interested person other 
 than the patient. While the physician may consider 
 that he is dealing with the patient individually, it hap- 
 pens more frequently than otherwise that third parties 
 are interested, either having rights of which the physi- 
 cian should be informed and prepared to respect, or in- 
 curring liabilities which if understood and taken advan- 
 tage of may conduce to the physician's financial welfare. 
 
 Liability of Third Parties for Fees. — In treating 
 this subject, attention will be first given to the ques- 
 tion of when third parties become liable to the physician 
 for the payment of his fees. 
 
 Liability of Parent. — That the parent is bound to 
 provide for the maintenance of his minor children is a 
 rule of natural law. But the question to what extent 
 the parent becomes liable for necessaries furnished to 
 his minor child is one that is sometimes perplexing. 
 When necessaries are furnished, either in the shape of 
 goods delivered or services rendered, with the knowledge 
 
 80 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 81 
 
 and consent of the parent, there can be no question about 
 his liability to pay. But it is laid down as a general 
 rule that no action can be maintained against the parent 
 for goods purchased on credit by his minor child, even 
 though they may be necessary, unless the father has ex- 
 pressly or impliedly authorized the credit. 
 
 The authority of an infant to bind his parent for 
 necessaries, such as food, clothing, and medical attend- 
 ance, will be inferred from very slight evidence. The 
 following cases will illustrate the principle : 
 
 Illustrations. — If a child who is away from home 
 attending school is taken sick, the parent will be liable 
 to the physician for the amount of his bill, authority to 
 bind the father being inferred from the nature of the 
 case.* A girl of fourteen, with the consent of her 
 father, went to live at a place thirty miles distant, 
 where for three years she contracted for, earned, and 
 controlled her own wages, her father neither furnishing 
 nor agreeing to furnish her with necessaries ; while these 
 circumstances showed that she was emancipated from 
 the duty of service to the father for the time she was 
 so employed, there was no such complete emancipation 
 as to release him from liability to a physician who at- 
 tended her in sickness, though the father had no knowl- 
 edge of such attention.! 
 
 * Parker vs. Tillinghast, 19 Abb. N. C, 190. 
 f Porter vs. Powell, 79 Iowa, 161. 
 
82 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 And so, where a child leaves home through fear of 
 violence, he carries implied authority to bind his father 
 for necessaries.* But if the child, having no reason to 
 fear violence or mistreatment, leaves his father's home 
 without the father's consent, for the purpose of seeking 
 his fortune in the world, or to avoid the discipline and 
 restraint so necessary for due regulation of families, he 
 carries no credit, and the father is under no obligation 
 to pay his necessary bills. f 
 
 It will be observed that the case above cited, of the 
 girl who left her father's house and had been employed 
 for three years, is not in conflict with this proposition, 
 for in that case the father had given his consent to 
 the employment. If, however, the child, after leaving 
 home against his father's will, being taken sick, returns 
 home and is received by the father, he becomes liable to 
 the physician for medical services rendered to the child 
 at his house and with his knoAvledge and assent.;}; 
 
 It seems quite well settled by a number of recent 
 decisions that the parent is bound to pay for necessaries 
 
 * Stanton vs. Willson, 3 Day (Conn.), 3*7 ; Pidgin w. Cram, 8 N. H., 
 350; Kimball vs. Keyes, 11 Wend. (X. Y.), 34; Walker vs. Laighton, 
 31 N. H., Ill ; Van Valkinburgh vs. Watson, 13 Johns (N. Y.), 480. 
 
 f Weeks vs. Merrow, 40 Me., 151 ; Owen vs. White, 5 Port. (Ala.), 
 435 ; Hunt vs. Thompson, 4 111., 1*79 ; Raymond vs. Loyl, 10 Barb., 483 ; 
 Walker I's. Laighton, 31 N. H., HI; Reynolds vs. Sweetser, 15 Gray 
 (Mass.), 78. 
 
 ^ Deane vs. Annis, 14 Me., 26. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 83 
 
 furnished to his minor child who is living apart from 
 him with his consent when the parent refuses to fur- 
 nish them.* 
 
 Upon the death of the father, the mother becomes 
 the head of the family, but it seems she is not bound by 
 the same obligations of maintenance and support as 
 those which formerly bound the father. Under the 
 rule most commonly in force the child, if he has a sepa- 
 rate estate, will be required to pay for his own medical 
 attendance from his estate ; and only in the absence of 
 such an estate will the mother be subjected to that 
 burden. 
 
 In case of separation or divorce it is of practical 
 value to determine whether the father or mother is liable 
 for necessaries for the child. While there are general 
 principles of law governing the liability, it will be im- 
 possible to state generally where it rests, an examina- 
 tion into the circumstances of the particular case being 
 always necessary. In case of voluntary separation of 
 the parents the father is prima facie liable for the sup- 
 port of the children, though they may be in the custody 
 of the mother; but if the mother, without just cause, 
 leaves the father and takes the children with her, no 
 authority is implied to bind him for their support or 
 
 * Dewane vs. Hansow, 56 111. App., 575 ; McMillen vs. Lee, 78 111., 
 443 ; Porter vs. Powell, 79 Iowa, 151. 
 
84: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 necessary expenses, her possession of the children being 
 unlawful.* But should the court, by a decree or order, 
 give her the custody of the children, then her possession 
 of them becomes rightful and the father becomes liable 
 for their support, f 
 
 In Ehode Island it has been held that where the 
 mother wrongfully left the father's home, taking a child, 
 the father, by suffering the child to live separate 
 from him with the mother, constituted her his agent 
 to contract for the child's necessities. J When a divorce 
 is granted, the custody of the children is usually regu- 
 lated by decree. If the divorce is obtained by the wife 
 and the husband is shown to be an improper person to 
 care for and educate the child, the court will decree the 
 custody of the child to the mother. Whether or not the 
 father is liable for the support of the child under such 
 circumstances can not be stated generalh^, for different 
 rules are applied in different States, and in some States 
 the circumstances of the particular case will govern the 
 matter. In such a case the only safe rule for the physi- 
 cian to be guided by is to have an express contract for 
 payment with some responsible party before the services 
 are rendered. 
 
 When tlie child becomes of full age a different rule 
 
 * Hyde vs. Leisenring, 107 Mich., 490. 
 t Shields vs O'Reilly, 68 Conn., 256. 
 X Gill vs. Read, 5 R. I., 343. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 85 
 
 of liability attaches ; the parent then ceases to be under 
 obligation to furnish him with necessities, even though 
 he remains at his father's home. It is true the father 
 may become liable for medical attendance upon his 
 adult child by an implied agreement to pay, but it seems 
 the law places the father of an adult child in the same 
 category as a stranger, and will not find him liable on 
 any less or weaker evidence than that required to fix 
 such liability upon a mere friend or acquaintance. So 
 a tequest by a father to a physician to attend his son, 
 of full age, and at his house, raises no implied prom- 
 ise on the part of the father to pay for such services.* 
 A married daughter of more than twenty-one years of 
 age came with her husband and child to her father's 
 home ; she being sick, her husband requested a physician, 
 to whom he was unknown, to call at the house of the 
 father, saying the father wished him to attend his 
 daughter; the physician called, usually met the father, 
 who expressed great interest in his daughter's welfare, 
 expressed a wish to be present at a consultation which 
 was held, and never in any way disclaimed his liability. 
 The court said : " It is true that a person may not avail 
 himself of the benefit of services done for him without 
 coming into an obligation to reward them with a reason- 
 able recompense. But he can not be said, in the mean- 
 
 * Boyd vs. SappingtoD, 4 Watts, 247. 
 
86 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing of the law, to avail himself of services as so done 
 when they are not for his individual benefit, nor for that 
 of any one for whom he is bound to furnish them. The 
 acquiescence of one in the rendering of service or benefit 
 to another, not entitled to call upon him therefor, is not 
 equivalent to an acknowledgment that it is rendered 
 at his request. So far as the legal responsibility was 
 concerned, the defendant, though the father of the pa- 
 tient, was a stranger to her and her necessities. He 
 could neither require of her, nor be required upon by 
 her." * 
 
 Liability of Husband. — The liability of the husband 
 for necessities furnished to the wife is much more cer- 
 tain than that of the parent for necessities furnished to 
 the child; in the latter case there is a question of au- 
 thority on the part of the child to bind the parent, but 
 in the former case, if the husband and wife are not sepa- 
 rated by reason of the improper conduct of the wife, 
 or by reason of her leaving him against his will, almost 
 the only question that can be raised is whether the goods 
 furnished or services rendered were necessary. If the 
 husband and wife are living apart by mutual consent, 
 and the husband has entered into a contract with the 
 wife to furnish her with a certain amount each month 
 for her support and maintenance and all family es- 
 
 * Crane vs. B.mdouine, 55 N. Y., 256. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 87 
 
 penses, and pays such amount, he will still be liable to 
 a physician who renders services to her at her request, 
 the physician not knowing they are living apart and 
 that the husband makes her a fixed monthly payment in 
 lieu of supporting her.* 
 
 It has been heretofore observed that the patient is 
 bound to pay the physician not only for the first visit 
 which is made at his request, but for all subsequent 
 visits which the nature of the case requires ; and so the 
 husband who employs a physician to attend his sick 
 wife is liable for services rendered throughout the ill- 
 ness. Should the wife be removed to her father's home 
 during her illness, without the husband's knowledge or 
 consent, he will still be bound to pay the physician 
 whom he employed before such removal for services ren- 
 dered to the wife at her father's home.f If, however, 
 the husband notifies the physician at the time of the re- 
 moval that he will not pay for services subsequently 
 rendered to her, the physician can not collect from him 
 without showing by clear and satisfactory evidence that 
 the husband was guilty of gross abuse, neglect, and mis- 
 conduct justif3dng such removal. 
 
 A physician who attends a woman, supposing her 
 to be a wife, can collect for such services from the man 
 
 * Lawrence vs. Brown, 91 la., 342, 59 N. W., 256. 
 \ Downing vs. O'Brien, 67 Barb., 583. 
 
88 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 holding himself forth as her husband, even though they 
 are not in fact married.* But, it seems, if the physician 
 is cognizant of the fact that they are not married, he 
 can not collect from the supposititious husband, unless 
 such husband employed him to render the services, 
 thus becoming liable upon a direct undertaking to pay. 
 The liability of the husband for necessary food, 
 clothing, and medical attendance furnished the wife in 
 his absence does not include the services of a clairvoyant 
 who does not profess to be a physician or to have any 
 medical skill or knowledge of diseases or their remedies. 
 The court in passing upon this question said : " It does 
 not appear that the plaintiff (clairvoyant) professed to 
 be a physician or to have any medical skill or knowledge 
 of diseases or their medical remedies, and of course it 
 does not appear that he has furnished the wife with 
 any necessaries within the rule of law for which the hus- 
 band can be rightfully charged. The law does not rec- 
 ognize the dreams, visions, or revelations of one in a 
 mesmeric sleep as necessary for a wife, for which the 
 husband, without his consent, can be held to pay. These 
 are fancy articles, which those who have money of their 
 own to dispose of may purchase, if they think proper, 
 but they are not necessaries, known to the law, for which 
 the wife can pledge the credit of her absent husband." f 
 
 * Gerlach vs. Turner, 89 Cal., 44V, 26 Pac. Rep., 8V0. 
 f Furlong vs. Leary, 62 Mass., 406. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 89 
 
 Liability of Master for Attendance on Servant. — It 
 
 is a well-settled doctrine that the master is not by reason 
 of his relation to the servant liable for medical attend- 
 ance upon such servant.* If, however, a physician is 
 called by a master to attend a servant in his employ, 
 such engagement has been held to amount to a direct 
 undertaking by the master to pay ; but if he is called by 
 the master's wife, even with an express agreement that 
 her husband will pay, the husband is not bound unless 
 it can be shown that the agreement is made with his 
 knowledge and consent, or that he subsequently ratified 
 the hiring. The reason for this rule may be readily 
 perceived; the husband is never bound by the contracts 
 of his wife except for necessaries furnished to her or to 
 her children; therefore a contract imposing a liability 
 upon him for medical attendance upon a servant, which 
 he is not primarily liable to pay, is beyond the scope of 
 her authority.! 
 
 Liability of Vessels for Attendance upon Seamen. — 
 For the information of those physicians living in cities 
 and towns located on the oceans, great lakes, or other 
 navigable waters of the United States, the general rule 
 of liability of vessels for the care and medical attend- 
 ance upon their sick and disabled seamen is given. 
 
 It is a well-established rule of law that shipowners 
 
 * 4 Waite's Actions and Defenses, 400. 
 
 f Baker vs. Witten, 1 Okl., 160, 30 Pac. Rep., 491. 
 
90 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 and masters are bound to provide suitable care and 
 medical treatment for seamen who become disabled by 
 sickness or injuries received in the discharge of their 
 duties, and a physician attending such seamen may hold 
 the vessel, the master, or the owners to pay for his 
 services.* 
 
 The extent of the period covered by this liability is 
 the subject of much confiict; some cases hold that the 
 seaman is entitled to care and medical treatment until 
 he recovers, while others restrict the right to the period 
 covered by the voyage for which the seaman is engaged. 
 It seems that where the injury or sickness is the result 
 of culpable negligence or mistreatment by the master 
 or officers of the vessel the courts have held the liability 
 to extend over the entire period of sickness or disability ; 
 whereas, when the sickness or injury could not be im- 
 puted to such cause, they have considered the liability 
 as terminating when the voyage for which the seaman 
 was engaged was completed and he was discharged.! 
 
 This is a question upon which the law books present 
 a great amount of material — some of it conflicting — 
 but, owing to the comparatively small number of the 
 profession who are interested in its discussion, it is not 
 thought advisable to use the space necessary for an ex- 
 
 * Holt vs. Cummings, 102 Pa. St., 212, 48 Am. Rep,, 199. 
 t The Ben Flint, 1 Abb. U. S., 126 ; The J. F. Card, 43 Fed. Rep., 
 92 ; contra The Lizzie Frank, 31 Fed. Rep., 477. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 91 
 
 amination of particular instances of the application of 
 the general principles laid down. 
 
 Statute of Frauds. — The question of when a third 
 party not in the relation of husband, parent, or master 
 is liable for the services of the physician is often a very 
 nice one. Section four of the English Statute of 
 Frauds provides, among other things, that "no action 
 shall be brought whereby ... to charge the defendant 
 upon any special promise to answer for the debt, de- 
 fault, or miscarriage of another person . . . unless the 
 agreement upon which such action shall be brought, or 
 some memorandum or note thereof, shall be in writing 
 and signed by the party to be charged therewith." 
 
 This section of the statute has been re-enacted, 
 with certain unimportant modifications, throughout the 
 United States.* 
 
 At first glance it would seem that in order to enforce 
 the liability of a third person of the class we are now 
 considering, his contract of obligation must in all cases 
 be reduced to writing and signed. This statute is, how- 
 ever, not so broad in its application as it at first ap- 
 pears. As a matter of fact, the contract or agreement 
 fixing the liability of the third party is more frequently 
 without than within the operation of this statute. 
 
 * In Pennsylvania it does not apply to any contract the considera- 
 tion of which is less than twenty dollars. 
 
92 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In order to bring a case within the statute, a third 
 person who is in no way liable for the debt or default 
 in question must promise to pay it if not paid by the 
 debtor. If the promise is of such a nature as to act 
 as an assignment or sale of the security for the debt, 
 or of the debt itself to the third party, it does not come 
 within the statute, nor if the third party assumes to be 
 the paymaster, making himself directly and uncondi- 
 tionally responsible for the debt, is it necessary to re- 
 duce such agreement to writing. 
 
 It will be observed that the promise to pay must, to 
 come within the statute, be conditional : thus, if a third 
 party says to a physician, " If the patient does not pay 
 you I will," the promise comes within the statute, and 
 to be binding must be reduced to writing. But if the 
 third party says, " Attend such a patient and I will 
 pay you," the promise does not come within the statute, 
 and the oral promise is binding,* for in such a case the 
 third party does not agree to answer for the debt of 
 another, but by his contract makes the debt his own. 
 
 It is a well-established rule of law that all valid con- 
 tracts must be based upon some good or valuable con- 
 sideration. If, therefore, a third party says to a physi- 
 cian, after the services are rendered and the indebted- 
 
 * Buchanan vs. Sterling, 63 Ga., 22Y; Boston vs. Farr, 148 Pa. St., 
 220, 23 Atl. Rep., 901 ; Thomas vs. Leavy, 62 111. App., 34, 
 
RIGHTS AND LIABILITIES OP THIRD PARTIES. 93 
 
 ness is incurred, " I will pay the bill of " such, a 
 
 promise is not binding, whether written or verbal, be- 
 cause there is no consideration upon which to found 
 the contract. A sufficient consideration need not be one 
 of money. When, for example, the promise is made be- 
 fore services are rendered, the consideration for assum- 
 ing the obligation is that the physician will render such 
 services; or, if the services have been rendered, and a 
 third party agrees to assume the indebtedness, provided 
 the physician will forbear from bringing a suit upon 
 the account, or will dismiss a suit already brought, such 
 condition will be a sufficient consideration upon which 
 to found the contract of liability. A physician who was 
 attending a patient was approached by the patient's son 
 with the following statement: "You do what you can 
 for father, and you charge this bill to me, and what you 
 do afterward, and I will leave you some money before 
 I leave town." This was a direct undertaking, and 
 therefore not required to be in writing; but, so far 
 as it related to the fee for services already rendered, 
 was without consideration and void, although good and 
 binding for services rendered after the date of the prom- 
 ise.* 
 
 ■But if a physician who is attending a patient refuses 
 to continue his services unless guaranteed that he will 
 
 * Chappell vs. Barkley, 90 Mich., 35, 51 N. W., 351. 
 
94: THE LAW m ITS RELATIONS TO PHYSICIANS. 
 
 be paid for both past and future services, and a third 
 party undertakes to make such payment upon condition 
 that the physician's services shall be continued, the con- 
 tinuation of the services will be a sufficient considera- 
 tion upon which to base the obligation. 
 
 It is hoped that the foregoing explanation has clear- 
 ly shown the difference between an original undertak- 
 ing, which is valid and binding whether in writing or 
 not, and a collateral obligation for the payment of an- 
 other's debt, which must be in writing to comply with the 
 statute. An esamination will therefore be made of a 
 few cases which tend to show what circumstances will 
 amount to a direct and original undertaking by a third 
 party. 
 
 Liability of Party asking Physician to attend An- 
 other. — Whether or not the mere request by a third 
 party for a physician to call upon a particular patient, 
 without stating that he acts as agent for such patient, 
 will render the third party liable to the physician for 
 services rendered the particular patient is a question 
 upon which there is some conflict, the courts in the 
 State of New York holding the third party liable in 
 such cases, while those of other States in which the 
 question has arisen renounce the doctrine of liability 
 under such circumstances. 
 
 An extreme case of the sort arose in ISTew York city 
 in 1873. A person called at the office of a physician. 
 
RIGHTS AND LIABILITIES OF THIKD PARTIES. 95 
 
 The physician being absent, he wrote upon his business 
 
 card, " Call on Mrs. , at No. — Broadway/' and left 
 
 it with the clerk, with the request to hand it to the 
 physician and tell him to come as soon as possible. 
 
 The jury rendered a verdict for the physician, and 
 the court to which the case was appealed refused to 
 disturb the verdict. The court, in the opinion, said: 
 " There was nothing on the card to indicate to the 
 plaintiff, before he rendered the services, that the de- 
 fendant had called at his office at Mrs. 's request, 
 
 and that he was therefore only acting as her messenger. 
 
 " The defendant might very readily have secured 
 himself from all liability by simply writing the mem- 
 orandum on a blank card, or by adding to what he wrote 
 on his own card something that would have apprised 
 the plaintiff of the fact that he acted in the transaction 
 
 for Mrs. as her agent. . . . Having neglected to do 
 
 this, the plaintiff was, under the circumstances, justi- 
 fied in believing that he was employed and would be 
 paid by the defendant." * 
 
 Later, in 1896, the supreme court refused to dis- 
 turb the verdict of the jury fixing the liability upon a 
 son who summoned a doctor to attend his father by the 
 following words: "Doctor, 1 want you to come and at- 
 tend my father. He had a doctor who was not satisfac- 
 
 * Bradley vs. Dodge, 45 How. Pr., 5*7. 
 
96 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 toTj." In the opinion the court cited the case of Bradley 
 vs. Dodge with evident approval.* These eases repre- 
 sent an extreme view, and, as the question has never 
 been passed upon by the court of last resort in the State 
 of New York, it is impossible to say what that tribunal 
 will determine the law to be. 
 
 The better rule of law, it is thought, and probably 
 the one which would be followed in any State except 
 New York, is that the mere calling for a physician, or 
 requesting him to call upon a certain patient, will not 
 make one liable to such physician for his fees in the par- 
 ticular service. This is shown by these cases : 
 
 The superintendent of a cooperage company sent a 
 messenger to a physician summoning him to the works 
 of the company to attend an injured employee. The court 
 of appeals for Missouri, in considering the matter, said : 
 " We take it that the law will not imply, upon this evi- 
 dence, a contract either on the part of the corporation 
 
 or on the part of Mr. (the superintendent) to pay 
 
 for these services. The general rule, no doubt, is that, 
 where a person requests the performance of a service, 
 and the request is complied with and the service per- 
 formed, the law raises an implied promise to pay the 
 reasonable value of the services. But this implication 
 does not obtain where one person requests a physician 
 
 * Foster vs. Meeks, 18 Misc., 461, 41 N. Y. Supp., 950. 
 
EIGHTS AND LIABILITIES OF THIKD PARTIES. 97 
 
 to perform services for a patient, unless the relation of 
 the person making the request to the patient is such as 
 to raise a legal obligation on his part to call in the 
 physician and pay for the services. Where a husband 
 calls in a physician to attend upon his wife, or where a 
 father calls in a physician to attend upon his minor 
 child, the law implies a promise on his part to pay the 
 reasonable value of the services, because there is a legal 
 obligation on his part, in either case, to furnish neces- 
 saries for the patient's benefit. But no such implication 
 arises where one calls in a physician to attend upon a 
 stranger, or upon one to whom he is under no legal ob- 
 ligations." Quoting further in the same case, the court 
 said : " The reason and policy of this rule are obvious, 
 especially in cases like the present. When a person is 
 dangerously wounded, and perhaps unable to speak for 
 himself, or suffering so much that he does not know how 
 to do it, any person will run to the nearest surgeon in 
 the performance of an ordinary office of humanity. If 
 it were the law that the person so going for the sur- 
 geon thereby undertakes to become personally respon- 
 sible for the surgeon's bill, and especially for the sur- 
 geon's bill through the long subsequent course of treat- 
 ment, many would hesitate to perform this office, and 
 in the meantime the sufferer might die for the want of 
 necessary immediate attention." * 
 
 * ileisenbach vs. The Southern Cooperage Co., 45 Mo. App., 232. 
 
98 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 A case stronger than the one above given is reported 
 in Vermont. A brother who had been acquainted with 
 a physician took him to see his insane brother and ear- 
 nestly requested him to undertake the treatment of the 
 insane patient. There was no express agreement as to 
 the payment for the services. The court, in considering 
 this case, said : " It appears that all of the services were 
 performed for the brother of the defendant, who, 
 though insane, was liable therefor. The services were 
 not beneficial to the present defendant, and he was under 
 no legal obligation to pay for them unless as an express 
 undertaking, or unless it may fairly be inferred from 
 the evidence that it was the intention of both parties 
 that the plaintiff should perform the services and the 
 defendant should pay therefor." * 
 
 In the case of Eankin vs. Beale, a father sent for 
 a physician to attend his adult son at the father's house, 
 and after the services were rendered agreed with the 
 physician to pay for them. The court held that the 
 father was not bound by merely sending for the physi- 
 cian to pay his fee, and the promise of payment being 
 made after the services were rendered was without con- 
 sideration and void.f 
 
 A third party, acting as messenger, was sent for a 
 certain physician to assist in the performance of an 
 
 * Smith vs. Watson, 14 Vt., 332. 
 
 f Rankin vs. Beale, 68 Mo. App., 325. 
 
EIGHTS AND LIABILITIES OF THIRD PARTIES. 99 
 
 operation. ISTot finding him in, he went to the office of 
 another physician and said: "I have come after you 
 to go and see a sick man.'^ The third party went part 
 way with the physician to the patient's house, when, 
 meeting with another person going to see the patient, 
 he separated from the physician. Upon arriving at the 
 patient's house, the doctor who was in attendance on 
 the sick man explained to him what had occurred, and 
 said that the physician who had just arrived would as- 
 sist in the operation, which was assented to, and the 
 operation was performed. The court said : " The evi- 
 dence tended to show that the plaintiff (the physician) 
 Vas aware of the fact that the defendant acted merely 
 as a messenger, and did not intend, or expect, to make 
 himself personally liable for the services which were 
 to be rendered to the sick man. If, upon the explana- 
 tion made by the doctor in attendance, the plaintiff was 
 not willing to assist at the instance and on the credit 
 of the sick man, it was his duty then to make known his 
 objections. 
 
 " To hold the defendant liable under these circum- 
 stances would deter every one from doing the charitable 
 office of going after a doctor for a sick neighbor." * 
 
 A physician attending a patient who was injured 
 and lying at his son-in-law's house proposed on several 
 
 * Smith vs. Riddick, 5 Jones Law (N". C), 342. 
 
100 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 occasions to discontimie his services, when he was re- 
 quested not to do so by the son-in-law. After the pa- 
 tient's death the physician presented his bill, amount- 
 ing to five hundred dollars, to the son-in-law, as a claim 
 against him personally, and asked its payment. He did 
 not deny his responsibility, but objected to the amount; 
 and after a dispute and some angry words he wrote an 
 order upon an attorney for two hundred dollars to be 
 paid out of a certain claim when collected, and handed 
 it to the physician, saying he would give him that, and 
 would not pay him another cent, and if he did not take 
 that he would not get anything. The account was 
 charged upon the physician's books to the patient, and 
 when the bill was presented to the son-in-law he was 
 the patient's administrator; but that was unknown to 
 the physician. The court said : " Though the physician 
 in the beginning, may have rendered services solely upon 
 the patient's responsibility, in the absence of a special 
 contract he was not bound to continue to do so, and had 
 the right to discontinue, and enter into a contract with 
 the son-in-law to become responsible for his subsequent 
 services ; but, in such case, the burden is on him to show, 
 not only a discontinuance, or a proposal to discontinue, 
 but also an agreement on the part of the son-in-law to 
 be responsible. There is no pretense of an express agree- 
 ment; in the absence of such, it was necessary for the 
 physician, in order to entitle him to the affirmative 
 
EIGHTS AND LIABILITIES OP THIRD PARTIES. 101 
 
 charge, to prove facts undisputed, from which, the law 
 would conclude an actual, though implied, agreement. 
 The cause of the physician's proposal to discontinue his 
 attendance does not appear. . . . Every person who 
 may go for the regular attending physician when need- 
 ed by his patient, or who, from considerations of friend- 
 ship or humanity, may request him not to discontinue 
 his attendance, does not render himself responsible for 
 the services of the physician. Whether he does or not, 
 depends upon the attendant circumstances.'^ * 
 
 In the following cases circumstances have been 
 shown which were considered equivalent to a direct con- 
 tract or undertaking to pay the indebtedness. 
 
 In the case of Clark and Meigs vs. "Waterman, a 
 physician was called by the defendant to attend a girl 
 who had lived with him from the time she was eight 
 until she was eighteen years of age, and who had spent 
 nearly seven eighths of her time subsequent thereto, up 
 to the time of her sickness and death, in his household. 
 The defendant manifested much interest in the case, was 
 dissatisfied with the services of the first physician em- 
 ployed, discharged him, and employed another physician 
 to attend the patient ; he called for the bills of the physi- 
 cians to lay before the town, " to see if they would not 
 assist him." These facts were considered sufficient to 
 show that the defendant intended and gave the plaintiffs 
 
 * Curry vs. Shelby, 90 Ala., 277, 7 So. Rep., 922. 
 
102 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 to understand that he was himself the employer, and he 
 was accordingly held liable."' 
 
 The employee of a lumber company was injured, 
 not while in the course of his employment, but in a pri- 
 vate brawl. The secretary, treasurer, and general busi- 
 ness manager of the company sent a telegram to a 
 physician as follows : 
 
 " To Dr. : Come here immediately by quickest 
 
 means; man shot in breast. 
 
 [Signed.] " Lumber Company." 
 
 The doctor responded, and continued his visits for 
 six weeks. The bill was presented to the company, but 
 they denied liability and refused to pay. The secretary- 
 treasurer and manager denied his liability, but offered, 
 by way of compromise, to pay ten dollars, the price of the 
 first visit. The offer was refused, and suit brought 
 against the company and the officer who sent the tele- 
 gram. It will be observed that the telegram by which 
 the physician was summoned was not a request for him 
 to attend any particular person, but an order for him 
 to report to the company direct. So far as the reported 
 case shows, the sufficiency of this order to bind them, 
 had it been properly authorized, does not seem to have 
 been questioned; but the company contested the claim 
 on the ground that the officer sending the telegram had 
 no authority, express or implied, to bind it to pay for 
 * Clark and Meigs vs. Waterman, 7 Vt., 76. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 103 
 
 such services. The officer's excuse for using the com- 
 pany's name was that he was personally unknown to the 
 physician, and was afraid the physician would not come 
 unless summoned in the company's name. The trial 
 court found that the company was not liable, but the 
 secretary was personally liable. The principle upon 
 which the secretary was held liable is that if the agent 
 exceeds his authority, so that his principal is not bound, 
 he will himself be liable for the damages thus occa- 
 sioned to the other contracting party, although he may 
 have been innocent of any intention to defraud.* 
 
 A landlord sent orders to a physician requesting him 
 to call upon his tenants. The physician understood from 
 the orders that the landlord intended to pay, and accord- 
 ingly charged the services to him and made no efforts 
 to collect from the tenants. The landlord testified that he 
 did not consider that the orders made him personally re- 
 sponsible; afterward, however, he offered the physician 
 some fodder to apply on the account, and also promised 
 to make a payment of money at a stated time. The trial 
 justice gave judgment against the landlord for the full 
 amount of the claim, and the appellate court refused to 
 disturb the judgment, as there seemed to be evidence to 
 support such a judgment, f 
 
 The question whether or not an implied promise by 
 
 * Dale and Banks vs. Donaldson Lumber Co., 48 Ark., 188. 
 f Speer vs. Meschine, 46 S. C, 505, 24 S. E. Rep., 829. 
 
104 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 a third person to pay exists in a particular case is nearly 
 always one of fact, to be determined by the jury, whose 
 duty it is to consider all of the attendant circumstances 
 and carefully weigh the evidence of the parties, plaintiff 
 and defendant, and, when such evidence is conflicting, to 
 consider the character and reputation for truth and 
 veracity of the witnesses, their intelligence and oppor- 
 tunity for knowing the real truth, and all other matters 
 which bear upon the question at issue. 
 
 Liability of Corporation for Employment by Agent. 
 — A prolific source of litigation is the question of 
 whether or not the employment of a physician by an 
 agent or officer to attend an injured employee binds the 
 corporation or company whom he represents to pay the 
 physician's fee. 
 
 This question arises more frequently in connection 
 with railroad companies than with all other concerns, 
 the character of the employees' duties being such that 
 they are liable to become seriously injured at almost 
 any time and at any point on the line of the employer. 
 When such accidents occur the services of a physician 
 are needed at once, and it is usual for an employee 
 having the highest authority in the immediate locality, 
 usually the station agent or conductor, to summon and 
 employ for the company the nearest competent physi- 
 cian and surgeon. The railroad companies, instead of 
 meeting such obligations promptly, have manifested a 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 105 
 
 preference to avoid paying for the services rendered in 
 such cases when the circumstances of hiring are not such 
 as legally to bind them to pay. A careful examination, 
 therefore, of what will and what will not amount to a 
 binding obligation on the part of the company will be 
 of material value. 
 
 General Eule of Liability. — It may be stated as a 
 general rule that a company or corporation is under no 
 legal obligation to provide medical attendance for per- 
 sons injured in its service ; and if a physician or surgeon 
 seeks to recover from a company for attendance upon 
 an employee so injured, he must show that he was em- 
 ployed to render such services by a servant or oflBcer of 
 the company having authority to employ him; or, if the 
 person employing him did not have authority so to do, 
 he must show a subsequent ratification by those having 
 authority to act for the company in such cafaeity.* 
 
 Who has Authority. — It is a general rule of law 
 that one who deals with an agent is bound to Imow at 
 his peril the extent of the agent's authority. This rule 
 should be kept in mind while considering who has and 
 who has not authority to bind his principal. 
 
 * Toledo, Wabash, and Western Ry. Co. vs. Prince, 50 111., 26. This 
 rule is probably changed in South Carolina by a statute which imposes 
 upon the railroad company the duty of giving notice to the most accessi- 
 ble physician of all accidents which occur on its road. Rev. Statutes of 
 South Carolina, § 1 690. 
 
106 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 The president of a railroad company has authority 
 to employ a physician and surgeon to attend its injured 
 employees, and by so doing binds the company to pay for 
 such services. 
 
 It is pretty well settled that a general superintend- 
 ent has the same authority.* In the case of Cincinnati, 
 Indianapolis, St. Louis, and Chicago Eailroad Company 
 vs. Davis, the company endeavored to escape liability 
 on the ground that it employed a chief physician and 
 surgeon whose duty it was to employ surgeons to give 
 professional attention to persons injured by its trains. 
 Justice Elliott said : " It would be unreasonable to re- 
 quire a surgeon to give professional assistance to a 
 person injured by the company's trains, and then deny 
 him compensation upon the ground that the superin- 
 tendent had no authority to employ him because that 
 authority was lodged in a chief surgeon. Nor are we 
 willing to sanction a rule imposing upon the surgeons 
 whose services are requested by the superintendent the 
 duty of making specific inquiry as to the scope of the 
 superintendent's authority. Such a rule would operate 
 harshly in many cases, for, if the surgeon must stop to 
 make inquiries before leaving his home or office, the in- 
 jured man might perish. Better railroad companies 
 should be held responsible for the acts of such a high 
 
 * Atchison and N. R. Co. vs. Reecher, 24 Kan., 228 ; McCarthy vs. 
 Missouri R. Co., 15 Mo. App., 385. 
 
EIGHTS AND LIABILITIES OP THIRD PARTIES. 107 
 
 officer as a general superintendent, although as between 
 him and his principal that officer may usurp authority 
 that is vested in a subordinate agent, than that a sur- 
 geon who obeys the summons of a superintendent should 
 be compelled to go unpaid." * 
 
 This is undoubtedly the correct rule, notwithstand- 
 ing the superior court of the city of New York held 
 in 1853 that the superintendent of the New York and 
 Harlem Eiver Eailroad Company would not be pre- 
 sumed to have authority to bind his company to pay 
 for medical services engaged by him as officer of such 
 company. The evidence showed that the superintend- 
 ent had a general supervisory control over the whole 
 line of the road, everything connected with the run- 
 ning of the road being under his supervision and con- 
 trol, and that he paid money to drivers, conductors, and 
 other persons employed by him as superintendent, but 
 had no direction over the treasury. The court argued 
 from this evidence that it did not appear that the super- 
 intendent had authority to arrange and liquidate claims 
 made against the company for damages resulting from 
 the negligence of its agents and servants, and that the 
 power exercised in employing a surgeon to attend 
 one employed by the road was analogous thereto. 
 
 * Cincinnati, Indianapolis, St. Louis, and Chicago R. Co. vs. Davis 
 120 Ind., 99, 9 L. R. A., 503, 2.5 N. E. Rep., 818. 
 8 
 
108 THE LAW m ITS RELATIONS TO PHYSICIANS. 
 
 and was consequently not within the scope of his au- 
 thority.* 
 
 As this case was not decided by a court of highest 
 authority in the State, and is in direct conflict with 
 reason and justice, and as well with the courts of all 
 other States which have passed upon the question, it 
 is doubted whether the decision would be regarded 
 as a proper precedent to follow even in New York 
 State. 
 
 The division superintendent also has authority to 
 employ physicians and surgeons on behalf of the com- 
 pany, f The supreme court of Kansas recognizes, how- 
 ever, a distinction between professional services rendered 
 to employees and those rendered to injured passengers 
 upon the request of the division superintendent; while 
 in the former case they uphold the presumption of his 
 authority to bind the company, in the latter they re- 
 pudiate the doctrine. J 
 
 A general agent or general manager of a railroad 
 company, which are judicially defined as being the 
 same, is likewise presumed to have power to procure 
 medical attendance for an employee injured in the 
 service of their company.* 
 
 * Stephenson vs. New York and Harlem River R. Co., 2 Duer, 341. 
 
 f U. P. R. Co. vs. Winterbotham, 52 Kan., 433. 
 
 X U. P. R. Co. vs. Beatty, 35 Kan., 265. 
 
 *= Atlantic and P. R. Co. vs. Reisner, 18 Kan., 458. 
 
RIGHTS AND LIABILITIES OP THIRD PARTIES. 109 
 
 Any agent, employee, or servant of the company, 
 if properly authorized, and acting in accordance with 
 his instructions, may bind the company for services of 
 a physician or surgeon rendered at his request. Where 
 an inspector of a street-railway company who was in- 
 structed by the company " to see that those injured were 
 taken somewhere where medical aid could be given," em- 
 ployed a physician to attend a passenger who was injured 
 in getting off the car, the company was held to pay the 
 physician's fee.* And so, when a physician was em- 
 ployed by an agent or employee of a brewing company 
 to attend an employee who had been injured, and the 
 physician inquired of the agent employing him who 
 would be responsible for his medical attention to the 
 injured employee, the agent replied that he had no 
 authority to bind the company, but he would write to 
 them and let the physician know. On the following 
 day the agent showed the physician a telegram from the 
 company as follows : " Have the negro treated." The 
 physician relied upon the telegram, and the court held 
 that he was justified in his conclusion that the agent 
 was authorized to procure medical services on behalf of 
 the company to " have the negro treated." f 
 
 For an agreement by a company to pay a physi- 
 
 * Hanscom vs. Minneapolis St. Ry. Co., 53 Minn., 119, 20 L. R. A., 
 695, 54 N. W. Rep., 944. 
 
 f Montgomery Brewing Co. vs. Caffee, 93 Ala., 132, 9 So. Rep., 573, 
 
110 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 clan's fees to be of such a character as to enable the 
 physician rendering services to avail himself of it, 
 such agreement or contract must be made with him 
 direct, either by an officer or agent of the company prop- 
 erly authorized to make such contract.* 
 
 If, for example, a physician is called by one in- 
 jured in a railroad accident to attend him, the physi- 
 cian's contract is with the patient ; and the relation does 
 not change even though the president of the railroad 
 calls upon the patient and tells him to employ any 
 physician or surgeon he chooses and the company will 
 pay the expense, f This promise to the patient does 
 not create a privity between the company and the 
 physician. If, however, the promise were made to 
 the physician direct and acted upon by him, the com- 
 pany would be bound to him in the full amount of 
 his fee. 
 
 Where a company contracts with a physician to at- 
 tend an employee who has been injured, and reserves 
 the right to determine what is a reasonable compensa- 
 tion, the court has held that the physician was bound 
 by such reservation, and would not be permitted to 
 recover a greater amount than that fixed upon as a 
 reasonable compensation and tendered by the company. 
 
 * Thomas Mfg. Co. vs. Prather, 65 Ark., 27, 44 S. W. Rep., 218. 
 f Canney vs. S. P. C. R. Co., 63 Cal., 501. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES, m 
 
 The reason upon which the court holds the physician to 
 this arbitrary determination of the amount of his fee is 
 that the company is under no legal obligation to supply 
 such medical attendance, and therefore if it does as- 
 sume such obligation it has the right to impose such 
 conditions as it sees fit.* It is doubtful, however, 
 whether the courts will extend the application of this 
 doctrine, or will apply it to this extent where the em- 
 ployee is injured by reason of the negligence of the com- 
 pany. 
 
 It is pertinent to state in passing that a contract by 
 a physician with a railroad company to render profes- 
 sional services to employees of the company, or to those 
 to whom the company is liable for personal injuries, 
 does not 'bind the physician to render services to persons 
 injured while trespassing on the property of the com- 
 pany, f 
 
 Who has not Authority. — It seems well settled that 
 the authority to employ a physician on behalf of the 
 company is not included in the general power and 
 authority vested in the conductor, roadmaster, or sta- 
 tion agent by virtue of his ofBce or position. J And it 
 makes no difference however positively such employee 
 
 * Fraser vs. San Francisco Bridge Co., 103 Cal., 79. 
 
 j; Directors of Poor vx. Donnelly et al., 5 Cent. Rep. (Pa.), 269. 
 
 X The Peninsular Railroad Co. vs. Gary, 22 Fla., 356 ; Tucker vs. St. 
 Louis, K. C, and N. R. Co., 54 Mo., Ill ; Sevier vs. Birmingham S. aud 
 T. R. R. Co., 92 Ala., 258. 
 
112 THE LAW IX ITS RELATIONS TO PHYSICIANS. 
 
 promises that the company will pay, such engagement 
 and promise are wholly outside of the scope of their 
 general authority.* Xor is there any such authority 
 lodged in an engineer, f Xor is the attorney or solicitor 
 of the road presumed to have such authority. J 
 
 The courts have also held that the employment of 
 a physician or surgeon for the treatment of injured 
 employees does not come ordinarily within the scope of 
 the duties of a general manager of an ordinary manu- 
 facturing business/ nor of the manager of a planta- 
 tion, j I 
 
 In this regard, it will be observed, a distinction is 
 drawn between a railroad company, which is bound by 
 such contracts made by its general manager or general 
 agent, and an ordinary manufacturing business. 
 
 "WHiether or not a physician regularly employed by a 
 railroad company to treat its injured employees has 
 power to bind the company for board and care of such 
 injured employees has several times been considered, 
 and the courts have held that he has no such authority.'^ 
 In the case of St. Louis, Arkansas, and Texas Eailway 
 
 * St. LouLs and K. C. R. Co. vs. Olive, 40 El. App., 82. 
 + Cooper I'.s'. X. Y. C. and H. R. R. Co., 6 Hun, 276. 
 
 X St. Louis, Ark., and Tex. R. Co. vs. Hoover, 53 Ark., Sl1. 
 
 * i;haplin vs. Freeland, 7 Ind. App., 676, 34 X. E. Rep., lOOY. 
 il Malone vs. Robinson, 12 So. Rep., 709 (Miss.). 
 
 ^ Chicago and E. R. Co. ?'.«. Behrenp. 9 Ind. App., 575, 37 N. E., 
 26 ; Bushnell vs. C. and X. W. R. Co., 69 la., 620. 
 
RIGHTS AND LIABILITIES OP THIRD PARTIES. 113 
 
 Company vs. Hoover, it was held that the railroad com- 
 pany was under no obligation to refund money ad- 
 vanced by the physician for such board and care ren- 
 dered to an injured employee.* 
 
 An exception to the rule that a conductor or em- 
 "ployee of the class just considered is unauthorized to 
 employ a physician is found in the humane doctrine of 
 emergency, which is recognized as law by the courts 
 of Indiana, but which has not been followed by the 
 courts of any other States. 
 
 This doctrine is based upon the theory that the con- 
 ductor or employee of highest authority in the imme- 
 diate locality represents the company, and that in case 
 of a sudden and pressing emergency extraordinary au- 
 thority and powers arise in him, adequate to the urgent 
 and immediate demands of the occasion, f 
 
 This extraordinary power in the conductor or other 
 representative is only coextensive with the duration 
 of the emergency which gives rise to it. J If, there- 
 fore, an employee is seriously injured, or injured in 
 such a way that immediate attention should be given 
 him, the conductor or employee of highest authority is 
 empowered to engage the services of a physician and 
 
 * St. Louis, Ark., and Tex. R. Co. vs. Hoover, 5.3 Ark., STY. 
 + Terre Haute and Indianapolis R. Co. vs. McMurray, 98 Ind., S^B. 
 X Ohio and M. R. Co. vs. Early, 141 Ind., 73, 28 L. R. A.. 646, 40 
 N. E. Rep., 257. 
 
114 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 bind the company in so doing. This contract, how- 
 ever, can only be binding upon the company for such 
 services as are immediately and urgently necessary. 
 
 In a case where a large number of employees are in- 
 jured, and there being present only one of the com- 
 pany's surgeons, who is unable to attend all of the* 
 wounded, the conductor is authorized to employ another 
 surgeon to amputate the leg of one of the persons in- 
 jured, and the company is bound to pay for such opera- 
 tion, but not for attention given to such employee after 
 the operation was performed.* This doctrine empower- 
 ing minor agents to bind the company for medical 
 services rendered in case of emergency, it will be re- 
 membered, has been recognized as law only by the 
 courts of Indiana. Whether or not this doctrine will 
 gain recognition in other States can not be predicted 
 with certainty, but, as it is founded upon good reason- 
 ing and justice, a more extended adoption of the rule 
 may be hoped for. 
 
 Ratification. — While the railroad company is ordi- 
 narily under no obligation to pay for the services of a 
 physician employed by an employee or inferior officer, 
 it frequently happens that the company becomes liable 
 for the payment of a physician's fee when he is pri- 
 
 * Evansville and R. R. Co. vs. Freeland, 4 Ind. App., 207, 30 N. E. 
 Rep., 803. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 115 
 
 marily so employed, through the ratification of such 
 employment by the conduct of the higher officers of 
 the company. 
 
 It is a well-established rule of law that such a 
 hiring can not be ratified excepting by an officer whose 
 power and authority are sufficient to enable him to make 
 the contract primarily which he assumes to ratify by 
 subsequent words or conduct.* 
 
 The question of whether or not the facts in a given 
 case amount to a ratification' of an unauthorized hiring 
 is usually one for the Jury to determine. The doctrine 
 can therefore be better illustrated by examining a few 
 cases than in any other way. 
 
 In the case of Pacific Eailroad Company vs. Thomas, 
 a physician was employed by the assistant master me- 
 chanic and the section boss to attend an employee who 
 was injured. This hiring did not have the effect of ob- 
 ligating the company to pay the physician for his serv- 
 ices, notwithstanding both the section boss and assist- 
 ant master mechanic said that they would see that the 
 railroad company paid him; but the physician, before he 
 had finally completed the services, sent a letter to the 
 superintendent of the railroad, explaining the circum- 
 stances of his employment and inclosing a bill for his 
 services. The superintendent paid no attention to this 
 
 * T., W., and W. R. R. Co. vs. Rodrigues, 41 111., 189. 
 
116 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 letter and bill. The jury found upon this evidence that 
 the superintendent had by his acquiescence ratified the 
 original contract of hiring.* 
 
 The station agent requested one Kodrigues to nurse 
 and take care of a brakeman who had been injured, 
 and told him that the railroad company would pay him 
 for the services. Soon after he wrote to the general 
 superintendent, informing him what had been done, but 
 received no reply. Eodrigues, after performing the 
 services, presented his bill to the station agent for pay- 
 ment. Soon afterward the superintendent conferred 
 with the station agent in reference to the various items, 
 and as to whether the charges were reasonable. The 
 superintendent made no objection at the time, but said 
 i f the charges were reasonable he would pay the account. 
 This was held a ratification.! 
 
 In the case of the Terre Haute and Indiana Eailroad 
 Company vs. Stockwell, the conductor of a train which 
 ran into and injured a man employed a physician to 
 dress the wound and take care of the injured man. 
 lie then sent a telegram reporting the afiair to the gen- 
 eral superintendent and general agent, and that evening, 
 upon arriving in St. Louis, he reported to the general 
 superintendent in person that he had struck a man and 
 
 * Pac P. Co. vs. Thomas, 19 Kan., 256. 
 
 t T., W., and W. R. R. Co. vs. Rodrigues, 47 111., 189. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 117 
 
 had emploj^ed a physician to dress his wounds. The 
 physician, after rendering the services, addressed a let- 
 ter to the president of the company, stating the circum- 
 stances of the employment, the services he had ren- 
 dered in a general way, and demanding pay therefor. 
 The railroad company never questioned or repudiated 
 the employment as made by the conductor, not even 
 after receiving the physician's letter. From this evi- 
 dence the court found that the employment ot the physi- 
 cian by the conductor was ratified and confirmed.* 
 
 Where the station agent employed a physician to' 
 treat an injured employee with the understanding that 
 the company would pay, and the general superintendent 
 on the following day came to the town where the in- 
 jured employee was and inquired of the station agent 
 regarding him, and seemed to be informed regard- 
 ing the character of the injury and the treatment 
 of the surgeon, but made no objection or complaint in 
 reference to the action of the station agent in employ- 
 ing a surgeon, of which he was apprised, and a few 
 weeks later the general superintendent in conversation 
 with the physician informed him that the pay would be 
 all right, the contract of the station agent was con- 
 sidered ratified, f 
 
 * Terre Haute and I. R. Co. vs. Stockwell, 20 N. E. Rep , 650, 118 
 Ind,, 98. 
 
 f Cairo and St. Louis R. Co. vs. Mahoney, 82 III., 73. 
 
118 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In the case of Toledo^ Wabash, and Western Eail- 
 road Company vs. Prince, a surgeon was employed by 
 the station agent to take charge of a wounded man. 
 The station agent reported the case to the general super- 
 intendent a few days afterward, and heard nothing 
 further until he presented the bill. The superintendent 
 then refused payment. The jury found a verdict for 
 the plaintiff on the ground of ratification. The su- 
 preme court of Illinois sustained the judgment of the 
 trial court, and in commenting on the case said: 
 "If the superintendent desired to save the company 
 from being held responsible, he should, on receiving the 
 report of the case, have dissented from the action of 
 the station agent, and directed him to apprise the sur- 
 geon of such dissent, instead of allowing the latter to 
 continue his services under the belief that he was in 
 the employ of the company." * 
 
 In apparent conflict with this and some of the pre- 
 ceding cases is a recent case decided by the supreme 
 court of California, upon a statement of facts very 
 similar to the case above given. The trial judge in- 
 structed the jury that if the defendant knew that the 
 plaintiff was treating the injured man on its account, 
 and relied for compensation on the defendant, and the 
 defendant made no objection thereto, then the defendant 
 
 * Toledo, Wabash, and Western R. Co. vs. Prince, 50 111., 21. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 119 
 
 was liable. Upon this instruction the jury rendered a 
 verdict for the plaintiff, but the supreme court re- 
 versed the judgment, stating its reason as follows: 
 " We conclude that knowledge upon the part of defend- 
 ant that the plaintiff was rendering services to the in- 
 jured man, and also knowledge of defendant that plain- 
 tiff was relying on it for compensation for the perform- 
 ance of such services, taken in connection with the fact 
 that defendant, possessing such knowledge, made no ob- 
 jections thereto, are circumstances wholly inadequate 
 to create a legal liability against defendant." * 
 
 While those physicians living in the States in which 
 the cases above cited were determined know how the 
 courts of their respective State will hold, those living in 
 States where the particular question has not been ad- 
 judicated can not predict with certainty which pre- 
 cedent their courts will follow; it therefore behooves 
 them to be well within the requirements of the rule rec- 
 ognized by the California courts. To do this, a physi- 
 cian should immediately upon being employed by an 
 inferior officer or agent of a company to render serv- 
 ices for such company, write to some officer who has 
 power to make such a contract, informing him of the 
 hiring, stating that he has undertaken the treatment 
 
 * Deane vs. Gray Bros. Artificial Stone Paving Co., 109 Cal., 433, 
 42 Pac. Rep., 443. 
 
120 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 of the patient on behalf of the company and expects 
 them to pay his fee; and if the agent originally hiring 
 him is without authority so to do, he desires to be 
 notified at once and to be instructed whether or not to 
 proceed with the treatment of the patient. 
 
 In the case of Burke vs. Chicago and West Michigan 
 Eailroad Company, a physician who was attending an 
 injured employee, not having been employed in the 
 first instance by any one assuming to act for the rail- 
 road company, attempted to fix the liability upon the 
 company by virtue of a letter which he received from 
 the chief surgeon of the company, which was as follows : 
 
 "1 am informed that you are now attending , 
 
 an employee of the Chicago and West Michigan Eail- 
 road Company, who was injured a few weeks ago. 
 Will you be kind enough to inform me as to his present 
 condition? Has he completely recovered? I would 
 like a history of the case since you took charge of it. 
 Please send your bill for services, itemized to me, if 
 you are through with the case.'^ It was shown by the 
 company that the chief surgeon had no authority to 
 employ a physician or surgeon to act generally in a case, 
 but only to act temporarily in case of emergency ; more- 
 over, the court held, there being no original employ- 
 ment by a representative of the railroad company, the 
 chief surgeon's letter could not be construed a ratifica- 
 tion of such employment, even though ratification were 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 121 
 
 authorized by him, nor could the letter be construed as 
 a contract of employment.* 
 
 Liability of Counties and Towns for Services to 
 Paupers. — Another prolific source of litigation is the 
 question of the liability of counties and towns for medi- 
 cal services rendered to their paupers. This right is 
 based upon statutes which differ in the several States; 
 therefore a satisfactory treatment of the subject will 
 necessarily be by States, and will require a greater 
 amount of space than should be devoted to the subject 
 in this chapter. 
 
 The various States have enacted laws calculated to 
 afford relief to the distressed poor who through age, 
 disease, or other infirmity are unable to provide neces- 
 sary food, clothing, shelter, and medical attendance for 
 themselves ; but the extent of the class included in such 
 charitable enactments, as well as the extent of the aid 
 afforded them, varies considerably. In some States 
 only those poor people are entitled to medical attention 
 at public expense who have been formally declared pau- 
 pers by the proper tribunal ; while in others all persons 
 unable to pay for necessary medical attention, whether 
 declared paupers or not, and in some States whether 
 residents or non-residents, are entitled to have their 
 physicians' bills paid from the town or county treasury. 
 
 * Burke U9. Chicago and W. M. Rj. Co , 12 N. W. Rep., (Mich.) 997. 
 
122 THE LAW m ITS RELATIONS TO PHYSICIANS. 
 
 In some States, if the officer whose duty it is to author- 
 ize the medical treatment of a poor person wrongfully 
 withholds such authorization, the physician must secure 
 authority by appeal to the proper tribunal, treat the 
 patient at his own cost, or leave him to suffer without 
 attention. In others he may treat the patient and sue 
 for and recover the value of his services, notwithstanding 
 the wrongful withholding of authority for such treat- 
 ment. In case of an accident, where persons without 
 property or ability to pay for their own medical treat- 
 ment are severely injured, the physician may in some 
 States give them immediate attention and recover from 
 the town or county the value of such services; while in 
 others he must leave the patient to suffer and per- 
 haps die until he secures instructions from the over- 
 seers of the poor to render medical services, if he 
 wishes to be secure in the collection of his fee for such 
 services. 
 
 The liability of the town or county for medical 
 attendance upon prisoners confined in the county jails 
 is also subject very largely to the regulation of local 
 statutes. 
 
 Post-mortems at Coroner's Inquest. — The right of 
 the physician to recover from the county for services 
 in making a post-mortem examination when sum- 
 moned for that purpose by the coroner is in many States 
 regulated by statutes which vary not only in their form 
 
RIGHTS AND LIABILITIES OP THIRD PARTIES. 123 
 
 of expression but in the substance of their provisions as 
 well, and which are the subject of such frequent change 
 as to render an extended examination of them of no 
 lasting value. The common-law liability of the county 
 and also the meaning of many of these statutes have 
 been the subject of judicial examination on numerous 
 occasions and, as these eases serve to illustrate the policy 
 of the law with regard to the compensation of physi- 
 cians for this class of services, they are examined to some 
 extent. 
 
 Upon the common-law liability of the county for 
 the physician's fee for services at a coroner's inquest the 
 supreme court of Arkansas, in a recent case, expressed 
 itself as follows : " The statute makes it his (the coro- 
 ner's) duty to use all proper means to ascertain the truth 
 concerning the death of the person over whose body he 
 is required to hold an inquest. It sometimes occurs that 
 the cause of death can only be ascertained by skillful 
 physicians, and by them only by making an autopsy. 
 How can the coroner discharge the duty imposed on 
 him in such cases? He may summon the physician 
 to testify and compel him to swear to his opinion on 
 a superficial view of the body, but can not compel him 
 to touch it, or do the more nauseous and dangerous 
 work of opening it, because such an act is not within 
 the office of a witness. The coroner is not expected 
 or required to make the autopsy with his own hands. 
 
124 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 It i8 not within the line of his official duties, and no 
 fee is allowed for such work, for the reason stated. 
 Yet he is authorized to ascertain the truth concerning 
 the death. The conclusion is unavoidable: he must in 
 such cases employ a physician to make the autopsy and 
 ascertain the cause of death, as in that case it would 
 be the only proper means by which the truth could be 
 ascertained." Commenting further upon the liability 
 for the payment of the physician's fees for such opera- 
 tion, the court says: " Is he (the coroner) or the county 
 responsible for the services of the physician? . . . Such 
 services, though ancillary to the purpose of some in- 
 quests, are not official, and consequently were not con- 
 sidered by the legislature when it fixed the fees of 
 coroners. But there is not only no fee fixed, but no 
 fund set apart to the coroner for such expenses. To 
 hold, then, that he is responsible, under such circum- 
 stances, would be to require him to contribute so much 
 gratuitously to the administration of justice and to 
 the enforcement of the laws. . . . Such a requirement 
 would be unjust and oppressive, and contrary to the 
 spirit of our laws. As a rule, the counties are respon- 
 sible for the expense of the administration of criminal 
 laws. Both justice and policy demand an adherence to 
 the rule in this case, and that the county should pay 
 a reasonable compensation for such services when needed 
 and performed — that is to say, what they are reasonably 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 125 
 
 worth." * This case is cited with approval and followed 
 in a later Arkansas case decided in 1895. f 
 
 In 1865 the supreme court of New York held that 
 where a physician was employed by a coroner to per- 
 form a post-mortem examination at the inquest, with no 
 special agreement that he should receive his compensa- 
 tion from other source than the coroner, his only 
 recourse was to compel that official to pay his fee; but 
 that the coroner had the right to recover from the 
 county the amount paid to a physician in such a case. J 
 The legislature, however, passed an act in 1874 making 
 the physician's fee in such a case a direct charge against 
 the county. Since the passage of this act the physician 
 must look to the county for his pay, as the coroner is 
 released from this liability.* 
 
 In California the liability of the county for the 
 payment of the physician's services in making post- 
 mortems is recognized, but the legislature has enacted 
 a law providing that " the board of supervisors must 
 not hear or consider any claim in favor of an individual 
 against the county unless an account, properly made out, 
 giving all the items," is presented to the board. A 
 
 * St. Francis Co. vs. Cumminp;?, 55 Ark., 419. 
 + Clark Co. vs. Kerstan, 60 Ark., 508, 30 S. W. Rep., 1046. 
 :j: Van Hoevenbergh vs. Hasbrouck, 45 Barb., 19*7. 
 » People vs. Board of Supervisors, 38 N. Y. S. R., 964, 15 N. Y. 
 Supp., 680. 
 
126 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 claim of a physician which was properly verified by 
 the coroner was presented to the board for allow- 
 ance. The account was for " making a trip from 
 Petaluma to Timber Cove, and making a post-mortem 
 
 examination of the body of , and taking the stomach 
 
 of said deceased to San Francisco for analysis." This 
 account was held not to fulfill the requirements, as it did 
 not give " all the items." It should have given the 
 number of miles traveled in going from Petaluma to 
 Timber Cove, and the length of time consumed in mak- 
 ing the post-mortem examination; also the number of 
 miles traveled, the time consumed, and the expense 
 incurred in taking the stomach to San Francisco for 
 analysis.* 
 
 In Colorado the right to collect from the county 
 is fixed by statute, which provides that where the " jury 
 shall deem it requisite," the coroner may summon one 
 or more physicians, and may allow a reasonable com- 
 pensation subject to the confirmation of the board of 
 county commissioners. The wording of this statute 
 does not, however, render it incumbent upon the physi- 
 cian, when summoned, to inquire whether or not the 
 jury deemed it requisite to make such an examination. 
 It is his duty when so summoned to obey the summons, 
 and he has a right to assume that the coroner acted 
 
 * Christie vs. Board of Supervisors of Sonoma Co., 60 Cal., 164. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 127 
 
 correctly in summoning him, and to rely upon such 
 official act.* 
 
 In Indiana the liability of the county has been rec- 
 ognized for many years. The supreme court said in 
 1852 : " We have no doubt that in a case where a post- 
 mortem examination is really necessary the coroner 
 may, by his employment, bind the county to the pay- 
 ment for a sufficiency of professional skill to make the 
 examination. To that extent, at least, he must be the 
 agent of the county." f The matter is now regulated 
 in the State by statute, which provides that when a 
 surgeon or physician is required to attend an inquest 
 held by a coroner, and make a post-mortem examina- 
 tion, the coroner shall certify such service to the board 
 of county commissioners, who shall order the same paid 
 out of the county treasury. The fact that an inquest 
 is conducted by a justice of the peace, who is there 
 authorized to perform all the duties of a coroner, and 
 the physician employed and the certificate of services 
 made out by the justice, does not in any way affect 
 the liability of the county to pay the physician for 
 such services. J Nor does it release the county from 
 their liability in the premises because the physician is 
 
 * Co. Commrs. Pueblo Co. vs. Marshall et al, 11 Col, 84, 16 P. 
 Rep., 837. 
 
 \ Gaston vs. Board Commrs. Marion Co., 3 Ind., 491. 
 
 \ Stevens vs. Board of Commrs. Harrison Co , 46 Ind., 641. 
 
12S THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 in the employ of the county to treat the poor of the 
 asylum, nor even where the subject operated upon was 
 during his hfe a pauper whom it was the physician's 
 duty to treat when sick.* Incident to the coroner's 
 duty to hold inquests is his right not only to employ 
 a physician to perform a post-mortem examination, but 
 also his right to determine who that physician shall be. 
 In the case of the Board of Commissioners of Dearborn 
 County vs. Bond, the county commissioners employed a 
 physician to render such services, and when the coroner 
 refused to recognize their selection, but employed an- 
 other physician and certified to his claim, the board of 
 county commissioners refused to allow the same. The 
 matter was appealed, and finally reached the supreme 
 court, where the claim was allowed. Justice Best said : 
 " This duty is imposed upon the coroner, and for the 
 purpose of enabling him to discharge it he is empowered 
 to employ such means and to select such physician or 
 surgeon as in his judgment will enable him to ascer- 
 tain the cause of death. The duty thus imposed neces- 
 sarily confers the authority to make his own selection 
 in the faithful discharge of his duties, and, in this 
 respect, he can not be superseded by the__ board of com- 
 missioners, upon whom no such duty rests." f 
 
 There is in Indiana, by virtue of a statute, a limited 
 
 * Lang vs. Bonrd of Commrs. Perry Co., 121 Ind., 133. 
 
 •} Board of Commrs. of Dearborn Co. vs. Bond, 88 Ind., 102. 
 
EIGHTS AND LIABILITIES OP THIRD PARTIES. 129 
 
 exception to the general rule of liability of the county — 
 thus: where money and other valuables are found upon 
 the body of the deceased this property is first subjected 
 to the .payment of the expenses of the inquest.* 
 
 The statute law of Iowa relative to the subject pro- 
 vides that "when he (the coroner) or the jury deem 
 it requisite, he may summon one or more physicians 
 or surgeons to make a scientific examination, who, in- 
 stead of witness fees, shall receive such reasonable 
 compensation as may be allowed by the county board of 
 supervisors." f Under this law the amount allowed by 
 the county board is conclusive and can not be increased 
 upon appeal unless fraud can be shown in fi_xing such 
 amount. I 
 
 In Pennsylvania the courts hold that the coroner has 
 the power at common law to employ a physician to 
 perform an autopsy and to bind the county for the 
 physician's pay. The physician when summoned is 
 ■ynder no obligation to investigate and determine 
 whether the inquest should be held ; this is a matter left 
 to the discretion of the coroner, and the physician may 
 safely rely upon the mere fact that he is summoned.* 
 Nor have the county commissioners the right to appoint 
 
 * Thornton's Ind. St. 1897, § 8341. 
 
 \ Code of Iowa, § 529, McClain's Code, § 503. 
 
 X Moser vs. Boone Co., 91 la., 359, 55 N. W. Rep., 327. 
 
 * County of Northampton vs Innes, 26 Pa. St., 156. 
 
130 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 a regular physician to perform such services, thereby 
 precluding the coroner from making his own selection.* 
 Upon the question of the liability of counties for 
 the payment of the fees of physicians for performing 
 post-mortem examinations at coroners' inquests, the 
 courts of the State of Texas seem to stand alone. The 
 supreme court in 1888 held that there was no such 
 liability at common law, and that there was no statute 
 in the State fixing such liability upon the counties, f 
 Again, in 1891, the same court refused to permit a 
 physician to recover the amount of his reasonable fee 
 with the laconic statement : " The law permits no re- 
 covery for the services rendered." J This construction 
 of the law being for the second time brought to the 
 attention of the profession by the highest court of the 
 State, they evidently realized its injustice, and, taking 
 the advice of the court in the case of Fears vs. Nacog- 
 doches County, sought relief through legislative en- 
 actment. At the next session of the legislature, which 
 convened on January 10, 1893, a law was enacted au- 
 thorizing coroners to call in the county physician; or, 
 if impracticable to secure his services, to summon any 
 regularly practising physician to perform a post-mor- 
 tem, and providing that the county in which such in- 
 
 * County of Allegheny vs. Shaw, 34 Pa. St., 301. 
 
 •( Fears vs. Nacogdoches County, 71 Tex., 337, 9 S. W. Rep., 265. 
 
 X Frio Co. vs. Earnest, IG S. W. Rep. (Texas), 1036. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 131 
 
 quest is held shall pay the physician a fee of not less 
 than ten dollars or more than fifty dollars, the excess 
 over ten dollars to be determined by the county com- 
 missioners' court after ascertaining the amount and 
 nature of work performed in making such autopsy.* 
 
 Liability of Employer for Neglect, etc., of Physician. 
 — The liability of third parties, as contemplated here- 
 tofore in this chapter, is only that which arises in 
 favor of the physician. Questions frequently arise as to 
 the liability of third parties to the patient, based upon 
 the transactions between the physician and patient. 
 While such questions are not of direct interest to the 
 physician, it is thought best to give them brief attention. 
 
 Employers, such as railroad companies, steamboat 
 companies, mining companies, and the like, very fre- 
 quently employ physicians to treat their wounded or 
 sick employees; in case of negligence or malpractice of 
 the physician, it has been a very common occurrence for 
 the injured employee to sue his company to recover 
 damages for the injury or loss suffered by him by reason 
 of such negligent or improper treatment by the em- 
 ployer's physician or surgeon; but it is now a well- 
 settled proposition of law that the employer is not liable 
 for the improper treatment by a surgeon in such a 
 case. The relation between the employer and physician 
 or surgeon is not that of master and servant, which in 
 
 * Laws of Tex., 1893, 155. 
 
132 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the law implies that the servant acts under and accord- 
 ing to the instructions of the master. In the case of 
 employer and physician the very nature of the physi- 
 cian's duties precludes the possibility of this relation, 
 as the physician is bound to exercise knowledge, skill, 
 and judgment, and it is because he is capable of this 
 that he is selected. It therefore follows that the em- 
 ployer is not responsible to his employees for the man- 
 ner in which they are treated by the physician or sur- 
 geon whom he procures for them.* The law does, 
 however, require that the employer use reasonable care 
 in selecting a physician and surgeon of ordinary skill, 
 otherwise he might be liable to his employee for his 
 own negligence in making a careless selection, f 
 
 Nor is a county or other municipal corporation 
 liable to a patient for unskillful or improper treat- 
 ment by a physician while in the county hospital or 
 similar institution.! 
 
 * A., T., and S. F. R. Co. vs. Zeiler, 54 Kan., 340, 88 P. Rep., 282; 
 O'Briens. Steamship Co., 154 Mass., 272; South Fla. R. Co. vs. Price, 
 32 Fla., 46, 13 So., 638; Richardson vs. Carbon Hill Coal Co., 10 
 Wash., 648, 39 Pac. Rep., 95; Quinn vs. Kansas City, M., and B. R. 
 Co., 94 Tenn., 713, 28 L. R. A., 552, 30 S. W. Rep., 1036 ; Union P. 
 R. Co. vs. Artist, 60 Fed. R., 365, 23 L. R. A., 581 ; York vs. Chicago, 
 M., and St. P. Ry. Co., 98 la., 544, 67 N. W. Rep., 574; Clark vs. Mis- 
 souri P. R. Co., 48 Kan., 654, 29 Pac. Rep.. 1138; Pittsburgh, C. C, 
 and St. L. R. Co. vs. Sullivan, 41 Ind., 88, 40 N. E. Rep., 138. 
 
 I Laubheim vs. DeK. N. S. Co., 107 N. Y., 228. 
 
 X Sherboume vs. Yuba Co., 21 Cal., 113; Brown vs. Vinalhaven, 65 
 Me., 402; Summers vs. Daviess Co., 103 Ind., 262, 1 West Rep., 217. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 133 
 
 While the liability of the physician to the patient 
 can not properly be discussed under the present chap- 
 ter, it is thought pertinent to state that the immunity 
 of the third parties in the cases just referred to does 
 not in any way relieve the physician from his liability 
 to the patient.* 
 
 Rights of Third Parties. — Having examined those 
 cases in which third parties are liable to both the physi- 
 cian and patient, we will now pass to a consideration of 
 the rights of third parties. 
 
 Rights of Husband. — It has been observed that the 
 husband is subject to certain liabilities arising from the 
 treatment of his wife ; it is therefore natural to suppose 
 that he has certain rights in the premises which should 
 be respected. 
 
 In case it becomes necessary to operate upon a pa- 
 tient, is it necessary to first obtain consent from her 
 husband? In the case of M'Clallen vs. Adams a hus- 
 band placed his wife under the care of a physician whom 
 he knew, at a distance from his own residence, for treat- 
 ment for a scrofulous tumor of the breast; while the 
 wife was under the doctor's care a cancerous condition 
 developed, and the physician without the husband's 
 knowledge amputated the breast, from which operation 
 the patient never recovered. The court was of the opin- 
 
 * DuBois vs. Decker, 130 N. Y., 325, 14 L. R. A., 429. See Ch. VII. 
 
134 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ion that the husband, in placing his wife in the care of 
 the physician under the circumstances stated, " implied- 
 ly requested him to do all such acts, and adopt such 
 course of treatment and operations, as in his judgment 
 would be most likely to effect her ultimate cure and 
 recovery, with the assent of the wife, and therefore that 
 the operation in question was within the scope of the 
 authority given him." The court, commenting upon 
 the case, further said: "Although it might have been 
 an act of prudence in the [physician] to give the [hus- 
 band] notice of the situation of the wife, and of his 
 intention to perform a dangerous operation, yet we 
 think he might safely trust to the judgment of the 
 wife, to give her husband notice from time to time 
 of her situation and intentions, and that it was not 
 necessary, in point of law, for the [physician] to 
 give such notice, or to have any new request or au- 
 thority." * 
 
 The court, in the case of State, etc., vs. Housekeeper 
 et al., decided in 1888, in considering a similar state of 
 facts, said : *' The consent of the Mdfe, not that of the 
 husband, was necessary. The professional men whom 
 she had called in and consulted were the proper persons 
 to determine what ought to be done. They could not, of 
 course, compel her to submit to an operation, but if 
 
 * M'Clallen vs. Adams, 19 Pick, 333. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 135 
 
 she voluntarily submitted to its performance, her con- 
 sent will be presumed, unless she was the victim of a 
 false and fraudulent misrepresentation, which is a ma- 
 terial fact to be established by proof." In this case the 
 evidence showed that the wife had been afflicted with a 
 lump in her right breast, supposed to be an innocent 
 tumor, but afterward ascertained to be a cancer. The 
 physicians operated for cancer, removing the entire 
 breast. The husband testified that he supposed the oper- 
 ation was for the purpose of removing a tumor, and 
 that he would never have consented to the operation 
 which was performed. The evidence did not show 
 whether the wife was informed of the character of the 
 operation to be performed, but the court stated the law 
 relative to this question as follows : " The party who 
 allows a surgical operation to be performed is presumed 
 to have employed the surgeon for that particular pur- 
 pose." * 
 
 It is a rule as old as the common law itself that 
 the husband is entitled to the society and services of his 
 wife ; if, therefore, the physician, through improper care 
 or inattention, prolongs the sickness of the wife, he can 
 be held to respond in damages to the husband for the 
 value of his wife's society and services during such peri- 
 
 * State, etc., vs. Housekeeper ci al., 70 Md., 162, 16 Atl. Rep., 382. 
 As to necessity of securing consent before operating, sec post, p. 31S. 
 
136 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 od of prolonged sickness, also for the expense of caring 
 for her during this period.* 
 
 And, finally, when the wife dies, the hnsband is en- 
 titled to have her body in the condition in which the 
 breath leaves it for the purpose of interment. Should 
 the physician violate this right and perform an autopsy 
 upon the body without the consent of the husband, it 
 seems well settled that he can be held to respond in 
 damages to the husband; the amount of damages would 
 be assessed by the jury, and the principal element upon 
 which it would be based would be the injury to the hus- 
 band's feelings, f 
 
 This right to the body of the deceased is primarily 
 in the surviving husband or wife ; if there is no surviv- 
 ing husband or wife it is in the next of kin.| 
 
 Thus a father who places his child in the care of a 
 physician has the right to immediate possession of the 
 body upon the child's death, and can maintain an action 
 against the physician for any violation of this right.** 
 
 This proposition is, of course, to be understood with 
 the qualification that, where the circumstances of tho 
 death are such as to render a coroner's inquest necessary, 
 
 * Nixon vs. Ludlam, 50 111. App., 2*73 ; Stone vs. Evans, 32 Minn., 
 243, 20 N. W., 149. 
 
 + Foley vs. Phelps, 37 N. Y. Supp., 471, 1 App. Div., 551. 
 X Larson vs. Chase, 47 Minn., 307. For law respecting the right to 
 perform an autopsy, see post, p. 315. 
 
 * Burney vs. Children's Hospital, 169 Mass., 57, 47 X. E. Rep., 401. 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. 13^ 
 
 the physician who performs the autopsy under the coro- 
 ner's orders is protected in so doing if he treats the body 
 with ordinary decency and does not wantonly or unne- 
 cessarily disfigure it.* 
 
 Right of Third Parties Generally. — It has been ob- 
 served that the doctor's duty requires him to sometimes 
 destroy property which is infected with any contagious 
 disease; but when such property belongs to third par- 
 ties, have they any recourse against the physician who 
 ordered its destruction? 
 
 A case occurred in Maine in 1874 f in which the 
 owner of a house in which small-pox patients had been, 
 sued the physician for ordering the paper removed from 
 the wall, the plaintifE claiming that its removal was 
 not necessary to properly disinfect. The trial court gave 
 the plaintiil a judgment of thirty-five dollars against 
 the physician, but the supreme court sent the case back 
 with an opinion of law which relieved the physician 
 from all liability in the premises. In this case the court, 
 speaking through Justice Walton, said: "When the 
 small-pox or any other contagious disease exists in any 
 town or city the law demands the utmost vigilance to 
 prevent its spread. . . . 
 
 "To accomplish this object, persons may be seized 
 
 and restrained of their liberty or ordered to leave the 
 
 State; private houses may be converted into hospitals 
 
 * Young vs. College of P. and S , 81 Md., 868, 32 Atl. Rep., 177, 
 f Seavey vs. Preble, 64 Me , 120. ' 
 
138 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 and made subject to hospital regulations; buildings may 
 be broken open and infected articles seized and de- 
 stroyed, and many other things done which, under ordi- 
 nary circumstances, would be considered a gross outrage 
 upon the rights of persons and property. This is allowed 
 upon the same principle that houses are allowed to be 
 torn down to stop a conflagration. Salus populi est su- 
 prema lex — the safety of the people is the supreme law 
 — is the governing principle in this ease. 
 
 " Where the public health and human life are con- 
 cerned the law requires the highest degree of care. It 
 will not allow of experiments to see if a less degree of 
 care will not answer. The keeper of a furious dog or 
 mad bull is not allowed to let them go at large to see 
 whether they will bite or gore his neighbor's children 
 . . . nor is one using a steam engine to see how much 
 steam he can possibly put on without bursting the boiler. 
 N"o more are those in charge of small-pox patients al- 
 lowed to experiment to see how little cleansing will an- 
 swer; how much paper spit upon and bedaubed with 
 small-pox virus it will do to leave upon the walls of the 
 rooms where the patients have been confined. The law 
 will not tolerate such experiments. It demands the ex- 
 ercise of all possible care. In all cases of doubt the safest 
 course should be pursued, remembering that it is in- 
 finitely better to do too much than to run the risk of 
 doing too little." 
 
RIGHTS AND LIABILITIES OF THIRD PARTIES. I39 
 
 It will seem conclusive after reading this forcible 
 opinion that third parties have no right whatever to in- 
 terfere with the physician in taking such reasonable 
 steps as he deems necessary for perfect disinfection, and 
 that he can only be held responsible for or restrained 
 from wholly unnecessary or willful destruction. 
 
 A peculiar case touching the liability of a physician 
 to a third party recently arose in Massachusetts. A 
 physician was employed by a father to examine a young 
 man, who was engaged to be married to his daughter, to 
 determine whether or not he was affected with a venereal 
 disease. The young man had accidentally injured him- 
 self, and the physician, after making the examination, 
 reported that he was suffering from gonorrhoea, by vir- 
 tue of which statement the engagement was broken off. 
 
 The injured man sued the physician, and the su- 
 preme court held that if he did not possess ordinary 
 skill and learning, and use ordinary diligence and care 
 in their exercise, he was liable to the plaintiff, and 
 that the breaking of the plaintiff's marriage engage- 
 ment in consequence of the wrong diagnosis was not too 
 remote a damage to sustain the action.* Whether or not 
 he did possess ordinary skill and learning and exercise 
 proper care and skill in conducting the examination, 
 was a question for the jury to determine from the evi- 
 dence adduced at the trial. 
 
 * Harriott vs. Plimpton, 166 Mass. 5S5, 44 N. E. Rep., 992. 
 10 
 
CHAPTER V. 
 
 EIGHT TO CO:SIPEXSATIOX. 
 
 Right ITsiially Founded npon Implied Contract of 
 Patient.^-It has been observed that a patient impliedly 
 contracts with a physician, when he engages his serv- 
 ices or when he receives the physician's professional 
 attention, that he will make a reasonable and proper 
 compensation therefor. The right of the physician to 
 his fee is probably governed in nineteen out of twenty 
 cases by this implied contract. Occasionally, however, 
 there is a special contract superseding the one implied 
 by law, and, probably with still greater frequency, 
 there are peculiar circumstances attending the case 
 which materially affect the contract as ordinarily im- 
 plied. The implied promise of payment may arise from 
 either one of two circumstances : First, from the em- 
 ployment of the physician to attend the patient, or 
 second, from the mere attendance of the physician and 
 the acceptance of his services, even though he is not 
 expressly employed. 
 
 From the fact that the mere employment of the 
 
 phj^sician creates a liability for the payment of his fee, 
 140 
 
RIGHT TO COMPENSATION. 141 
 
 it follows that if a physician is sent for to attend a 
 certain patient, and upon promptly responding to the 
 call the physician is informed that another physician 
 is in attendance, or that the trouble is passed, or that 
 for any other reason his services are not required, he 
 will, nevertheless, be entitled to the ordinary and rea- 
 sonable compensation for making the call.* 
 
 The mere acceptance of the services of a physician 
 being sufficient to bind the patient to pay therefor is 
 another sufficient reason for the rule of law heretofore 
 observed, that the physician is entitled to compensation 
 not only for the first visit made at the patient's express 
 request, but also for all subsequent visits which the pa- 
 tient's condition requires. 
 
 Right to Compensation for Services of Student. — 
 The physician is entitled to a fee for services rendered by 
 students who attend upon his patients under his direc- 
 tions, and the fact that such students are not legally 
 qualified to practise medicine and surgery in their own 
 names and collect fees for such services does not affect 
 this right, f And so, where a physician employs another 
 physician to assist him, he is entitled to recover for the 
 services of such assistant. J 
 
 * See Bartlett vs. Sparkman, 95 Mo , 136 ; Wheatley vs. City of Cov- 
 ington, 11 Bush, 18. 
 
 \ People vs. Monroe, 4 Wendell, 200. 
 
 I Jay County Commiss. vs. Brewington, 74 Ind , 7. 
 
142 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Right of Irregular Practitioners to Recover Fees. — 
 
 One practising an irregular branch of medicine, such 
 as Christian Science, spiritualism, or the like, if not 
 prohibited so to do by the law of his State, is entitled 
 to fees for such services. In the case of Wheeler vs. 
 Sawyer, the defense interposed was "that the so-called 
 
 * Christian Science ' is a delusion ; that its principles 
 and methods are absurd; that its professors are charla- 
 tans; that no patient can possibly be benefited by their 
 treatment." The court said, "We think this all im- 
 material. We are not required here to investigate 
 
 * Christian Science.' The patient chose that treat- 
 ment, and received it, and promised to pay for it. There 
 is nothing unlawful or immoral in such a contract. Its 
 wisdom or folly is for the parties, not the court, to de- 
 termine." * 
 
 The question whether or not a physician who has 
 not fully complied with the requirements of the law can 
 recover his fees is treated at length in the following 
 chapter. 
 
 Sunday Contracts Valid. — The contract of the physi- 
 cian being construed to be one of necessity and charity, 
 comes within the exception provided for by the statutes, 
 which declare all work done and contracts entered into 
 
 * Wheeler vs. Sawyer (Me.), 15 A. Rep., 67, 6 N. Eng. Rep., 826. 
 See, however, p. 88. 
 
RIGHT TO COMPENSATION. 143 
 
 on Sunday to be unlawful, and therefore the physician 
 is entitled to his regular fees for medical services ren- 
 dered on that day.* 
 
 Amount or Rate of Fee Collectible. — The amount 
 of fee to which a physician is entitled is not a question 
 of law, but is rather one of fact, and is determined by 
 the customs of the locality and by the circumstances of 
 the particular case. In many localities one dollar is the 
 regular fee for making an ordinary day call, and in such 
 localities the physician would not be entitled to collect a 
 larger fee for an ordinary day visit without a special un- 
 derstanding, for customs of this sort may assume the 
 force and effect of unwritten laws; in other localities 
 custom allows a larger fee. It is presumed, however, that 
 the rate of fees is based upon the condition existing in 
 the particular locality, and that a careful examination 
 and comparison of the rates of fees and of the conditions 
 of their respective localities will show a wise and equita- 
 ble adjustment of the question throughout the country. 
 What constitutes a visit may also be regulated by custom. 
 If a visit is required to be prolonged beyond a certain 
 period, custom may establish the practice of charging 
 extra for all time expended beyond the limit fixed, or 
 a physician may establish such a custom for himself 
 
 * Smith vfi. WatGon, 14 Vt, 332; Aldiich vs. Bkckstone, 128 Mass., 
 148. See p. 19. 
 
144: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 by generally announcing it among his patients. His 
 right to the added compensation would at first, however, 
 be dependent upon the announcement of his special 
 terms to the particular patient, and this announcement 
 would, if acted upon, be equivalent to a special contract 
 for such increased fee. But after the custom became 
 generally known and recognized no special notice would 
 be required to fix the liability upon the patient. 
 
 The fees for performing operations are also subject, 
 to a certain extent, to customs; there are, however, 
 many operations of an unusual character which from 
 the nature of the case can not be provided for by cus- 
 toms. Many operations being of a difficult character, 
 it becomes advisable often to acquire the services of a 
 surgeon specially skilled in that line of work, or specially 
 qualified to perform the particular class or kind of 
 operation. The services of such men are not, and can not 
 be, subject to the customs prescribing the rate of fee 
 in the particular locality in which the services happen to 
 be rendered. Also, a physician who is called from a dis- 
 tance because of his special fitness, or for other reasons, 
 may collect for such services, basing the amount of his 
 fee upon the rate customarily charged by^ him and not 
 upon the rates charged at the place where he visits the 
 patient. 
 
 Where, liowever, a physician is called from a distance 
 to see a person either on business or social matters, and 
 
RIGHT TO COMPENSATION, I45 
 
 while there attends him professionally, he is not en- 
 titled to the same compensation as though he were sum- 
 moned to attend him professionally; in the latter case 
 he would be entitled to a greater compensation based 
 upon the loss or abandonment of home practice, while 
 in the former case he would merely be entitled to a 
 compensation for the time spent in attending the sick 
 person professionally, and perhaps for the expenses of 
 the trip. The allowance or disallowance of the last 
 item would depend very much upon the circumstances 
 of the case.* 
 
 Upon the same principle it has been held that where 
 a physician lives at his brother's house as a member of 
 the family, he is not entitled to compensation for un- 
 interrupted medical attendance and services during the 
 entire time of the brother's sickness. In this case Jus- 
 tice Ilanna said : " The testimony shows that the claim- 
 ant, while he attended his brother, the decedent, did 
 not devote all his time and attention to his patient, but 
 that he acted as a member of the family, sleeping and 
 taking his meals in the house, going out and return- 
 ing at his pleasure; and though, no doubt, he rendered 
 many kind, thoughtful, and affectionate attentions to 
 his suffering brother, yet they formed no part of his 
 duties as a physician, and can not after the death of that 
 
 * Succession of Dickey, 41 La. Ann., 1010, 6 So. Rep., 798. 
 
146 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 brother be made the basis of pecuniary compensation. 
 The most the claimant is entitled to is to be paid for 
 the professional visits made, and the number of opera- 
 tions performed by him, at the usual rate of practising 
 physicians." * 
 
 The supreme court of Louisiana has held that a 
 physician's charges against an estate for services ren- 
 dered to the deceased are not to be based entirely upon 
 the physician's skill and the character of the services, 
 but that the ability of the estate to pay for such services 
 should be considered in determining the amount of the 
 fee. In this case the deceased had stricture of the 
 oesophagus, probably cancerous in its nature. He could 
 not be fed through the mouth and artificial means had 
 to be resorted to. The purpose was for a time accom- 
 plished by inserting a flexible tube through which 
 liquid nourishment was given him, but this means soon 
 failed, the stricture becoming complete and rigid. The 
 physician then resorted to the operation of gastrotomy, 
 after which the patient survived twenty-one days, hav- 
 ing been under the care of the physician for a period 
 of sixty days. The physician rendered a bill of $2,500. 
 The supreme court, in considering the amount of the 
 fee, said : " The physician should be paid, but the charge 
 is disproportionate to the man's estate and condition 
 
 * In re Moffett Est. (Pa.), 32 Leg Int , 218. 
 
RIGHT TO COMPENSATION. I47 
 
 in life. His estate is inventoried at $8,705. The lower 
 court allowed $500. We increase it to $1,000.* 
 
 ' A case is reported in the Pacific Record of Medicine 
 and Surgery f in which not only the character of the 
 operation performed, but the ruling of the court upon 
 the effect of the value of the patient's estate upon the 
 amount of fees recoverable therefor, are strikingly simi- 
 lar to those in the above case. Here an operation of 
 gastfotomy was performed upon a patient who was sev- 
 enty-two years of age, and who was afELicted with cancer 
 of the oesophagus. The physician charged $1,500 for 
 the operation, $100 each for night detentions, and $100 
 each for visits, his bill amounting in all to $9,200. 
 Upon trial, the physician's lawyer, against the strenu- 
 ous objection of the defendants, introduced in evi- 
 dence the inventory of the decedent's estate, show- 
 ing it to be appraised at $250,000. The only question 
 involved in the trial was the one of the amount to which 
 the plaintiff was entitled, the executors having previous 
 to the trial offered to pay $2,750 in full of the claim, 
 and the plaintiff having offered to accept $4,000. The 
 trial judge, after instructing the jury at some length 
 upon the conditions they were to regard and the effect 
 they were to give the evidence of the experts in fixing 
 
 * Czarnowski vs. Succession of Zeyer, 35 La. Ann., 796. 
 
 f Padfic Record of Medicine and Surgery, April 15, 1899, p. 298. 
 
148 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the amount of the fees, referred to the importance 
 which should be attached to the value of the patient's 
 estate in the following words : 
 
 " While you may take into consideration, in estimat- 
 ing the value of the plaintiff's services, all the circum- 
 stances surrounding such services, the time consumed 
 in the operation and in attendance upon Mr. Goldberg, 
 the responsibility involved in the operation, and in this 
 connection you may consider the financial situation of 
 the patient and the value of his estate, the reputation 
 and skill of the plaintiff, as well as the income which 
 he derives from his practice, the number of visits and 
 duration as well as the loss of time incurred by the 
 plaintiff in traveling back and forth, the nature and 
 extent of the services, and the benefit to the deceased, 
 yet this does not mean that you may arbitrarily fix any 
 sum you may see fit as the amount to be recovered by 
 the plaintiff in this case. He is entitled to recover only 
 such a sum as will be a reasonable compensation for his 
 services rendered the decedent considering all the cir- 
 cumstances. The doctrine known to maritime law as 
 salvage does not apply to cases like the one at bar. 
 That is to say, while you may take into consideration 
 the value of the estate as one of the elements to deter- 
 mine the value of plaintiff's services, yet that element 
 is not controlling. In other words, the plaintiff is only 
 entitled to recover the reasonable value of his services 
 
RIGHT TO COMPENSATION. I49 
 
 rendered to the decedent prior to his death, and for the 
 purpose of fixing and determining such value you have 
 the right to take into consideration the other elements 
 mentioned.'"' 
 
 With these instructions the jury retired and re- 
 turned with a verdict for the plaintiff of $6,500, which 
 itemized, amounted to $1,500 for the operation and $60 
 each for the visits. 
 
 Courts have, however, repeatedly held that the rate of 
 fees chargeable by physicians is in no way affected or 
 altered by the financial circumstances of the patient. 
 This is probably the law as applied in suits between 
 physician and patient, but when the claim is being en- 
 forced against the estate of a deceased patient, as in 
 the above cases, then the court may be more disposed to 
 follow them as precedents. 
 
 A recent case which may well illustrate the impos- 
 sibility of laying down a fixed rule for the regulation 
 of professional fees in surgical cases, or cases requiring 
 unusual or peculiar skill and ability, is that of Heintz 
 vs. Cooper.* In this case, the patient had sustained a 
 compound fracture of the leg and dislocation of the 
 ankle joint. Both bones were broken and protruded 
 through the flesh, and six or seven pieces of the bone 
 Vere removed. The physician's services commenced 
 
 * Heintz vs. Cooper, 4.1 Pac. Rep., 360 (Cal.). 
 
150 THE LAW IN ITS RELATIONS TO PHYSICIANS, 
 
 July 12th and continued through until October 13th 
 following, during which time plaintifE testified he made 
 about two hundred visits and about seventy of these 
 were for the purpose of dressing the wound; that five 
 dollars to ten dollars a visit when the wound was dressed, 
 and two dollars and fifty cents a visit for all other visits, 
 was a reasonable charge; and that for reducing a com- 
 pound fracture of the leg, two hundred and fifty dollars 
 to five hundred dollars was a reasonable compensation. 
 On the other hand, the professional evidence introduced 
 by the defendant was that five hundred dollars was a 
 reasonable compensation for all services rendered in 
 the case. The jury returned a verdict for seven hun- 
 dred and fifty dollars. Upon the appeal of this case. 
 Justice Haynes said : " It appeared, however, that in no 
 case in Monterey County within the knowledge of the 
 medical witnesses had so large fees, in the aggregate, 
 been paid in case of compound fracture, though in none 
 of the instances mentioned was the character of the 
 fracture or the number of visits stated; and it is now 
 contended on behalf of appellant (the patient) that 
 the prices so paid in those other cases in that county 
 determine what is a reasonable compensation for plain- 
 tiff's services in this case, or, as counsel stated it, * the 
 usual price at the time and place of performance is th6 
 rule.' The cases cited in support of this proposition 
 relate to ordinary services, as to which there is a reason- 
 
RIGHT TO COMPENSATION". 151 
 
 ably uniform established rate of compensation, and 
 not to professional services, where the skill and learning 
 of the person, as well as the almost infinite variety 
 in the character and circumstances of the subject 
 upon which he devotes his services, precludes the 
 establishment of any fixed rate of compensation 
 which could be applied to more than a very re- 
 stricted class of cases and the more common class of 
 services/' 
 
 In short, the amount of the fee which a physician 
 and surgeon is entitled to charge is governed, in the 
 case of ordinary and usual services, by the generally 
 recognized customs prevailing at the time and place 
 where the services are rendered, or, if he is called from a 
 distance to perform such services, then by the cus- 
 tom prevailing in his locality. But in ease of unusual 
 or peculiar services no such general custom will rule; 
 all of the attendant circumstances must be taken into 
 consideration and a fair and equitable amount thereby 
 determined upon. A more definite and certain rule 
 than the above can not be well given. 
 
 Consultant's Fee. — In case of consultation, the cus- 
 tom seems so well established, that the patient will pay 
 the fee of the consultant, that an agreement between the 
 patient and attending physician that the physician will 
 pay the consultant's fees does not release the patient 
 from paying such fees unless the consultant is in- 
 
152 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 formed of such arrangement before the services are 
 rendered.* 
 
 Where, however, an attending physician takes an- 
 other physician to a patient's house to convince the pa- 
 tient that he is doing all that can he done, and the 
 physician so called in does nothing whatever for the 
 patient, and is not, in fact, called in at the patient's 
 instance or request, the patient is under no obliga- 
 tion to pay him anything, f Nor does it necessarily 
 follow where a patient employs two physicians, who, 
 in fact, meet at his bedside at each call, that each 
 meeting will rank as a consultation. In the matter of 
 Succession of Duclos, the court said : " As to the pre- 
 tension that, from the moment more than one physician 
 is called in, and attends regularly upon a case, every 
 visit made by every physician employed takes rank as 
 a consultation, it can not be listened to, even supposing 
 that the visits are made at the same hour, so that the 
 physicians actually meet at the patient's bedside. The 
 difference of the charge for what is technically styled 
 a consultation, and for a simple visit, would make it 
 ruinous to most patients and unreasonably onerous to 
 all, to avail themselves of the lights of more than one of 
 the faculty in time of need," J 
 
 * Shelton vs. Johnson, 40 la., 84; Garrey vs. Stadler, 67 Wis., 512. 
 See p. TY. 
 
 f Schrader vs. Hoover, 87 la. 654, 54 N. W. Rep., 463. 
 X Succession of Duclos, 11 La. Ann., 406. 
 
RIGHT TO COMPENSATION. 153 
 
 Failure to Benefit Patient no Bar to Recovery of 
 Compensation. — A consideration of those things which 
 may be urged as defeating the right of the physician to 
 compensation brings us first to the effect of the failure 
 by the physician to benefit his patient. The contract 
 of .the physician that he is possessed of ordinary skill 
 and knowledge, and will use due care and diligence in 
 exercising them, does not guarantee his ability to effect 
 a cure in all cases, nor indeed is it an assurance that 
 his services will even be beneficial. If, therefore, the 
 test of a successful treatment is to be considered a pre- 
 requisite to the physician's right to recover for such 
 services, it is patent that a new requirement is inter- 
 posed by the law. This, however, is not the case ; it has 
 been laid down as law that if the physician possesses 
 ordinary knowledge and skill and uses reasonable and 
 due care in their exercise, he does all the law requires 
 of him ; this proposition is correct, and is therefore ap- 
 plied as a test of the physician's right to recover regard- 
 less of the benefit or injury following his treatment. 
 The court well stated the law in a Pennsylvania case 
 in the following words : " The fact that a professional 
 man does not succeed in accomplishing that for which 
 he is employed, can not affect his right to recover for 
 services rendered, unless actual want of skill be spe- 
 cifically shown." * 
 
 * Teedman vs. Loewengrund (Pa.), 2 W. N. C, 2*72. 
 
154 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Illustrations. — Whether or not a physician has com- 
 plied with the requirements of the law in a given ease 
 is a question of fact to be determined by the jury by 
 the aid of expert evidence. In a recent Illinois case 
 the evidence showed that the patient was thrown from 
 his buggy and his left shoulder joint dislocated by the 
 fall. On the following day he called upon the doctor, 
 who, the evidence tends to show, properly reduced the 
 dislocation. In three or four days he called again, ac- 
 cording to the physician's instructions, and the shoulder 
 appeared to be doing well. The patient was not again 
 seen by the physician for about forty-five days, when 
 the shoulder was found to be in an ankylosed condition, 
 and unable to be moved. On the following day the pa- 
 tient returned to the doctor's office by appointment ; the 
 doctor administered ancesthetics to him and proceeded to 
 break up the adhesions, but in doing so ruptured the 
 axillary artery. The next day the physician and patient 
 went to Chicago, where an eminent surgeon performed 
 a surgical operation on him. He cut down upon the 
 blood-vessel, cleaned out the cavity, which was filled 
 with blood clot, sought out the bleeding vessel, tied it, 
 sewed up the wound, and dressed it. He testified that 
 the head of the humerus was in the socket where it 
 belonged. The patient never fully recovered from the 
 injury, and, as the evidence tends to show, his arm is 
 stiff and the humerus out of place. 
 
RIGHT TO COMPENSATION. 155 
 
 The physician brought suit to recover his fee, and 
 the patient contested it on the ground that the disloca- 
 tion was never in the first instance reduced, and that 
 caused the ankylosis and the necessity of breaking up 
 the adhesions from which the subsequent trouble re- 
 sulted. The patient also contended that if the shoulder 
 had been properly reduced in the first instance, and 
 ankylosis had set in, it was not proper practice to 
 break up the adhesions; that he would have got proper 
 motion in the lapse of time without it. The doc- 
 tor introduced the evidence of several of the most emi- 
 nent physicians of Chicago, who gave their opinion that 
 the treatment of the patient's wound was good practice 
 at every step. Upon the advisability of breaking up the 
 adhesions, one physician testified as an expert witness as 
 follows : " Patients don't always get the benefits that 
 we hope they will get in cases where the shoulder has 
 been dislocated, but that advice was such as a surgeon 
 in good practice would give under the circumstances." 
 
 The evidence also tended to show that the surgical 
 operation necessitated by the rupture of the axillary 
 artery was the probable cause of the shoulder becoming 
 again dislocated. 
 
 The jury concluded from the evidence that the physi- 
 cian had treated the patient's shoulder in a reasonably 
 skillful manner according to the practice of surgeons, 
 
 and accordingly gave him a verdict. The appellate 
 11 
 
156 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 court sustained the verdict, and, in commenting on the 
 case, said: "A physician is not an insurer of the suc- 
 cess of his treatment, and is entitled to pay for his 
 services whether he succeeds in curing his patient or 
 not, provided he uses the slvill of an ordinarily skillful 
 physician." * 
 
 In a Tennessee case of some years ago an amputation 
 was performed, a large butcher knife and a carpenter's 
 sash saw being the surgical instruments used. The oper- 
 ation, however, appeared to have been well performed, 
 and the patient, under a proper treatment, soon recov- 
 ered. The representative of the patient contested the 
 collection of the physician's fee upon several grounds. 
 The court held that the operation seemed to have been 
 performed with a reasonable degree of skill, and accord- 
 ingly sustained the verdict of the jury giving the physi- 
 cian his fee. The supreme court, in commenting on the 
 case, said : " It certainly requires some degree of skill in 
 anatomy and surgery to perform an operation of the 
 kind, and the success that attended it, though not con- 
 clusive, is a circumstance from which the skill may be 
 inferred. The instruments employed, drawn from other 
 vocations, not the most congenial for the special occa- 
 sion, were certainly unusual and extraordinary for such 
 a purpose. But we are not to infer from this circum- 
 
 * Yunker vs. Marshall, 65 HI. App , &&1. 
 
RIGHT TO COMPENSATION. 157 
 
 stance alone that the surgeons had not sufficient art and 
 skill in the use of them. Besides, it is possible that the 
 delay necessary to procure proper instruments might 
 have been fatal to the patient." * 
 
 It does not necessarily follow that a physician has 
 failed in performing his legal duty to his patient, and is 
 therefore not entitled to compensation, because he has 
 mistaken the nature of his disease and treated him for 
 an ailment from which he is not suffering. In a recent 
 case brought in New Jersey by a physician to recover 
 a fee, the defendant interposed the defense that the 
 physician had prescribed and administered remedies for 
 a disease which he had not. The trial justice instructed 
 the jury that this insistment of the defendant, even if 
 true, would not prevent a recovery; that the question 
 was whether the physician exercised proper care and 
 skill as a physician; that if the jury should conclude 
 that the doctor was mistaken in the nature of the de- 
 fendant's disease, they must then go still further, and 
 say that a want of care and skill was exhibited. If no 
 want of care or skill appeared, he was entitled to a fair 
 compensation, although he fell into a mistake. This is 
 undoubtedly a correct statement of the law, and in 
 applying it to a given case it remains for the jury to 
 determine whether or not, as a matter of fact, the physi- 
 
 * Alder vs. Buckley, 1 Swan (Tenn.), 69. 
 
158 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cian has failed in bringing the proper amount of knowl- 
 edge to the case or in exercising a reasonable and ordi- 
 nary degree of skill and care.* 
 
 Effect of Incompetency or Neglect upon Eight to 
 Recover. — Whether a physician's failure to possess the 
 proper degree of learning and skill, or neglect to use 
 proper care in their exercise, does ipso facto preclude 
 him from all right to compensation is a question upon 
 which there is a direct conflict of authority. 
 
 The courts of New York hold that such failure on 
 the part of the physician does defeat all right to com- 
 pensation; and as a corollary to this proposition they 
 hold that a judgment obtained in a suit for the value 
 of services in a given case conclusively establishes the 
 propriety of the physician's treatment in that case, and 
 that an action for malpractice can not afterward be 
 based upon the same case.f The supreme court of 
 Maine expresses itself in harmony with the New York 
 courts and this proposition when it says : " The same 
 facts which would authorize a recovery for malpractice 
 would constitute a defense in a suit for professional 
 services." J 
 
 In a later case, in Wisconsin, the court repudiated 
 
 * Eli vs. Wilbur, 49 N. J. L., 685. 
 
 •f Bellinger vs. Craigue, 31 Barb., 534; Gates vs. Preston, 41 N, T., 
 113. 
 
 X Patten vs. Wiggin, 51 Me., 594. 
 
RIGHT TO COMPENSATION. 159 
 
 this doctrine, and held that the physician's claim for 
 fees and the patient's claim for damages resulting from 
 malpractice were two separate and distinct claims.* 
 The doctrine laid down by the supreme court of Wis- 
 consin has been approved and followed by a recent case 
 in Iowa. The court in that case says : " It does not 
 necessarily follow that because a physician or surgeon 
 may be guilty of negligence, which causes some incon- 
 sequential or inconsiderable injury, he is to be deprived 
 of all compensation for his services on account thereof. 
 Whether he shall lose the value of his services depends 
 upon the amount of damages suffered by reason of his 
 neglect to perform his duty. No penalty beyond the 
 amount of the actual damages sustained is to be visited 
 upon him because of his negligence or want of skill." f 
 
 The latter doctrine is thought to be the better law, 
 and the Iowa and Wisconsin cases will probably be fol- 
 lowed as precedents by the courts of those States which 
 are not already committed to the contrary doctrine. 
 
 Rights under Contract "No Cure, No Pay."— The 
 contract of " no cure, no pay " is probably one which is 
 not very frequently entered into by the most reputable 
 class of the medical profession, although there is, at 
 least, no legal reason why it should reflect any suspi- 
 
 * Ressequie vs. Byers, 52 Wis., 651. 
 
 f Whitesell vs. Hill, 101 la. 629, 66 N. W. Rep., 894. 
 
160 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cion of discredit upon the physician who is a party to it. 
 When a physician agrees to such an arrangement, and 
 there is no specific price fixed as the compensation for 
 performing a cure, the physician will be entitled to the 
 reasonable and usual sum for performing such services. 
 But before he is entitled to any compensation what- 
 ever he is bound to show that he has fulfilled his agree- 
 ment and effected a cure. A phj'sician undertook the 
 treatment of a patient upon the plan under considera- 
 tion, and soon afterward, fearing that the patient was 
 financially irresponsible, persuaded the patient's son of 
 the propriety of securing the payment by his own writ- 
 ten obligation, whereupon the son gave the doctor a 
 memorandum reading as follows : " I hereby agree that 
 I will be holden to Dr. J. S. for the payment of his 
 bill for medicine and attendance upon my father and 
 his wife " — this agreement of the son, while positive in 
 form, was subsequent in time to the original agreement 
 of the physician, the basis of which was "no cure, no 
 pay," and was therefore held by the court to be collat- 
 eral to it, and the physician was accordingly not per- 
 mitted to collect upon the written agreement without 
 first showing that he had effected a cure.* 
 
 When a patient enters into an agreement with a 
 physician to be treated upon the basis of " no cure, 
 
 * Smith vs. Hyde, 19 Vermont, 54. 
 
RIGHT TO COMPENSATION. 161 
 
 no pay," he is bound bj^ such agreement to submit to 
 all reasonable treatment prescribed for such a time 
 as may be reasonably calculated necessary to effect 
 the cure. Should the patient refuse to do this, thus 
 rendering it impossible for the physician to com- 
 plete the cure and reap the benefit of his skill and labor, 
 he is entitled, upon showing such facts, to receive com- 
 pensation without performing any further services. 
 The amount of compensation to which he would be en- 
 titled would depend upon the terms of the contract. If 
 the contract fixed a specific amount as the price of suc- 
 cessful treatment, he would be entitled to receive that 
 amount at once; but if the contract was silent as to the 
 amount of compensation, he would be entitled to a rea- 
 sonable and usual fee for the services already rendered. 
 The patient might, however, in the latter case, for the 
 purpose of proving the services to be without value, 
 introduce evidence to show that the treatment prescribed 
 was not calculated to produce beneficial results, and that 
 the medicine used was worthless and possessed no effi- 
 cacy in producing the results desired; and for the pur- 
 pose of proving this the physician may be required to 
 testify as to the ingredients of the medicine used, even 
 though it be a secret preparation of his own.* 
 
 A Tennessee case of some years ago, based upon a 
 
 * Jonas vs. King, 81 Ala , 285. 
 
162 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 contract of the character in consideration, was tried, 
 which somewhat amusingly illustrates the predilection 
 of a certain class of laymen to avoid the payment of a 
 professional bill whenever possible. 
 
 In this case a physician contracted with an habitual 
 drunkard to cure him of his unfortunate affliction in 
 consideration of the payment of five hundred dollars. 
 
 The treatment seems to have been successful to 
 such an extent that tbe patient, after using the medi- 
 cine prescribed, quit his habits of intoxication, and told 
 his friends that he had lost his appetite for ardent spir- 
 its, but that he thought he could again acquire his 
 appetite for spirits by beginning with cider or wine. 
 He continued sober for about nine months and then re- 
 turned to his habits of intoxication. How he acquired 
 the appetite again is not shown. 
 
 The question of whether or not drunkenness is a dis- 
 ease that can be cured by medical skill was interposed; 
 the jury was instructed that if the physician was en- 
 titled to recover they must find it so to be, and that the 
 physician had not only suppressed or suspended the appe- 
 tite for a season during the operation of the medicine, 
 but had so far removed it that it would not return 
 unless the patient indulged in such a manner as to a 
 temperate man brings on the propensity. Upon this in- 
 struction the jury rendered a verdict for the patient, 
 and the physician promptly appealed. 
 
EIGHT TO COMPENSATION". 163 
 
 The supreme court theorized to some extent upon 
 the nature of drunkenness, and concluded that it was a 
 disease produced by the indulgence of a habit, and that 
 if the disease or disposition to drink were destroyed, its 
 return by renewed indulgence proved a disregard of 
 that sense of moral principle which a rational being 
 would be expected to exercise. Applying these theories, 
 the court said: "To admit that after being so placed 
 (the disposition to drink being destroyed) he might 
 return, is to admit that by his own voluntary act he 
 could defeat the physician of his promised reward ; and 
 it would hence follow that, by taking advantage of his 
 own wrong, the physician would have the twofold mor- 
 tification of losing his fee and seeing his skill mocked at. 
 Therefore it should have been left to the Jury to say 
 whether, if the propensity had been destroyed, the pa- 
 tient returned to his habits of drunkeimess vdth the dis- 
 honest purpose of evading the contract." The judgment 
 of the trial court was reversed and the case sent back 
 for a new trial upon the lines indicated in the opin- 
 ion.* 
 
 Eelevant to the question in consideration is a case 
 which was decided in South Carolina in 1829 and 
 which was never officially reported, but is preserved in 
 the manuscript of the court. In that case a physician 
 
 * Fisk vs. Townsend, 1 Yerg. (Term.), 146. 
 
164 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 undertook to cure a child of a chronic disease with the 
 understanding that he would not charge more than five 
 dollars if not successful. The parent, believing that 
 the child was cured, promised to pay him one hun- 
 dred dollars, but it afterward appeared that the disease 
 was not cured, but only suspended. The court refused 
 to hold the parent to his agreement to pay one hundred 
 dollars made under his mistaken belief, but remitted 
 the physician to his original agreement.* 
 
 Intent that Services shall be Qratuitous; Effect. — 
 Whether or not the intent of the physician at the time 
 he renders services to a patient that such services shall 
 be gratuitous will defeat his right to compensation is 
 a question upon which there is some conflict. The 
 supreme court of North Carolina lays down the rule 
 that if such services "were intended to be, and were 
 * accepted as a gift or act of benevolence," then the physi- 
 cian is not entitled to compensation; but if the patient 
 did not understand that such services were intended 
 as gratuitous, and accept them as such, the physician is 
 entitled to compensation, even though he originally in- 
 tended to make no charge, f On the other hand, the 
 court of appeals of Missouri holds that if the physician 
 rendered his services intending them to be gratuitous. 
 
 * Harris vs. Oberly, Po. Car., MS., Dec, 1829. 
 f Prince vn. McRae, 84 N. C, 674. 
 
RIGHT TO COMPEN'SATION". 165 
 
 he could not subsequently change his mind and collect 
 for them, even though the patient did not know when the 
 services were rendered that they were intended to be 
 gratuitous.* 
 
 A careful and critical examination of the reasoning 
 upon which these two decisions are based leads to the 
 opinion that the ISTorth Carolina decision is not well 
 founded, and that the Missouri court expresses the true 
 doctrine. 
 
 The Xorth Carolina court subjects the transaction to 
 the same test as that required to demonstrate the valid- 
 ity of an ordinary contract — viz. : that there shall be a 
 meeting or concurrence of minds of the parties, and that 
 there shall be a mutual understanding which is agreed 
 to by both. These undoubtedly are necessary elements 
 to the validity of a contract, but, as a matter of fact, 
 the transaction in consideration is not a contract, but a 
 gift, and is accordingly to be governed by the law relat- 
 ing to gifts. 
 
 The essential elements of a gift are that the donor or 
 giver shall actually or symbolically deliver the property 
 which is the subject of gift to the donee with the inten- 
 tion that it becomes the donee's without the payment of 
 any consideration. In this case the physician represents 
 the donor, the patient the donee, and the services ren- 
 
 * Lippman vs. Tittman, 31 Mo. App., 69. 
 
166 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 dered constitute the subject of gift. The services are 
 rendered by the physician with the intent that they 
 shall be gratuitous; the services being received, the gift 
 is completed and perfect, whether the patient knew them 
 to be gratuitous or thought them to be otherwise and 
 expected to pay ; for, to quote the words of Chief- Justice 
 Sterrett, of the supreme court of Pennsylvania : " It is 
 now too well settled to admit of question that, upon the 
 ground of implied benefit, the assent of a donee will be 
 presumed; and the title will vest eo instanti the gift 
 is made, even though he be ignorant of the transaction, 
 and will continue in him until he rejects it." * More- 
 over, if the services were intended as a gift when ren- 
 dered, the physician can not subsequently change his 
 mind and collect fees for such services even though it 
 may have been through a misapprehension or mistake 
 of facts that he was induced to originally intend the 
 services as gratuitous, f 
 
 Whether or not it was the physician's intention 
 that his services should be gratuitous is a question of 
 fact which in the court of trial must be determined 
 by the jury from the evidence submitted to them. All 
 of the attending circumstances of the treatment, the re- 
 lation of the physician and patient, the statements of 
 
 * Tarr et al. vs. Robinson et al., 168 Pa. St., 60. 
 f Pickslaj vs. Starr, 149 N. Y., 432. 
 
RIGHT TO COMPENSATION. 167 
 
 the physician relative to compensation for such treat- 
 ment, and the fact of whether or not the physician made 
 a charge for such services at the time they were ren- 
 dered, as shown by his books of original entry, are all 
 circumstances to be taken into consideration in deter- 
 mining the intent. 
 
 Intoxication of Physician, Effect of, upon Right of 
 Recovery. — A physician who attempts to render medical 
 services when in such an intoxicated condition as to be 
 unable to exercise proper skill and judgment is not en- 
 titled to any compensation for such services; but a 
 patient who continues to employ a physician after he 
 has rendered services in an intoxicated condition is not 
 in a position to refuse paying his fee because of such 
 past drunkenness.* 
 
 Services among Physicians; Right to Compensa- 
 tion. — There is among physicians a custom to render 
 services for each other without compensation. Whether 
 or not this custom is sufficiently established and so 
 generally understood as to defeat the right of a physi- 
 cian to compensation for services rendered to another 
 physician has been considered by the supreme court of 
 Georgia to be a matter of fact, which miist be proved by 
 evidence. If the evidence shows that it merely exists as a 
 courtesy, and is not of universal observance, then the 
 
 * McKleroy vs. Sewell, '73 Ga., 657. 
 
168 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 physician is entitled to compensation, unless, of course, 
 there was an understanding or intention that the services 
 were to be gratuitous. If, on the other hand, the evi- 
 dence shows that the practice is so universal as to justify 
 a physician treated in the belief that the custom becomes 
 a part of the contract, then the right of compensation 
 does not exist.* 
 
 Carelessness in Regard to Contagions Diseases, 
 Effect of. — It has been observed that a physician is 
 bound to take such precautions as may be necessary to 
 prevent the transmitting of a- contagious disease from 
 one patient to another. It naturally follows that if a 
 physician disregards this duty, and a patient thereby 
 becomes afflicted with such contagious disease, the physi- 
 cian's right to compensation for services rendered to 
 him is defeated, to the extent of the damages suffered 
 from the contagious disease,f if, indeed, not in toto.X 
 
 Promissory Note for Future Services Conditional. — 
 Physicians sometimes undertake the treatment of a pa- 
 tient for a certain fixed fee or sum, and at the begin- 
 ning of the treatment require the patient to execute a 
 note for all or a part of the fee agreed upon. The con- 
 sideration upon which such a note is based is the future 
 rendering of professional services, and this class of serv- 
 
 * Madden vs. Blain, 66 Ga , 49. 
 
 + Piper vs. Menifee, 12 B. Monroe (Ky ), 465. 
 
 1(. See p. 158 rf seq. 
 
RiaHT TO COMPENSATION. 169 
 
 ices necessarily means personal services, and not the serv- 
 ices of some assistant or other doctor; it therefore fol- 
 lows that if the physician entering into such a contract 
 is from siclmess or other cause rendered incapable of per- 
 forming such services when due, under the contract the 
 patient is relieved from his obligation to pay, and the 
 note may be repudiated for failure of consideration.* 
 
 Partial Allowance by Municipality Extinguishes 
 Claim against Patient.^ — A physician who attends a 
 poor person under such circumstances as to bind the 
 town or county for the payment is entitled to look for 
 his compensation either to the municipality or to the 
 patient; but if he presents his bill for such services to 
 the municipality, and it is audited and allowed either 
 at its face value or for a less amount, and the physi- 
 cian accepts the amount allowed, the indebtedness is 
 completely extinguished both against the patient and 
 the municipality. A case recently arose in New York 
 involving this question. A physician rendered services 
 to the value of eighty dollars. The patient being a poor 
 person, he submitted the bill to the town " as health 
 officer," and received twenty-five dollars. The patient 
 subsequently performed services for the physician to the 
 amount of twenty dollars, against which the physician 
 proposed to offset his "balance" of fifty-five dollars. 
 
 * Powell vs. Newell, 59 Minn , 406, 61 N. W. Rep., 335. 
 
170 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The supreme court was of the opinion that the trial 
 court was authorized in finding from the facts that the 
 physician's bill, interposed as a counterclaim, was for 
 services performed for the town, and for which the town 
 was liable. The court said : " The sum audited he ac- 
 cepted, and the elfect of said transaction was necessarily 
 to extinguish the claim against the town. If there was 
 any liability on the part of the plaintiff (patient), as 
 well as the town, for the defendant's (physician's) at- 
 tendance upon his family, which defendant might have 
 properly claimed, his presentation of the bill to the 
 town, and acceptance of the amount at wliich it was 
 audited, we think must have the effect of also extin- 
 guishing the claim against the plaintiff." * 
 
 The judgment of twenty dollars in favor of the pa- 
 tient for services rendered to the physician was therefore 
 approved and sustained by the supreme court. 
 
 * Wood vs. Munson, 10 Hun, 468, 53 N. Y. S. R., 621, 24 N. Y. 
 Supp., 287. 
 
CHAPTEE VI. 
 
 RECOVERY OF COMPENSATION. 
 
 Demand. — The first step to be taken by the physi- 
 cian to recover compensation for services performed is 
 to make a demand on the patient for the amount which 
 is due. This is usually and most properly done by pre- 
 senting the patient with a bill. Should this means 
 prove ineffectual and other amicable efforts likewise 
 fail in producing the desired result, more drastic meas- 
 ures would then become necessary; but before depart- 
 ing from peaceful methods of collection and attempt- 
 ing to enforce the payment of the money by legal 
 measures, it is well to first consider whether the legal 
 status of the creditor is such as to enable him to in- 
 voke the aid of the court. 
 
 Is Physician Legally Qualified to Practise? — In 
 passing upon the physician's standing in court, the first 
 questions that naturally occur are, has he fully com- 
 plied with the requirements of the law so as to be en- 
 titled to practise medicine, and, if not, what legal rights 
 has he in the premises ? 
 
 The first question is one of fact, to be determined 
 12 j/jl 
 
172 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 by carefully examining the statutes of the State in which 
 the physician practises, and learning whether or not all 
 of the requirements are fulfilled. If a license from the 
 State board is prescribed, has this license been obtained ? 
 And if this license must he filed with a certain county 
 officer, has it been so filed? Should such an examina- 
 tion show a defect in the physician^s legal right to prac- 
 tise, a careful examination of the law then becomes ne- 
 cessary to determine what rights he really has. 
 
 Eights of TTnqnalified Practitioners. — It has been 
 observed that the statutes of several States expressly 
 provide that any physician practising medicine unlaw- 
 fully shall not be permitted to recover for his profes- 
 sional services.* In the majority of the States, however, 
 there is no express provision upon the subject, and in 
 such States the right of the unqualified physician to 
 collect is the subject of judicial construction. 
 
 It is a familiar rule of law that no compensation can 
 be recovered in a court of justice for performing an 
 act which is unlawful, or which is prohibited by statute, f 
 Upon this principle the courts of nearly all of the States 
 have based their decisions, and have accordingly declined 
 to aid the physician who has failed to comply with the 
 
 * Such provisions exist in Georgia, Indiana, Kansas, Kentuckr, 
 Louisiana, Maryland, irichi<ran, Nebraska, North Carolina, Rhode Is- 
 land, Vermont, Virginia, and Wisconsin. 
 
 f Diekerson vs. Gordy, 5 Robinson's Rep., 489. 
 
RECOVEEY OF COMPENSATION. 173 
 
 requirements of the law in recovering fees.* The su- 
 preme court of Tennessee refused to permit a physician 
 to recover where he had not procured and filed 
 his license before the services for which he sought to 
 obtain payment were rendered, but had secured and 
 filed such license before suit was brought. The court 
 said: *^ Where a statute has for its manifest purpose 
 the promotion of some object of public policy, and pro- 
 hibits the carrying on of a profession, occupation, trade 
 or business, except in compliance with the statute, a 
 contract made in violation of such statute can not be 
 enforced." f 
 
 In Texas the court of civil appeals held that a physi- 
 cian who had graduated from a medical college recog- 
 nized by the American Medical Association, but who 
 had failed to procure a certificate from the board of 
 medical examiners and have the same recorded, should 
 not be entitled to a judgment for fees, notwithstanding 
 no board of medical examiners had been appointed.;]; 
 
 And so it has been held by an early decision in Mas- 
 sachusetts (1822) that a physician duly qualified by 
 the law of another State to practise in such State shall 
 
 * Gardner v.i. Tatum, 81 Cal., 8*70; Roberts vs. Levy fCal.), 31 P. 
 ■Rep., 570; Dickerson vs. Gordy, 5 Robinson's Rep., 489; Fox vs. 
 Dixon, 34 N. Y. S. R., TlO. 
 
 + Haworth vs. Montgomery, 91 Tenn., 16. 18 S. W. Rep., S90. 
 
 X Kenedy vs. Schultz, 6 Tex. Civ. App., 461. 
 
174 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 not thereby be entitled to come within the borders of 
 Massachusetts and recover for services rendered. The 
 court said : " The object of the act was to guard against 
 the evil effects to be apprehended from the practices of 
 ignorant and unskillful practitioners. This purpose can 
 not be completely obtained, if those of this description, 
 if any such there be, on the borders of the com- 
 monwealth, may be permitted to practise within its 
 limits." * 
 
 This rule must, of course, be understood as subject 
 to the privilege since extended to regularly licensed prac- 
 titioners of neighboring States to attend patients within 
 its borders, f 
 
 The court of appeals of the State of Missouri stands 
 alone in holding that an unqualified practitioner of 
 medicine is entitled to recover a fee in the absence of an 
 express statutory provision to the contrary. The court 
 says: '^ Whatever may be the rule in some States, we 
 must consider it as well settled in this State for the 
 present that, where a contract is not prohibited by law, 
 and has been fully executed by the person rendering the 
 services, he may recover their value from the person who 
 received their benefit, though in rendering the services 
 the person was guilty of a misdemeanor, because he 
 rendered them without a proper certificate or license for 
 
 * Spalding; vs. Alford, 1 Pick. (Mass.), 33. 
 f See p. 1 5, et seq. 
 
RECOVERY OF COMPENSATION. 175 
 
 doing so." * From a critical examination of tliis state- 
 ment it will appear that the court discriminates between 
 those contracts which are malum in se and those which 
 are in themselves lawful, but whose execution is re- 
 stricted to persons possessing prescribed qualifications; 
 refusing to aid in collecting in the former case, but 
 enforcing a payment in the latter, even though the 
 party proves himself to have committed a misdemeanor 
 in establishing his right to recover. 
 
 This is undoubtedly the law in Missouri at the pres- 
 ent time, but the fine-haired distinction upon which it 
 is based dwindles in importance when compared with 
 the forceful reasoning by which the courts of other 
 States have arrived at the contrary conclusion. 
 
 Chief-Justice Euffin, of the supreme court of ISTorth 
 Carolina, commenting upon this distinction, said : " The 
 distinction between an act malum in se and one merely 
 malum prohibitum f was never sound, and is entirely 
 disregarded; for the law would be false to itself if it 
 allowed a party through its tribunals to derive advan- 
 tage from a contract made against the intent and express 
 provisions of the law." X 
 
 * Smythe vs. Hanson, 61 Mo. App., 286. 
 
 I Mala in se are those a5ts which are wrong in themselves, such as 
 murder ; as opposed to mala prohibita, or those acts which are only 
 wrong because they are prohibited by law. Rapalje vs. Lawrence, Law 
 Dictionary. 
 
 J Sharp vs. Farmer, 4 Devereux and Battle's Law, 122. 
 
176 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The Missouri court is not content with discriminat- 
 ing between tilings mala in se and those mala prohihita, 
 but it goes a step further and says that the practice of 
 medicine is a thing not even malum prohibitum except 
 as to those unqualified to exercise its functions ; and that 
 because it is not in itself prohibited the court ought 
 not to refuse its aid to one who has unlawfully prac- 
 tised medicine, an office not in itself wrongful, and 
 which might lawfully be exercised by another, 
 
 Notwithstanding these distinctions, the question re- 
 mains clear and distinct, May one unqualified to prac- 
 tise medicine exercise the functions contrary to the 
 law and recover compensation by the aid of our courts ? 
 Justice Learned, of the New York supreme court, said : 
 " It is a settled principle that one can not recover com- 
 pensation for doing an act to do which is forbidden by 
 law and is a misdemeanor. The contrary rule would 
 make an absurdity. It would permit one to hire an- 
 other to commit a misdemeanor and would compel the 
 payment of the contract price for doing what the law 
 forbids." * 
 
 Justice Clopton, of the supreme court of Alabama, 
 said : " It is too well settled in this State to require fur- 
 ther argument, that a penalty, imposed by statute, im- 
 plies a prohibition; and a contract founded on its vio- 
 
 * Fox ve. Dixon, 34 N. T. S. R., 710. 
 
RECOVERY OF COMPENSATION. 177 
 
 lation is void, though not so expressly declared by stat- 
 ute." * 
 
 It may be safely understood from the foregoing that 
 the law is well settled that one practising medicine or 
 surgery without first complying with the requirements 
 of the statutes can not enforce the payment of his fees, 
 whether the statutes expressly so declare or are silent 
 upon the subject — the State of Missouri being an excep- 
 tion to this rule. 
 
 No Recovery for Medicines furnished. — The physi- 
 cian being disqualified to practise can not recover for 
 services rendered, but what effect does this disqualifica- 
 tion have upon his right to recover for medicines which 
 he has actually furnished to the patient ? 
 
 An instructive case upon this question was decided 
 in the supreme court of ISTew York about seventy years 
 ago. A medical practitioner who was not licensed was 
 called to attend a patient after other physicians were 
 unable to benefit her. Quoting from the opinion of 
 Chief-Justice Savage: "He (the physician) came and 
 prescribed for the patient, and cured her by the use of 
 two phials of medicine and a box of ointment. What 
 the medicines were the witness knew not. She was asked 
 the value not of the medicines simply, for her answers 
 show that she estimated the value of the services of the 
 
 * Harrison vs. Jones, 80 Ala., 412. 
 
178 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 (physician) as worth sixteen or eighteen dollars, because 
 the patient was cured. The medicines at the apothecary's 
 shop would probably have been worth only a few shil- 
 lings. . . . Where the same person officiates as physi- 
 cian and apothecary he comes within the decision of 
 this court that an unlicensed practitioner is incapable 
 of suing for services rendered or medicines furnished 
 as a physician. As the patient was cured, it is to be 
 regretted that (the physician) was not paid; but if un- 
 licensed pretenders to skill in diseases can recover, as in 
 this case, the statute may become a dead letter; the 
 country will be filled with mere quacks, peddling their 
 nostrums, and deceiving and destroying the ignorant 
 and credulous, the very mischief which the statute is 
 intended to prevent. I do not say that the (physician 
 in this case) is a mere pretender, for he cured his pa- 
 tient, and in honor and honesty should have been paid; 
 but it is our duty to administer the law." * In a later 
 case an unlicensed physician attempted to recover for 
 medicines to which he had a patent, and which he had 
 prescribed and furnished to a patient, but the court re- 
 fused to give him judgment because he was in effect 
 "peddling his nostrums in the character of a physi- 
 cian, and inducing people to buy and use them in conse- 
 quence of their reliance on his pretended skill." " Such 
 
 * Allcott vs. Barber, 1 Wend. (N. Y.), 526. 
 
RECOVERY OF COMPENSATION. IY9 
 
 practices," says the court, " the law of the State has 
 declared to be dangerous to the public health." * 
 
 In harmony with the cases above quoted from, the 
 supreme court of Alabama holds that the question 
 whether the unlicensed practitioner may recover for 
 drugs and medicines furnished depends upon whether 
 such drugs and medicines were administered and fur- 
 nished by him acting in the capacity of a physician; 
 or whether he sold them to the patient acting in the 
 capacity of a druggist or apothecary. If in the former 
 capacity, he can not recover for the value of such drugs, 
 but in the latter he should be allowed to recover, f 
 
 In full accord with the cases considered upon this 
 point is a recent Kansas case in which the supreme court 
 by a process of cogent reasoning concludes that a physi- 
 cian who furnishes drugs to a patient does so in the capa- 
 city of a physician and not as an apothecary, and that, 
 if he is unlicensed to practise medicine, he can not re- 
 cover the value of the drugs so furnished. J 
 
 In this case Justice Green said : " Can the plaintiff 
 recover for the medicine alone, having furnished it as 
 an attending physician ? The statute in question forbids 
 any one from practising medicine for reward or com- 
 
 * Smith vs. Tracy, 2 Hall (N. Y.), 465. 
 
 \ Holland vs. Adams, 21 Ala., 680. 
 
 X Underwood vs. Scott, 43 Kan., 714, 23 Pac. Rep., 942. 
 
180 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 pensation, without having the qualification prescribed 
 therein. The object of this law, doubtless, was to pre- 
 vent unauthorized and unqualified persons from practis- 
 ing medicine in any of its branches. The right to prac- 
 tise the calling of the physician is, by this statute, taken 
 from certain unqualified persons, and the statute should 
 not be so construed as to give a person the privilege of 
 exercising a right which is in violation of any of its pro- 
 visions. To hold that a person who furnished medi- 
 cine, as a physician, could recover compensation for the 
 medicine so furnished or prescribed, would, in our judg- 
 ment, render the statute nugatory, and any unauthor- 
 ized person might prescribe for a patient and simply 
 charge for his medicine and thus defeat the very ob- 
 ject of the law. The practice of medicine may be said 
 to consist in three things : First, in judging the nature, 
 character, and symptoms of the disease; second, in de- 
 termining the proper remedy for the disease; third, in 
 giving or prescribing the application of the remedy to 
 the disease. If the person who makes a diagnosis of a 
 case also gives the medicine to the patient, he is, in our 
 judgment, practising medicine within the provisions of 
 the statute in question; and if unauthorized to practise, 
 or is acting in violation of the provisions of the statute, 
 he is not entitled to compensation for the medicine, 
 which he furnishes at the time, as a physician; and the 
 instruction of the court, which said to the jury that the 
 
RECOVERY OF COMPENSATION. 181 
 
 plaintiff below (the physician) could recover for the 
 medicine furnished, though he might not have been 
 entitled to practise medicine, was erroneous." * 
 
 It therefore is safe to conclude that outside of Mis- 
 souri the unlicensed physician is unable to recover 
 through the courts either compensation for professional 
 services rendered or the cost of medicines furnished to 
 patients by him in the capacity of a physician ; and that 
 it will accordingly be unwise for one not legally quali- 
 fied to practise medicine and surgery at the time and 
 place of rendering professional services to resort to suit 
 for the recovery of his fees. 
 
 Repeal of Disqualifying Act, Effect on Services Pre- 
 viously Rendered. — But what effect, if any, does the re- 
 peal of a disqualifying act have upon the physician's 
 right to recover for services which were unlawfully 
 rendered before such repeal ? Here again we find some 
 conflict of authority, the supreme court of Massachu- 
 setts being of the opinion that the disqualifying act was 
 not designed to prevent the debt from accruing, but was 
 intended to deprive the physician unlawfully practising 
 from the means of enforcing the payment of such debt, 
 and therefore when the disqualifying act was repealed 
 the obligation stood complete, and the means of enforc- 
 ing it by legal proceedings were immediately available, f 
 
 * Underwood vs. Scott, 43 Kan., 714, 23 Pac. Rep., 942. 
 f Hewitt vs. Wilcox, 1 Met., 154. 
 
182 THE LAW IN ITS RELATIONS. TO PHYSICIANS. 
 
 The courts of all of the other States which have 
 passed upon the question have, however, repudiated this 
 doctrine, they holding, with better reason, it seems, that 
 such contracts are void in their inception, and that the 
 repeal of the disqualifying act can therefore raise no ob- 
 ligation on the part of the patient and create no right to 
 recover on behalf of the physician.* It has been here- 
 tofore observed that the repeal of an act making it a 
 penal or criminal offense to practise medicine without 
 legal qualifications takes from the court the power of 
 enforcing the penalties incurred under such repealed law; 
 the distinction made between the criminal and civil 
 rights in such a case may be regarded as another evi- 
 dence of the policy of our law to throw about the ac- 
 cused every reasonable protection. 
 
 Steps for Consideration in Enforcing a Claim. — If, 
 on the other hand, the physician has perfected his 
 legal status, as nearly all practising physicians and 
 surgeons have done, it then becomes pertinent to con- 
 sider the various steps in the process of enforcing pay- 
 ment by legal measures. 
 
 Action will lie in this Country for Physicians' Pees. 
 — It has been observed that in England, until the medi- 
 cal acts passed during the present reign, the physician 
 
 * Puckett vs. Alexander, 102, N. C, 95, 3 L. R. A., 43, 8 S. E. Rep,, 
 161 ; Bailey vs. Mogg, 4 Denio, 60 (N, Y.) ; Nichols vs. Poulson, 6 Ohio, 
 305 ; Warren vs. Saxby, 12 Vt., 146 ; Quarles vs. Evans, 7 La, Ann , 544. 
 
RECOVERY OP COMPENSATION. 183 
 
 was not entitled as a matter of legal right to recover 
 compensation for his services, the law considering them 
 of so exalted and honorable a character that it would 
 not encourage the suspicion that they had been ren- 
 dered from so unworthy a motive as that of a mer- 
 cenary. Moreover, Lord Kenyon, in a case in which 
 he refused to enforce the payment of a fee, expressed 
 his doubt whether the physicians would not disclaim a 
 right which would place them in society on a footing 
 with common men.* However justified the opinion of 
 Lord Kenyon may have been at the time and place of 
 its expression, it was not approved by the wisdom of 
 the succeeding century in his own country, nor has it 
 ever been considered suitable to the conditions in this 
 country. Justice Stevens, of the supreme court of Indi- 
 ana, in considering the application of the English doc- 
 trine by our courts, said with perspicuity and unanswer- 
 able logic : " It is true that we have adopted the com- 
 mon law of England, but it is a qualified adoption. We 
 have only adopted so much of it as is of a general na- 
 ture and not local to that kingdom, and not inconsist- 
 ent with our own laws. We have not adopted any part 
 of it that is peculiar to that country, or that is contrary 
 to, or inconsistent with, the spirit and practice of our own 
 institutions. It is at least doubtful whether the prin- 
 
 * Chorley vs. Bolcot, 4 T. R., 3 17. 
 
184 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ciple here contended for was any part of the common 
 law at the time the States of this Union dissolved their 
 allegiance to that kingdom; but if it were, it is clearly 
 a principle which is local to that country, and is incon- 
 sistent with the spirit and genius of all our institu- 
 tions and the practice of our courts. Our institutions 
 and laws are all based on the great and broad princi- 
 ples of liberty and equality, and know nothing about 
 nobles and ignobles,honorables and common men. There 
 is but one class known: all stand upon the same foot- 
 ing, and bow with equal submission to our common mas- 
 ter — that is, the law of the land. We have no privileged 
 ordiers known to the law, either as to suing or being 
 sued." * 
 
 The physician entering court upon the common 
 plane of all litigants must come prepared with proper 
 and sufficient evidence to show those facts upon which 
 he bases his right to recover. 
 
 Limitations of Actions. — Perhaps the first question 
 to consider at this stage is the age of the claim : is the 
 account barred by the statute of limitations? If so, 
 would the patient be willing to plead such a defense to 
 defeat recovery ? 
 
 The statutory period of limitation upon the differ- 
 ent classes of debts and obligations varies so greatly in 
 
 * Judah vs. McNamee, 3 Blackf. (Ind.), 269. 
 
RECOVERY OF COMPENSATION. 185 
 
 the several States that no general statement of the law 
 can be made; but recourse must be had in each case to 
 the statutes of the particular State to determine whether 
 or not the claim is within the period of limitation. 
 
 If the account consists of a single item, it is a sim- 
 ple matter to determine whether it is within or beyond 
 the prescribed period; but perhaps the account consists 
 of a series of items extending over a period of several 
 years, the earlier of which items are beyond the limit. 
 Is the right to recover such items barred ? Nearly every 
 State recognizes the doctrine of mutual accounts, which 
 is founded upon the presumption of a mutual under- 
 standing that the parties to the account will continue 
 each to credit the other until either desires to terminate 
 the dealing, when the balance will be ascertained and 
 will be considered as accruing at the date of the last 
 item of the account. Neither Louisiana * nor Texas, 
 however, accept this doctrine, but in case of a continuous 
 account consider the statute of limitations as running 
 against each item from the date of its entry. New 
 Hampshire also denies the rule, excepting as between 
 merchant and merchant, f 
 
 Whether the ordinary account of a physician — that 
 is, an account consisting of charges for professional 
 
 * Arbonneaux vs. Letorey, 6 Rob., 456. 
 f Blair vs. Drew, 6 N. H., 235. 
 
186 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 services on the one hand, and of credit for the payment 
 of fees by the particular patient on the other hand — 
 will constitute a mutual account is a question upon 
 which the courts of the different States are divided. 
 
 The doctrine more commonly accepted is that an 
 account to be mutual must be the result of a mutual 
 exchange of commodities or services, the mere payment 
 of money on one side not being considered sufficient to 
 make the account mutual so as to prevent the bar of 
 recovery. This is the law in California, Georgia, Indi- 
 ana, Maine, Maryland, New York, and Pennsylvania. 
 
 On the other hand, the supreme court of Michigan 
 holds that a payment made upon an account will render 
 the whole account open and mutual, so as to take the 
 earlier charges out of the operation of the statute of 
 limitations.* 
 
 This question seems, unfortunately, to be one upon 
 which there is considerable conflict and uncertainty, 
 the court of the same State even contradicting itself 
 in the course of a few years; f therefore the only safe 
 method one can adopt in carrying long accounts of the 
 sort is to have an occasional settlement or accounting 
 in which the balance is either liquidated by cash or note, 
 or is carried forward as a new account, or for the new 
 
 * Hollywood vs. Reed, 55 Mich., 308. 
 
 f See Madden vs. Blair, 66 Ga., 49; and Lark vs. Cheatam, 80 
 Ga., 1. 
 
RECOVERY OP COMPENSATION. 187 
 
 period of time ; in such, a case the statute of limitations 
 will run anew from the date of such settlement or ac- 
 counting.* If the settlement is effected by carrying the 
 balance forward, it is essential that the debtor should 
 have the account before him, and should agree either ex- 
 pressly or impliedly to the correctness of tbe new bal- 
 ance. 
 
 In case the account is found to be barred, it then 
 becomes necessary to determine whether the patient 
 would avail himself of a defense of this character, for 
 suit may be commenced upon a claim against which the 
 statutory period has run, either in whole or in part, and 
 unless the defendant specially pleads the statute as a 
 defense. Judgment may nevertheless be entered in the 
 plaintiff's favor for the full amount of the claim. 
 
 Is Proof of License Necessary? — Perhaps the first 
 question to decide upon commencing suit is whether it 
 is incumbent upon the physician, or plaintiff, to prove 
 that he has fully complied with the law of his State 
 and was duly qualified to practise medicine at the time 
 the services in question were rendered; or whether this 
 will be presumed until contradicted or disproved by the 
 defendant. Upon this question there is again a differ- 
 ence of opinion in the courts of the different States. 
 
 Probably the rule best founded on reason and jus- 
 
 * Schall vs. Eisner, 58 Ga., 190. 
 13 
 
188 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 tiee is that in civil suits between physician and patient 
 the physician's right to practise medicine will be pre- 
 sumed until disproved, or at least disputed; while in 
 cases of a criminal prosecution against one for practis- 
 ing medicine unlawfully, he must prove himself to have 
 complied with the law. This rule is very clearly laid 
 down by Justice McAUester, of the Illinois appellate 
 court, who says : " After a thorough examination of the 
 authorities, and a full consideration, we are of the 
 opinion that the rule with its proper distinctions may 
 be thus stated: Where the question of license or quali- 
 fication of a physician arises collaterally in a civil ac- 
 tion between party and party, or between the doctor 
 and the one who employed him, then the license or due 
 qualification under the statute to practise will be pre- 
 sumed; but in case of a prosecution on behalf of the 
 public the rule is otherwise, and in such cases license 
 or due qualification under the statute is not presumed, 
 and it rests with the defendant to prove it." * 
 
 A sound reason for this rule is that when an act is 
 required by positive law to be done, the omission of 
 Avhich would be a misdemeanor, the law presumes that 
 it has been done, and therefore the party relying on the' 
 omission must make some proof of it.f 
 
 * Williams vs. People, 20 111. App., 93. 
 
 •j- City of Chicago vs. Wood, 24 111. App., 40. 
 
RECOVEEY OF COMPENSATION. 189 
 
 There is considerable doubt cast upon the full appli- 
 cation of this rule in Illinois by a more recent opinion 
 of the supreme court of that State. The court, after 
 referring to the decision sustaining the above rule, ex- 
 presses a desire not to commit itself in the case they 
 were then considering, which was one between third par- 
 ties in which the physician's qualifications arose only 
 collaterally, but they said : " If he (the physician) were 
 himself suing to recover for his professional services, he 
 would doubtless be required to show affirmatively his 
 compliance with the law, but between third parties the 
 fact that he is and has for a long time been practising 
 as a physician and surgeon is sufficient to show, prima 
 facie, that he is lawfully authorized so to do." * 
 
 At an early date the supreme court of Kew York 
 decided squarely upon the point, holding that in a suit 
 by the physician for his fees a license would be pre- 
 sumed until the contrary was shown, f 
 
 The supreme court of Louisiana, also at an early 
 date, held that where one aclvuowledged a physician as 
 such by employing him to render professional services 
 such acknowledgment was prima facie evidence that 
 he was duly qualified,;]: but that when the defendant 
 
 * North Chicago Street Ry. Co. vs. Cotton, 140 III, 486. 
 f McPherson vs. Chesdell, 24 Wend., 15; Thompson vs. Sayre, 1 
 Denio, 175. 
 
 X Prevosty vs. Nichols, 11 Martins, 21. 
 
190 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 in the suit propounded interrogatories to the physi- 
 cian regarding his license, and he failed to answer them, 
 such failure would he taken as confessing that he had 
 no license to practise.* 
 
 On the other hand, the rule that a physician must, 
 upon suing, prove that he has secured a license in con- 
 formity with the law, was acknowledged as the law in 
 Delaware in 1849. f 
 
 The supreme court of Georgia declared such rule to 
 be the law in that State as early as 1850. J In 1855 
 the supreme court of Alabama said : " The effect of these 
 statutes, taken together, was to prohibit all persons from 
 practising as physicians, unless they were licensed by a 
 medical board in their State, or their names were en- 
 rolled according to the provisions of the statute, or un- 
 less they practised on the botanic system alone ; and the 
 necessary result of this prohibition would be to prevent 
 a recovery in all actions founded on contracts for medi- 
 cal services, unless it was proved that the persons ren- 
 dering such services were not within the prohibition." ^ 
 
 The same rule is held to be the law in Few Jersey | ] 
 and Massachusetts.'^ The supreme court of Indiana, in 
 
 * Dickerson vs. Gurdy, 5 Robinson, 489. 
 f Adams vs. Stewart. 5 Harr., 144. 
 
 X Bower vs. Smith, 8 Ga., 74. 
 
 * Mays, Adams, etc., vs. Williams, 27 Ala., 267. 
 P Dow vs. Haley, 30 N. J. L., 354. 
 
 ^ Spaulding vs. Alford, 1 Pick., 33. 
 
RECOVERY OP COMPENSATION. 191 
 
 a recent decision, after reviewing all of the principal 
 cases on both sides of the question, expresses itself as 
 believing that good reason exists in civil suits for the 
 rule of presuming the physician qualified until the 
 qualification is disputed or disproved, but the court 
 adds : " The statutes under which these several rulings 
 have been made, while similar to our own, none of 
 them, so far as we know, provide, as does ours, that no 
 cause of action shall lie in favor of any person for serv- 
 ices as physician who has not, prior to the rendition of 
 such services, procured a license to practise." The court 
 then argues that this clause in the statute has the effect 
 of compelling the physician to prove that he has com- 
 plied with the requirements of the law before recover- 
 ing in a suit brought to collect the value of professional 
 services.* 
 
 The statutes of some States contain the reasonable 
 provision that no evidence of authority to practise medi- 
 cine will be required as a prerequisite to a recovery for 
 professional services unless notice is given by the de- 
 fendant that he shall require proof upon that point. 
 The court of appeals of South Carolina held in an early 
 case that the physician's right to practise would be pre- 
 sumed unless the defendant gave him reasonable notice 
 that proof upon that point would be required, f 
 
 * Cooper vs. Griffin, 13 Ind. Anp., 212, 40 N. E. Rep., '710. 
 f Crane vs. McLaw, 12 Richardson, 129. 
 
192 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Eegarding those States in which the question has 
 not been decided, it is pertinent to say that no better 
 advice can be given than: Assume that no presumption 
 of law will be indulged in favor of the physician's right 
 to practise, and have your case prepared accordingly. 
 
 In case of suit brought in one State for services 
 rendered in another, no proof is necessary of the right 
 of the physician to practise in the State in which the 
 services were rendered, • for the courts of the State in 
 which suit is brought will not presume that the prac- 
 tice of medicine was restricted in that State.* 
 
 Proof of Authority to Practise. — The character of 
 proof required to show that one is qualified to practise 
 medicine and surgery depends almost entirely upon the 
 statutes of the particular State, and the preparation of 
 this proof can be intrusted only to those skilled in the 
 law; therefore it will be idle to give more than a very 
 cursory review of the law upon this point. Probably 
 the fundamental rule of evidence in making this proof 
 is the simple one that the test evidence of which the 
 case, in its nature, is susceptible will he required. This 
 rule means that if a right is to be proved which has its 
 origin or foundation in a diploma or license, then the 
 right can be proved only by producing and proving the 
 original diploma or license. Should, for instance, one 
 
 * Downs vs. Minchew, 30 Ala., 86. 
 
RECOVERY OP COMPENSATION. 193 
 
 living in a State requiring as a qualification to practise 
 medicine that he shall have graduated from a regularly 
 incorporated medical college, desire to prove that he has 
 complied with this law, he must not only produce his 
 original diploma, but he must show the incorporation 
 of the college. And if the college does not owe its cor- 
 porate existence to a special act of the legislature of 
 that particular State, he must produce the act of incor- 
 poration; he must also show the college to have existed 
 at the time the diploma purports to have been issued.* 
 
 Should the law not, however, provide that the de- 
 gree shall have been issued by an incorporated body, then 
 a production of the corporate records is not necessary, f 
 
 The courts at an early date required strict proof of all 
 of these facts, never admitting a diploma as proof per se 
 of its genuineness, but requiring that the genuineness 
 of the parchment should be proved aliunde. X The 
 rigor of the law has, however, been somewhat amelio- 
 rated by statutes which frequently provide that when 
 the physician has presented his diploma to the State 
 board of health or State board of medical examiners, and 
 verified its genuineness, the board shall issue a cer- 
 tificate to that effect, and that such certificate and 
 diploma shall be proof of the holder's right to practise 
 
 * People vs. Nyce, 34 Hun, 298; Hunter vs. Blount, 27 Ga., 76. 
 
 f Holmes vs. Hale, 74 Me., 28. 
 
 X Hill vs. Boddie, ,6 Ala. (0. S.), 56. 
 
194 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 medicine. In case of provisions of this sort the certifi- 
 cate serves to prove and identify the diploma. Tlie 
 statutes sometimes make the license issued by the desig- 
 nated board competent evidence without proof of the 
 signature. Under such a statute it is incumbent upon 
 the physician to simply offer the license in evidence as 
 full proof of his rights.* 
 
 Proof of Employment. — The physician having shown 
 himself authorized to practise medicine, the next step 
 in establishing his right to recover is to show his em- 
 ployment. If the suit is instituted for the purpose of 
 recovering for services rendered to the defendant him- 
 self or any immediate member of his family for whose 
 medical services he is primarily responsible, then the mere 
 fact of the services having been rendered by the physi- 
 cian and accepted by the patient is sufficient to establish 
 .employment. If, however, the services have been rendered 
 to some third party, for whose medical attendance the de- 
 fendant is not primarily liable, this step in proving the 
 case may require great care and skill. The law govern- 
 ing the liability in such cases is fully examined in a pre- 
 ceding chapter, f 
 
 Proving Services Rendered. — Having passed very 
 briefiy over the method of proving the physician's right 
 to practise medicine, and his proof of employment, we 
 
 * White vs. Mastin, 38 Ala., 147. f See p. 01, et seq. 
 
RECOVERY OF COMPENSATION. 195 
 
 will pass to the next and, to him, more important step 
 of proving the services rendered. 
 
 The question of how far a physician may go in giv- 
 ing testimony upon this point is often a very nice one, 
 for the statutes of many States place a seal of secrecy 
 upon the lips of the physician with regard to knowl- 
 edge obtained in a professional way. The Civil Code of 
 New York provides that a physician " shall not be al- 
 lowed to disclose any information which he acquired in 
 attending a patient in a professional capacity and which 
 was necessary to enable him to act in that capacity." In 
 New York a physician brought a suit to recover for serv- 
 ices, and the patient filed a general denial to the physi- 
 cian's complaint or preliminary statement of facts upon 
 which he relied for recovery. The question then arose 
 as to what facts the physician would be permitted to 
 testify to under the law from which this quotation 
 is taken. He attempted to, and, in fact, did, in the trial 
 court testify to the defendant's physical condition and 
 the disease for which he treated him; but upon appeal 
 the judgment was reversed because the physician had no 
 right, under the law above quoted, to disclose such in- 
 formation, the patient not having waived his privilege. 
 It was urged by the physician's counsel that the patient, 
 by his general denial, waived the privilege. The court, 
 however, held this ground to be untenable, notwith- 
 standing the general denial did make it incumbent upon 
 
196 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the physician to prove all of the facts upon which he 
 based his case; had, however, the patient set up, as a 
 defense, incompetency, unskillfulness, or misconduct, 
 he would then have put in direct issue the manner of 
 treating the disease, and would doubtless have been held 
 to waive the privilege, thereby permitting the physician 
 to testify to the condition he found existing in the pa- 
 tient and to the treatment which he prescribed. It 
 was also urged in this case that if the physician were 
 not permitted to describe the disease with which the 
 patient was afflicted he could not show the value of 
 the services, but the court was of the opinion that such 
 a result did not necessarily follow. Justice Haight, who 
 wrote the opinion, said : " The physician can still testify 
 to his employment, to the number of visits made, to the 
 examinations, prescriptions, and operations, and if the 
 defendant objects to his describing them the physician 
 may testify as to their value." * 
 
 This rule would preclude the physician from cor- 
 roborating his testimony as to the value of the serv- 
 ices because he could not communicate the character of 
 the services rendered to another physician to enable 
 him to form an opinion as to their value; but it is ob- 
 vious that the defendant could not produce a witness 
 to dispute the value of such services without making 
 
 * Van Allen vs. Gordon, 83 Hun, B19, 31 N. Y. Supp., 907. 
 
RECOVERY OP COMPENSATION". 197 
 
 public the facts which the plaintiff was forbidden to 
 disclose, thereby enabling the plaintiff to produce expert 
 evidence in corroboration of his own testimony as to the 
 value of the services rendered. 
 
 In those States in which the physician is not pre- 
 cluded by express statutes from disclosing information 
 obtained by him in a professional capacity, he will be 
 permitted, at the proper stage in proving his case, to 
 testify fully and particularly as to the extent, charac- 
 ter, and value of the services rendered.* 
 
 Books of Account in Proving Claims. — Unless the 
 services upon which the suit is brought have been very 
 recently rendered it will be extremely difficult, if not 
 impossible, for the physician to testify to the time of 
 making each visit and the value of the same without 
 having recourse to his books of account. 
 
 At such a time the physician's books of account may 
 generally, if properly kept, be made use of for a double 
 purpose : first, they may be used to refresh the mind of 
 the physician in testifying to the facts referred to there- 
 in, and, second, they may be introduced as evidence to 
 prove the account upon which suit is brought. As a 
 means of refreshing his memory, it is proper for a 
 physician upon testifying to have recourse to his books 
 
 * For a list of States containing statutes which disquahfy the phy- 
 sician to give such evidence, see p. 481, n. 
 
198 THE LAW IN" ITS RELATIONS TO PHYSICIANS. 
 
 either where he recollects the facts and can testify from 
 memory, or where he does not recollect the facts, but 
 made or saw the writing when the facts were fresh in 
 his mind and remembers that it then stated the facts cor- 
 rectly.* 
 
 No general rale can be given as to when, where, and 
 under what circumstances the books of account are ad- 
 missible as evidence of the facts stated in them, as the 
 subject is one upon which the decisions from the courts 
 of the several States are irreconcilable; moreover, many 
 States have statutes regulating the subject which are 
 peculiar to the particular jurisdiction. In ISTew York 
 the physician's books of account are admissible as evi- 
 dence upon his showing them to be his regular books of 
 account, and proving that he kept no clerk who was 
 familiar with his business and competent to testify re- 
 garding the facts stated in the books; that some of the 
 work or services charged was performed, and that he 
 kept correct accounts, f The proof that the physician 
 keeps correct books of account should be made by pa- 
 tients who have settled bills by his books. J The physi- 
 cian's wife, who transcribes or enters items into the 
 physician's books, is not a clerk within the meaning of 
 
 * Chase's Stephen's Dig. of Evidence, Art. ISY, N. 
 \ Vosburg vs. Thayer, 12 Johns., 461 ; Atwood vs. Barney, 80 
 Hun, 1. 
 
 X Beatty vs. Clark, 44 Hun, 126. 
 
RECOVERY OF COMPENSATION. I99 
 
 the above qualification.* In Pennsylvania the physi- 
 cian's books of original entry are admissible in evidence 
 upon being properly proved to be sueh.f In Indiana 
 it is very doubtful whether books of account are com- 
 petent evidence. I The rule as it exists most generally is 
 that the books of original entry are admissible when 
 properly proved. If the entries are in the handwriting of 
 the party himself, then he may prove the same ; if in the 
 handwriting of a clerk, then such clerk must identify or 
 prove the account; but if the person who made the entries 
 is dead, mentally incapacitated, or beyond the jurisdic- 
 tion, the books may be received in evidence upon proof 
 of the handwriting of such person.* This rule must, 
 however, be understood as subject to many qualifications 
 and exceptions. 1 1 
 
 It is generally required that the books be those of 
 original entry. Such is the requirement in many of the 
 States.^ In Pennsylvania it is held that a book con- 
 taining entries transferred from time to time, as the 
 parties had leisure, from a blotter, which is preserved 
 
 * Smith vs. Smith, 13 N. Y. App. Div., 207. 
 ■f In re Fulton Est., 178 Pa. St., 78. 
 
 I 9 A. and E. Encycl. of L., 2d ed., 905. 
 
 # McBride vs. Watts, 1 McCord (S. C), 384. 
 
 II See 9 A. and E. Encycl. of L., 2d ed., 903 et seq. 
 
 ^ The courts of Kentucky, Maine, Massachusetts, Minnesota, Mis- 
 souri, New Jersey, Pennsylvania, South Carolina, Texas, and Vermont 
 require that the book shall be one of original entry. 
 
200 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 and in the possession of the party offering the book, is 
 not admissible as a book of original entries, the blotter 
 being the permanent record of the transaction.* If, 
 however, such entries are first made upon slips of paper 
 or cards and then copied into a book, such book becomes 
 one of original entries, f If these temporary memo- 
 randa are made by one person and transcribed into the 
 book by another, it will probably be necessary to call not 
 only the person transcribing them to prove the entries 
 made in the book, but persons making the original mem- 
 oranda as well, to prove that at or about the time the 
 charges were made services were performed similar to 
 those charged in the book. J 
 
 Particularity of Items of Account. — As to the par- 
 ticularity with which the account must set forth the 
 items of the bill upon which suit is begun, it may be 
 stated generally that this depends upon the nature of 
 the account. If the account is one upon which there 
 has been no settlement or liquidation of the character 
 referred to in a preceding paragraph,* each item should 
 be charged separately and under the date upon which 
 the particular service was rendered, with a specific sum 
 
 * Breinig; v.i. Meitzler, 23 Pa. St., 156. 
 
 + Davison vs. Powell, 16 How. Pr., 467; Patton vs. Ryan, 4 Rawle 
 (Pa.), 408. 
 
 I Chicago Lumber Co. vs. Hewitt, 64 Fed. Rep., 314 ; Miller vs. Shay, 
 145 Mass., 162; Paine vs. Sherwood, 21 Minn., 225. 
 
 * See Limitations of Actions, p. 184. 
 
RECOVERY OF COMPENSATION. 201 
 
 charged for each visit or item entered upoii the ac- 
 count. There are cases holding tliat such particularity 
 is not necessary,* but there is not sufficient authority 
 to Justify one in ever keeping or preparing an account 
 with less particularity. 
 
 In an early -South Carolina ease the bill sued upon 
 contained an item of " thirteen dollars for medicine and 
 attendance on one of the general's daughters, in curing 
 the whooping-cough." A new trial was asked for on the 
 ground that the physician ought to have given a specific 
 bill of the medicine and attendance. The court, speak- 
 ing through Justice Smith, said : " I did think otherwise 
 on hearing this case; but on mature consideration I 
 think the charges were too general, and am, therefore, 
 for granting a new trial." f The question of whether or 
 not the account is sufficiently specific must be decided by 
 the court according to the prevailing usage in similar 
 cases. J 
 
 Regarding the character of the visits or services per- 
 formed, and the kind and amount of the medicines 
 charged, it does not seem necessary that the bill should 
 be descriptive. In an early New Hampshire case in 
 which the items were specified as " to visit " and " to 
 medicine," the court said : " Had this been shown to be 
 
 * Van Bibber vs. Merritt's Exr., 12 Weekly, N. C, 272. 
 •f- Haghes vs. Hampton. 2 Tread. Const. (S. C), 745. 
 X Schmidt vs. Quin, 1 Mill Const., 418 (S. C). 
 
202 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 different from the usage of medical men, it might be 
 proper to inquire into the character of the disease and 
 the circumstances under which the services were per- 
 formed; but the charge stands well enough until some- 
 thing is shown to the contrary. There is nothing upon 
 the face of the charges to create any suspicion of their 
 correctness ; and we can not, without evidence, make any 
 presumption against them. Or, if there had been a 
 general charge for visits and medicines throughout the 
 year, and a gross sum aflOxed thereto, for compensation 
 to the physician and for medicines furnished, there 
 might be some reason for inquiring into it. But here 
 is a specific sum charged for each visit; and it was 
 competent for the defendant to show that the services 
 were not rendered and that the charges were unreason- 
 able, if such had been the facts." * 
 
 From the preceding quotation the reader will realize 
 the necessity in case of an unusual charge of specifying 
 the character of the services rendered. If, for instance, a 
 minor operation were performed, or if unusual services 
 of any character were rendered while making a visit, and 
 yet the item appeared upon the bill as a "visit," with 
 the proper amount charged for the real services per- 
 formed, the difference between the sum charged and 
 the amount ordinarily charged for a mere visit would 
 
 * Bassett vs. SpofEord, 11 N. H., 167. 
 
EECOVERY OF COMPENSATION. 203 
 
 be so great as to create a suspicion as to the correctness 
 of the bill. 
 
 Books of Account, How to be Kept. — It is advisable 
 to refer more particularly at this point to the manner 
 and method of keeping the physician's books of original 
 entry. It has just been observed that a physician may 
 be required to state specifically the nature of each serv- 
 ice rendered and charged upon the account, especially 
 if the amount charged for the same is of an unusual 
 character; it therefore is necessary that some explana- 
 tion be entered with each item which will enable the 
 physician to refresh his memory and testify to the par- 
 ticular services rendered. 
 
 Upon the other hand, if the books are desired to be 
 used in evidence in those States extending to profes- 
 sional communications between physician and patient the 
 privilege of secrecy, they must not divulge matters com- 
 ing within the protection of the statute, otherwise they 
 will be objectionable and will be excluded upon motion 
 of the patient or his personal representatives. Generally 
 speaking, any information obtained by the physician in 
 his professional intercourse with his patients which was 
 necessary to enable him to treat them, and also the char- 
 acter of treatment advised or prescribed by him, are 
 within the protection of the statute.* Here is clearly 
 
 * See chap, ix, Privileged Communications. For a list of States in 
 which the privilege is recognized, see p. 481, n. 
 14 
 
204 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 a case where the requirements of the law on the one 
 hand, and the prohibition of the law upon the other, 
 conflict in snch a way as to subject the physician to a 
 severe hardship. This hardsliip it is thought may be 
 overcome if the physician living in a State which enjoins 
 silence as to all knowledge professionally obtained will 
 invent a code of arbitrary signs and characters, and by 
 the use of these characters describe the ailments for 
 which he treats his patients, together with the services 
 rendered by him. Such characters when used must, 
 however, be completely unintelligible to others, and it 
 can not be safely advised that he would be permitted to 
 disclose his system to another and still claim the privi- 
 lege of having his books containing such characters ad- 
 mitted in evidence. 
 
 Illustrations. — Should the physician have been so 
 indiscreet as not to keep a book of accounts, and is un- 
 able to recall and testify specifically to the items of the 
 account upon which he brings suit, or is prohibited from 
 so doiug by reason of the death or mental unsoundness 
 of the patient, his ability to recover is a matter of very 
 grave doubt. In the case of Administrator, etc., of Galt- 
 ney vs. Leggett, Dr. Leggett brought suit to recover 
 among other sums one upon an open accoimt for medi- 
 cal services rendered Galtney and his wife, children, 
 and servants during the years from 1836 to 1842, and 
 which amounted in the aggregate to one hundred and 
 
RECOVERY OP COMPENSATION. 205 
 
 forty dollars. Leggett's only witness was John W. Mo- 
 nett, Galtney's regular family physician, by whom it was 
 proved that Leggett attended Galtney's family in his 
 absence. He testified that he had seen Leggett at Galt- 
 ney's house two or three times, but did not say at what 
 time. He did not know anything about any of the 
 charges made, nor of Leggett's making any visits at the 
 time charged ; he knew nothing of the items ; that he had 
 heard Galtney frequently say that he had employed Leg- 
 gett as his physician, when he was absent; that Galt- 
 ney's family, white and black, numbered nearly one 
 hundred persons, and they were often sick; that he had 
 called two or three times in consultation with Leggett at 
 Galtney's house; that the prices charged for the serv- 
 ices were according to the usual rates ; that Galtney and 
 Leggett were very intimate, and that it was not unusual 
 for men situated as they were to suffer accounts to run 
 on uncollected for a long time. Justice Thatcher, in 
 commenting upon the case, said : " The evidence, how- 
 ever, upon which the jury found for the plaintiff some 
 portion of the account for medical and surgical services 
 seems extremely vague and uncertain. The only wit- 
 ness called by the plaintiff to establish this account 
 could speak neither as to the time or the character of the 
 services charged, and, in point of law, gave no testi- 
 mony as to the account filed. It is true that it is 
 difficult for accounts of this character to be strictly 
 
20G THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 proved, nor indeed is it necessai}'; but it would seem 
 to be always in the power of a physician or surgeon to 
 show that he was in the habit of keeping correct books 
 of accounts, and that the account sued upon had been 
 correetl}^ copied from his books. It is also true that 
 the court will not lightly disturb the findings of a jury 
 in cases of this kind where they are particularly the 
 proper judges of the weight of the evidence; but in the 
 present instance the evidence does not seem at all to 
 warrant the verdict upon the account." 
 
 And, again, in the case of Simmons vs. Means, in 
 which suit was brought to recover a hundred and fifty 
 dollars for medical services generally and medicines fur- 
 nished to defendant and his family, and in which the 
 jury found a verdict for the plaintiff for a hundred and 
 thirty dollars, the evidence showed that during the 
 period charged in the account the plaintiff was the fam- 
 ily physician of the defendant, and was seen several 
 times going to and from the defendant's residence, and 
 was frequently at the house of the defendant; and that 
 the charges contained in the account filed were in ac- 
 cordance with the customary rates in that locality. 
 
 Justice Thatcher, passing upon this case also, said : 
 '' The evidence introduced to prove the account was to 
 the effect that the plaintiff below was the practising 
 physician in the famih^ of the defendant, and that he 
 was seen passing to and from the defendant's house, dur- 
 
RECOVERY OP COMPENSATION. 207 
 
 ing the time included in the account ; and that ' he did 
 practise in his family ' during the period, together with 
 proof that the amounts charged in the account were ac- 
 cording to the customary rates. The items of the ac- 
 count do not appear in the record. The bill of excep- 
 tions does not show of what character the professional 
 services or medicines supplied were, or that any, in fact, 
 were supplied. The evidence that the physician prac- 
 tised in the family, and was seen going and returning 
 from his house, is not sufficient to create a legal pre- 
 sumption of indebtedness by the defendant. This court 
 has gone so far as to authorize a physician to recover 
 in an action against his patient by establishing upon a 
 trial the facts of his habit of keeping correct books of 
 accounts, and that the account sued upon had been cor- 
 rectly copied from his books. But with this exception, 
 physicians must be held, like others, to the customary 
 rules of evidence. In this view the finding (of the 
 jury in favor of the physician) in this case was plainly 
 unwarranted by the evidence." * 
 
 Nor has the jury any right to assume, because most 
 of the items of such an account have been positively 
 proved to be correct, that all of the items are correct. 
 The court, in a case involving this point, speaking 
 through Justice Fisher, said : " The plaintiff must either 
 
 * Simmons vs. Means, 16 Miss., 397. 
 
208 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 prove his account by direct and positive proof, or show- 
 that he keeps correct books, and that his accounts have 
 been correctly transcribed." * 
 
 And, again, in the case of Dejol vs. Johnson, admr., 
 in which a piiysician's bill had been allowed and paid to 
 the amount of $612.55, Justice Spofford said: "The 
 large medical bill is not justified by the evidence. There 
 is no detailed account of items. Two or tliree visits to 
 the parish of Calcasieu, about forty miles from Dr. 
 Thornton's residence in Flat Tow^n, and constant atten- 
 tion to the deceased for a fortnight in his own house, 
 whither Dejol was removed before his death, together 
 with the furnishing of medicines, are all the services 
 specifically proved. It is true a witness states that 
 the doctor attended the deceased for six or eight months 
 before his death. The disease was also a loathsome one. 
 But the opinion of this witness that the bill was a just 
 and correct one can not supply the lack of data to 
 support such an opinion. Upon a survey of the evidence 
 we are satisfied that three hundred dollars would be a 
 liberal allowance for the services as proved, and the 
 item charged as paid to Dr. Thornton must be reduced 
 to that sum." f 
 
 In proving that professional services have been ren- 
 
 * Moore vs. .loyce, 23 Miss., 584. 
 
 f Dejol vs. Johnson, admr., 12 La. Ann., 853. 
 
RECOVERY OP COMPENSATION. 209 
 
 dered, it is competent for the physician to produce a 
 witness to testify that the physician left his office, taking 
 medicine witli him, and said he was going to visit tiie 
 particular patient, and started in the direction of the 
 place where he lived.* It will be understood from the 
 preceding cases that this evidence is simply corrobora- 
 tive in effect and is valuable only for the purpose of 
 strengthening the evidence of the principal witness who 
 testifies as to the particular services rendered. 
 
 Propf of Amount of Claim. — There is no presump- 
 tion of law concerning the value of a physician's or sur- 
 geon's services, and there is no presumption that a jury 
 can ascertain it without testimony of some kind from 
 persons knowing something about such value, f It has 
 been shown that the plaintiff is a competent witness to 
 testify to the value of the services which he has sued 
 to recover, the patient being alive and of sound mind. 
 Should any other physician be cognizant of the char- 
 acter and extent of the services upon which suit is 
 brought, it will also be competent for him to testify 
 to their value; or, if the case is such that the 
 plaintiff is not precluded from disclosing the character 
 of the defendant's disease and the nature and extent of 
 his services, then he may call upon any regular physician 
 
 * Autauga Co. va. Davis, 32 Ala., TOS. 
 f Wood vs. Barke-, 49 Mich., 296. 
 
210 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 to testify as to their value. When such testimony is 
 given regarding the value of the services rendered and 
 none is given to contradict it, the jury is not permitted 
 to disregard the evidence and form an independent con- 
 clusion, but must find in accordance with the evidence.* 
 Should conflicting evidence upon this point be adduced 
 by the parties, it then becomes the duty of the jury to 
 scrutinize it and deliberate upon the matter with care, 
 so as to arrive as nearly as possible at the true value of 
 the services perform-ed. 
 
 The supreme court of Louisiana lays down the rule 
 that where the witnesses differ as to the proper charges 
 to be made by physicians, the correct rule is to allow 
 the lowest estimate, f 
 
 Should the case be one of a difficult operation, and 
 the ability and professional standing of the physician 
 specially high, these facts are proper for the considera- 
 tion of the Jury and will justify a greater compensa- 
 tion. J A witness who is produced to show the value of 
 the services in question must testify regarding the value 
 of the particular services upon which suit is pending or 
 those of the same character.* It is not necessary that 
 the physician should prove the value of the services to 
 
 * Wood vn. Barker, 49 Mich., 296. 
 
 f Succession of Duclos, 11 La. Ann., 406. 
 
 t Lanjie ns. Kearney, 4 N. Y. Supp., 14, affirmed, 127 N. Y., 676, 
 
 # Trenor vs. Central P. R. R. Co., 50 Cal., 222. 
 
RECOVERY OP COMPENSATION. 211 
 
 the patient, the value to be proved by him is the ordinary 
 and reasonable price for services of that nature.* The 
 reasonableness of the charges can not be established by 
 a witness proving what the same physician had charged 
 him in a similar case,f nor is one not a physician com- 
 petent to testify as to the value of such services.^ While 
 in epidemics custom may sanction an increased rate of 
 charge, such conditions will not justify exorbitant fees, 
 and in estimating the correct amount the court is in- 
 clined to the lowest estimate given by witnesses.* 
 
 The case of Board of Commissioners of Marion 
 County vs. Chambers is instructive as to the character 
 of proof requisite and permissible to determine the 
 amount of fee to which the physician is entitled. While 
 this case was one in which a physician brought suit 
 against a county to collect fees due him from the 
 county, yet the rules of law which were held applicable 
 to that case would govern equally in a like action where 
 the plaintiff and defendant were both natural per- 
 sons. In this case Dr. C. was employed by the 
 coroner to conduct a post-mortem examination, for 
 which he filed a claim of $180. The commissioners al- 
 lowed him $105, and from that order he appealed to the 
 
 * Styles vs. Tyler, 64 Conn., 432. 
 f Collins 7,',s. Fowler, 4 Ala., 64*7. 
 X Mock vs. Kelly, 3 Ala., 38Y. 
 
 * Collins vs. Graves, 13 La. Ann., 95. 
 
212 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 superior court, where a verdict was given him for the 
 full amount of his claim. The case was then appealed 
 to the supreme court, which reviewed the trial of the 
 case in the superior court and affirmed the judgment 
 of that court. There being much evidence fully sus- 
 taining the value of the doctor's services as charged and 
 allowed, the court confined itself to an examination of 
 alleged errors of the superior court in admitting and 
 rejecting certain evidence. 
 
 The counsel for the board of commissioners asked 
 the doctor, " What has been the average daily income 
 from your profession for the two years past ? " The doe- 
 tor's counsel objected to the question, and the court 
 sustained the objection. The supreme court, in passing 
 upon this ruling, said : " Whether the income of the 
 appellee (the physician) was much or little was entirely 
 immaterial. If a surgeon properly performs a surgi- 
 cal operation he is entitled to recover the reasonable 
 value of his services, neither more nor less, whether his 
 professional income be ten or ten thousand dollars a 
 year. The value of the services can not be measured by 
 the professional income of any series of years. If the 
 physician or surgeon possesses the requisite skill and 
 knowledge, and exercises such Icnowledge and skill prop- 
 erly, he is entitled to be paid the reasonable value of 
 services rendered by him, irrespective of the question 
 of his yearly professional income." The plaintiff pro- 
 
RECOVERY OF COMPENSATION. 213 
 
 duced two physicians and surgeons to testify in his 
 behalf as to the value of the services performed; these 
 witnesses testified upon their examination in chief that 
 they were physicians and surgeons, and that they were 
 competent to testify to the value of services rendered in 
 making post-mortem examination; but, on cross-exami- 
 nation, one of them said : " I don't know what physi- 
 cians have charged for making post-mortems for the 
 county; I know nothing of the prices at which services 
 can be procured; I judge from what I think it would be 
 worth," The other witness said upon cross-examina- 
 tion : " I have never made examinations for the county ; 
 my testimony is based upon all the circumstances. I 
 base my opinion on what I think is the value of such 
 services, irrespective of the price charged or paid." The 
 counsel for the board of commissioners then asked to have 
 the testimony of these witnesses stricken out, which the 
 trial court refused to do. The supreme court said : " No 
 error was committed in overruling appellant's motion. 
 The testimony was competent, for the witnesses were 
 shown to be experts, and to possess such knowledge, skill, 
 and acquaintance with the subject under investigation 
 as entitled them to express their opinions to the jury. 
 They may have had some knowledge of the value of such 
 services, without knowing anything at all about what 
 others were charging for like services. ... It is clear, 
 from the statements of the witnesses, that they were 
 
214 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 skilled in their professions, and that they did have suf- 
 ficient acquaintance with the nature and value of serv- 
 ices rendered in post-mortem examinations to entitle 
 their opinion to go in evidence." The board of commis- 
 sioners' counsel put the question to one of the members 
 of the board : " At what price could you have procured 
 competent physicians to make post-mortem examina- 
 tions during the years 1877 and 1878 ? " The physi- 
 cian's counsel objected to the question, and his objection 
 was sustained. Upon the correctness of this ruling the 
 supreme court said : " The question in issue was, not 
 what others would have done the work for, but what was 
 the reasonable value of the services of appellee (the 
 physician). It was no more competent for the appel- 
 lant (the board) to introduce the offered evidence than it 
 would have been for the appellee to prove that any other 
 surgeon would have charged twice as much as the sum 
 claimed by the appellee. It was competent for appellant 
 to call competent witnesses to give their opinions of the 
 value of the services, but not to prove particular bar- 
 gains or offers." * 
 
 In case of medical services rendered to counties or 
 towns, the statutes of some States authorize the board 
 having charge of such matters to limit the amount of 
 relief to be furnished. With such a statute the board 
 
 * The Board of Commissioners of Marion County vs. Chambers, 75 
 Ind., 409. 
 
RECOVERY OF COMPENSATIOK 215 
 
 may, before the relief is furnished or services rendered, 
 establish a limit, but where no such limit has been es- 
 tablished, the board must allow the reasonable value of 
 the services rendered.* 
 
 Defense. — The physician having shown his employ- 
 ment, established the fact that the services were ren- 
 dered, and proved the value of those services, it then be- 
 comes incumbent upon the patient to show some just 
 reason why he should not pay, and, if he fails in this, 
 judgment will be rendered against him. Experience has 
 shown that the human mind is very fruitful in devising 
 excuses and discovering reasons for avoiding obliga- 
 tions; it therefore usually happens that the defendant 
 has a defense.' Perhaps the most common defense, when 
 the suit is between the physician and patient, is that of 
 general denial, which simply necessitates the strict proof 
 that the services were rendered as alleged, and that they 
 are of the value claimed. Frequently the defendant pro- 
 duces witnesses, who, it has been heretofore shown, must 
 be physicians, to prove that the services are of a less 
 value than that claimed. In such a case the plaintiff 
 should be careful to secure as his witnesses men of good 
 professional standing whose judgment is esteemed and 
 integrity undoubted. The defense has been interposed 
 that, excepting for those visits specially requested, the 
 
 * Hunter vs. Jasper Co., 40 la., 568. 
 
216 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 patient is not liable unless the physician shows some 
 reasonable necessity for the additional visits. This de- 
 fense has no legal weight; a physician, being employed 
 to attend a patient, is the proper and the best judge of 
 the number and frequency of visits necessary, and, in the 
 absence of proof to the contrary, the court will presume 
 that all professional visits made were deemed necessary 
 and were properly made. Justice Temple, of the su- 
 preme court of California, said : " It would be a danger- 
 ous doctrine for the sick to require a physician to be able 
 to prove the necessity of each visit before he can re- 
 cover for his services. This is necessarily a matter of 
 judgment, and one concerning which no one, save the 
 attendant physician, can decide. It depends not only 
 upon the condition of the patient, but, in some degree, 
 upon the course of treatment adopted." * 
 
 In the case of Jeffries vs. Harris the defendant at- 
 tempted to show the character of the physician, but was 
 not permitted to do so. The court said : " Character was 
 not put in issue by the nature of this action, and the 
 defendant is equally liable on his assumpsit, whether the 
 plaintiff's character were good or bad; for, if he chose 
 to employ him as a physician, it is not competent to 
 him, afterward, to say that he is not a good one, and, 
 therefore, that he will not pay him. If, indeed, the 
 
 * Todd vs. Myres, 40 Cal., 855. 
 
RECOVERY OF COMPENSATION. 217 
 
 plaintiff had imposed on the defendant by false preten- 
 sions to skill, he would have been responsible for any in- 
 jury done him; but, in this case, the plaintiff is enti- 
 tled to compensation for skill and labor, whatever they 
 may be." * 
 
 A very common sort of defense is that in which the 
 defendant admits the rendering of the services but 
 claims that they were so unskillfully rendered as to be 
 injurious; and frequently he files a counter-claim for 
 damages resulting from such unskillful or negligent 
 treatment. The constant recurrence of cases in which 
 this sort of defense is interposed will justify a careful 
 examination of the law governing the proof. Many of 
 the trial courts seem to have been of the opinion that 
 when a patient pleaded as a defense to a physician's suit 
 to recover compensation for professional services that 
 such services were not rendered with skill, this plea 
 immediately east the burden upon the physician of show- 
 ing by a fair preponderance of evidence that the services 
 rendered by him were performed with all necessary or 
 required skill. The courts of last resort have, however, 
 universally declared this to be a mistaken view, they 
 holding the law to be that where the physician has made 
 a prima-facie case by proving his professional character, 
 his employment by the defendants, the rendition of the 
 
 * Jeffries vs. Harris, 3 Hawks. (N. C), 105. 
 
218 THE LAW IX ITS RELATIONS TO PHYSICIANS. 
 
 services and their value, he is entitled to judgment Tin- 
 less the defendant can show by competent evidence that 
 he has been guilty of negligence or want of proper skill 
 in treating the particular patient.* Nor will the fact 
 that a patient grew worse under the plaintiff's treatment 
 and grew better after he was discharged show that the 
 physician was guilty of negligence or nnskillfulness in 
 treating him. To illustrate more fully and show the 
 character of evidence required, a quotation is taken from 
 a case in point: The patient in this case had sustained 
 a serious injury by the explosion of a djTiamite cartridge 
 and the plaintiff had been called as a specialist to treat 
 Ins e3TS and ears. The defense interposed was that of 
 improper treatment. In commenting upon the evidence 
 offered to establish this defense the court said : " It is 
 claimed that the plaintiff improperly applied and used 
 a tube of hot water over the nose to cure the ailment or 
 injury to his eyes ; that the heat was so great as to be in- 
 jurious. Other physicians were in attendance on the 
 patient, but their evidence was not produced. Xo surgi- 
 cal or medical witness was called by the defendant to 
 say that the treatment was improper or negligent in the 
 least degree, whatever uneducated persons or non-ex- 
 perts might conjecture on the subject. The plaintiff 
 
 * Robinson vs. Campbell, 47 la., 625 ; Styles vs. Tyler, 64 Conn., 
 432; Baird vs. Morford, 29 la., 531; Wooster t's. Paige, 1 Pae. Coast 
 L. J., 324. 
 
RECOVERY OP COMPENSATION. 219 
 
 could not be convicted of malpractice on such evidence. 
 He could not be held responsible simply because he 
 failed to cure the defendant's son, nor for mere mis- 
 judgment in treating him, if the treatment was such 
 as a physician antl surgeon of ordinary knowledge and 
 skill would apply." * 
 
 For is it a valid defense to a suit by a physician to 
 recover the value of his services to show that the nurses 
 in the hospital to which the patient went upon the phy- 
 sician's advice were negligent or careless, it not being 
 shown that the physician was proprietor or manager 
 of the hospital, f 
 
 Drunkenness is also sometimes pleaded as a defense 
 to such an action. If a physician who is called to attend 
 a patient is in such an intoxicated condition as to be 
 unable to fulfill the duties of his profession, this is not 
 only a complete defense to an action commenced to re- 
 cover compensation for those particular services, but 
 there is, under the law of some States, a criminal liabil- 
 ity involved. If, however, a patient, after the doctor has 
 treated him in an intoxicated condition, continues to 
 send for or employ him, he will be held to have waived 
 all objection to his habits of intoxication and will not 
 be permitted to plead such a defense. J 
 
 * Wurdeman vs. Barnes, 92 Wis., 206, 66 N. W. Rep., 111. 
 f Baker vs. Wentworth, 155 Mass., 338, 29 N. E. Rep., 589. 
 X McKleroy vs. Sevvell, IS Ga., 657. 
 15 
 
220 THE LAW IX ITS RELATIONS TO PHYSICIANS. 
 
 Effect of Judgment for Recovery of Fee. — A judg- 
 ment being entered in favor of the physician in a suit 
 commenced by him to recover the value of his profes- 
 sional services, it is interesting and valuable as "well to 
 inquire what effect such a judgment will have upon a 
 possible right of action against him and in favor of 
 the patient growing out of nnskillfulness in the per- 
 formance of the same services for which he has just re- 
 covered. It is a general principle of law that a judg- 
 ment of a court of concurrent jurisdiction directly upon 
 a point is a bar to an action upon the same point and 
 between the same parties in another suit. 
 
 The court of appeals of ISTew York has applied this 
 doctrine to its full extent. In this instance suit had 
 been commenced by a patient to recover damages, laying 
 the amount at five thousand dollars, from his physician 
 for unskillful and negligent treatment of a dislocated 
 elbow and fractured, arm. The physician then com- 
 menced an action before a justice of the peace to re- 
 cover the value of his services in the treatment com- 
 plained of from the patient, who was plaintiff in the 
 malpractice suit. The patient appeared in the suit in- 
 stituted before the justice of the peace for the recovery 
 of fees, but interposed no defense, and judgment was 
 entered against him to the amount of six dollars and 
 fifty-eight cents. The physician, then, as a defense to 
 the patient's action for damages from malpractice, set 
 
EECOVERY OF COMPENSATION. 221 
 
 up the judgment rendered by the justice of the peace. 
 Upon the principle above given the supreme court, and 
 afterward the court of appeals, held that the judgment 
 of the justice was a complete bar to the action for dam- 
 ages.* The courts of West Virginia have declared them- 
 selves in harmony with this decision ;f so also have 
 those of New Jersey J and Arkansas.* The contrary 
 view has, however, been taken by the courts of Indiana,] ] 
 Ohio,'^ and Wisconsin.O 
 
 Collections from Estates of Decedents. — There now 
 remains to be considered before closing this chapter the 
 manner of presenting and proving claims for physi- 
 cians' fees against estates of deceased persons, together 
 with a general survey of the law regulating the sub- 
 ject. 
 
 The administration of estates is governed in each 
 State by statutes which are more or less peculiar to the 
 particular jurisdiction. It will therefore be impossible 
 in a limited space to give more than a very general view 
 of the manner of administration, but the proving of 
 claims, when contested, in which the doctor is most deep- 
 
 * Gates vs. Preston, 41 N. Y., 113. 
 
 ■|- Lawson vs. Conway, 37 W. Va., 159, 16 S. E. Rep., 564. 
 
 I Ely vs. Wilbur, 49 N. J. L., 685. 
 
 * Dale vs. Donaldson Lumber Co., 48 Ark., 188. 
 
 II Goble vs. Dillon, 86 Ind., 827. 
 
 ■^ Sykes vs. Bonner, 1 Cinn. R., 464. 
 () Ressequie vs. Byers, 52 Wis., 650. 
 
222 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ly interested, is governed by pretty much the same law 
 in all jurisdictions, and will therefore be examined more 
 particularly. 
 
 The first step in the administration of the estate of 
 a deceased patient or debtor in which the doctor is inter- 
 ested is that at which the time arrives for presenting 
 his claim for payment. Of the arrival of this time he is 
 usually given notice, either actual or constructive. In 
 the presenting of such claims the doctor should always 
 be j)rompt, remembering that unless the claim is pre- 
 sented within the period fixed by the law of his State 
 it is totally barred — at least, such is the law of many 
 States — and that, should the law of his State, being 
 more indulgent, allow him to present his claim after 
 the first period fixed has expired, he will be entitled to 
 his proportion of only those assets which remain after 
 the payment of the claims filed and allowed at the 
 proper time. The time fixed for the presentation 
 of claims refers as well to those not due as to those 
 which have already accrued. In some jurisdictions 
 future debts of the estate are paid at their present 
 value at the same time as the other debts; in 
 others, arrangements are made for paying them at 
 maturity. 
 
 Claim, by whom Presented. — The claim against a 
 decedent's estate must be filed or presented by the person 
 who owns it or has an interest in it, with the right of 
 
RECOVERY OF COMPENSATION. 223 
 
 enforcing its collection,* or by his lawfully authorized 
 agent, f 
 
 Claim, to whom Presented. — The presentation, to 
 be beyond quesi^on, must be made to a legally quali- 
 fied administrator or dxecutor, although a presen- 
 tation to an executor before his qualification has 
 been held valid.;]: A presentation to an administra- 
 tor after his discharge is, however, of no effect.* 
 When there are two or more executors or adminis- 
 trators of an estate, a presentation to one of them is 
 sufficient. 1 1 
 
 Presentation of Claim. — The sufficiency of the pres- 
 entation of a particular claim is a question that can be 
 decided in the light of the statutes existing in that juris- 
 diction, and the preparation of a claim for presentation 
 should never be undertaken without first consulting the 
 statutes of the State in which it is to be filed. In some 
 States the claim is not required to be presented in writ- 
 ing, although this is probably the exception. No harm 
 can result from doing more than the law requires in mat- 
 ters of this kind, and the claim should therefore always 
 be carefully prepared in writing, describing the general 
 
 * McDowell vs. Jones, 68 Ala., 25. 
 
 f Marshall vs. Perkins, 72 Me., 343. 
 % Branch Bank vs. Hallett, 12 Ala., 671. 
 
 * Gibson vs. Mitchell, 16 Fla., 519. 
 II Dean vs. Duffield, 8 Tex., 235. 
 
224 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 nature,* amount, and value of the services with, as much 
 particularity as possible. If a note or other instrument 
 has been given, and the claim is filed upon such instru- 
 ment, then a copy of it should be attached to the claim. 
 
 Claims for medical services should always be verified 
 by affidavit of the claimant or doctor, sworn to before 
 some officer having authority to administer oaths. 
 
 The affiant should in his affidavit of verification set 
 up the facts that he is a physician and surgeon, and 
 has been duly licensed or is duty qualified under the 
 law of the particular State to practise medicine and 
 surgery; that the annexed account against the estate of 
 
 decedent, amounting to the sum of dollars, is just, 
 
 after allowing all just credits, deductions, and set-offs, 
 and is now due and unpaid. An affidavit setting up 
 these facts in proper form will comply with the law of 
 nearly every State, but before making an affidavit the 
 local statutes should be examined and their require- 
 ments carefully followed. 
 
 After a claim, has been duly presented the executor 
 or administrator will in most States examine the same, 
 and, if he is satisfied that it is a just and proper claim 
 against the estate, either in full or in part, he will allow 
 
 * The description of the nature of the services rendered should not 
 be so specific, when filed in those States holding professional communi- 
 cations privileged, as to violate the law. 
 
RECOVERY OP COMPENSATION^. 225 
 
 the same, either at its face or pro tanto, accordingly as he 
 is convinced of its merits. 
 
 Should the claim be rejected, either in full or in part, 
 the claimant is required, within a short period of time, 
 usually ranging from three months to one year, to bring 
 an action against the executor or administrator to re- 
 cover the claim or the part of the same which is dis- 
 allowed; otherwise his rights in the premises will be 
 barred. 
 
 Advisability of Prosec-iiting Claim. — At this point it 
 becomes advisable to consider the condition of the de- 
 cedent's estate and determine whether or not there are 
 sufficient assets to pay the claim when proved, or whether 
 the reward will be so small as not to justify the fight. 
 Should the estate be solvent, it then is necessary to care- 
 fully scrutinize the claim and determine whether or not 
 it is legally valid, and if valid, whether it can be proved. 
 
 Solvency of Estate. — In considering the solvency of 
 the estate it is necessary to examine the order of the 
 payment of debts, for the estate may be solvent as to a 
 certain class of debts and pay them in full, while those 
 of a subsequent class would receive but a small percent- 
 age of their face value, or perhaps nothing at all. At 
 common law the debts of the decedent were paid in the 
 following order : 1. The necessary funeral expenses. 2. 
 The necessary expenses of administration. 3. Debts 
 of record due to the crown. 4. Debts of record due 
 
226 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 to the subjects^ which included judgments, decrees, 
 statutes, and recognizance. 5. Debts by specialty * 
 founded upon a valuable consideration. 6. Simple 
 contract debts f based, upon valuable consideration. 
 7. Voluntary bonds or covenants. 8. Other volun- 
 tary debts. 
 
 Under this scheme the physician's bill would rank in 
 the sixth class, unless he had been so fortunate as to 
 secure a bond in liquidation of it, when it would be ad- 
 vanced to the fifth class, or had reduced it to judgment 
 during decedent's lifetime, in which case he would enjoy 
 the advantage of belonging to the fourth class. In pay- 
 ing these debts, if the estate is solvent, all the creditors 
 are paid in full ; but if there is a deficiency in the estate, 
 all the creditors of each class are paid in full in the 
 order of their class until the estate is exhausted, those 
 coming in the subsequent class or classes getting noth- 
 ing, or perhaps only a pro rata share of their indebted- 
 ness. To illustrate, under the above scheme, an estate 
 having only enough money to pay the first five classes 
 of creditors would pay them in full. Should there, how- 
 ever, be a sum left after paying the first five classes, but 
 not equal to the total sum of the debts owing under the 
 sixth class, this amount would then be divided among the 
 
 * Debts by specialty are those arising out of a contract or other 
 instrument under seul. 
 
 f Simple contracts include all not under seal, whether oral or written. 
 
RECOVERY OP COMPENSATION. 227 
 
 creditors of the sixth class in proportion to the amount 
 of their claims. 
 
 The common law order of creditors has been altered 
 in every State, the preference of debts growing out of 
 specialty contracts over those arising from simple con- 
 tracts being nearly always withdrawn; in some States, 
 however, judgments obtained in the lifetime of deceased 
 are given preference over simple contract debts. 
 
 The most common order now existing in the United 
 States is the following: 1. Funeral expenses. 2. Ex- 
 penses of administration. 3. Expenses of last illness. 
 4. Judgments (abolished in a number of States). 5. 
 Public debts. This order in many States ranks after 
 the funeral expenses and expenses of administration. 
 6. Simple contract liabilities. 
 
 Probably the most striking change, as shown by com- 
 parison of the order existing at common law and the 
 one last above given, is the addition of the class " ex- 
 penses of last illness." This class is quite generally rec- 
 ognized in the United States, but it is not universally 
 accepted. 
 
 What is Included in Expenses of Last Illness. — Gen- 
 erally speaking, this includes the necessary medical at- 
 tendance and nurse hire incurred during the last sick- 
 ness. What the term " last illness " means is a question 
 that is not entirely free from doubt. We have an early 
 case from the supreme court of Louisiana in which, by 
 
228 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 reason of the peculiar statute defining tlie term " last 
 sickness,"^ a hardship is worked upon the physician. In 
 that case the patient was afflicted with a fatal disease, 
 of which the physician would have heen unable to cure 
 him, but the immediate cause of the patient's death was 
 a pistol wound. The physician would have been en- 
 titled to a privileged claim for attending the patient 
 during that which, in fact, was his last sickness; but 
 the code specified that "the last sickness is considered 
 to be that of which the debtor died," * thus defeating 
 the claimant's preference. 
 
 An early case comes to us from South Carolina in 
 which a preference was asked for nursing during the de- 
 cedent's " last sickness." The period of such services ex- 
 tended through the last year of the decedent's life, dur- 
 ing which time he was lingering under the disease which 
 finally terminated his existence. The refined and hu- 
 mane sentiment expressed by the court of appeals in giv- 
 ing their interpretation of this act demands a quotation 
 of the opinion : " The issue made up presented the ques- 
 tion, and the jury have decided that the services were 
 rendered during the last sickness. 
 
 " The court can lay down no rule or limitation for 
 the duration of the last sickness of a man, nor for the 
 degree of attention to be paid him. A wounded man 
 
 * Succession of Whittaker, 7 Rob. (La.), 91. 
 
EECOVERY OF COMPENSATION. 229 
 
 may linger a long time in a helpless state, and chronic 
 diseases and some cancers run through more time than 
 a year. The act concurs with the principles of Christian 
 civilization, and is remedial of a common want and ne- 
 cessity — attention and services during last sickness. We 
 must therefore construe it liberally, and let it inure to 
 its proper end, the full relief of the sick and the in- 
 firm. The court and the jury were the proper judges 
 in the particular instance; and they appear to have as- 
 sessed the amount of the plaintiff's account with justice 
 and discretion.^' * 
 
 In the matter of Eeese's estate the evidence showed 
 that Mr. Eeese received an injury from a fall; he was 
 attended by the claimant for some time, and so far re- 
 covered as to be able to attend to his ordinary business, 
 and the claimant's services were dispensed with. After- 
 ward he had a relapse and called in another physician. 
 Soon after that he died, probably from the effect of the 
 fall, from which he never entirely recovered. The ques- 
 tion arose whether claimant's bill was entitled to prece- 
 dence as " medical attention given during the last ill- 
 ness." The court thought that the clause refers to 
 proximate and not remote causes of death, and that the 
 attendance must be during the last sickness, but could 
 not be rendered at intermittent periods. 
 
 * Percival admr. ads. McVoy. Dudley (S. C), 337. 
 
230 THE LAW IN" ITS RELATIONS TO PHYSICIANS. 
 
 In the case of Huse vs. Brown, exr., the services 
 were rendered by the claimant between January 19th 
 and June 28th. The decedent was suffering from a 
 cancer in his nose, from which he died in December 
 following. The trial court instructed the jury that 
 if they should decide the testator died of the cancer 
 under which he was laboring when the plaintiff at- 
 tended upon him, and that it was a continuing com- 
 plaint or disorder until his death, they might con- 
 sider it his last sickness. The supreme court, in 
 referring to this instruction, said : " And why not, 
 whether any such instruction had been given to them 
 or not? It would seem to a plain understanding 
 to be an indisputable fact that the sickness which 
 is terminated by the death of a patient is his last 
 sickness. . . . Sickness assumes so many forms, and 
 death approaches in so many different ways, that we 
 know not how to lay down any legal principle in such 
 cases that can be applied by way of construction of the 
 words ' last sickness.' What is to be considered a man's 
 last sickness seems to be a question properly determin- 
 able by the jury upon the facts in each case, and which 
 can seldom, if ever, be the same in two instances. There 
 may probably be in a multitude of cases a strong re- 
 semblance. On a trial for homicide it is always a ques- 
 tion for the Jury whether the deceased died a natural 
 death or in consequence of the act of the person ac- 
 
RECOVERY OF COMPENSATION. 231 
 
 cnsed. So it may be a question whether the sickness of 
 which a person dies is the same under which he la- 
 bored when confined and receiving medical aid one or 
 two months before. In the case before us, the questions 
 as to the cause of the testator's death and the contin- 
 uance of his sickness have been settled by the jury whose 
 business it was to settle it." * 
 
 In addition to the above opinion no comment is ne- 
 cessary. Should the estate be insolvent, and the serv- 
 ices of such a character as to be urged as a preferred 
 claim, or should the estate be solvent, then the next 
 question to be considered is the validity of the rejected 
 claim. 
 
 Validity of Claim against Estate. — Generally speak- 
 ing, the same questions may arise to defeat the collec- 
 tion of a claim against the estate of a deceased person 
 as those which are invoked by a living defendant for the 
 same purpose, and which have been considered in the 
 preceding pages. 
 
 There are, however, a few questions which, from the 
 nature of the case, can only arise in the class of cases 
 now imder consideration. For instance, it has been ob- 
 served that the husband is liable for the medical treat- 
 ment of his wife; for that reason a claim for services 
 rendered to a deceased wife should be presented to the 
 
 * Huse vs. Brown, exr., 8 Me., 16*7. 
 
232 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 husband for payment, and not filed against her estate 
 unless the husband has no property with which to pay 
 the claim.* 
 
 Where services are rendered a decedent under the 
 expectation and mutual understanding that compensa- 
 tion will be made for the same by way of legacy, or other- 
 wise, but with no special agreement to that effect, the 
 person rendering such services may, upon the failure of 
 decedent to provide for such legacy, collect the reason- 
 able value of his services from the estate, f But where 
 the services are performed in the mere expectation or 
 hope of a legacy, without the intention of making any 
 charge therefor, no claim can be maintained against 
 the estate, even though the claimant's hope of a legacy 
 is not realized. I 
 
 In case of claims of the sort rendered for members 
 of the claimant's family there is a presumption that 
 the services were intended to be gratuitous; this pre- 
 sumption, however, may be rebutted by proof of an ex- 
 press contract to pay therefor, or by evidence of facts 
 or circumstances showing that when the services were 
 rendered the parties contemplated a pecuniary compen- 
 sation. The strength of this presumption is dependent 
 
 * In re Weringer's estate, 100 Cal., 345, 34 Pac, 825. 
 \ Starkey's Appeal, 61 Conn., 199; Harrison vs. Lindley, 104 111., 
 245 ; Martin vs. Wripjht, 13 Wend (N. Y.), 460. 
 X Clark vs. Todd, 16 N. Y. Supp., 491. 
 
RECOVERY OF COMPENSATION". 233 
 
 upon the degree of relationship becoming weaker as the 
 relationship is more distant. 
 
 Without dwelling further upon the character of the 
 claim, which is regulated by the same law as that regulat- 
 ing claims between ordinary litigants, we will pass to 
 the mode of proving these claims against estates of de- 
 cedents, which presents new difficulties. 
 
 Proving Contested Claims against Estates of De- 
 cedents. — The manner of proving ordinary contested 
 claims has been carefully examined in the preceding 
 pages, together with the amount and character of proof 
 necessary to satisfactorily show the indebtedness. These 
 same rules and precedents may all be considered as 
 regulating the proof of a claim against the estate of 
 a deceased debtor, with the single and important excep- 
 tion that in ordinary claims the physician himself is a 
 competent witness to testify regarding the transactions 
 out of which the indebtedness arose; while in a claim 
 of this sort his lips are sealed and he can only prove 
 his case by submitting his . books of account and 
 by producing such other competent witnesses as 
 may have knowledge calculated to corroborate the 
 account. 
 
 The reason for this condition is the following: At 
 common law no interested party to a suit was a compe- 
 tent witness to testify in his own behalf. While the 
 older law Avorks laud the good sense and sound policy of 
 
234 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 this rule, it does not seem to have proved satisfactory 
 in this country, for it has been abrogated by the legisla- 
 ture of every State, so as to permit the parties to a suit 
 to freely tell all they know of the transactions or con- 
 ditions out of which the litigation grows, the policy now 
 being to consider the party's interest as affecting the 
 credibility of his statements rather than disqualifying 
 him from making such statements. It is obvious, how- 
 ever, that whenever a suit grows out of a transaction one 
 of the parties to which is dead or insane, the grossest 
 injustice might be done by permitting the other party 
 to testify regarding the nature of such transaction, or 
 to relate any conversation or communication which took 
 place between them relative thereto. For this reason 
 the modern lawmakers, in sweeping away the ancient 
 rule disqualifying the parties as witnesses, have gone 
 only so far as to permit them to testify where they are 
 both living and mentally capable; but where the lips of 
 one party are sealed by death or insanity they allow 
 the law to stand as before, closing the mouth of the 
 other. 
 
 This disability, together with the one imposed upon 
 the physician by the law relating to privileged communi- 
 cations, is peculiarly serious to him. If the books of 
 account disclose the nature of the patient's affliction or 
 the character of the treatment prescribed, then they are 
 objectionable in those States having statutes protecting 
 
RECOVERY OF COMPENSATION. 235 
 
 privileged communications; if, on the other hand, the 
 books contain no such information, or if such informa- 
 tion is recorded in characters unintelligible to others 
 than the physician, then they are subject to the criti- 
 cism of being too indefinite to prove the account, and 
 must be supported by strong corroborating evidence. 
 Moreover, it is a matter of very grave doubt whether 
 or not the physician may even prove his books of ac- 
 count and have them accepted in evidence in a suit 
 against the estate of a deceased or insane person. In 
 New York there are two distinct lines of conflicting de- 
 cisions, one holding that the physician's books are ad- 
 missible in evidence in a case of this sort,* and the other 
 holding that the books can not be received in evidence. f 
 There is probably no subject in the law upon which 
 the decisions are more conflicting and the rights of 
 the respective parties more uncertain and vague, 
 nor in which the opportunities offer themselves for 
 the lawyer to more fully exercise his knowledge, 
 skill, and judgment in behalf of the interests of his 
 client. 
 
 Is Physician's Wife Competent to Prove such 
 Claims? — The person who is most commonly possessed 
 
 * Young vs Luce, 21 N. Y. Supp., 225; Clark vs Smith, 46 Barb., 
 30; West vs. Van Tn^Xet al, 119 N. Y., 620; Wetmore vs. Peck, 19 
 Alb. L. J., 400. 
 
 f Ross vs. Ross, 6 Hun, 182 ; Davis vs. Seaman, 64 Hun, 5V2. 
 16 
 
236 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 of information necessary to corroborate such claims is 
 the physician's wife, but whether or not she is a com- 
 petent witness to prove the facts within her knowl- 
 edge is a very nice question. At common law the wife 
 could not testify for or against her husband in a suit 
 to which he was a party. This rule has been altered in 
 many States, but not in all. In those States in which 
 the rule has not been altered the wife unquestionably has 
 no right to testify. In those States in which the disa- 
 bility has been removed, and the wife permitted to tes- 
 tify with her husband, the question arises, in cases of 
 this sort, whether her interest in her husband's suit 
 against the estate of the decedent is such as to render 
 her with her husband an interested party, and there- 
 fore an incompetent witness, or whether she shall be 
 considered as having no interest, and accordingly per- 
 mitted to testify. 
 
 The reasons given by the courts at common law for 
 denying to the wife the privilege of testifying in a suit 
 to which the husband was a party were, first, that it was 
 against public policy, such an act being thought a men- 
 ace to the harmony of the domestic circle and a viola- 
 tion of the confidence subsisting between husband and 
 wife ; second, because of the identity of their legal rights 
 and interests. If this second reason is considered ap- 
 plicable to-day, there can be no alternative but to deny 
 the wife the privilege of giving evidence in behalf of her 
 
RECOVERY OP COMPENSATION. 23Y 
 
 husband's claim ; but as the marked tendency of legisla- 
 tion during the past half century has been toward es- 
 tablishing a severalty of legal rights and interest, it is 
 not surprising that some of our courts should consider 
 the second reason so greatly weakened as to regard the 
 wife no party to such a suit, and not legally interested 
 in the result, and therefore accept her evidence in sup- 
 port of the claim. This is a question, however, upon 
 which the courts are unfortunately divided, and in those 
 States where a decision has not been rendered by the 
 court of last resort the question must be considered as 
 still open. 
 
 In cases of this sort the testimony of the wife has 
 been held competent in the following States: Mary- 
 land,* Mississippi,! ISTew Hampshire, J and New York.'* 
 It is probable that the rule would be held the same in 
 Nebraska. 1 1 
 
 On the other hand, such testimony has been 
 held incompetent, and rejected by the courts of 
 last resort in the following States: Illinois,'^ Indi- 
 
 * Trahern vx. Colburn, exr., 63 Md., 99. 
 
 f Rushing vs. Rushing, admr., 52 Miss., 330. 
 X Clements v.i. Marston, 52 N. H., 31. 
 
 * Whitman vs. Foley, 125 N. Y., 651 ; Porter vs. Dunn, 131 N. T., 
 814. 
 
 II Wylie vs. Charlton, 43 Neb., 840, 62 N. W. Rep., 220. 
 ^ Bevclot vs. Lestrade, 153 111., 625. 
 
238 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ana,* Iowa,f Maine,! Pennsylvania,* and West Vir- 
 ginia. || 
 
 The claimant, upon producing satisfactory proof of 
 the legality and justness of his claim, is entitled to a 
 judgment for the amount he has shown to be due to 
 him, which judgment the executor or administrator 
 must pay in due time, either in full or in part, as the 
 assets of the estate may justify. 
 
 * Scherer vs. Ingerman, 110 Ind., 428. This case simply declares 
 the wife iDCompetent because the statute provides that she shall be in 
 such cases. 
 
 f Muir vs. Miller, 82 Iowa, 700. Code excludes such evidence. 
 X Berry vs. Stevens, 69 Me., 290. 
 
 # Sutherland vs. Ross, 140 Pa., 3Y9. 
 
 I Kilgore vs. Hanley, 21 W. Va., 451. 
 
CHAPTEE VII. 
 
 CIVIL MALPRACTICE, INCLUDING GENERAL LIABILITY OF 
 PHYSICIAN TO PATIENT. 
 
 Purpose of the Chapter. — The purpose of this chap- 
 ter is to make a careful ezamination of the law govern- 
 ing the civil liability of physicians and surgeons, illus- 
 trating its application by particular instances and cases 
 as fully as the limit of the work will permit. The exami- 
 nation will extend through the subject of civil malprac- 
 tice, and will also include those instances of civil liabil- 
 ity arising from acts either of omission or of commission 
 which do not amount to malpractice. 
 
 No Liability for Refusal to take a Case. — In some 
 localities there is a popular belief that a physician, by 
 reason of the rights and privileges which he enjoys as 
 such,is bound to undertake the treatment of any patient 
 who requests from him professional services. There' is 
 in the law no foundation whatever for this belief. A 
 well-known law writer, in referring to the subject, says : 
 " ISTo question can exist as to the legal right of a physi- 
 cian, unless he be an officer of the government charged 
 with specific duties, which he thereby violates, to decline 
 
 239 
 
240 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 to take charge of a particular case." * But having once 
 assumed charge of a case, we have observed in a preced- 
 ing chapter, f he immediately sets in operation numer- 
 ous implied contracts and presumptions of law regarding 
 his qualifications to properly treat that case, and, should 
 he fail to fulfill these implied contracts, or comply with 
 the presumptions of law, a civil liability immediately 
 arises in favor of the patient to the amount of damages 
 thereby sustained. 
 
 General Professional Eeqnirements. — Perhaps the 
 most fundamental of the professional requirements that 
 we have heretofore observed are that one who under- 
 takes to render medical services, holding himself out as 
 a physician or surgeon, will be held by the law, first, 
 to possess a reasonable degree of knowledge, skill, and 
 experience; second, to exercise ordinary care and dili- 
 gence; and third, to use his best judgment in all cases 
 of doubt as to the best course of treatment. J 
 
 Application of Rule. — ^Whether or not the amount 
 of knowledge displayed or the degree of skill, care, and 
 judgment exercised is sufficient in any case to fulfill the 
 
 * Wharton on Negligence, § 'JSl. 
 
 f See p. 60, d seq. 
 
 X Lei^ihton vs. Sargent, 27 N. H., 460; McNevins vs. Lowe, 40 III, 
 209; Long vs. Morrison, 14 Ind.. 695; Branner vs. Stormont et al., 9 
 Kan.. 51; Patten vs. Wiggins, 51 Me, 594; Wood ds. Clapp, 4 Sneed, 
 65 ; Eitchey vs. West, 23 lU., 385. 
 
CIVIL MALPRACTICE. 241 
 
 requirements of the law is a question of fact for the 
 jury to determine from the evidence produced at the 
 trial. To illustrate the application of the rule we will, 
 as in previous chapters, examine the records of a few 
 prominent trials. In the case of Boldt vs. Murray * 
 the patient was suffering with a fracture of the inner 
 condyle of the humerus. The evidence does not tend 
 to show that the bone was not properly set. The evi- 
 dence of the plaintiff was to the effect that the bandage 
 was not put on the arm in the approved manner, but 
 was rolled from the upper to the lower part of the arm, 
 and so tightly as to prevent circulation, and that, al- 
 though the hand and arm became swollen and the latter 
 discolored, the bandage was left on; and that, by reason 
 of the improper bandaging and the permitting of the 
 bandage and splints to remain on in such condition, the 
 circulation of blood was cut off, and, as a consequence, 
 the flesh of the arm, being deprived of sustenance, 
 sloughed off. The physician, on the other hand, gave 
 evidence to the effect that the arm was properly band- 
 aged, and that the unfortunate result of the injury was 
 caused by the failure of the patient and his parents to 
 obey the physician's directions, etc. Here was a case 
 of direct conflict of evidence from which it was the prov- 
 ince of the jury to determine the real facts. The court 
 
 * Boldt vs. Murray, 2 N. Y. S. R., 232. 
 
242 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 instructed the jury upon the law applicable to the ease, 
 as set forth in the above rule, whereupon they retired 
 and found a verdict for the plaintiff, evidently believ- 
 ing the evidence given by the plaintiff and disregarding 
 that given by the defendant. The judgment based upon 
 this verdict the general term of the supreme court re- 
 fused to reverse, stating in effect that the evidence of the 
 plaintiff', if true, was sufficient to show that the defend- 
 ant did not come within the legal requirements as to 
 knowledge, care, and judgment, and that as to the truth 
 of such evidence the jury was the proper judge. 
 
 In the case of Link vs. Sheldon * et al., the plain- 
 tiff, a lad of thirteen years of age, had fallen, striking 
 with such force upon his hand and forearm as to pro- 
 duce a CoUes's fracture and a dislocation of the ulna. 
 The defendants were called and dressed the arm, placing 
 a certain metallic splint, which should have been adjust- 
 ed to the palmar surface of the hand, upon its back. The 
 plaintiff's evidence was to the effect that the bandaging 
 of the hand and arm had been so tight as to cause an in- 
 flammation and resultant suppuration, which in healing 
 drew in the thumb and permanently deformed the hand. 
 
 The accident took place on Friday. It appears that 
 the patient's parents became dissatisfied with the de- 
 fendants' treatment of the case, and, hearing of the suc- 
 
 * Link vs. Sheldon, 136 N. Y., 1. 
 
CIVIL MALPRACTICE. 243 
 
 cess of another doctor, employed him and dismissed the 
 defendants on the following Tuesday morning, and that 
 the defendants had nothing further to do with the case. 
 
 The evidence adduced by the defendants was to the 
 effect that the injury was not an ordinary Colles's frac- 
 ture, but that the position of the bones was so reversed 
 that the splint had to be used as applied by them; that 
 the physical condition of the patient, in addition, was 
 bad from f everishness ; that the bandages were rightly 
 adjusted; that the great inflammation discovered when 
 the doctor who succeeded to the case was called in was 
 due to their having been prevented by the parents from 
 redressing the arm on Monday evening, as they desired 
 to do; and, finally, that had the succeeding physician 
 properly treated the hand In its inflamed and swollen 
 condition by lancing instead of poulticing, no distorted 
 condition of the hand would have resulted. 
 
 The jury returned a verdict for the plaintiff to the 
 amount of four thousand dollars. The court of ap- 
 peals, in refusing to reverse the judgment, said : " The 
 evidence upon the material points was conflicting. There 
 was more or less disagreement among the doctors; but it 
 is impossible to say that there was not evidence tending 
 to establish a lack of skill, or some neglect, on the part 
 of the defendants. It was not necessary, in order to 
 sustain the action, that there should have been proof 
 of gross culpability upon the part of the defendants. 
 
24:4 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 It was sufficient to warrant a verdict against them that 
 there was evidence of any failure on their part to exercise 
 proper care, or of any neglect in the discharge of the 
 duty they had assumed toward the plaintiff." 
 
 While the legal effect upon the liability of the de- 
 fendants, from dismissing them at an early stage in the 
 treatment of the case and employing another physician, 
 is not pertinent to the question now in consideration, it 
 is perhaps of sufficient interest to justify digressing. 
 In considering this question in the above case the 
 court laid down the rule that the liability of the 
 defendants in such a ease extends not only to in- 
 juries directly resulting from the ignorant, unskillful, 
 or negligent treatment to which they have subjected 
 the patient previous to the time of their discharge, 
 but they are liable as well for all injuries directly 
 resulting from such improper treatment, even though 
 they are not manifest until after the case has passed to 
 the care of another physician. If, however, such inju- 
 ries are the result of any other cause than that of the 
 improper treatment of the defendants', they are not 
 liable therefor. Upon this point the trial judge charged 
 that " if the jury find, from the evidence, that it is just 
 as probable that the injury complained of was caused 
 either by the original severe injury, or by the interfer- 
 ence of the plaintiff's parents (in refusing to allow the 
 defendants to redress the arm), or by the subsequent 
 
CIVIL MALPRACTICE. 245 
 
 manipulations and treatment of Dr. (who succeed- 
 ed defendants in the treatment of the case) and others, 
 as from the pretended tight bandaging, it is the duty of 
 the jury to fmd a verdict for the defendants." This in- 
 struction was held by the court of appeals to properly 
 state the law. 
 
 After laying down the general rule requiring a rea- 
 sonable degree of competency, care, and judgment, the 
 court, in commenting upon the evidence in the case of 
 Kitchey vs. West,* said : " The concurring evidence of 
 all of the physicians shows that the splints and bandages 
 were not properly applied. Had they extended below 
 the wrist, the evidence seems to show that they would 
 have confined the wrist to its proper place. It is prob- 
 able that such a practice would have tended, notwith- 
 standing the fracture, to have held the broken bone more 
 nearly to its place until a union was formed, and thus 
 have prevented to some extent, if not altogether, the de- 
 formity and disability to use the hand. The physicians 
 also agree that the splints employed were not of suflfi- 
 cient width, as well as too short, for the treatment of the 
 fracture, even if they had been midway between the 
 wrist and elbow, as he supposed. And from this evi- 
 dence it would seem that there must have been a want 
 of ordinary skill, or great negligence, in the treatment 
 
 * Ritchey vs. West, 23 111., 385. 
 
246 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 of the case, in not detecting the dislocation of the wrist 
 joint. The physicians all agree that this portion of the 
 injury could have been easily detected by ordinary care 
 and skill, and the fact that it had been and was still 
 dislocated was afterward detected by a person who did 
 not profess surgery or skill in such matters, and had 
 previously had only slight experience in cases of frac- 
 tured limbs. Then, if the evidence of the medical men 
 who were examined as witnesses is to be credited, and it 
 is supported by the fact that the dislocation of the joint 
 was detected by a person professing to have no skill, 
 there was a want of ordinary care or skill, or both, mani- 
 fested in the treatment of the case.'* 
 
 Failure to Discover Extent of Injury. — It must not, 
 however, be inferred from the preceding case that the 
 failure of the surgeon to discover a serious injury is a 
 fact from which incompetency or negligence will neces- 
 sarily be inferred. This is well illustrated by the case 
 of Gedney vs. Kingsley.* In this case the patient was 
 thrown from her carriage and sustained a fracture of 
 her right arm. The defendant, a physician, was 
 called and made an examination, but did not dis- 
 cover the nature of the injury, and supposed it to be 
 no more than a bad bruise. Upon the second visit he 
 informed the patient that her arm needed further atten- 
 
 * Gedney vs. Kingsley, 41 N. Y. S. R., 794, 16 N. Y. Supp., "792. 
 
CIVIL MALPRACTICE. 247 
 
 tion, but she thought she was getting on toward recov- 
 ery, and said that she would send for him if she needed 
 him further. The arm became very greatly swollen^ and 
 it was finally discovered that one of the bones was frac- 
 tured. By reason of the delay in discovering the frac- 
 ture the injury became in a measure irreparable. As 
 usual, the parties differed in their remembrance of the 
 facts. A physician who had examined the arm before 
 the defendant, supported the defendant in his statement 
 that the extent of the swelling prevented an Examination 
 which was needed to discover the fracture. The medical 
 experts also differed upon the question whether a skillful 
 surgeon ought to have discovered the fracture, but all 
 agreed that the swelling should have been reduced; but, 
 as to this, the court very properly expressed the opinion 
 that if the patient prevented that by directing the physi- 
 cian to make no more calls until he was notified, he could 
 not be blamed for omission to diligently look after the 
 case. The jury found that the arm was so swollen that a 
 complete assurance of the extent of the injury could not 
 be made from a careful and skillful examination, and 
 that the swelling was suffered to continue because the 
 physician was told to wait until he was sent for to at- 
 tend further. They consequently exonerated him. 
 
 Failure to Reduce Dislocation. — While in some cases, 
 like the one above given, the question of the physician's 
 liability for unskillfulness and negligence grows out of 
 
248 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 his failure to discover the extent of the injury sus- 
 tained, it more frequently happens that the question of 
 liability arises where the character and extent of the in- 
 jury are discovered, but the fact of whether or not the 
 physician effected the relief attempted is disputed. 
 Questions of this sort frequently arise in cases of dislo- 
 cation in which the injury is treated with supposed suc- 
 cess, but after weeks, or perhaps months, it is found 
 that the bones are not in proper place. Upon the trial 
 of this class of cases the testimony is almost always con- 
 flicting, that of the patient tending to show that the 
 dislocation was never properly reduced, while that of 
 the physician positively denies the failure to properly 
 reduce the dislocation, and accounts for the bones sub- 
 sequently being found to be dislocated by negligence of 
 the patient or his failure to observe instructions, or 
 other similar cause. 
 
 In the case of Rowe vs. Lent,* the patient suffered 
 a dislocation of the right shoulder. The family physi- 
 cian, after considerable effort and some difficulty, suc- 
 ceeded, as he claimed and still claims, in reducing the 
 dislocation. The injury occurred in January, and the 
 physician continued to attend the patient until July 24th 
 following, when he claimed a cure had been effected. 
 He frequently saw the patient, however, and examined 
 
 * Rowe vs. Lent, 42 N. Y. S. R., 483. 
 
CIVIL MALPRACTICE. 249 
 
 the shoulder between this date and August 13th, when 
 the patient left his home, going to the seashore to take 
 sea baths. On about the 14th of August the patient was 
 examined at a New York city hospital, and it was found 
 that his shoulder was dislocated. The surgeon in charge 
 made an attempt to reduce the dislocation, but was un- 
 successful. The injury still continues and is conceded to 
 be permanent. Upon the question of whether or not the 
 dislocation had ever been properly reduced, there was 
 some non-professional testimony introduced at the trial 
 that the right shoulder did not look like the left; but 
 some of the expert testimony tended to show that the 
 difference in appearance might exist even if the disloca- 
 tion had been properly reduced. 
 
 The case was submitted to the jury, who found for 
 the plaintiff. The general term of the supreme court 
 refused to disturb the verdict of the jury, and, after lay- 
 ing down the general rule that a physician must possess 
 a reasonable degree of learning and skill, said : " The 
 test, however, seems to be, whether in the case on trial 
 the requisite skill, care, and diligence were employed, 
 and not whether the practitioner is reputed to possess 
 such skill. But the surgeon is not necessarily charge- 
 able with want of the requisite skill, or negligence and 
 want of care, simply because he does not succeed in ac- 
 complishing the desired result. Human skill can not 
 relieve all infirmities, ills, or injuries to which mankind 
 
250 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 is subject, and the only test, therefore, that can be 
 applied is whether in a given case the surgeon has ex- 
 ercised reasonable skill and attention in his treatment 
 of the patient who has placed himself under his care, 
 and whom the latter has undertaken to treat. As we 
 have seen in this case, that the question was before the 
 jury upon evidence somewhat conflicting, and the whole 
 case was fully and fairly left to them by the charge of 
 the trial judge given in an able and impartial manner, 
 to which no exception was taken by the counsel for the 
 defendant, and the jury upon this conflicting evidence 
 found in favor of the plaintiff. While perhaps they 
 might, upon this evidence, have found either for the 
 plaintiff or defendant, there is sufficient evidence in sup- 
 port of their conclusion to uphold a verdict, and the. 
 court upon appeal can not say their verdict was either 
 against the evidence or unsupported thereby." The 
 foregoing quotation is made at this considerable length 
 for the reason that it so clearly marks the policy of the 
 courts and of the law in suits of this character. 
 
 An interesting suit, based upon the alleged failure 
 of the physician to reduce a dislocation, is that of Car- 
 penter vs. Blake, decided by the supreme court of New 
 York in 1871. The patient was thrown from a horse 
 and her elbow joint dislocated. The defendant was 
 called to attend the injury and claims that he properly 
 reduced the dislocation ; the patient, on the other hand. 
 
CIVIL MALPRACTICE. 251 
 
 claims that he did not succeed in restoring the bones to 
 their places, or, if he did succeed in the original opera- 
 tion, that he failed to employ proper measures to keep 
 them there, and upon this theory brought suit. 
 
 The evidence produced at the trial was voluminous 
 and conflicting. The injury occurred on June 28th, and 
 the defendant was called at once to attend the injury. 
 The plaintiff testified that the physician simply drew the 
 arm around his knee and placed it on a pillow at her 
 side, bent at nearly a right angle ; that she did not hear 
 the characteristic " snap " caused by the bones falling 
 into place, and that there was no relief from the 
 pain. 
 
 The defendant testified that upon setting the joint 
 he extended and rotated the arm and applied his hand 
 to the joint, satisfying himself that the bones were in 
 place; the plaintiff denied that he applied either of 
 these tests. It is conceded that the defendant did not 
 measure the arm to determine beyond peradventure that 
 the bones were in proper position. The plaintiff and 
 other witnesses testified that they observed a protuber- 
 ance at the elbow joint the night of the injur}^, and 
 compared it with the other elbow and inquired what it 
 was. It appeared that the arm retained, when not con- 
 trolled by splints, about the same position it was in 
 after the first attempt to reduce the dislocation, and 
 
 at no time coald the plaintiff move it without pro- 
 
 17 
 
252 THE LAW m ITS RELATIONS TO PHYSICIANS. 
 
 ducing severe pain. The defendant insisted that she 
 must move it. When she attempted it, the pain was so 
 great she had to call for help, and even then had to 
 cease the attempt because of the sufliering it caused. 
 This was known to the defendant, and yet it did not 
 seem to put liim on inquiry whether he had not 
 failed to properly set or treat the arm. The plaintifE 
 was satisfied that the joint was never properly set, and 
 so told the defendant; and, to ascertain whether or not 
 her suspicions were correct, called other doctors. This 
 was in the latter part of August, about two months after 
 the injury was received. The defendant deserted the 
 case at about this time. Other physicians were then 
 called, and, after rendering the patient unconscious by 
 the use of anaesthetics, reduced the dislocation. The 
 bones, however, soon returned to their former position, 
 and have remained there ever since. The jury upon this 
 evidence found for the plaintiS, assessing the dam- 
 ages sustained at two thousand dollars. 
 
 Failure to Apply Extension. — In the case of Barnes 
 vs. Means * the improper treatment complained of was 
 the failure of the physician to properly extend the 
 broken limb from which thepatientwas suffering, where- 
 by the wound healed improperly. The evidence showed 
 that the fracture of the larger bone was oblique, and 
 
 * Barnes vs. Means, 82 HI., 379. 
 
CIVIL MALPRACTICE. 253 
 
 near the upper part of the lower third of the limb ; the 
 fracture of the smaller bone was transverse, and was 
 from two to three inches above the ankle joint. The 
 defendants were called at once and dressed the injury 
 within twenty or thirty minutes after the bones were 
 broken, but did not use extension or counter-ex- 
 tension. The excuse made by the defendants for not 
 extending the limb and using counter-extension to hold 
 it in place was that the extreme tenderness and swelling 
 would not permit of their so doing, and they introduced 
 evidence to show that some days after the fracture was 
 adjusted they did attempt extension and counter-exten- 
 sion, but that the patient could not endure it. Upon 
 the question of the condition of the limb at the time 
 the injury was first adjusted there were several wit- 
 nesses who were then present and who testified that no 
 swelling had then occurred. 
 
 An expert testified before the jury that the shorten- 
 ing was caused by the lapping of the bones; that the 
 first duty of the surgeon was to bring the bones to their 
 proper position by extension and counter-extension. 
 If necessary he placed the patient under the influence 
 of chloroform, and that if the patient would not allow 
 a proper adjustment of the fracture he would abandon 
 the case. 
 
 The trial judge, in instructing the jury upon the 
 law applicable to the case, said : " That if you believe. 
 
254 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 from the evidence that, in the treatment of fractures 
 of bones, regard should be had to the direction in which 
 the break occurred; and if the jury believe, from the 
 evidence, that the fracture of the bones of the plaintiff, 
 which the defendants treated, required extension in 
 order to secure the proper adjustment of the parts to 
 each other, and that the defendants did not use any 
 means to secure extension, but, by want of skill, or by 
 negligence, suffered the broken fragments to be or be- 
 come displaced, and that thereby the plaintiff has suf- 
 fered and become permanently lame and disabled, as 
 charged in the declaration, you should find the defend- 
 ants guilty." Upon this instruction, which was held to 
 be a correct statement of the law applicable to the case, 
 the jury found for the plaintiff and assessed the dam- 
 ages at one thousand dollars. 
 
 The foregoing cases being thought sufficient to illus- 
 trate the application of the general rule of liability, a 
 more critical examination will now be made as to the 
 particular requirements of the rule. 
 
 Degree of Knowledge, Skill, and Care Required. — 
 The part of the general rule upon which the courts 
 seem to have found the greatest difficulty in agreeing 
 is that relating to the amount or degree of knowledge, 
 skill, and care that the physician is obliged to possess 
 and exercise to escape from liability for injurious re- 
 sults that may follow his treatment. To place the test 
 
CIVIL MALPRACTICE. 255 
 
 as that degree exercised by the tJioroughly educated 
 members of the profession would be manifestly unjust 
 to the great majority of the physicians and surgeons, 
 while a test requiring only that skill exercised by the 
 moderately educated members would be equally unjust 
 to the public. Upon this reasoning the supreme court 
 of Iowa placed the test as the average of the skill and 
 diligence ordinarily exercised by the profession as a 
 whole.* While this rule is probably a just one and about 
 right in theory, it is doubted whether any practising 
 physician knows what is the " average of the skill and 
 diligence ordinarily exercised by the profession as a 
 whole/' and, as he is the proper judge of whether a 
 given act will stand this test, the utility of the rule is 
 doubted. 
 
 While the degree of care necessary to be bestowed 
 in a particular case is governed in a great degree by the 
 requirements of that case, a rule of law demanding that 
 the degree of care and skill required shall be propor- 
 tionate to the severity of the injury or disease treated 
 would m-anifestly work a great hardship upon the pro- 
 fession. Such a rule was very wisely and justly re- 
 jected by the supreme court of Illinois, f 
 
 The location of the particular practitioner should 
 
 * Smothers vs. Hanks, 34 la, 286; Almond vs. Nugent, G4 la., 300. 
 f Utley vs. Burns, 70 III, 102. 
 
256 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 also be taken into consideration in determining the 
 amount of knowledge and science he shall possess and 
 the degree of care and skill he shall exercise, because, 
 for reasons heretofore referred to, the physician and 
 surgeon practising in our large cities may be reasonably 
 required to possess higher qualifications than those in 
 small towns or rural districts. This indulgence should 
 not, however, be allowed to the country practitioners to 
 the extent of permitting them in each particular neigh- 
 borhood or community to establish by their own pro- 
 fessional standing the standard of requirement for that 
 community ; for, in the words of Justice Worden, " there 
 might be but few practising in the given locality, all of 
 whom might be quacks, igTiorant pretenders to knowl- 
 edge not possessed by them, and it would not do to say 
 that because one possessed and exercised as much skill 
 as the other he could not be chargeable with the want 
 of reasonable skill."' After due regard for all of these 
 conditions, a number of our courts in well-considered 
 decisions have determined the proper test to be that 
 there shall be required of the physician and surgeon that 
 amount of knowledge, skill, and experience, and the ex- 
 ercise of that degree of care and skill which physicians 
 practising in similar localities ordinarily possess and 
 exercise.* 
 
 * Whitesell vs. Hill, 101 la., 629, 37 L. R. A., 830, 70 N. W. Rep., 
 750. 
 
CIVIL MALPRACTICE. 257 
 
 Illustrations. — A case illustrating the application of 
 the law very nicely is that of Small vs. Howard.* In 
 this case the plaintiff, the whole inside of whose wrist 
 had been cut through to the bone in such a manner as to 
 sever all the arteries and tendons, called upon the de- 
 fendant for treatment. The defendant was a physi- 
 cian and surgeon residing in a country town of about 
 twenty-five hundred inhabitants, and had no expe- 
 rience in surgery beyond that usually had by coun- 
 try surgeons. The result of the treatment not being 
 satisfactory, suit was commenced for malpractice in 
 dressing and caring for the wrist. Upon the trial 
 one expert called by the plaintiff testified that he 
 did not think the average country surgeon would be 
 likely to possess the requisite skill to care for this 
 wound. The evidence of the experts regarding the 
 propriety of the treatment given the injury was con- 
 flicting, some testifying that it was properly treated, 
 others the contrary. The court, upon the principle in 
 consideration, instructed the jury that " the defendant, 
 undertaking to practise as a physician and surgeon in 
 a town of comparatively small population, was bound to 
 possess that skill only which physicians and surgeons 
 of ordinary ability and skill, practising in similar local- 
 ities, with opportunities for no larger experience, ordi- 
 
 * Small vs. Howard, 128 Mass., 131. 
 
258 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 narily possess; and he was not bound to possess that 
 high degree of art and skill possessed by eminent sur- 
 geons practising in large cities, and making a specialty 
 of the practice of surgery. He is not responsible for 
 want of success, unless it is proved to result from want of 
 ordinary care and attention, and then only to the extent 
 of the injury caused by his want of skill and neglect, 
 nor for the whole consequence of the particular original 
 injury or disease. He is not presumed to engage for 
 extraordinary skill or extraordinary care and diligence." 
 
 The jury, applying this instruction to the evidence 
 before them, found a verdict for the defendant. The 
 plaintiff, being dissatisfied, appealed, but the trial of 
 the case, including the instruction of the trial judge, 
 from which the above quotation was taken, was approved 
 by the supreme court. 
 
 The case of Hathorn vs. Eichmond* is somewhat pe- 
 culiar, and one in which there is considerable law. The 
 plaintiff, whose leg was fractured, sent for his regular 
 phj'^sician. The regular physician declined to take the 
 responsibility of reducing the fracture and laid the leg 
 on a double inclined splint, to make the patient as 
 comfortable as possible. On the following day the de- 
 fendant was sent for and reduced the fracture. The reg- 
 ular physician continued to attend the case nearly every 
 
 * Hathorn vs. Richmond, 48 Vt., 55*7. 
 
CIVIL MALPRACTICE. 259 
 
 day for about twenty-two days, when another physician 
 was called to take his place. The defendant, who had re- 
 duced the fracture, did not call again until five days 
 after the operation, and then only by reason of a letter 
 written him by the regular physician at the request of 
 the patient's friends, especially requesting him so to do. 
 At the time of making this call the patient did not seem 
 to be dissatisfied with the services rendered by the de- 
 fendant and made no claim of improper treatment. For 
 what purpose he was called, or what he did, if anything, 
 while there, the report of the case does not show. It 
 seems that the leg was bandaged too tightly, and as a 
 result the injury followed for which suit was brought. 
 The defendant claimed that he was only sent for to take 
 charge of setting the leg with the assistance of the regu- 
 lar attending physician, and that he did this properly, 
 and then left plaintifE in the hands of the regular physi- 
 cian as his patient, without any expectation of again 
 visiting the case unless specially sent for. All the sur- 
 geons* called on the part of the defendant testified that 
 the surgeon applying the dressing in any such case could 
 not tell whether the bandage might prove too tight or 
 too loose, but that this matter must necessarily be left 
 with the attending surgeon, whose duty it was to exam- 
 ine carefully in reference thereto, and adjust the dress- 
 ing and bandages as might be needed. ISTo evidence was 
 offered to contradict this. 
 
260 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 It was conceded and treated in the trial that the 
 course taken with the limb in the interval between the 
 time defendant left the patient after he had finished 
 dressing the injury and his second visit, five days 
 later, was lacking in proper and ordinary skill and 
 care. 
 
 In the matter of general professional requirements, 
 the trial judge instructed the jury, in effect, that the 
 defendant would be held to possess such knowledge and 
 skill and exercise such care and judgment as that ordi- 
 narily possessed and exercised by doctors in the same 
 general neighborhood and in the same general lines of 
 practice; and that they should determine from the evi- 
 dence whether the defendant did possess such Imowledge 
 and skill ; and if they decided this question in the affirm- 
 ative they should determine whether he used ordinary 
 care in dressing the leg. This instruction the supreme 
 court held to be correct. 
 
 The trial judge continued with his instruction to the 
 jury, charging them that if they found the defendant 
 was wanting in the proper exercise of skill in the tight- 
 ness of the bandage, still, if his employment ceased 
 when he had set and dressed the limb, and the treat- 
 ment of the case fell to the attending physician, and it 
 was the duty of the attending physician to discover that 
 the bandage was too tight and to loosen it and redress 
 the limb, and if by such proper loosening and redress- 
 
CIVIL MALPRACTICE. 261 
 
 ing of the limb the injury of the tight bandage could 
 have been prevented, then the defendant would not be 
 liable for the injury. The supreme court denied the 
 correctness of the instruction upon the following 
 grounds : It will be observed that this instruction as- 
 sumes that the bandage was negligently applied by the 
 defendant. From this fact it will necessarily follow that 
 the improper application of the bandage will begin to 
 exert an injurious influence upon the limb from the mo- 
 ment it is applied, and therefore it would be manifestly 
 unjust to assert that the defendant is not liable for the 
 injury inflicted by this negligently and improperly ap- 
 plied bandage during the ten or, perhaps, twenty-four 
 hours which must elapse before the attending physician 
 can detect the improper bandaging and give relief. 
 Moreover, the court declined to intimate whether it 
 would relieve the defendant from liability for the in- 
 jury resulting from his improper bandaging after the 
 time when the attending physician should have discov- 
 ered that the bandage was too tight and given relief, or 
 whether it would hold him liable for all damages result- 
 ing from his own improper bandaging and the assist- 
 ant's negligence in failing to readjust the bandage. The 
 judgment rendered for the defendant in the original 
 trial was accordingly reversed and the case sent back 
 for a new trial. In view of the open question left by this 
 decision, it can hardly be considered prudent for a 
 
262 THE LAW IJ^ ITS RELATIONS TO PHYSICIANS. 
 
 surgeon to dress an injured member and leave all 
 subsequent treatment to the regular attending phy- 
 sician, relying upon him to correct any inadvertency 
 which may have attended the original operation or 
 treatment. 
 
 Rules for Determining Skill. — In determining 
 whether or not a physician is possessed of the requisite 
 amount of knowledge, or exercises the proper degree of 
 skill, due regard must be had: First, to the school of 
 medicine which he practises; and, second, to the ad- 
 vanced state of the profession at the time the particular 
 services were rendered. 
 
 Practice of the Particular School Governs. — There 
 being different and distinct schools of medicine, recog- 
 nizing different principles and different modes of treat- 
 ment, it follows that the treatment of a physician of 
 one school must be tested by the general doctrines of 
 his OAni school, and not by those of other schools.* 
 
 While the justice and, in fact, the necessity of this 
 law are almost too evident to permit of comment, it will 
 perhaps be desirable to esamine one or two cases. 
 
 A case in which the rule was extended to a degree 
 to which it could not be at this day, because of the more 
 adequate laws protecting the public from quacks, is that 
 of Bowman vs. Woods, f In this case the defendant 
 
 * Patten vs. Wipgin. 51 Me., 594. 
 
 f Bowman vs. Woods, 1 Greene, la., 441. 
 
CIVIL MALPRACTICE. 263 
 
 claimed to be a botanic physician. The cause of action 
 arose from alleged unskillful treatment of a patient in 
 a confinement case. About thirty-six hours after the 
 delivery a Dr. C. was called in as consulting physician, 
 and upon the trial he testified in effect that at the time 
 he arrived the placenta was not removed; that the pa- 
 tient was greatly prostrated by the severity of the labor 
 and the loss of blood; and that she was also suffering 
 from a distention of the bladder, which had not been 
 evacuated since parturition. He gave it as his opin- 
 ion that the placenta should have been removed and 
 the distended state of the bladder relieved at a much 
 earlier period; and that such delay would be likely to 
 produce puerperal fever. Several other physicians, as 
 witnesses, concurred in Dr. C.'s views of the practice. 
 
 The defendant then offered as evidence in his own 
 behalf the testimony that he was a botanic physician, 
 and that, according to the botanic system of practice and 
 medicine, it is considered improper to remove the pla- 
 centa, and that it should be permitted to remain until 
 expelled by the efforts of Nature. The proof of these 
 facts being objected to, they were ruled out by the trial 
 judge. The supreme court, upon reviewing the case, was 
 of the opinion that the trial court erred in not admitting 
 the proffered evidence of the defendant. Justice Greene, 
 after observing that the several schools of medicine 
 were then alike unprohibited and enjoyed equal legal 
 
264 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 rights in Iowa,* said: "A person professing to follow 
 one system of medical treatment can not be expected by 
 his employer to practise any other. While the regu- 
 lar physician is expected to follow the rules of the old 
 school in the art of curing, the botanic must be equally 
 expected to adhere to his adopted method. But on the 
 part of every medical practitioner the law implies an 
 undertaking that he will use an ordinary degree of care 
 and skill in medical operations, and he is unquestionably 
 liable for gross carelessness or unskillfulness in the man- 
 agement of his patients; and still the person who am- 
 ploys a botanic practitioner has no right to expect the 
 same kind of treatment or the same kind of medicine 
 that a regular physician would administer. The law 
 does not require a man to do more than he undertakes, 
 nor in a manner different from that which he professes. 
 Therefore, if in the case the defendant below could show 
 that he was employed as a botanic physician, and that 
 he performed the accouchement with ordinary skill and 
 care, in accordance with the system he professed to fol- 
 low, we should regard it as a legal defense. It would 
 show a full compliance with his profession and under- 
 taking; and if injury resulted from it to the plaintiff, he 
 could properly blame no one but himself. 
 
 " The people are free to select from the various 
 * This decision was rendered in 1848. 
 
CIVIL MALPRACTICE. 265 
 
 classes of medical men, who are accountable to their 
 employers for all injuries resulting from a want of 
 ordinary diligence and skill in their respective systems 
 of treating diseases. It is to be lamented that so many 
 of our citizens are disposed to trust health and life to 
 novices and empirics, to new nostrums and new meth- 
 ods of treatment. But these are evils which the courts 
 of justice possess no adequate power to remedy. En- 
 lightened public opinion and judicious legislation may 
 do much to discountenance quackery and advance medi- 
 cal science." 
 
 Upon reading this case one can not help rejoicing 
 in the approximate realization of the prophetic hope 
 expressed by the court, for at the present day, excepting 
 in a few States, a defendant would be unable to invoke 
 the protection of an unwilling court by showing that 
 his vicious ignorance of the laws of medicine and of 
 health was sanctioned by the so-called school he pro- 
 fessed to follow. 
 
 A recent application of the rule is found in the 
 case of Force vs. Gregory.* There the patient was 
 treated for ophthalmia by the defendant, who is a 
 homoeopathic physician, and who introduced evidence to 
 show that in treating the plaintiff he adopted the reme- 
 dies prescribed by the homceopathic practitioners. The 
 
 * Force vs. Gregory, 63 Conn., IS*?. 
 
266 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 plaintiff showed that the old-school practitioners would 
 have treated such a case differently, and that she should 
 have received the latter mode of treatment. The de- 
 fendant's counsel asked the court to instruct the jury 
 that the propriety of the treatment of the patient must 
 be tested by the doctrines of the defendant's school of 
 medicine. The court refused to give the instruction 
 asked, but instead instructed the jury in such a way 
 as to leave it uncertain whether the defendant's treat- 
 ment was to be judged by the rules and practice of his 
 own school alone, the instruction given being of the 
 sort calculated to direct the attention of the jury to 
 the relative merits of the two systems. Under this in- 
 struction the jur}"- found a verdict for the plaintiff. The 
 supreme court, in reviewing the case, disapproved of the 
 instruction and reversed the judgment. In criticising 
 the instruction given the jury Justice Fenn said : " The 
 jury, we think, should have been told that the relative 
 merits of the two schools were in no sense before them 
 for their consideration; that so far as the defendant 
 was to be judged by either, it was by the tenets, rules, 
 principles, and practices of his own school, not by those 
 of another; and if the defendant adopted the treatment 
 laid down by his own school, the fact that another 
 school prescribed another treatment tended in no wise 
 to show that the defendant was chargeable with lack of 
 skill or negligence. It would seem that if it could be 
 
CIVIL MALPRACTICE. 267 
 
 held negligent or unskillful in a given case to use the 
 treatment prescribed by the school to which the practi- 
 tioner belonged, such negligence or want of skill must 
 consist either in the mode of use, the application of 
 such remedies under improper circumstances, or because 
 they were intrinsically wrong, inappropriate, or inade- 
 quate. If there be any valid objection to the language 
 quoted from Patten vs. Wiggin — viz., ' The jury are 
 not to judge by determining which school, in their own 
 view, is best' — it is in the failure to incorporate with the 
 general statement the further one that the test there 
 given does not exclude the duty of keeping pace with the 
 progress' of professional knowledge, ideas, and discover- 
 ies, to the extent that a faithful, conscientious, and com- 
 petent practitioner, of whatever school, may be reason- 
 ably expected, and is therefore lawfully required to do." 
 Perhaps the case of greatest interest recorded in the 
 law reports in which this question was raised is that of 
 Nelson vs. Harrington.* In this case the defendant was 
 a spirituaJist or clairvoyant physician. The evidence 
 showed that the patient, a boy of about fifteen years of 
 age, accompanied by his father, called upon the defend- 
 ant about September 1st. The boy was suffering from 
 a disease of the hip joint, but the defendant diagnosti- 
 
 * Nelson vs. Harrington, 72 Wis., 591, 1 L. R. A., V19, 40 N. W. 
 Kep., 228. 
 
 18 
 
268 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cated the disease as rheumatism and prescribed treat- 
 ment accordingly. He continued to treat the case until 
 about the middle of the January following, and during 
 that time encouraged the patient in persistent walking, 
 asserting that walking was beneficial to him. In Janu- 
 ary the leg became so much worse that he was unable to 
 walk and suffered great pain. Other physicians were 
 then called in and the patient was benefited, but will 
 remain a cripple for life. 
 
 The counsel for the defendant urged that he pro- 
 fessed the clairvoyant system of medicine, and that if he 
 treated the patient with due care and skill in accordance 
 with the rules and practice of that school or system of 
 medicine he complied with the requirements of the law 
 and Avas not liable for unfavorable results of his treat- 
 ment. 
 
 The supreme court, in determining the weight to be 
 given to this defense, carefully reviewed the methods of 
 the alleged school of clairvoyants, which may be de- 
 scribed as follows : The mode of diagnosis consists in 
 going into a sort of trance condition, and while in such 
 state discovering the condition of the patient and pre- 
 scribing for the malady so disclosed. The spiritualist 
 professes to have no medical knowledge, but trusts im- 
 plicitly to the correctness of the diagnosis made and 
 prescription given while in such state. 
 
 To constitute a school of medicine there must be 
 
CIVIL MALPRACTICE. 269 
 
 rules and principles of practice for the guidance of 
 all its members, as respects diagnosis and remedies 
 which each member is supposed to observe in any 
 given case, and each competent practitioner of a certain 
 school would treat a given case in substantially the same 
 way. The court says : " And so one school may believe 
 in the potency of drugs and bloodletting, and another 
 may believe in the principle of similia similihus curan- 
 tur; still another may believe in the potency of water, 
 or of roots and herbs ; yet each school has its own pecul- 
 iar principles and rules for the government of its prac- 
 titioners in the treatment of diseases." The court then 
 observes that clairvoyants recognize one mode of prac- 
 tice only to the extent of obtaining a knowledge of the 
 condition of their patients, but that the treatment pre- 
 scribed by different clairvoyants differs as greatly in 
 similar cases as that prescribed by physicians of en- 
 tirely different schools, and that by prescribing such 
 different remedies for the same disease they can be said 
 to violate no rule or system of clairvoyant treatment. 
 The court therefore concludes that those practising 
 medicine as clairvoyants form no school of medicine, and 
 have no particular system or rules by which they can be 
 judged. 
 
 Regard must be had to the Advanced State of Medi- 
 cal Science. — The idea expressed by the court in the last 
 part of the quotation from the opinion in the case of 
 
270 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Force vs. Gregory brings us to the subject next in 
 order of consideration, which is, that in judging of the 
 knowledge and skill displayed in a given case due regard 
 must be had to the advanced state of medical science 
 at the time the particular services were rendered. In 
 referring to the improvements in medical and surgical 
 science, and the right of the patient to the benefit of 
 these improvements. Justice Woodward said nearly fifty 
 years ago : " Discoveries in the natural sciences for the 
 last half century have exerted a sensible influence on all 
 the learned professions, but especially on that of medi- 
 cine, whose circle of truths has been relatively much 
 enlarged ; and besides, there has been a positive progress 
 in that profession resulting from the studies, the ex- 
 periments, and the diversified practice of its professors. 
 The patient is entitled to the benefits of these increased 
 lights. The physician or surgeon who assumes to exer- 
 cise the healing art is bound to be up to the improve- 
 ments of the day." * 
 
 The application of the test is very well illustrated 
 in the case of Gates vs. Fleischer, f In this case the 
 plaintiff had recently given birth to a child, from which 
 she suffered a slight laceration of the cervix. Not re- 
 gaining her strength satisfactorily, she called in the de- 
 
 * McCandless vs. McWha, 22 Pa., 261. 
 •(■ Gates vs. Fleischer, 67 Wis., 504. 
 
CIVIL MALPRACTICE. 271 
 
 fendant, about five or sis weeks after the delivery of the 
 child, to treat her. The defendant made a local exami- 
 nation, and stated that she was suffering from uterine 
 disease, and applied caustics to the cervical canal on the 
 theory that those parts were ulcerated. This treatment 
 was continued for several months. 
 
 The defendant, deriving no benefit from this treat- 
 ment, after a lapse of about eight months consulted 
 a specialist, who found the cervical canal entirely closed. 
 This was opened by artificial means. The evidence also 
 showed that during the entire time of her illness the 
 plaintiff was suffering from septicgemia. 
 
 Upon the trial of the case evidence was given to the 
 effect that there was no ulcerated condition of either the 
 uterus or the cervical canal, and that the treatment with 
 caustics was unjustifiable; that advanced medical sci- 
 ence discards the use of caustics in cases of ulceration, 
 as a dangerous practice ; and that the treatment applied 
 had caused cicatrix in the cervical canal, etc. The trial 
 court, in instructing the jury upon the law applicable to 
 the case, told them that the physician was bound to 
 bring to the treatment of the case such skill as is ordi- 
 narily possessed and exercised by physicians and sur- 
 geons in such localities, '' having regard to the advanced 
 state of the profession at the time of the treatment." 
 This instruction the supreme court held to be entirely 
 proper and suited to the evidence adduced at the trial. 
 
272 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In the case of Almond vs. Nugent,* the opinion of 
 Chief-Justice Beck reviews several important features 
 of the ground just passed over in such a masterly way 
 that the following extended quotation is taken there- 
 from. The chief justice said : " The first one [of the in- 
 structions] is clearly objectionable in holding the civil 
 responsibility of the surgeon to be governed by the same 
 rules of law as those that apply to mechanics and to 
 others engaged in some of the other pursuits mentioned. 
 As a general rule, mechanics are answerable for results, 
 and the real test of their skill is the success of their 
 work. Not so with the physician and surgeon. They 
 are required to exercise due skill, but are not responsible 
 if the desired result fails. The skillful mechanic will 
 always be successful. The materials which he under- 
 takes to shape and fashion are subject to known laws, 
 and are completely under his control. The surgeon 
 and physician apply their skill to human bodies which 
 are subject to laws, both physical and mental, almost 
 infinite in number — many uncertain and many un- 
 known. The diseases which they combat are not under 
 the full dominion of human skill and wisdom. They are 
 not expected to resist and avert the approach of death, 
 which ultimately destroys all. 
 
 '' ^!'he third instruction above quoted is equally ob- 
 
 * Almond vs. Nugent, 34 la., 300. 
 
CIVIL MALPRACTICE. 273 
 
 jectionable. The thought that the physician and sur- 
 geon are required to keep up with the progress of the 
 day in their respective professions accords with my 
 •views (expressed in a previous case). . . . But the rule 
 announced, that the practitioner must apply himself to 
 the •' most accredited source of knowledge/ imposes a 
 requirement that can not be admitted. It demands that 
 the surgeon shall be educated by instructors of the most 
 established reputation, that he shall resort to schools of 
 the widest fame, and study books of the first authority. 
 The rule condemns all knowledge not acquired in this 
 way, and fixes, as a standard of ordinary skill, attain- 
 ments gained from the prescribed course of prepara- 
 tion for the discharge of professional duties. . . . 
 Humble and unknown instructors of obscure schools 
 may be sources from which the professional man may 
 gain thorough knowledge of the principles of his pro- 
 fession. . . . The law requires skill and makes no in- 
 quiry as to the source whence it is obtained. 
 
 " The last sentence of the instruction under consid- 
 eration is, if possible, more faulty. It holds the surgeon 
 liable in damages if he fails to exercise his art or pro- 
 fession rightly and truly as he ought. Here absolute 
 accuracy and certainty are demanded. No allowance is 
 made for failure to administer the proper remedy in 
 cases where the highest skill will leave the professional 
 man in doubt at the time he is required to act. As we 
 
274 THE LAW IN ITS RELATIONS TO PHYSICIANS, 
 
 have before remarked, many laws of Nature, applicable 
 to the administration of remedies for the diseases of the 
 human bod}', are not fully understood; many are un- 
 known. In obedience to an occult law an approved rem- 
 edy may fail. Symptomatic indications often refuse to 
 inform the physician or surgeon of the real disease 
 which his skill is called upon to combat, and an autopsy 
 reveals, too late, conditions of the organs of the patient, 
 that could have been discovered in no other way, which 
 demanded a different course of treatment. As it is im- 
 possible for the surgeon or physician, possessing even 
 the highest degree of skill, always to act rightly and 
 truly as he ought, the practitioner should not be held 
 liable if, in the faithful and honest exercise of ordinary 
 skill, which is only demanded, he fails to use the right 
 remedy." 
 
 Best Judgment Eequired. — It will be remembered 
 that the general standard of professional requirements 
 is that the physician must possess a reasonable degree 
 of knowledge, skill, and experience; second, that he 
 must exercise ordinary care and diligence; and third, 
 that he will use his best judgment in all cases of doubt. 
 Having scrutinized the first two requirements of this 
 standard, attention will now be particularly given to the 
 third. 
 
 It may be considered an axiom, de facto as well as 
 legal, that one can not use good judgment in the treat- 
 
CIVIL MALPRACTICE. 275 
 
 ment of a case without first possessing the adequate 
 amount of knowledge and skill and exercising the 
 proper degree of care. Dr. McClelland,* in his collection 
 of malpractice cases, cites the case of Courtney vs. Hen- 
 derson, decided in the marine court of New York, in 
 which a man, fifty-seven years of age, who had been 
 under the care of an eye infirmary for eight weeks, 
 was induced to withdraw from that institution and put 
 himself under the defendant's treatment. While in the 
 infirmary there was a gradual improvement of his eyes, 
 but soon after placing himself under the care of the de- 
 fendant the improvement ceased, the disease became 
 more aggravated, and the eyesight gradually failed. 
 The defendant treated the eyes about three months, 
 and during this time performed an operation upon them 
 and put some kind of powder into them. At the end of 
 the three months' treatment the plaintiff returned to 
 the eye infirmary, but his vision was gone, never to re- 
 turn. The only expert evidence offered was that of two 
 physicians from the infirmary, who testified that they 
 had no doubt the plaintiff would have recovered under 
 proper treatment. They also testified to their mode of 
 treatment in such cases, which differed materially from 
 that of the defendant. It seems that no expert evidence 
 was offered showing that the defendant's treatment was 
 
 * McClelland on Civil Malpractice, p. 273. 
 
276 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 either skillful or proper, nor any evidence to show that 
 he was a qualified physician and surgeon. The defend- 
 ant's counsel urged that the failure of the defendant 
 to properly treat the plaintifE was the result of an error 
 in judgment, and for that he was not liable. The court 
 held that this was a good defense when applied to one 
 skilled in the science of medicine, but that the defend- 
 ant, knowing nothing of anatomy, surgery, or physics, 
 was incapable of having judgment in the matter. The 
 court accordingly affirmed the judgment rendered in 
 favor of the plaintiff and against the defendant for 
 malpractice. 
 
 The law, it has been observed, requires only that the 
 knowledge possessed and the care and skill exercised 
 shall be " ordinary" or " usual," but the judgment must 
 be the physician's best judgment. What is one's best 
 judgment is, from the nature of the case, absolutely im- 
 possible to determine, the judgment of no two men being, 
 the same in all respects. Because of the uncertainty of a 
 rule of liability based upon the judgment of the party 
 whose actions were the subject of litigation, an English 
 court refused to entertain the plea that an error of judg- 
 ment was a defense. Justice Tindal, in that case, said : 
 " Instead, therefore, of saying that the liability for neg- 
 ligence should be coextensive with the judgment of each 
 individual, which would be as varied as the length of the 
 foot of each individual, we ought rather to adhere to the 
 
CIVIL MALPRACTICE. 277 
 
 rule which requires in all eases a regard to caution such 
 as a man of ordinary prudence would observe." * The 
 justice did not, at the time of uttering these words, 
 have in mind the judgment of a professional man exer- 
 cised in performing the functions of his profession, yet 
 the principle will apply, for the exercise of judgment 
 must be such as not only to preclude the idea of profes- 
 sional incompetency and of a want of reasonable care, 
 but the judgment itself must be consistent with the use 
 of that degree of skill that it is the duty of every surgeon 
 to bring to the treatment of a case, according to the 
 standard of skill and care indicated, f For this reason 
 nothing short of one's best judgment is adequate. 
 
 A physician who possesses the requisite amount of 
 knowledge and skill, and exercises his best judgment in 
 determining upon such treatment as experience has 
 shown him to be best, is not liable in damages from 
 an injury resulting from an error of judgment. J 
 Such judgment, in order to be a complete protection 
 to the physician, must, however, have been exercised 
 in a case where competent physicians might honestly 
 doubt as to the nature of the disease or the proper 
 method of treating it. In such a case all that the law 
 requires is that a physician shall summon to his assist- 
 
 * Vaughan vs. Menlovc, 3 Bing., N. C, 468. 
 
 f West vs. Martin, 31 Mo., 375. 
 
 X Vanhooser vs. Berghoff, 90 Mo., 488. 
 
278 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ance all of his loiowledge and skill, and in the light of 
 their aid exercise his best judgment. If, however, the 
 case is such a one that no physician possessing ordinary 
 knowledge and skill would doubt or hesitate, and but 
 one course of treatment would be suggested by a com- 
 petent professional man, then any other course of treat- 
 ment might be evidence of a want of ordinary knowledge 
 or skill, or proper care or attention.* In determining 
 whether or not a physician may safely exercise his judg- 
 ment in a given case he should first consider his general 
 qualifications as a practitioner of medicine and his com- 
 petency to handle the particular case ; for if he is com- 
 petent to treat the case, but is in doubt as to the nature 
 and extent of the injury or the proper mode of treat- 
 ment, he is justified, and it is his duty, to use his best 
 judgment in deciding upon the nature of the disease or 
 injury and fixing upon a course of treatment, and also 
 as to whether or not he will consult with some other phy- 
 sician and surgeon. But if, on the other hand, he is not 
 competent to treat the case, or feels that he is not com- 
 petent, he should recommend the patient to some other 
 physician, f 
 
 Theoretically, it is not difficult to lay down a rule 
 which commends itself both to our reason and our sense 
 of justice, defining those errors of judgment from which 
 
 * Patten vs. Wiggin, 51 Me., 594. 
 f Mallen vs. BojTiton, 132 Mass., 443. 
 
CIVIL MALPRACTICE. 279 
 
 no cause of action should arise. Such a rule is the one 
 laid down by Justice Richmond, which is that " Physi- 
 cians are not responsible for the errors of an enlight- 
 ened judgment, where good judgments may differ; and 
 I can come to no other conclusion than that, when there 
 are reasonable grounds for doubt and difference of opin- 
 ion, the professional man, after the exercise of his best 
 judgment, admitting that he possesses the necessary 
 knowledge, is not responsible for errors of judgment or 
 mistakes, and is only chargeable with errors wliich could 
 not have arisen except for the want of or the exercise of 
 reasonable skill and diligence." * But it is in the prac- 
 tical application of such a rule that the difficulty lies. 
 What things must the physician know as a matter of 
 knowledge and what may he assume through the exer- 
 cise of his best judgment? In the case of Du Bois vs. 
 Decker f the plaintiff had a portion of his foot crushed 
 beneath the wheels of a locomotive. The physician, hop- 
 ing to save the foot, deferred amputation for nine days ; 
 then, seeing that the foot could not be saved, amputated 
 the leg just above the ankle. Shortly afterward gan- 
 grene appeared, rendering further operation necessary. 
 At the trial evidence was given tending to show that the 
 bones of the foot were so crushed that immediate ampu- 
 tation of the injured portion was necessary, and that 
 
 * Burnham vs. Jackson. 1 Colo. App., 237. 
 f Du Bois vs. Decker, 130 N. Y., 325. 
 
280 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the appearance of gangrene was in consequence of the 
 delay in operating. The counsel for the defendant 
 claimed that the defendant, in the exercise of his best 
 judgment, believed the foot might be saved, and that 
 he could not be held liable for an error of judgment. 
 But the court failed to agree with the defendant's coun- 
 sel ; it said : " But his judgment must be founded upon 
 his intelligence. He engages to bring to the treatment 
 of the patient care, skill, and knowledge, and he should 
 have known the probable consequences that would follow 
 from the crushing of the bones and tissues of the foot." 
 On the other hand, if the injury sustained in such a 
 case were not so serious as to preclude the probability 
 of the recovery of the injured member, and the defend- 
 ant were to produce competent and skilled physicians 
 at the trial to testify that a recovery might be reasonably 
 expected, and that the course of treatment adopted by 
 the defendant was proper or best calculated to effect a 
 recovery, then no reason can be seen why the defendant 
 should not have been released from all liability. 
 
 A physician in the exercise of his judgment is not 
 bound to anticipate or foresee any unusual or improb- 
 able result of his treatment. In the case of Bogle vs. 
 Winslow,* the plaintiff, who had a few days previously 
 received a severe blow on the head, called upon the de- 
 
 * Bogle vs. Winslow, 5 Phil. (Pa.), 136. 
 
CIVIL MALPRACTICE. 281 
 
 fendant, a dentist^, for the purpose of having some teeth 
 extracted. The defendant administered chloroform and 
 took out the teeth. A few hours afterward the plaintiff 
 complained of numbness of one side, which in a few days 
 was followed by a stroke of paralysis. The plaintiff 
 brought suit against the dentist, claiming that the 
 paralysis was the direct result of the chloroform. Con- 
 siderable exi)ert evidence was given, most of it to the 
 effect that paralj^sis could not result from the use of 
 chloroform. Some testified that it might result from 
 the use of such an anaesthetic. There was also evidence 
 that the severe blow on the head received by the plain- 
 tiff might have produced a latent disease only requiring 
 some exciting cause to rouse it into activity. 
 
 The judge was of the opinion that if the administer- 
 ing of the chloroform or the extraction of the teeth was 
 the cause of plaintiff's paralysis, still it would not be 
 just to make the defendant answer in damages for con- 
 sequences which he could not foresee, and which were 
 not the ordinary or probable result of what he did. The 
 jur}^ was so instructed and found a verdict for the de- 
 fendant. 
 
 The rule that a physician is bound to exercise his 
 best judgment being one of universal application, it 
 necessarily follows that when he is called upon by a 
 patient to perform an operation which in his judgment 
 is unwise or unnecessary, he is bound to advise against 
 
282 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 such operation whether his opinion is asked or not. In 
 the case of Gramm vs. Boener * the defendant had set 
 the plaintiff's arm. Several weeks after, the bones ap- 
 peared slightly out of place, either from having become 
 displaced or from not having been originally accurately 
 adjusted. The plaintiff asked the defendant to rebreak 
 and readjust the bones, but the defendant advised 
 against the operation. He told the plaintiff that to re- 
 break the bones would be of no use; that it had better 
 be left alone, and that he ought not to think of it. But 
 upon the plaintiff's insistence, he finally performed the 
 operation. The result was so unsatisfactory that suit 
 was brought. In the supreme court, upon the appeal of 
 the case, the question arose whether the defendant was 
 justified in finally deferring to the judgment of the pa- 
 tient and breaking the arm, or whether he should have 
 refused to operate altogether when such an operation 
 was contrary to his own best judgment. The supreme 
 court was of the opinion that the defendant had in- 
 curred no liability under the circumstances in operating. 
 Upon this question Justice Worden said : " But if a sur- 
 geon, when thus called, advises a patient who is of ma- 
 ture years and of sound mind that the operation is un- 
 necessary and improper — in short, advises against the 
 performance — and the patient still insists upon the per- 
 
 * Gramm vs. Boener, 56 Ind., 49*7. 
 
CIVIL MALPRACTICE. 283 
 
 formance of the operation, in compliance with which 
 the surgeon performs it, we do not see upon what prin- 
 ciple the surgeon can be held responsible to the patient 
 for damages, on the ground that the operation was im- 
 proper and injurious. In such cases the patient relies 
 upon his own judgment, and not upon that of the sur- 
 geon, as to the propriety of the operation ; and he can 
 not complain of an operation performed at his own 
 instance and upon his own judgment, and not upon that 
 of the surgeon." 
 
 If in the physician's best judgment it is advisable to 
 withhold from a patient in a particular emergency a 
 knowledge of the danger and extent of his disease, he 
 will be justified in so doing. So, when a physician, in 
 attending a patient who was sufEering from a felon, told 
 her that her hand was doing well, and that she ought to 
 be thankful that it was so well, he was held to have in- 
 curred no liability thereby, it not appearing that the 
 patient desired to secure counsel, or was deterred by the 
 physician's statement from so doing.* 
 
 'Not is there any legal necessity that the physician 
 should acquaint the patient with the character of the 
 operation or treatment he proposes to employ, f The 
 advisability of such a step is purely a matter of judg- 
 
 19 
 
 * Twombly vs. Leach, 65 Mass., 397. 
 f Boydston vs. Giltner, 3 Ore., 118. 
 
284 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ment, and in such matters the exercise of the physician's 
 best judgment is all that the law requires. 
 
 Refusal by Physician of Proffered Assistance does 
 not Increase his Obligations. — Having once assumed 
 charge of a case, the degree of knowledge, skill, and care 
 which the law requires a physician to possess and exer- 
 cise is not altered by the fact that he refuses the 
 proffered assistance of other m.edical men. His refusal 
 in such a case is simply an implied declaration of his 
 ability to treat the case properly, and its effect is nei- 
 ther to increase nor decrease the degree of knowledge, 
 skill, and care which the law makes it his duty to have 
 and exercise.* 
 
 Admission of Inadequate Skill. — If, on the other 
 hand, the physician frankly informs the patient that 
 he has not sufficient skill or experience to treat the 
 particular case or injury, the degree of skill that can 
 reasonably be required of him is thereby materially de- 
 creased.! Such an admission will not, however, relieve 
 the physician from liability when he continues his serv- 
 ices with the assistance of another physician or sur- 
 geon. In a case of this sort the liability is a question 
 of fact to be determined by the jury, who, in arriving at 
 their conclusion, must determine whether there was 
 such a degree of ignorance or unskillfulness displayed 
 
 * Potter vs. Warner, 91 Pa. St., 362. 
 
 f Shearman and Redfield on Negligence, § 607. 
 
CIVIL MALPRACTICE. 285 
 
 as to justify holding the defendant liable to the plain- 
 tiff in damages, notwithstanding his admission. In the 
 case of Lorenz vs. Jackson,* the plaintiff had been 
 injured by being struck by a piece of steel from a broken 
 hammer, which passed through two pairs of trousers and 
 buried itself in his left leg above the knee. After re- 
 ceiving the injury he rode about a mile on a handcar, 
 and then walked about five hundred feet to his home. 
 Soon afterward the defendant arrived and examined the 
 wound, but was unable to find the piece of steel ; he an- 
 nounced that the wound was of a serious character and 
 that he did not regard himself as sufficiently experi- 
 enced in surgery to properly treat the case, and advised 
 that a more skilled and experienced surgeon be called 
 in. Another doctor was accordingly secured. To- 
 gether the doctors administered ether, and the physi- 
 cian last summoned probed for the piece of steel, wid- 
 ening the wound in the limb, and thereafter applied 
 bandages. The doctor first summoned remained with 
 the patient all night, administering to him hypodermic 
 injections of morphine and atropine. The treatment 
 continued for about eight days, when it was discovered 
 that dry gangrene had ensued. A third physician was 
 then called to take charge of the case, who soon deter- 
 mined upon and performed an amputation. Much evi- 
 
 * Lorenz vs. Jackson, 88 Hun, 200. 
 
286 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 dence was given upon the trial respecting the treat- 
 ment of the patient by the first two physicians called, 
 but what that evidence was the report of the case does 
 not show. The judge, upon submitting the case to the 
 jury, charged them in effect that " if the practitioner 
 frankly informed the patient of his want of skill, or if 
 the patient is in some other way fully aware of it, he 
 can not complain of the lack of that which he knew did 
 not exist." Notwithstanding, the jury returned a ver- 
 dict in favor of the plaintiff, assessing his damages at 
 three thousand dollars. This verdict the supreme court 
 refused to disturb. 
 
 Liability for Negligence of Student. — It has been 
 observed that a physician and surgeon is entitled to 
 compensation for the services of his apprentice or stu- 
 dent practising under his direction. As a logical result, 
 he should be held responsible for the negligence or want 
 of skill in such assistant. This has been held to be the 
 law in England,* and this case will probably be consid- 
 ered an authoritative precedent in America. 
 
 Must follow Established Practice. — One of the rules 
 which the law strictly enforces for the protection of the 
 public is that when there is an established practice or 
 mode of treatment for a particular disease or injury 
 the physician must conform to professional custom and 
 
 * Hancke vs. Hooper, 1 C. and P., 81. 
 
CIVIL MALPRACTICE. 287 
 
 adopt the established treatment, but will not be per- 
 mitted to experiment without incurring liability for 
 resulting injuries.* 
 
 The reason for the rule, also an indication of the 
 extent to which it will be enforced, is well expressed in 
 the case of Carpenter vs. Blake, f where the court said: 
 " Some standard, by which to determine the propri- 
 ety of treatment, must be adopted; otherwise experi- 
 ment will take the place of skill, and the reckless ex- 
 perimentalist the place of the educated, experienced 
 practitioner. If the case is a new one, the patient 
 must trust to the skill and experience of the surgeon 
 he calls; so must he if the injury or the disease is at- 
 tended with injury to other parts, or other diseases have 
 developed themselves, for which there is no established 
 mode of treatment. But when the case is one as to 
 which a system of treatment has been followed for a 
 long time, there should be no departure from it, unless 
 the surgeon who does it is prepared to take the risk of 
 establishing by his success the propriety and safety of 
 his experiment. 
 
 " The rule protects the community against reckless 
 experiments, while it admits the adoption of new reme- 
 dies and modes of treatment only when their benefits 
 have been demonstrated, or when, from the necessity of 
 
 * Hesse vs. Knippel, 1 Brown (Mich. N. P.), 109. 
 f Carpenter vs. Blake, 60 Barb., 488. 
 
288 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the case, the surgeon or physician must be left to the 
 exercise of his own skill and experience." 
 
 The question of when a method of treatment is con- 
 sidered sufficiently settled or established as to be the 
 only safe one for a physician to adopt has given the 
 courts some trouble. This question is, however, one 
 rather of fact, to be determined from the evidence 
 with the aid of testimony of expert witnesses, than 
 of law. In the case of Slater vs. Baker and Staple- 
 ton,* decided in England in 1767, the evidence showed 
 that a surgeon and an apothecary were employed to 
 treat a leg which had been broken and set. In treat- 
 ing this leg they rebroke it and applied a new in- 
 strument. The evidence of experts was to the efEect 
 that when the callus had formed to any degree it was 
 bad practice to rebreak the leg; and that in the present 
 ease the callus must have formed to such a degree as to 
 render the operation improper and contrary to recog- 
 nized practice. The surgeon who performed the oper- 
 ation was a man of recognized ability and high pro- 
 fessional standing. The court refused to set aside a 
 judgment for the plaintiff and closed its opinion by 
 saying : " For anything that appears to the court, this 
 was the first experiment made with this new instru- 
 ment, and if it was it was a rash action, and he who 
 
 * Slater vs. Baker and Stapleton, 2 Wilson's R., 359. 
 
CIVIL MALPRACTICE. 289 
 
 acts rashly acts ignorantly ; and although the defend- 
 ants in general may be as skillful in their respective 
 professions as any two gentlemen in England, yet the 
 court can not help saying that in this particular case 
 they have acted ignorantly and unskillfully, contrary to 
 the known rule and usage of surgeons." 
 
 In the case of Winner vs. Lathrop * the patient 
 was suffering from a fracture of the radius.. The de- 
 fendant reduced the fracture several hours after the 
 injury, and, so far as the evidence shows, seems to have 
 performed the operation skillfully and in accord with 
 the most approved methods known to the profession. 
 There was, however, evidence given by the defendant 
 to the effect that the defendant directed that the in- 
 jured part be bathed in a decoction of wormwood and 
 vinegar, which the expert testimony condemned. 
 
 The injured arm was not perfectly restored to its 
 former usefulness; the wrist remained to some extent 
 stiff, the rotary motion of the arm was obstructed, and 
 the usefulness of the hand was permanently impaired. 
 For this reason suit was brought, and judgment ob- 
 tained in the trial court against the defendant for fifty 
 dollars. The supreme court, upon appeal, was of the 
 opinion that no unskillfulness in the treatment of the 
 arm had been shown, and that application of wormwood 
 
 * Winner vs. Lathrop, 67 Hun, 511. 
 
290 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 and vinegar to the injury, even if proved, was not such 
 a departure from approved medical treatment as to jus- 
 tify a recovery against the defendant. 
 
 A case rich in instruction upon the point in con- 
 sideration is that of Jackson vs. Burnham.* The plain- 
 tiff was suffering from phimosis, and the defendant, 
 instead of slitting up the prepuce, applied a flaxseed- 
 meal poultice, which aggravated the malady and accel- 
 erated gangrene, and resulted in the destruction and 
 loss of the organ. Upon the trial of the case the 
 trial judge instructed the jury, among other things, 
 that : " If you find from the evidence that this defend- 
 ant, in the treatment of the plaintiff, omitted the ordi- 
 nary or established mode of treatment, and pursued one 
 that has proved injurious, it is of no consequence how 
 much skill he may have; he has demonstrated a want 
 of it in the treatment of the particular case, and is 
 liable in damages." The supreme court, upon review of 
 the case, criticised this instruction, saying, in effect, 
 that as an abstract proposition of law it was not 
 absolutely correct, because it did not give an oppor- 
 tunity for the exercise of enlightened judgment in 
 cases involving doubt, or where there was reasonable 
 ground for difference of opinion as to the nature of the 
 disease and the proper mode of treatment. But as 
 
 * Jackson vs. Bumham, 20 Colo., 532. 
 
CIVIL MALPRACTICE. 291 
 
 applied to the present case, where the evidence showed 
 by a strong preponderance that the disease from which 
 the plaintiff was suffering was phimosis, and that the 
 proper method of treating this condition is to slit the 
 prepuce to the corona, relieving the tension or strangu- 
 lated condition and permitting the restoration of circu- 
 lation, the instruction could not have misled the jury 
 to the prejudice of the defendant. 
 
 In cases of this sort the court held that the test by 
 which to determine whether a physician is bound to fol- 
 low a particular mode of treatment for a given condi- 
 tion is whether or not that mode of treatment is upheld 
 by a consensus of opinion of the members of his pro- 
 fession. The court said when the method of treatment 
 is so upheld, "it should be followed by the ordinary 
 practitioner; and if a physician sees fit to experiment 
 with some other mode, he should do so at his peril." 
 
 For the purpose of more fully illustrating the appli- 
 cation of the rules and principles of law laid down in 
 the foregoing pages of this chapter the character of 
 the defense of the defendant in this case will be exam- 
 ined. The defendant admitted that the proper rem- 
 edy for phimosis was that testified to by the expert wit- 
 nesses and above given ; but he denied that the plaintiff 
 was suffering from phimosis. He maintained that the 
 swollen condition of the organ was the result of an ul- 
 ceration of the urinary canal and that the treatment 
 
292 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 prescribed for him was proper for such a condition. The 
 defendant's counsel urged that, admitting the defend- 
 ant had erred in diagnosticating the case and that the 
 true condition was phimosis, then the error was one of 
 judgment for which the defendant could not be held re- 
 sponsible. 
 
 Upon the trial of the case, after all of the evidence 
 was introduced, the trial judge properly instructed the 
 jury upon the duties of the physician: that he must 
 possess ordinary, etc., skill and knowledge ; that he must 
 use ordinary care and diligence ; and that in all cases of 
 doubt he must use his best judgment; but that in cases 
 where competent physicians might honestly differ as to 
 the nature of the disease the defendant should not be 
 held responsible for an error of judgment reached by 
 the exercise of due skill and care, etc. While the rec- 
 ords of the ease do not show that there were any special 
 findings of fact returned by the jury, yet the conclu- 
 sion necessarily follows from their verdict, which gave 
 the plaintiff damages to the amount of five thousand 
 dollars, that they found, from the evidence submitted, 
 either that the defendant was incompetent or, if com- 
 petent, that he did not exercise ordinary skill and care 
 in diagnosticating the case; and that the case was not 
 one in which competent physicians might honestly differ 
 in their opinion as to the nature and extent of the dis- 
 ease after making a careful and proper examination. 
 
CIVIL MALPRACTICE. 293 
 
 Failure to give Proper Instructions. — Nor does the 
 physician's liability necessarily end when he has treated 
 the patient with all due skill and care, exercising 
 proper judgment and using the most approved meth- 
 ods of treatment. 
 
 If the character of the injury or disease is such that 
 any particular method of nursing is necessary to avoid 
 an aggravation of the injury or prevent a relapse, or 
 if the patient's welfare requires that he shall observe 
 certain rules or practices, or shall avoid any particular 
 indulgence, the physician is bound to inform the nurse 
 or patient, or both, as the case may require, of the con- 
 dition he wishes to avoid, and give them proper instruc- 
 tions as to the care and treatment best calculated to 
 conduce to a cure. In the ease of Carpenter vs. Blake 
 the court said : " If, in case of dislocation of the elbow 
 joint, it is enough for the physician to replace the bones, 
 and to put the arm on a pillow, with the part below 
 the joint at a right angle with that above it, and direct 
 the application of cold water, it would seem to be proper, 
 if not necessary, that the attending surgeon should in- 
 form the patient, or those having charge of him or her, 
 of the necessity of maintaining that position; and if 
 there is a tendency in the limb to become straight, or if 
 in consequence of the severity of the injury to the liga- 
 ments about the joint there is great pain, which renders 
 the patient nervous and restless, thus increasing the 
 
294: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 tendency of relaxation, or to straighten, and, as a con- 
 sequence, to stiffen the joint, the danger should be dis- 
 closed, to the end that all proper precaution may be 
 taken to prevent it. It is insisted that these dangers 
 were imminent, and yet no word was given. This was, 
 in my judgment, culpable negligence; much of the suf- 
 fering the plaintiff' has undergone, and much of the 
 loss she has sustained, might have been prevented had 
 the defendant done what it was clearly his duty to do, 
 if he knew the consequences which might result from 
 redislocating the joint or straightening the arm.'' * 
 
 In the case of Beck vs. The German Klinik et al., f 
 the evidence showed that the plaintiff, who had broken 
 his leg, employed the defendants, viz., the German Kli- 
 nik, an incorporated hospital, and certain physicians 
 and surgeons members of that concern, to treat him; 
 that the methods and appliances which were used in the 
 treatment of the case were such as were used and ap- 
 proved of by physicians who were possessed of and who 
 exercised at least the average skill of the medical profes- 
 sion as a body at that time; and that the treatment 
 seemed to have been proper and skillful, and the leg, 
 .when the splints and bandages were removed, appeared 
 all right. The evidence also showed that after the gyp- 
 
 * Carpenter vs. Blake, 60 Barb., 488. 
 
 ■j- Beck vs. German Klinik et al., 78 la., 696, 43 N. W. Rep., 617, 
 7 L. R. A., 566. 
 
CIVIL MALPRACTICE. 295 
 
 sum bandages, used to keep the bones in place, were re- 
 moved, the defendants directed the plaintiff to use his 
 limb and to walk with crutches, but that they gave him 
 no further directions as to the manner or extent of such 
 use. The evidence further showed, or tended to show, that 
 the broken bone had not well united, either because of 
 improper treatment or because of its diseased condition, 
 and that when the bandages were removed, or soon 
 thereafter, the limb at the wounded part was crooked, 
 and that it became necessary to perform an amputation. 
 An expert witness testified upon examination of the 
 limb after amputation, that there was a diseased con- 
 dition of the bone which might have been caused by " a 
 splinter or a muscle getting between the bones ; and in 
 that case walking Avould irritate and produce a tend- 
 ency to disease." He further said : " I would instruct 
 my patient not to walk on a leg I found not united." 
 " The least weight of the foot, after patient commenced 
 walking, would tend to separate at the top " (pointing 
 to a portion of the bone, having the amputated limb 
 before him). "If the bone, when set, confined in its 
 apparatus for eight weeks, came out in that crooked 
 condition or form, then the tendency of the use of that 
 limb in walking would impair its efficiency and would 
 induce disease." The court, in commenting upon the 
 legal effect of the evidence above given, said : " The 
 jury were authorized to find that plaintiff had no cor- 
 
296 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 reet instructions as to the proper care and use of his 
 wounded leg ; and that he had wrong instructions which 
 directed him to use hi& leg ; that the diseased condition 
 was caused or aggravated by the use of the leg, which 
 the defendants directed, and that with proper instruc- 
 tions, which we will presume plaintiff would have fol- 
 lowed, his leg would have been saved, or at least the 
 disease of the bone would have been ameliorated and 
 he would have escaped much suffering." " Defendants 
 may have exercised proper care and used proper skill 
 in all things, yet, under the law of the case, if they 
 omitted to give plaintiff proper instructions for the 
 care and use of his wounded leg they were rightly held 
 liable by the jury. As we have said, the jury were 
 authorized to find for plaintiff under the evidence on 
 the ground of defendants' negligence by omission to 
 discharge their duty to instruct plaintiff as to the care 
 and use of his injured leg." 
 
 In a recent Ohio case * the trial judge, in instruct- 
 ing the jury regarding this duty of the physician, stated 
 the law very clearly; he said: "It is the duty of the 
 surgeon, when he takes charge of a case, such as a broken 
 femur bone, to give his patient all necessary and proper 
 instruction as to what care and attention the patient 
 should give his broken limb in the absence of the sur- 
 
 * Tish vs Welker et al., 4 Ohio Leg. News, 433. 
 
CIVIL MALPRACTICE. 297 
 
 geon, and the caution to be used in the use of the limb 
 before it is entirely healed." 
 
 The case in which this instruction of law was re- 
 quired by the facts at issue happened to be one in 
 which the patient had suffered from a fracture of the 
 femur — hence the narrowness of its scope; the law ap- 
 plies equally well, however, whether the patient be suf- 
 fering from a fractured femur or a fractured rib, or 
 whether the affliction be typhoid fever or mumps. 
 Proper and necessary instructions are in all cases re- 
 quired by the law. 
 
 Liability for Improperly Discontinuing Attendance. 
 — In an earlier chapter of this work the implied con- 
 tract of the physician that he will continue his attend- 
 ance upon the patient so long as his condition shall re- 
 quire it has been considered. Should a physician fail 
 to pay due regard to this obligation and cease his at- 
 tendance at a time when by the exercise of an honest 
 and properly educated judgment he might have deter- 
 mined that his services were still required, he will 
 be liable to an action for damages resulting there- 
 from.* 
 
 Justice Pryor, in an instruction to the jury, ex- 
 pressed the law very clearly and forcibly. He said :" The 
 defendant was called to treat the plaintiff for a miscar- 
 
 * Dale vs. Donaldson Lumber Co., 48 Ark., 188. 
 
298 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 riage. He visited her the day of her misfortune and 
 the two succeeding days; but he never came afterward. 
 It is not denied that when he ceased his visits she was 
 not cured of her malady. His retainer was for no defi- 
 nite period. Upon this state of facts the question is. 
 Did the defendant violate his duty to the plaintiff by 
 his abandonment of her? When a physician engages, 
 as here, to attend a patient without limitation of time, 
 he can not cease his visits except, first, with the eon- 
 sent of the patient; or, secondly, upon giving the pa- 
 tient timely notice, so that he may employ another doc- 
 tor; or, thirdly, when the condition of the patient is 
 such as no longer to require medical treatment, and of 
 that condition the physician must Judge at his peril. 
 Here it is not shown that the plaintiff was no longer 
 in need of medical attention ; so that the defendant had 
 no right to discontinue his attendance, unless either the 
 plaintiff consented or he gave her proper notice ; and if 
 he left her without such consent or such notice he was 
 guilty of grave professional negligence. The defend- 
 ant swears that at his last visit he notified the plain- 
 tiff that he was going out of town, and indicated to 
 her a physician who would attend her in his stead. 
 If this statement be true, the defendant's absence is 
 excused, and you must exonerate him from this im- 
 putation of neglect. But the defendant's story is de- 
 nied by the plantiff's witnesses, and their testimony 
 
CIVIL MALPRACTICE. 299 
 
 tends to prove that he abandoned her without leave and 
 without notice." * 
 
 Upon the law governing this liability there seems 
 to be no question or disagreement, it is upon the facts 
 that the parties conflict, the defendant usually testify- 
 ing that he notified the patient of his inability to ren- 
 der further services ; the patient, on the other hand, tes- 
 tifying that no such notice was given, f 
 
 In the cases considered above the services of the 
 physicians were rendered at the patients' homes, but 
 the principle of law controlling is the same when the 
 services are rendered by the physician at his office. Of 
 course, if the patient comes to the office of a physician 
 from whom he has received proper treatment and then 
 fails to return for further treatment, in consequence 
 of which he suffers injury, the physician is not liable 
 to an action for such injury. J But if a physician who 
 is receiving and treating a patient at his office fails 
 through his own fault or neglect to meet the patient 
 at the usual or proper time and place, whereby the pa- 
 tient suffers injury, then the physician is liable in dam- 
 ages to the amount of the injury so sustained. 
 
 Eight to Leave Practice Temporarily. — The preced- 
 ing question brings us to the consideration of when and 
 
 * Becker vs. Janinski, 2*7 Ahh. N. C, 45. 
 
 f Ballon vs. Prescott, 04 lie., COS; Daibour vs. Martin, 62 Mo., 
 636. 
 
 X Dashiell v.f. Griffith, 84 Md., 363. 
 20 
 
300 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 under what circumstances the physician may with legal 
 safety go away and leave his practice. The law books 
 show very few cases throwing light upon this question, 
 which probably argues that physicians exercise great 
 care in determining when they may safely leave their 
 practice, and also in selecting competent substitutes to 
 whose care the health and lives of their patients are to 
 be temporarily intrusted. 
 
 As a general rule it can be laid down that a physi- 
 cian should never go away and leave his practice with- 
 out arranging for some competent physician to attend 
 his patients,* but under what circumstances and con- 
 ditions he is justified in leaving his patients in the care 
 of such a physician is not quite so clear. 
 
 It is very easy to see upon principle that a physi- 
 cian, possessing adequate skill and knowledge to en- 
 able him to understand the condition of his patients, 
 who, by the careful exercise of his good judgment, de- 
 termines with a reasonable degree of certainty that 
 they are beyond the point of danger, may safely leave 
 them under the care of a competent substitute; but 
 whether the law will require so high a test of care is 
 doubted. We have but just quoted an instruction from 
 Justice Pryor, in which he said : " The defendant swears 
 that at his last visit he notified the plaintiff that he was 
 
 * Pelky vs. Palmer, 109 Mich., 561, 67 N. W., 561. 
 
CIVIL MALPRACTICE. 301 
 
 going out of town, and indicated to her a physician who 
 would attend her in his stead. If this statement be 
 true, the defendant's absence is excused, and you must 
 exonerate him from this imputation of neglect." * 
 While in this case the patient was without doubt in 
 grave need of medical attendance, yet there is no evi- 
 dence shown in the report that her life was in imminent 
 danger or that she was even in. a critical condition. 
 And, again, in the case of Dashiell vs. Griffith, f Justice 
 Eoberts says : " If the defendant had in his treatment 
 of the finger, prior to the 24th of February, exercised 
 reasonable care, skill, and diligence, and then, because 
 of the illness of his father, had turned the plaintiff 
 
 over to Dr. , a competent physician, for the further 
 
 treatment of her finger, and the plaintiff refused to go 
 to Dr. for treatment, then the liability of the de- 
 fendant ceased." But here again the plaintiff was 
 merely suffering from a felon, and when the de- 
 fendant last saw the patient it was thought that 
 the diseased member was doing as well as might 
 be expected. In the case of Ewing vs. Goo(le,X de- 
 cided in the United States circuit court, the defend- 
 ant had operated upon the plaintiff for a cataract. 
 The operation took place on the 25th of September; it 
 
 * Becker vs. Janinski, 2*7 Abb. N. C, 45, 
 f Dashiell v/>. Griffith, 84 Md , 363. 
 X Ewing vs. Goode, 78 Fed., 442. 
 
302 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 was characterized a smooth and successful operation, 
 and the wound was quite healed in about ten days. 
 About the 19th of ISJ'ovember following the plaintiff 
 complained of pain in the eye; the defendant care- 
 fully explored the eye with the ophthalmoscope, but 
 could discover no cause for the pain. The pain con- 
 tinued, and repeated examinations were made at short 
 intervals apart, but, as no cause for the pain could be 
 found in the eye, it was diagnosticated as neuralgia of 
 the fifth nerve and treated as such. On the 9th of De- 
 cember the defendant thought he saw a slight increase in 
 the tension of the eye, but was doubtful about it. This 
 was a symptom indicating glaucoma, and one for which 
 the eye had been carefully examined at short intervals 
 since the pain commenced; the defendant accordingly 
 prescribed eserine. On the 10th of December the de- 
 fendant examined the eye again and found no increased 
 tension and no other evidence of a glaucomatous condi- 
 tion, though the pains continued. On the 11th of De- 
 cember he confirmed his conclusion that there was no 
 increased tension by making another examination. 
 After this he remained in the city until the 18th of 
 December, and receiving no calls from the plaintiff 
 went away, leaving his practice in the hands of a com- 
 petent physician, who understood the plaintiff's case 
 and had assisted in the operation on the eye and had 
 examined it after the pain commenced. On January 
 
CIVIL MALPRACTICE. 303 
 
 6th the defendant returned and found an increased ten- 
 sion amounting to + 1 and distinct symptoms of glau- 
 coma. An operation was promptly performed with the 
 hope of relieving the pain and retaining the eyeball. 
 This operation proving unsuccessful in accomplishing 
 the desired effect, the eyeball was finally extracted. 
 The court gave special attention to the right of the de- 
 fendant to leave his practice on the 18th of December 
 as he did. After carefully reviewing all of the above 
 facts, Judge Taft said : " As to the right of (the de- 
 fendant) to leave the city on the 18th of December, 
 when his patient had not called him for a week, and 
 while she was presumably following the precautionary 
 and alleviating prescriptions of eserine and phenacetine, 
 I do not think there can be any doubt, if he made pro- 
 visions for the attendance of a competent oculist in 
 case of a call." 
 
 All of the cases cited above are those in which the 
 physician's right to temporarily leave his practice is 
 upheld, and a careful examination of the reports has 
 failed to discover a precedent in which the right of the 
 physician to leave his practice in the hands of another 
 competent physician is denied ; yet it seems that the 
 right to leave one's practice should depend upon the 
 same principles which ordinarily are applied as a test 
 of liability — viz., if the physician, by the careful exer- 
 cise of ordinary skill and knowledge, believes that he 
 
304 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 may safely leave his patients to the care of another, he 
 will be justified in so doing; if, on the other hand, a 
 patient's condition is such that a physician in his best 
 judgment thinks a change of physicians would be in- 
 jurious, nothing short of dire necessity should induce 
 him to permit the substitution. 
 
 Liability of Physician for Negligence of One whom 
 he Recommends. — Having determined that the physi- 
 cian has under ordinary circumstances the right to leave 
 his practice in the hands of a competent substitute, it 
 becomes pertinent to consider what, if any, responsi- 
 bility such physician bears for the acts of his substi- 
 tute. Sliould the physician recommended be in a legal 
 sense the agent of the physician recommending him, 
 — that is, if he is employed by him as an assistant — ^then 
 the law applies the legal maxim qui facit per alium 
 facit per se, and holds the recommending physician 
 liable for all negligent or improper professional con- 
 duct of his agent. But if, on the other hand, the ph^'si- 
 cian recommended is in independent practice, and is 
 properly esteemed a man of ordinary professional ability 
 and of proper discretion, the physician recommending 
 him will not be held responsible for any error he may 
 commit. 
 
 "When a regular railroad physician, upon going away 
 for a short time, gave instructions that if anything hap- 
 pened the railroad company should call upon a certain 
 
CIVIL MALPRACTICE. 805 
 
 other doctor, and an accident did occur and the desig- 
 nated physician was called in and improperly treated 
 the case, it was held that the regular physician was not 
 liable for such improper treatment, there being no evi- 
 dence to show that the physician recommended was iu 
 the employ of the defendant.* 
 
 In the case of Myers vs. Ilolborn,! a physician 
 promised to attend a patient during confinement. A 
 short time before the event took place he left the city 
 for a three days' vacation, but first visited the patient 
 and made an examination of her condition, from whicli 
 he concluded that his services would not be required for 
 several days. During his absence, however, the child 
 was born, and according to arrangements made by the 
 defendant, before leaving, the patient was attended by 
 another physician, who severed the umbilical cord so 
 near the child's body that it was impossible to tie it, in 
 consequence of which the child died. An action was 
 brought by the husband against the physician employed 
 to attend the case for this negligence of his substitute, 
 but the liability was denied by the court, which, 
 
 speaking through Justice Gummere, said : " Dr. 
 
 (the physician recommended to attend the patient) and 
 the defendant were each of them practising physicians 
 within the State, having no business connections with 
 
 * Hitchcock vs. Burgett, 38 Mich., 501. 
 
 f Myers vs. Holboin, 29 Vroom, 193, 33 Atl. Rep., 389. 
 
306 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 one another, except that Dr. was attending the 
 
 patients of the latter while he was temporarily absent. 
 
 Even if it be admitted, therefore, that Dr. was 
 
 employed by the defendant to attend npon the wife of 
 the plaintiff, that fact did not render the defendant 
 liable for his neglect or want of skill in the performance 
 of his service, for an examination of the authorities 
 will show that a party employing a person who follows a 
 distinct and independent occupation of his own is not 
 responsible for the negligent or improper act of the 
 other." 
 
 it will be observed from the foregoing opinion that 
 in 'Rew Jersey the courts go so far as to hold that a phy- 
 sician can not be held for the negligence of another phy- 
 sician whom he employs to perform certain professional 
 services, if such other physician has a distinct and in- 
 dependent practice. While there is no question about 
 the correctness of the principle of law by which the 
 court arrived at this conclusion, it is doubted whether 
 the courts of other States will find the principle appli- 
 cable to this particular condition; therefore, a physi- 
 cian can not be safely advised to employ another physi- 
 cian to attend to his practice, even though such other 
 physician does enjoy an independent practice, if he de- 
 sires to escape liability for the professional errors of 
 such other physician. 
 
 A question which might be suggested by those pre- 
 
CIVIL MALPRACTICE. 307 
 
 ceding is one which arose in the case of Jones vs. 
 Vroom.* In this case the defendant, a physician in 
 general practice, who was attending the plaintiff for 
 typhoid fever, was informed by her that she had a pain 
 in one of her eyes and that the sight was beginning to 
 leave it, and was asked to send her an oculist. The de- 
 fendant laughed at her, and told her there was nothing 
 the matter with the eye, but upon further request prom- 
 ised to send her an oculist. He did not comply with the 
 request, however, and as an excuse for not doing so said 
 he had forgotten the matter. Finally the nurse tele- 
 phoned for an oculist, who said, upon examining the 
 eye, that he could do nothing for it, but that he might 
 have done something if he had been sent for sooner. 
 The plaintiff sued the defendant for not securing the 
 oculist when requested, but the defendant's liability 
 was denied. The court said : " The defendant was em- 
 ployed to treat her for fever, and his employment im- 
 posed no duty on him to provide her with a specialist 
 for her eye." This case was tried simply upon the 
 question indicated in this quotation ; it therefore is pos- 
 sible that other questions might have been raised upon 
 which a different decision could be reasonably expected. 
 Any way, it is never safe for one to undertake to do a 
 thing without fulfilling the agreement, whether there is 
 
 * Jones vs. Vroom, 8 Colo. A pp., 143. 
 
308 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 a consideration or not, and a physician can not safe- 
 ly ignore complaints regarding conditions which by any 
 probability relate to the condition for which he is treat- 
 ing the patient. 
 
 That Services were Gratuitous is no Defense. — In ex- 
 amining the contract of the physician as implied from 
 his relations to his patients it was observed that the 
 fact that his services were rendered without compensa- 
 tion or reward did not alter the character of his obliga- 
 tions to his patient or relieve him from liability for the 
 breach of such obligation. This was not always consid- 
 ered the law, nor is it now the law as applied to the 
 ordinary relations and affairs of life. Under the com- 
 mon law the degrees of negligence are usually charac- 
 terized as slight, ordinary, or gross, and the particular 
 degree of negligence of which the defendant must have 
 been shown to be guilty in order to fix liability upon 
 him varied in inverse ratio to his compensation. If 
 he was well paid for performing certain services he 
 could be guilty of slight negligence only at his peril ; if, 
 on the other hand, he received no compensation, noth- 
 ing short of gross negligence would be considered cul- 
 pable; but where the compensation was the usual and 
 ordinary amount liability would attach for damages suf- 
 fered from ordinary negligence. 
 
 This was the rule which the courts applied at an 
 early date in fixing the liability of physicians for pro- 
 
CIVIL MALPRACTICE. 309 
 
 fessional errors.* The courts very soon, however, de- 
 tected the pernicious effects which might be reasonably 
 expected to follow the application of such a rule of lia- 
 bility to the practice of a learned profession like that 
 of medicine, which deals not only with the health and, 
 in a great measure, the happiness of the people, but 
 their very lives ; and, accordingly, by a line of well-con- 
 sidered decisions they have held the physician strictly 
 to the prescribed requirements of professional ability 
 and care, whether his services are paid for or gratui- 
 tous.! The reason and the necessity for this rule are 
 clearly and urgently expressed in an instruction deliv- 
 ered by Justice Pryor, from which an extended quota- 
 tion is made in Chapter II of this work. J 
 
 The application of the rule of liability for error 
 or neglect in medical treatment, whether compensation 
 is made or not, is only applicable, it must be remem- 
 bered, in cases where the defendant holds himself out 
 as a physician and surgeon. If one not professing to 
 be a qualified physician, and the patient not under- 
 standing him to be one, undertakes to render medical 
 services without compensation, such services, though 
 improperly rendered, will be considered by the court as 
 
 * Shearman and Redfield on Negligence ; Richey vs. "West, 23 111., 
 385. 
 
 t Du Bois vs. Decker, 130 N. Y., 325; Becker vs. Janinski, 27 Abb. 
 N. C, 45 ; McNevins vs. Lowe, 40 111., 209 ; Baird vs. Gillett, 47 N.Y., 186. 
 
 X See page 66. 
 
310 THE LAW IN ITS RELATIONS TO PnYSIClANS. 
 
 a mere kindly or neighborly office and incapable of 
 supporting an action for damages.* 
 
 Liability of Other than Qualified Physicians for Mal- 
 practice. — From the foregoing paragraph it must not 
 be inferred that one who, in fact, is not a qualified phy- 
 sician, but who holds himself out as such, may escape 
 any of the liability which attaches to a regular physician 
 for improper treatment. The mere fact that one so- 
 licits patients, representing himself as competent to 
 treat them, brings with it all of the penalties to which 
 the regular physician is liable. Justice Lyon, in the 
 case of Nelson vs. Harrington,! said the rule is ele- 
 mentary that a physician or surgeon, or one who holds 
 himself out as such, whether duly licensed or not, when 
 he accepts an employment to treat a patient profes- 
 sionally, must exercise such reasonable care and skill in 
 that behalf as are usually possessed and exercised by 
 physicians or surgeons in good standing, of the same 
 system or school of practice, in the vicinity or locality 
 of his practice, having due regard for the advanced 
 state of medical or surgical science at that time. In 
 this case the defendant was a clairvoyant physician or 
 spiritualist, who professed to have no medical educa- 
 tion or training ; yet the mere fact that he held himself 
 out as being possessed of ability to treat patients 
 
 * Higgins vs. McCabe, 126 Mass., 13. 
 ■f Nelson vs. Harrington, 72 Wis., 591. 
 
CIVIL MALPRACTICE. 311 
 
 through the occult aid vouchsafed him, and accepted 
 the duties and undertook the functions of a physician, 
 rendered him amenable to the same law governing their 
 liabilities. 
 
 Whether or not in such cases the defendant does 
 hold himself out as a physician is usually a question of 
 fact for the jury to decide from the evidence, and it is 
 often a question requiring nice discrimination. In an 
 early Wisconsin case the evidence adduced at the trial 
 to Bhow that the defendant held himself out as a physi- 
 cian was that he was called as a physician in the first 
 instance ; that he attended the case and consulted with 
 a certain doctor; and that he was called doctor during 
 his attendance. The evidence showed that he attended 
 as surgeon seven weeks, assuming the whole direction 
 and treatment of the injured limb, and went into con- 
 sultation with other physicians and surgeons. Eegard- 
 ing this evidence the supreme court said: " These facts, 
 though not perhaps direct proof of his holding himself 
 out as a physician and surgeon, are sufficient to go to 
 the jury as circumstantial evidence." * 
 
 In an early Ohio case the evidence showed that a 
 farmer represented himself as a cancer doctor, having 
 skill and experience in the treatment and cure of can- 
 cers. He claimed also to be in possession of a certain 
 
 * Reynolds vs. Graves, 3 Wis., 416. 
 
312 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 recipe or prescription, procured from a certain cancer 
 specialist, that would remove cancers without affecting 
 sound tissue. This evidence was considered sufficient 
 to render him subject to the same liability as a quali- 
 fied physician in the treatment of a malady of the 
 character he professed to treat.* 
 
 And in a more recent Illinois case one suffering 
 from an injured finger went to a druggist for treatment, 
 supposing him to be a physician. The druggist treated 
 the finger wrongly, which resulted in an aggravation of 
 the injury and final loss of the finger. 
 
 The court was of the opinion that the druggist, by 
 treating the finger, the plaintiff believing him to be a 
 doctor, held himself out as such, and was consequently 
 chargeable in that character.! 
 
 General Scope of Physician's Liability. — Innumer- 
 able questions of liability diversified in their nature and 
 character may, and as a matter of fact do, arise, both 
 from inadvertent and willful violation by the physician 
 of his duties and obligations to his patients. The cases 
 heretofore considered are those in which the physician 
 has failed to treat his patient with proper skill or care, 
 or has been deficient in performing some duty nearly 
 related thereto. An examination will soon be made of a 
 few cases arising from acts either of omission or of com- 
 
 * Musser vs. Chase, 29 Ohio St., 511. 
 f Matthei vs. Wooley, 69 111. App., 654. 
 
CIVIL MALPRACTICE. 313 
 
 mission, which contravene duties of a wider scope that 
 he owes to his patients or employers. It will be ob- 
 served, however, that in many of the illustrations fol- 
 lowing the familiar principles heretofore discussed will 
 be involved. 
 
 Necessity of Consent to Surgical Operations. — As a 
 general proposition of law, a surgeon must have con- 
 sent before operating upon a patient. As a matter of 
 law, however, the courts are disposed to imply consent 
 to perform the particular operation from the fact that 
 the patient has placed himself under the surgeon's care. 
 A recent English case, which has justly provoked con- 
 siderable unfavorable comment, is that of Beatty vs. 
 Cullingworth.* In this case the plaintiff, an unmar- 
 ried woman, who was about to submit to the operation 
 of ovariotomy, told the defendant, who is said to be one 
 of the most eminent London surgeons, that if both 
 ovaries were found to be diseased he must remove nei- 
 ther. He replied, " You must leave that to me." The 
 plaintiff denied hearing this remark. Both ovaries 
 were found diseased and were removed. 
 
 The plaintiff was engaged to be married, but upon 
 learning that both ovaries had been removed broke her 
 engagement, and later brought suit against the sur- 
 geon for malpractice. Justice Hawkins, upon the trial 
 
 * Beatty vs. CuUingworth, Q. B. Div., 44 Cent L. J., 153. 
 
314 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 of the case, charged the jury in effect that the plaintiff 
 had tacitly consented to the operation, whereupon they 
 returned a verdict for the defendant. A prominent 
 legal journal, in commenting on the case, says : " The 
 action of the court in this case has met with very general 
 criticism upon the ground that the facts involving a 
 direct prohibition would seem to exclude the possibility 
 of imphdng consent. As a contemporary says, it is one 
 thing for a surgeon to refuse to operate unless unlim- 
 ited discretion is confided to him and quite another 
 thing to deliberately disobey express instructions. Un- 
 doubtedly the defendant's wisest course would have been 
 to refuse to operate unless the scope of his authority 
 was agreed upon in advance." * 
 
 This case can not be safely considered the law in 
 this country, for an American court would not, it is 
 thought, instruct the jury, under like circumstances, 
 that there was a tacit consent to the operation, but 
 would leave it for the jury to determine whether the 
 evidence before them showed a tacit consent. In short, 
 in nearly all cases of this sort the question is one of 
 fact, for the determination of the jury, rather than of 
 law. 
 
 An important question of law arises, however, when 
 an operation is performed upon a wife or upon a child, 
 
 * 44 Cent L. J., 153. 
 
CIVIL MALPRACTICE. 315 
 
 as to whether or not the surgeon must first secure the 
 consent of the husband or parent. In a well-considered 
 case the court of appeals of Maryland denies that a 
 husband has the right to withhold his consent to the 
 performance of a necessary surgical operation upon his 
 wife. The court, speaking through Justice Yellott, said : 
 " Surely the law does not authorize the husband to say to 
 his wife. You shall die of the cancer; you can not be 
 cured, and a surgical operation affording only temporary 
 relief will result in useless expense. The husband has no 
 right to withhold from his wife the medical assistance 
 which her case might require." * 
 
 Following the reasoning of this decision, one can not 
 see why a physician should be required to secure the 
 consent of a parent before operating upon a child, pro- 
 vided the child was of proper age and discretion to un- 
 derstand the nature and effect of the operation pro- 
 posed. As there seems to be no precedent upon this 
 particular point, the question can not be authoritative- 
 ly answered until a case involving the question shall 
 arise which the parties thereto think sufficiently impor- 
 tant to take to a court of last resort. 
 
 Right to Perform Autopsy. — Somewhat analogous to 
 the right of the surgeon to operate upon a patient is 
 the right of the physician to perform an autopsy, ex- 
 cept that, from the nature of the case, the consent of 
 
 * Janney vs. Housekeeper et al., VO Md., 162. 
 21 
 
316 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the subject can not be gained in the latter class of 
 operations. 
 
 Upon the legal status of a dead body there is an 
 almost confusing wealth of legal lore coming down to us 
 through the English courts from the early days of 
 Christian England. The burial of the dead in church- 
 yards in England is supposed to have been introduced 
 by Cuthbert, Archbishop of Canterbury, in the year 
 750. Whereupon the protection and control over the 
 repose of the dead gradually passed from the authority 
 of the secular courts to that of the ecclesiastical tribu- 
 nals. The secular courts, being deprived of all author- 
 ity over the dead, looked upon the cadaver as not being 
 the subject of a property right, but confined themselves 
 to the protection of the monument and other external 
 emblems of grief erected by the living. Lord Coke, 
 chief-justice of England, expressed this condition in the 
 learned and ponderous style of his time as follows : " It 
 is to be observed that in every sepulchre that hath a 
 monument two things are to be considered — viz., the 
 monument, and the sepulture, or buriall of the dead. 
 The buriall of the cadaver — that is, caro data vermibus 
 — is nullius in honis, and belongs to the ecclesiastical 
 cognizance ; but as to the monument, action is given, 
 as hath been said, at the common law for the defacing 
 thereof." * 
 
 * Third Inst. (Coke), 203. 
 
CIVIL MALPRACTICE. 31Y 
 
 That adequate protection to the dead is necessary 
 is too obvious to permit of discussion; and as the eccle- 
 siastical court is unknown to our government, the func- 
 tions which in England vested in that court must here 
 be exercised by our courts of law. 
 
 In exercising these functions relative to the subject 
 under consideration, they have, perhaps with a single 
 exception, in respect to the learned precedents of the 
 English courts, refused to hold a dead body as strictly 
 property, yet they recognize and protect the right of the 
 relatives of a deceased person to the custody and con- 
 trol of the body. 
 
 The relatives in whom this right vests are, first, the 
 husband or wife of the deceased ; second, if no husband 
 or wife survives, then the children ; third, if there is no 
 husband or wife and no children, then, first, the father, 
 second, the mother; fourth, after them the brothers 
 and sisters of the deceased ; fifth, after them the next of 
 kin, according to the course of the common law, to the 
 remotest degree, according to the law of descent of per- 
 sonal property. 
 
 This right involves and carries with it a duty ; more 
 particularly, it is both a right and a duty: a right to 
 the custody, care, and protection of the body of the 
 deceased from the moment the breath leaves it, and the 
 duty of nccording to it decent Christian burial. 
 
 In referring to this right, in the case of Foley vs. 
 
318 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Phelps,* Justice Patterson said : " The right is to the 
 possession of the corpse in the same condition it was in 
 when death supervened. It is the right to what re- 
 mains when the breath leaves the body, and not merely 
 to such a hacked, hewn, and mutilated corpse as some 
 stranger . . . may choose to turn over to an afflicted rela- 
 tive." In this case the question arose, for the first time 
 in New York, whether one performing a post-mortem 
 examination without the consent of the widow of de- 
 ceased was liable to her in damages. The court in a 
 learned and elaborate opinion examined the law and 
 the principles applicable to the case, and came to the 
 logical conclusion that whenever the widow's " right to 
 the possession of the corpse in the same condition it was 
 in when death supervened " was violated, such violation 
 furnished a ground for a civil action for damages. 
 
 Practically the same question had arisen in the case 
 of Larson vs. Chase, f in which the court not only held 
 there was a cause of action, but that mental suffering 
 caused by the unlawful act was a distinct element of 
 damages. 
 
 In the case of Burney vs. Children's Hospital,^ a 
 father placed his child in a hospital for treatment ; the 
 child died, and a post-mortem examination was per- 
 
 * Foley vs. Phelps, 1 App. Div., 551. 
 
 ■f Larson vs. Chase, 47 Minn., 307. 
 
 X Burney vs. Children's Hospital, 169 Mass., 57, 38 L. R. A., 413. 
 
CIVIL MALPRACTICE. 319 
 
 formed without his consent. The father brought suit 
 against the hospital for damages. The court, following 
 the reasoning of the former decision, said : " The 
 father, as the natural guardian of the child, was entitled 
 to the possession of its body for burial. Being entitled to 
 the possession of the body for the purposes of burial, is 
 not his right against one who unlawfully interferes 
 with it, and mutilates it, as great as it would be if the 
 body were buried in his lot, and was thence unlawfully 
 removed? That an action may be maintained in the 
 latter case we have already seen, and we are of the 
 opinion that it may be in the former." 
 
 As both reason and justice commend the conclu- 
 sion arrived at by these courts, there can be no doubt 
 that the precedents will be followed whenever the ques- 
 tion arises, and that a physician who performs an au- 
 topsy without the consent of the person having the 
 right of custody of the deceased, does so at his peril. 
 
 There are, however, cases in which such operations 
 may be performed without consent and yet no liability 
 exist; these cases are where the post-mortem is per- 
 formed in accordance with the directions of law. The 
 statute law of most States provides that whenever a 
 person is found dead, and the cause of his death is not 
 apparent and can not be ascertained from the evidence 
 given or from a superficial examination of the body, the 
 coroner shall order an examination to be made. Such an 
 
320 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 examination, to be safely made, requires no consent from 
 the relatives of the deceased, for it is sanctioned by 
 positive law. An interesting case of the sort is that of 
 Young vs. College of Physicians and Surgeons of Balti- 
 more City.* In this ease the deceased, who, in coupling 
 cars, sustained a severe injury to his right leg, it being 
 mashed below the knee and almost severed from the 
 body, was taken to a hospital, where he died next day. 
 The evidence showed that the deceased was a strong, 
 stout man, and of good nerve. A fellow-laborer testi- 
 fied that he had worked with deceased five years, during 
 which he had lost no time. After the death a post-mor- 
 tem examination was ordered by a Dr. G., a coroner, 
 and performed by a certain Dr. K., both of whom were 
 made defendants to the suit. Evidence was offered on 
 the part of the plaintiff for the purpose of showing that 
 the post-mortem was without the widow's consent ; that 
 the body was wantonly cut, mutilated, and disfigured, 
 and the feelings of the relatives of the deceased were 
 inhumanely outraged. 
 
 On behalf of the defendants it was shown that Dr. 
 G. was a coroner, and that Dr. K. was medical examiner, 
 appointed by the board of health; also that the post- 
 mortem was ordered by Dr. G. as coroner. Dr. Gr. tes- 
 
 * Young vs. College of Physicians and Surgeons of Baltimore City 
 81 Md., 358, 32 Atl. Rep., 111. 
 
CIVIL MALPRACTICE. 321 
 
 tified that he ordered the autopsy because he wished to 
 know the cause of death; that it had been reported to 
 him that the man's leg had been cut off by the train 
 and that he had died within thirty-six hours after he 
 was brought to the hospital, that he did not think 
 the loss of the leg in this way sufficiently accounted for 
 the death, and that he could not give the death certifi- 
 cate without having a post-mortem. Dr. K. testified 
 that he did not think in the majority of cases persons 
 in ordinary health, when the leg was crushed below the 
 knee, would die from shock. A certain expert testified 
 that if a healthy man should have his leg crushed off, he 
 would not think it a sufficient cause to explain the 
 death, and in such case, if his official duty required him 
 to give a death certificate, he would make every effort 
 to obtain a post-mortem ; and that it was so unusual for 
 a death to occur from accident under the conditions 
 surrounding the deceased that other explanations were 
 more probable. Another expert testified that when a 
 man's leg is cut off below the knee, and he dies within 
 thirty-six hours after the injury, the accident would 
 not be an entirely satisfactory explanation of the death, 
 if the man was ordinarily healthy and muscular; and, 
 if he was required to determine definitely the cause of 
 death in such a case, he would not consider that he 
 had done his duty without having an autopsy. Dr. 
 K. described his proceeding in making the autopsy — the 
 
322 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 taking out of the brain, the opening of the body, the re- 
 moving and cutting into the different organs, the liver, 
 spleen, kidne}', lungs, and heart. He testified that an ex- 
 amination of all the vital organs was necessary to deter- 
 mine the cause of death; that the cause of death was 
 persistent heart shock; that deceased had fatty kidneys 
 and fatty degeneration of the heart; that the injury 
 itself was not of such a nature as to have caused per- 
 sistent heart shock, unless there was something else 
 besides the injury that helped to produce it. Expert 
 evidence was also given to the effect that a complete 
 examination could not be made without removing and 
 opening the brain. 
 
 In the city where the present case arose the law 
 provides that "when any person shall die in the said 
 city it shall be the duty of the physician who attended 
 during his or her last illness, or the coroner, when the 
 case comes under his notice, to furnish within forty- 
 eight hours after death ... a certificate setting forth 
 as far as the same can be ascertained . . . the cause, 
 date, and place of death." In summing up the conclu- 
 sion of the court in this case. Justice Eoberts said : " The 
 evidence before us exhibits the case of a public officer, 
 whose duty it is to find out and certify the cause of a 
 death which is brought to his notice. The accident 
 preceding his death, and disabling him, is not, in his 
 opinion, sufficient to cause the death of a healthy per- 
 
CIVIL MALPRACTICE. 323 
 
 son. There must, therefore, as he thinks, be some dis- 
 eased condition of the injured man which contributed 
 to bring about this result. His opinion is shared by 
 other reputable physicians who have testified in the 
 case. He could not honestly and conscientiously give 
 the certificate which the law required him to give un- 
 less he made proper inquiry into the case. In his judg- 
 ment, and in the judgment of the professional witnesses, 
 proper and sufficient inquiry could not be made vdthout 
 an autopsy. So far as the evidence in the case shows, 
 or any rational inference from it, the coroner did sim- 
 ply his plain and positive duty in ordering the autopsy. 
 And the medical examiner. Dr. K., was equally obliged 
 by his duty to obey the order of the coroner." 
 
 Under the law quoted above, in compliance with 
 which the coroner directed the post-mortem examina- 
 tion, no reason can be detected why the attending phy- 
 sician might not with equal right and justification have 
 conducted the examination in the coroner's absence. A 
 case involving this particular question arose in Denver 
 not many years ago. There a law was in force similar 
 in effect to the one above quoted, which required the 
 physician to give a certificate of death before a burial 
 permit could be obtained. In this case the deceased 
 was stricken dead while riding in a carriage, and was 
 taken to an undertaker's to be prepared for burial. 
 While there, deceased's regular attending physician was 
 
324 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 applied to by the undertakers for a death certificate, 
 whereupon he performed a post-mortem. Suit was com- 
 menced against the undertakers and the physician, but 
 the court held that they were not liable. Justice Eich- 
 mond, in his opinion, said : " I think that the evidence 
 discloses circumstances which would warrant any phy- 
 sician in declining to issue a certificate designating the 
 cause of death, and permitting burial, without a post- 
 mortem examination. It is true that the physician 
 jn&j have had a belief as to the cause of death, but the 
 circumstances under which death occurred warranted 
 him in hesitating to give the certificate required by the 
 ordinance of the city of Denver in this case. This 
 being so, and the proofs showing conclusively that the 
 body was not mutilated, and that the autopsy was per- 
 formed in a decent and scientific manner, with due re- 
 gard to the sex of the deceased and the feelings of all 
 parties interested, I can not conceive what possible 
 damages could be proved to a jury." * 
 
 The matter may be summed up as follows: An au- 
 topsy performed with the consent of the relative who is 
 entitled to the custody of the dead body can never be 
 questioned if properly performed. Such an operation, 
 when performed under direction of law, is never subject 
 to legal punishment, yet the existence of the two cases 
 
 * Cook et al. vs. Walley et al, 1 Colo. ApiJ., 1G3 ; 21 Pac. Rep., 950. 
 
CIVIL MALPRACTICE. 325; 
 
 last examined should be a sufficient reason to convince 
 the cautious practitioner of the advisability of always 
 securing such consent when possible. Where consent is 
 withheld, and the physician feels that a conscientious 
 performance of the duty before him requires that a 
 post-mortem examination be made, he should, in fur- 
 therance of his own safety, turn the case over to the 
 coroner, or at least act under the direction of that 
 officer. 
 
 Liability for Presence of Unprofessional Attendant. 
 — A peculiar case of liability arose a number of years 
 ago in Michigan from an act which, although appar- 
 ently done in good faith, was reprehensible indeed. 
 
 The evidence showed that a doctor who was sick and 
 fatigued from overwork, and who was compelled to go 
 a considerable distance over roads so bad that a horse 
 could not be ridden or driven over them, to attend 
 a case of confinement, secured the reluctant consent of 
 a young unmarried man to attend him and assist in 
 carrying his lantern, umbrella, and other articles ne- 
 cessary for the occasion, the night being dark and 
 stormy. The plaintiff's house consisted of one room, 
 with a bed, sink, or alcove, in front of which there was 
 a curtain, and in which the doctor expected to find the 
 patient. Upon arriving at the house the doctor told 
 the husband he had brought a friend to help carry " his 
 things." The husband said "All right," and invited them 
 
326 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 in and made no objection to the young man. Upon en- 
 tering they found the patient in the main room, and it 
 was there she was delivered of the child. The young 
 man conducted himself in a respectful manner, and ex- 
 cepting once, when called to hold the patient's hand, 
 while in a paroxysm of pain, sat facing the wall. Both 
 the patient and her husband claimed they did not know 
 the non-professional character of the young man, but 
 supposed he was a physician or a student practising 
 under the attending physician, and therefore made no 
 objection to his presence. 
 
 In the trial court judgment was rendered for plain- 
 tiff, from which defendant took an appeal. Chief-Jus- 
 tice Marston, of the supreme court, in reviewing the 
 case, said : " It would be shocking to our sense of right, 
 justice, and propriety to doubt even, but for such an 
 act the law would afford an ample remedy. To the 
 plaintiff the occasion was a most sacred one, and no one 
 had a right to intrude unless invited, or because of 
 some real and pressing necessity, which it is not pre- 
 tended existed in this case. The plaintiff had a legal 
 right to the privacy of her apartment at such a time, 
 and the law secures to her this right by requiring others 
 to observe it, and to abstain from its violation. The 
 fact that at the time she consented to the presence of 
 the young man, supposing him to be a physician, does 
 not preclude her from maintaining an action and re- 
 
CIVIL MALPEACTICE. 32Y 
 
 covering substantial damages upon afterward ascertain- 
 ing his true character. In obtaining admission at such 
 a time and under such circumstances, without fully dis- 
 closing 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." * 
 
 Liability for Wrongful Certificate of Insanity. — The 
 duty which a physician is frequently called to perform, 
 of passing upon the mental state of a fellow man, who, 
 by virtue of his judgment, is either permitted to re- 
 main at large or is confined in a lunatic asylum, is a 
 most grave and responsible one. An error of judgment 
 may, on the one hand, mean a menace to the peace and 
 even safety of the community, or, on the other hand, an 
 unjust and lamentable deprivation of that most impor- 
 tant of all rights, personal liberty. 
 
 The purpose of the present examination of law is, 
 however, to examine the physician's liability for an im- 
 proper exercise of these functions, and not the physi- 
 cian's duties and obligations to society or to the person 
 whose sanity is in question, except in so far as they 
 affect the real subject of inquiry. 
 
 The method of determining the mental condition of 
 
 * DeMay vs. Roberts, 46 Mich., 160. 
 
328 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 one suspected of being insane is regulated in the several 
 States by statutes differing somewhat in the different 
 jurisdictions. A common method, however, of obtaining 
 summary protection from the violence or possible vio- 
 lence of a lunatic is to confine him upon the certificate 
 of two reputable physicians. What civil liability the 
 physician incurs who errs in making this certificate is 
 the question to be considered. 
 
 The first step to be taken in passing upon the lia- 
 bility of a physician is to determine whether or not the 
 certificate is in itself correct or false. If the certificate 
 is found to be correct, this, it seems, is a complete bar 
 to a civil action against the physician for damages, for, 
 in the absence of a statute imposing a penalty for a 
 failure to comply with a certain method or mode of pro- 
 cedure in determining the mental condition of the party 
 examined, the physician incurs no liability for the in- 
 efficiency of the modes which he pursued in reachiag 
 and certifying a correct conclusion.* Moreover, it has 
 been held that the burden of proof is upon the plaintiff 
 to show that at the time the certificate of insanity was 
 given he was in fact sane, and that until this fact is 
 shown by a preponderance of evidence th^ physician 
 signing the certificate can not be held liable, f 
 
 It appearing that the certificate of insanity is in- 
 
 * Pennell vs. Cuminings, 75 Lie., 163. f Ibid. 
 
CIVIL MALPRACTICE. 329 
 
 correct, and that the physicians have erred in their 
 conclusion and certified to a condition which did not 
 exist, does it then follow that a civil action for damages 
 in favor of the person who has been wrongly imprisoned 
 will lie against them? The answer to this question is 
 practically the same as that which has been made to 
 nearly every question arising in the cases of malprac- 
 tice examined in these articles — viz., if the defendants 
 were possessed of the ordinary amount of knowledge and 
 skill which the law requires for the proper exercise of 
 their duties, and if they used ordinary and reasonable 
 care in making the examination and exercised their best 
 judgment in determining the party's mental condition, 
 then they are not liable, whether their conclusion is cor- 
 rect or not. There is a prominent English case * in 
 which this question was passed upon and the law gov- 
 erning the defendant's liability lucidly and elaborately 
 expounded by Justice Crompton in his instruction to 
 the jury. The case is rather voluminous, covering over 
 thirty pages in the volume of reports where it is record- 
 ed, yet a brief examination of the facts and the law 
 which was held to be applicable will probably compen- 
 sate in enlightenment for the time required. The 
 plaintiif was a shopkeeper in London, who lived very 
 discordantly with his spouse — in fact, the want of do- 
 
 * Hall vs. Semple, 3 F. and F., 331. 
 
330 THE LAW m ITS RELATIONS TO PHYSICIANS. 
 
 mestic harmony was frequently manifested in outbursts 
 of violent temper, in which the use of abusive and ob- 
 scene epithets was common, and even physical violence 
 to the wife's person had been complained of. The plain- ,^ 
 tiff complained, among other things, of the wife's ex- 
 travagance, and the evidence did show that she had 
 taken articles from the shop and pawned them. The 
 wife was accustomed to go to certain physicians with 
 her complaints regarding the husband's treatment, 
 among whom was one of the physicians who subsequent- 
 ly signed the certificate of lunacy. Upon one occasion 
 when the husband met' this physician and his wife to- 
 gether he made a remark which the physician construed 
 as an imputation against the wife's chastity, but which 
 the husband apparently did not so intend. The wife also 
 claimed that the husband slept with a drawn sword by his 
 bed and that he repeatedly threatened her life. The de- 
 fendant in the case, together with the physician above 
 referred to, perhaps from a desire to relieve the wife 
 from the hardship of the husband's persecutions, after a 
 few minutes' conversation held with him at different 
 times, signed separate certificates of his insanity in 
 which they respectively assigned the grounds for be- 
 lieving him insane, as follows : 
 
 First Certificate: 1. Facts indicating insanity ob- 
 served by myself : He had a wild and staring look, with 
 restless eyes and nervous, agitated manner. He repre- 
 
CIVIL MALPRACTICE. 331 
 
 sented to me that his wife was ruining himself and 
 business, and he intimated that she was improperly 
 associating with other men; he is evidently laboring 
 under delusions, and he acts upon these delusions. 
 
 2. Other facts (if any) indicating insanity com- 
 municated to me by others. 
 
 He is guilty of repeated acts of violence; he con- 
 stantly threatens his wife and often assaults her; he 
 sleeps with a drawn sword by his bedside, and declares 
 he will murder any one who approaches him, and he 
 has often threatened to stab his wife. 
 
 The defendant who signed this certificate had not 
 seen the sword at the time of certifying the plaintiff in- 
 sane, but he afterward learned that the " dravni sword " 
 was a theatrical or court dress sword. 
 
 Second Certificate : 1. Facts indicating insanity ob- 
 served by myself : He had a restless, irritable, and ex- 
 cited manner, with a glaring look, and expressed much 
 vindictiveness toward his wife, and said, " I must be a 
 fool to mind what that woman has said." He said she 
 had her fellows continually running after her, and inti- 
 mated that I was one of them. 
 
 2. Other facts (if any) indicating insanity com- 
 municated to me by others : 
 
 On a former occasion, when I had called to see 
 
 him, he had just before broken the looking glass to 
 
 pieces, also the marble mantel and bedstead; had been 
 23 
 
332 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 brandishing knives over his wife's head, and using hor- 
 rid language, sometimes kicking her, tearing her bon- 
 net and clothes oft", and all without provocation, as I 
 find from neighbors and old acquaintances that she is a 
 discreet, sober, prudent, and patient woman. 
 
 This certificate was based upon an interview had 
 more than seven days previously, and was accordingly, 
 under the English statute, irregular, and of no ef- 
 fect. The plaintiff was released when the irregularity 
 of the certificate was discovered, and he soon there- 
 after commenced suit against the defendant for 
 damages. 
 
 The law which was held to govern in the case can 
 probably be no better expressed than in the words of 
 Justice Crompton taken from his charge to the jury. 
 Therein the judge said : " Take me as saying to you in 
 point of law that if a medical man assumes under this 
 statute the duty of signing such a certificate, without 
 making and by reason of his not making a due and 
 proper examination, which a medical man under such 
 circumstances ought to make and is called on to make, 
 not in the exercise of extremest possible care, but in 
 the exercise of ordinary care, so that he is guilty of 
 culpable negligence, and damage ensues, then, that an 
 action will lie, although there has been no spiteful or 
 improper motive, and though the certificate is not false 
 to his knowledge. 
 
CIVIL MALPRACTICE. 333 
 
 " The true ground of plaintiff's complaint is the 
 negligence of the defendant, and the want of due care 
 in the discharge of the duty thrown upon him; and I 
 think that if a person assumes the duty of a medical 
 man, under this statute, and signs a certificate of in- 
 sanity which is untrue, without making the proper ex- 
 amination and inquiries which the circumstances of the 
 case would require from a medical man using proper 
 skill in such a matter, if he states that which is untrue 
 and damage ensues to the party thereby, he is liable to 
 an action, and it is to that I desire to call your particu- 
 lar attention. It is not that a medical man is bound to 
 form a right judgment so as to be liable to an action 
 if he does not. There are cases of insanity which are 
 very difficult to deal with or to understand. But what 
 he is required to do is to make an examination, and, if it 
 be necessary, to make such inquiries as may be required. 
 It would be unjust if a man were to be visited, in cases 
 of this kind, with consequences arising from mere error 
 of judgment or mistake of fact. 
 
 " There must be, to make him liable, negligence in 
 the discharge of those proper duties which it must be 
 taken he has assumed in undertaking to sign the certifi- 
 cate of insanity, and if you are satisfied that there has 
 been negligence with reference to these matters — cul- 
 pable negligence, as I have described — ^then he is liable. 
 Now, I can not help thinking in a matter of this kind. 
 
334 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 which is not like a mere preliminary inquiry before a 
 magistrate, but a proceeding upon which a man is to 
 be at once confined to imprisonment as a lunatic, very 
 considerable care is necessary. One can hardly say pre- 
 cisely what that degree of care may be. It is said that 
 one man may be satisfied with a quicker examination 
 than another. We, for instance, would take a long time 
 before we should be able to form a judgment in a mat- 
 ter of this kind. A person experienced in such matters 
 might decide more quickly, while an ordinary medical 
 practitioner might require a longer time. We take it as 
 clear, however, that considerable care ought to be used." 
 
 The jury in this case rendered a verdict for the 
 plaintiff, assessing Ms damages at one hundred and fifty 
 pounds. 
 
 The principles which were held to govern in the 
 English case have been accepted as the law by Ameri- 
 can courts whenever this question has arisen,* and will 
 undoubtedly continue to be so accepted. Therefore, as 
 long as the physician possesses proper knowledge and 
 science and conducts the examination with reasonable 
 and ordinary care the result of his conclusion will never 
 despoil his estate, even though in the exercise of his 
 best judgment he may have been in error. 
 
 * Williams vs. Le Bar, 141 Pa,, 149; Ayers v.t. Russell, 50 Hun, 282, 
 8 K Y. Supp., 338; Hurlehy vs. Martine, 31 N. Y. S. R., 411, 10 N. Y. 
 Supp., 92. 
 
CIVIL MALPRACTICE. 335 
 
 Other cases might be shown to illustrate, possibly 
 more fully, the application of the principles, but it is 
 thought that further elaboration will be superfluous. 
 
 Liability for Erroneous Conclusion in Examination. 
 — A peculiar case of injury resulting from an erroneous 
 conclusion of a physician is shown in a recent Massa- 
 chusetts case.* In this case the plaintiff, who was en- 
 gaged to be married, had accidentally injured himself 
 in such a way as to require the attention of a physician 
 and the application of remedies to his private parts. 
 The father of the plaintiff's fiancee, hearing that the 
 plaintiff was afflicted with a venereal disease, took him 
 to the defendant, a physician, for the purpose of learn- 
 ing his real condition. The physician examined the 
 plaintiff and reported that he had gonorrhoea, where- 
 upon the plaintiff's fiancee broke the engagement, and 
 the plaintiff brought suit against the physician for 
 damages. 
 
 It will be observed that this case presents conditions 
 differing from all others heretofore considered : a third 
 party employs a physician to examine a man, the physi- 
 cian does so, and erroneously reports his condition. Is 
 the physician beholden to the man examined for dam- 
 ages resulting from his incorrect diagnosis ? Here there 
 is no contractural relation existing between the physi- 
 
 * Harriott tis. Plimpton, 166 Mass., 585. 
 
336 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cian and the man whom he examines, for he is in the em- 
 ploy of the third party. We have seen, however, that a 
 physician who undertakes tlie treatment of a case gratu- 
 itously is under equal obligation to the patient as though 
 the jDatient paid him for the treatment. So, also, is the 
 physician bound to possess the same qualification and 
 exercise the same skill in the treatment of a patient 
 where he is paid for such treatment by a third party.* 
 Therefore in this case the fact that the physician was 
 employed by a third party to conduct the examination 
 can not be urged as a bar to the plaintiff's right to re- 
 cover. But does the mere fact that the physician made 
 an erroneous report of the plaintiff's condition entitle 
 the plaintiff to recover from him for damages resulting 
 therefrom? Here, again, we find the old familiar rule 
 that the physician is not liable for his incorrect report 
 if he has the ordinary skill and learning of a physician, 
 and exercised ordinary diligence and care in their appli- 
 cation to the case ; otherwise he is liable. Nor does the 
 fact that the purpose of the examination was informa- 
 tion and not medical treatment have any material 
 effect. 
 
 Examining without Consent. — An English case aris- 
 ing from an examination similar to the one related above, 
 in which the party examined submitted only with reluc- 
 
 * Du Bois vs. Decker, 130 N. Y., 325. 
 
CIVIL MALPRACTICE. 337 
 
 tance, and afterward sued the physician for assault in 
 making the examination under coercion, presents quite 
 a different question for consideration. In this case a 
 housemaid was accused by her mistress of being in the 
 family way; the girl denied the accusation, but the nds- 
 tress sent her to her room and sent for a physician to 
 examine her. The physician on arriving went to the 
 girl's room and told her he had come to examine her; 
 the girl objected, and said she did not like to be exam- 
 ined; the doctor explained that he was a professional 
 man and told her how to prepare herself for examina- 
 tion ; she did as directed, and submitted to the examina- 
 tion, crying all the time. The doctor found that the 
 mistress's belief was mistaken and so reported. The 
 servant afterward brought suit against the doctor for 
 assault upon the theory that his examination was only 
 submitted to through fear and duress. Upon the trial 
 a verdict was rendered in favor of the doctor. From this 
 court an appeal was taken to the Manchester Assizes. 
 The two justices who heard the question there disagreed 
 upon the law. Justice Lopez expressing his opinion 
 that the girl had only submitted to the examination 
 through fear of evil consequences that would follow her 
 refusal, and that her submission could not therefore be 
 , considered a consent to the examination. Justice Lind- 
 ley, however, was of quite a different opinion, and 
 thought there was no evidence of want of consent as 
 
338 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 distinguished from a reluctant obedience or submission, 
 and that, in the absence of all evidence of coercion as 
 distinguished from an order that she could have obeyed 
 or not, she had no cause of action. The court being 
 evenly divided, the judgment was allowed to stand. 
 An appeal was then taken to the court of appeals, the 
 justices of which agreed with Justice Lindley. The 
 appeal was accordingly dismissed and the judgment 
 permitted to stand in favor of the doctor. This case 
 is cited particularly for the purpose of pointing out a 
 possible danger. The mere beginniag of a suit of this 
 sort, whether or not the plaintiff succeeds in obtaining a 
 judgment against the doctor, is greatly to his damage ; 
 therefore he should never attempt an examination of 
 the kind unless the consent of the party to be examined 
 is fully and freely given. 
 
 Contagions Diseases. — Questions of liability of the 
 phj^sician to his patients growing out of his conduct in 
 cases of contagious disease have arisen in two separate 
 and distinct classes. 
 
 The first and most important, which has been here- 
 tofore referred to,* is that growing out of a breach 
 of duty on the part of the physician to protect his 
 patients in all reasonable ways from contagious and 
 infectious diseases. The liability of this class is very 
 
 * See page 72. 
 
CIVIL MALPEACTICE, 339 
 
 well illustrated in the case of Piper vs. Menifee.* Here 
 the physician was told by the patient's wife that if he 
 attended a certain case of small-pox he must not come 
 to see her husband. The physician said that " he would 
 not, unless the (small-pox patient) would be bound for 
 his fee." The next day, when he returned, the patient's 
 wife again told him that if he visited any small-pox 
 patients he must not come there. He replied that he 
 would not visit any small-pox patients. Ten days later 
 the patient's wife again pressed him strongly about 
 small-pox patients, again repeating the interdiction. 
 In answer he neither admitted nor denied that he vis- 
 ited such patients, but said that if he visited them he 
 would change his clothes, and there would be no dan- 
 ger. After the physician had been attending the pa- 
 tient for about three weeks for typhoid fever, and 
 when he was getting better and began to recover from 
 the fever, he broke out with small-pox, and some time 
 after the patient's son broke out with the same disease. 
 The patient also ofEered evidence- to show that the phy- 
 sician was attending small-pox patients while attending 
 him. The court held that this statement of facts con- 
 stituted a good cause of action against the defendant. 
 Justice Marshall, who rendered the opinion, said: 
 " Suppose a physician, knowing that he has an infec- 
 
 * Piper vs. Menifee, 12 B, Mon. (Ky.), 467, 54 Am. Dec., 547. 
 
340 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 tious disease, continues to visit his patients without 
 apprising them of the fact, and without proper pre- 
 cautions on liis own part, and thus communicates the 
 disease to one of them. Clearly the physician thus 
 acting would be guilty of a breach of duty and of his 
 implied undertaking to the patient, which, whether it 
 be regarded in the light of carelessness or negligence 
 or fraud, would render him liable for consequent dam- 
 ages, including as well the suffering and danger and 
 loss of time as the expense necessarily occasioned by 
 the second disease thus produced by his own wrongful 
 act. 
 
 " The actual case, as presented by the evidence 
 which was offered, is even stronger for the (patient) 
 than that which has been hypothetically stated, inas- 
 much as it may be inferred that the continuance of the 
 plaintift''s employment in the first disease was induced 
 by his promise not to visit small-pox patients while he 
 was visiting the (patient)." 
 
 From the very nature of the physician's professional 
 duties it is necessary for him to pass from patients suf- 
 fering from infectious or contagious diseases of the 
 more ordinary and less virulent type to those not so 
 affected. Modern science has, however, shown that an- 
 tiseptic precautions will greatly decrease the danger of 
 contagion, and if the physician adopts those measures 
 
CIVIL MALPRACTICE. 341 
 
 best calculated to insure the safety of those with whom 
 he comes in contact he will be considered as exercising 
 due skill and care as judged by the advanced stage of 
 the medical science. 
 
 The second class of cases in which the physician's 
 conduct has been questioned consists of those in which 
 he has incorrectly reported a patient to the board of 
 health as being afflicted with a contagious disease. In 
 this class of cases it seems that the question of liability 
 depends upon the good faith of the physician in making 
 the report rather than upon his skill and care. In pass- 
 ing upon a case of this sort "Justice Sedgwick, of the iSTew 
 York supreme court, said : " Nor, as I view the case, 
 can it be maintained that the defendants' (the physi- 
 cians') omission, if there were such an omission, to use 
 ordinary skill as physicians, in coming to their opinions, 
 was actionable under the facts in this case. There was 
 no improper or hurtful treatment or medication in 
 pursuance of the opinion. These opinions led them to 
 make an honest report to the health board. The stat- 
 utes had made it their duty to report cases of con- 
 tagious disease. The performance of this duty was not 
 part of the functions of a physician in his relation to 
 a patient, but rather to the public. My opinion is that 
 in order to give the public the protection due to it, ac- 
 cording to the intention of the statute, any physician 
 that possesses in fact an opinion that a patient has a 
 
342 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 contagious disease is bound to report the case, whether 
 he has or not used ordinary professional skill and knowl- 
 edge. A physician of skill in everything but cases of 
 small-pox, which happily are not numerous, may, unex- 
 pectedly to himself, be called to a case which presents 
 to him the appearance of small-pox. It may be said 
 that he can call in counsel. It can not, however, be 
 said that private counsel should be called in rather than 
 such as the law has appointed. Certainly, if he really 
 thinks the case to be one of small-pox, it is his duty to 
 communicate his opinion to the public authorities, who 
 furnish skilled physicians peculiarly competent to pass 
 upon the case. They are the experts that the law points 
 out for the physician. The attendance of those experts 
 upon a patient can cause no injury, and therefore the 
 responsibility rests solely upon the public officers.^^ * 
 
 It is evident that the logic of this opinion will not 
 apply in cases where the act of the attending physician 
 in reporting cases of contagious disease to the board of 
 health is not a mere ministerial one, and where no regu- 
 lar physician is provided by law to make the examina- 
 tion by virtue of which the patient is quarantined. It 
 is therefore believed that where a patient is quarantined 
 by virtue of the examination of the attending physician 
 he will be held to exercise ordinary skill and diligence 
 in conducting that examination. 
 
 * Brown vs. Purdy, 8 N. Y. S. R., 143, 54 N. Y. Super. Ct., 109, 
 
CIVIL MALPRACTICE. 343 
 
 A case of liability arising from the conduct of a 
 doctor in reference to a contagious disease, although not 
 coming under either of the foregoing classes, or, in fact, 
 growing out of a professional relation between the par- 
 ties to the suit, is reported in the New Yorh Supreme 
 Court Reports. In this case a phj^sician directed the 
 plaintiff to whitewash a house in which there had been 
 small-pox patients. The plaintiff objected to going into 
 the house, but was informed by the doctor that the house 
 had been thoroughly disinfected, and that no danger 
 of contagion existed. Eelying upon the doctor's state- 
 ment, the plaintiff performed the services and in due 
 time broke out with the disease. This case came before 
 the court upon a question of law. It was decided that 
 the facts as stated showed a cause of action, and that it 
 was for the jury to determine from the evidence whether 
 the doctor had acted toward the plaintiff with due care 
 and prudence, and whether the plaintiff had acted rash- 
 ly and inexcusably in entering the house under the cir- 
 cumstances.* 
 
 Negligence in Writing Prescriptions. — The physi- 
 cian may become civilly liable in damages as well for 
 injury resulting from a negligently or ignorantly writ- 
 ten prescription as from any other form of malpractice. 
 Kor does the negligence of the druggist who compound- 
 
 * Span vs. Ely, 8 Hun, 255. 
 
344: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ed the prescription without discovering the error and 
 directing the doctor's attention to it relieve the physi- 
 cian from his liability.* 
 
 Deceit and Misrepresentation. — It is a general rule 
 of law that a statement which amounts to an expression 
 of opinion, even though erroneous, does not furnish 
 ground for action. Deception, to be actionable, must 
 relate to existing or past facts, and not to representa- 
 tions made as to facts to transpire in the future. The 
 reason most commonly given for this condition and the 
 one upon which the law is probably founded is that one 
 to whom an opinion is expressed as to a future event 
 has no right to rely upon it.f And so a purchaser may 
 not rely upon the representation of a vendor regarding 
 the quantity or value of an article which is open to his 
 inspection, but must depend upon his own judgment. J 
 And also where statements were made by a real-estate 
 agent to a widow to induce her to exchange her home- 
 stead for other property — that she was making a good 
 trade and bettering her condition, and that she could 
 sell enough of the other property to pay for a house — 
 such statements are considered mere expressions of opin- 
 ion and not misrepresentations ; for while the person to 
 whom such representations are made may rely upon 
 
 * Murdoch vit. Walker, 43 111. App!, 690. 
 f Homer vs. Perkins, 1 24 Mass., 431. 
 J Evans vs. Boiling, 5 Ala., 550. 
 
CIVIL MALPRACTICE. 345 
 
 them, he is supposed to be equally able from his own 
 opinion to come to as correct a conclusion as the other 
 party, and therefore can not claim to be misled by such 
 opinion.* 
 
 As the law is always, or nearly always, based upon 
 reason, it is natural to expect to find an exception to 
 this general law in cases where the reasons for its exist- 
 ence do not apply. Such an exception does exist in 
 those cases where an opinion is expressed with intention 
 to deceive, and where the other party has a right to rely 
 upon the opinion ; and also in cases where the facts are 
 not equally known to both parties, but where the opin- 
 ion is expressed by the one party and is founded upon 
 special skill or knowledge by which he alone is able to 
 form an opinion, f 
 
 The expression of an opinion by a physician and sur- 
 geon relative to the subject of his profession comes 
 peculiarly within the exception, and we therefore shall 
 expect to see him held responsible for any deceit or 
 misrepresentation. The case of Hedin vs. Minneapo- 
 lis Medical and Surgical Institute J is one of some im- 
 portance in which this question was adjudicated. In 
 this case the plaintiff, an illiterate man, who had been 
 
 * Brady vs. Cole, 164 111., 116. 
 f Conlan vs. Roemer, 52 N. J. L., K3. 
 
 X Hedin vs. Minneapolis Medical and Surgical Institute, 62 Minn , 
 146, 64 N. W. Rep., 158, 35 L. R. A., 417. 
 
346 THE LAW IN ITS EELATIONS TO PHYSICIANS. ' 
 
 badly injured in an accident, was suffering from a frac- 
 ture at the base of the skull and was physically a 
 wreck. He consulted the defendant. After being exam- 
 ined, he was positively assured by the surgeon that he 
 could be cured by receiving treatment at that institute, 
 but that he must pay a fee of five hundred dollars. By 
 virtue of these representations the plaintiff paid the 
 money demanded and submitted to the treatment, but 
 upon failing to receive benefit therefrom, brought suit 
 to recover the money paid to defendant, basing his 
 action upon the deceitful misrepresentation of the de- 
 fendant's surgeon. The Jury rendered a verdict of five 
 hundred dollars in favor of plaintiff, from which de- 
 fendant appealed, but the supreme court affirmed the 
 judgment. Justice Collins, who gave the opinion of the 
 court, expressed himself upon the law applicable to the 
 case as follows : " Considering the circumstances and 
 relations of the parties, there was something more in 
 the defendant's statements than the mere expression of 
 his opinion upon a matter of conjecture and uncer- 
 tainty. It amounted to a representation that the plain- 
 tiff's physical condition was such as to insure a com- 
 plete recovery. The doctor, especially trained in the 
 art of healing, having superior learning and knowledge, 
 assured plaintiff' that he could be restored to health. 
 That the plaintiff believed him is easily imagined, for 
 a much stronsjer and more learned man would have 
 
CIVIL MALPRACTICE. 34Y 
 
 readily believed the same thing. The doctor with his 
 skill and ability should be able to approximate to the 
 truth when giving his opinion as to what can be done 
 with injuries of one year's standing, and he should always 
 be able to speak with certainty before he undertakes to 
 assert positively that a cure can be effected. If he can 
 not speak with certainty, let him express a doubt. If 
 he speaks without any knowledge of the truth or falsity 
 of a statement that he can cure, and does not believe 
 the statement true, or if he has no knowledge of the 
 truth or falsity of such a statement, but represents 
 it as true of his own knowledge, it is to be inferred 
 that he intends to deceive. The deception being de- 
 signed in either case, and injury having followed 
 from reliance upon the statements, an action for deceit 
 will lie." 
 
 Contributory Negligence. — In Chapter III of this 
 work it has been observed that it is the duty of the 
 patient to follow all reasonable directions and instruc- 
 tions given him by his physician, and that while a 
 breach of this duty, resulting as it does principally 
 in the injury of the patient, will not give rise to an ac- 
 tion in favor of the physician, yet it is a fact which the 
 physician may plead as a defense to an action com- 
 menced against him by the patient for negligent or 
 unskillful treatment in the particular case. This fail- 
 ure of the patient to follow the instructions of the physi- 
 23 
 
348 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 eian and conduct himself in a manner suggested by 
 ordinary caution and prudence is knoAvn in the law as 
 contributory negligence. 
 
 The instructions of the physician, in order to be 
 binding upon the patient, must be such reasonable and 
 proper instructions as a physician of ordinary skill 
 would give; if, however, they impose unnecessary bur- 
 dens or suffering upon him, he will be legally justified 
 in disregarding them. In the case of McCandless vs. 
 MeWha,* the patient was suffering from a comminuted, 
 oblique fracture of both tibia and fibula. The defend- 
 ant attempted to effect extension and counter-extension 
 by binding splints on the fore and back part of the leg, 
 reaching from the ankle to the knee. These splints 
 were bound on in such a way as to impede circulation, 
 and to irritate the parts and cause them to be consid- 
 erably swollen, thereby causing much pain. The pa- 
 tient, unable to stand the pain, loosened the bandages. 
 This act, the defendant claimed, contributed to the 
 injury, and should therefore be a defense to the action, 
 but the court thought not. Justice Lewis said : " A 
 patient is bound to submit to such treatment as his sur- 
 geon prescribes, provided the treatment be such as a 
 surgeon of ordinary skill would adopt or sanction. But 
 if it be painful, injurious, and unskillful, he is not 
 
 * McCandless vs. McWha, 22 Pa. St., 261. 
 
CIVIL MALPRACTICE. 349 
 
 bound to peril his health, and perhaps his life, by sub- 
 mission to it. It follows that before the surgeon can 
 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 adapted to the end in 
 view." 
 
 If, however, the instructions given the patient were 
 proper and adapted to the end in view, although the 
 physician's treatment of the case may have been im- 
 proper, and the patient fails to follow the instructions 
 and injury ensues, what effect will such failure have 
 upon his right to recover from the physician for the 
 injury sustained ? A casual examination of the cases in 
 which this question is treated leads one to believe that 
 there is considerable conflict of authority, but a more 
 critical scrutiny shows that the conflict is only appar- 
 ent, and that it results from a confusion of the two 
 classes into which acts of this sort as a defense are di- 
 vided. 
 
 The true doctrine, in general terms, seems to be 
 that the physician having been guilty of negligence in 
 the treatment of the case, the contributory negligence 
 of the patient, when contemporaneous with the physi- 
 cian's negligence, or when uniting or cooperating with 
 it in such a way as to conduce to the deleterious result 
 of the physician's treatment, may be pleaded as a com- 
 
350 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 plete defense to an action against such physician. But 
 if the contributory negligence is subsequent in point of 
 time to the negligence of the physician, or if the effect 
 of the physician's negligence and that of the patient 
 can be separated in such a way as to show distinctively 
 the deleterious result of each, then the patient's negli- 
 gence will be received as a defense only in the way of 
 mitigation of damages.* The case of Du Bois vs. 
 Decker f affords an excellent illustration of the appli- 
 cation of the second rule. The patient had through the 
 improper treatment of the physician been subjected to 
 two amputations. The physician set up as a defense that 
 after the second amputation the patient failed to keep 
 the limb in the position in which it was placed and in 
 which he was instructed to keep it, and thereby pro- 
 duced bleeding which to some extent impeded the heal- 
 ing; also that he refused to take the doctor's prescrip- 
 tions about this time; and, further, that he left the 
 hospital before he should have done so, which may also 
 have aggravated the injury. This, the court held, was 
 all proper evidence to be considered by the jury for the 
 purpose of mitigating damages, but that it would not 
 relieve the physician from the consequences of previous 
 neglect or unskillful treatment. 
 
 * Lawson vx. Conaway, 37 W. Va., 159. Jones vs. Angell, 95 Ind., 
 S76. Becker vs. Janinski, 27 Abb. N. C, 45. Scudder vs. Crossan, 
 43 Ind., 343. Geiselman vs. Scott, 25 Ohio St., 86. 
 
 t DuBois vs. Decker, 130 N. Y., 325. 
 
CIVIL MALPEACTICE. 351 
 
 In the case of Sanderson vs. Holland,* the patient, 
 a little girl of six years, had fractured her arm at a 
 point about two inches above the elbow. The physician, 
 in reducing the fracture, first extended the arm its full 
 length in a straight line, and in that position bandaged 
 it from fingers to shoulder. He then put on splints 
 from the shoulder to the elbow, and then forced the arm 
 into a right angle so as to swing it, thereby pressing the 
 elbow ends of the splints into the forearm, causing the 
 child to scream with pain, and stopping the circula- 
 tion of the lower arm, which caused gangrene. Perma- 
 nent injuries ensued for which suit was brought. Evi- 
 dence was shown by the defendant of careless treatment 
 of the patient by her parents and others which contrib- 
 uted to the injury. In regard to the effect of this evi- 
 dence Justice Gill said : " If the defendant carelessly 
 and unskillfully set, bandaged, and dressed the plain- 
 tiff's arm, and she was injured thereby, then the action 
 will not be defeated by showing that subsequently her 
 parents added to the extent of such injuries by their 
 carelessness and negligence in nursing. This showing 
 would not defeat plaintiff's case, but merely go to miti- 
 gate the damages as against the defendant." 
 
 On the other hand, the case of Young vs. Mason f 
 illustrates the rule that where the negligence of the 
 
 * Sanderson vs. nolland, 39 Mo. App., 233. 
 
 f Young vs. Mason, 8 Ind. App., 264, 35 N. E. Rep., 521. 
 
352 THE LAW [N ITS RELATIONS TO PHYSICIANS. 
 
 patient is either contemporaneous with that of the phy- 
 sician or contributes to the deleterious results of the 
 original unskillful treatment of the physician in such a 
 way that the result of the doctor's negligence and that 
 of the patient can not be distinguished, then the 
 contributory negligence is a complete defense to the 
 action. 
 
 The patient had fractured the radius of her left 
 iEorearm near the wrist, dislocated laterally both bones 
 at the elbow, and fractured the inner condyle of the 
 humerus. 
 
 The evidence showed that with one exception the 
 physician dressed and treated the patient's injuries 
 in a manner approved and followed by the most skilled 
 surgeons in that vicinity, and which is approved by the 
 standard authors and text writers upon the subject of 
 surgery. The exception is that the evidence did not 
 conclusively show that he used proper skill and care 
 in reducing the fracture near the wrist joint. The evi- 
 dence also showed that the patient, contrary to instruc- 
 tions, removed her arm from the sling numerous times, 
 placing it in different positions while out of the sling, 
 and that the effect of removing the arm from the sling 
 was to aggravate the inflammation and swelling, which 
 had a tendency to produce the stiff and useless condi- 
 tion of the arm for which suit was brought. The evi- 
 dence also showed that the proper treatment of the arm 
 
CIVIL MALPRACTICE. 353 
 
 for the stiffness of the elbow, wrist, and finger joints 
 was passive motion; that the physician endeavored to 
 apply this treatment at the proper time but was pre- 
 vented from so doing by the patient. 
 
 The court was of the opinion that the negligence 
 of the physician alone was not the cause of the injuries 
 sustained, but that that of the patient entered into the 
 general result in such a way as to make the result of 
 each indistinguishable; therefore the negligence of the 
 patient was a complete defense to the action against the 
 phj'-sician. Justice Davis, in rendering the opinion of 
 the court, said : " For instance, suppose a man fractures 
 the bones in his leg below the knee, and calls a sur- 
 geon to treat the injuries, and the surgeon negligently 
 fails to reduce one of the fractures, but in all other 
 respects gives proper treatment, and the patient, in dis- 
 obedience to the directions of the surgeon, negligently 
 removes the bandages used as a part of the proper 
 treatment by the surgeon, or is otherwise guilty of con- 
 tributory negligence, and such combined negligence of 
 the surgeon and patient unite in producing a shortness 
 and stiffness of the leg, for which injuries an action 
 is brought against the surgeon — can the patient recover ? 
 The patient is certainly not responsible in such a case 
 for the original negligence of the surgeon in failing to 
 properly reduce the fracture, but this negligence of the 
 surgeon unites with the subsequent contributory negli; 
 
354 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 gence of the patient in causing the shortness and stiff- 
 ness of the leg." This being the case, a cause of action 
 does not exist against the physician. 
 
 An instructive case comes to us from a Massachu- 
 setts report of some years ago. The plaintiff com- 
 plained that through the negligence of the physician 
 he became afflicted with a bedsore, from which by rea- 
 son of negligent treatment he suffered damages. The 
 evidence tended to show that the injury complained of 
 was not a bedsore, but was caused by the patient's at- 
 tendants carelessly dropping him on the bed rail. There 
 was evidence, however, which showed that the physician 
 did not give the injury proper treatment and that it 
 was thereby greatly aggravated. The instruction given 
 to the jury by the court learnedly and clearly presents 
 all of the law of contributory negligence relative to the 
 case, and is therefore quoted at length : " The burden 
 of proof is on the plaintiff to show that all the injury 
 for which he seeks damages proceeds solely from the 
 want of ordinary skill and care on the part of the de- 
 fendant. If it be impossible to separate the injury oc- 
 casioned by the neglect of the plaintiff himself from 
 that occasioned from the neglect of the defendant, the 
 plaintiff can not recover. If, however, they can be sepa- 
 rated, for such injury as the plaintiff may show thus 
 proceeded from the want of ordinary skill or ordinary 
 care of the defendant he may recover. In the present 
 
CIVIL MALPRACTICE. 355 
 
 case the plaintifT claims damages of the defendant for 
 want of ordinary care and ordinary skill in the treat- 
 ment of him by the defendant, by which, as he says, 
 first a bedsore was caused, and second, after the bedsore 
 was caused, it was improperly treated and neglected. 
 If the plaintiflE should fail to satisfy you that the sore 
 was caused by neglect of the defendant, for this damage 
 he could not, of course, recover, but he might still recover 
 for the injury occasioned to him solely by the subse- 
 quent neglect of the defendant in not taking proper care 
 of it (should he prove such neglect), even if the sore 
 was occasioned by the plaintiff's own carelessness. If, 
 however, in the case last supposed, the injury has 
 resulted to the plaintiff not solely from neglect in the 
 subsequent treatment of it by the defendant, but also 
 from his own subsequent neglect, and the jury are not 
 satisfied but that both causes have combined to produce 
 the subsequent injury, the plaintiff can not recover for 
 it. While, on the one hand, the defendant would not 
 be released from his duty to exercise ordinary care and 
 ordinary skill in his subsequent treatment of a disease 
 because at a previous stage of it the plaintiff had him- 
 self been negligent, and had thus contributed to the 
 condition in which he was, on the other hand it would 
 be for the plaintiff to show, if he seeks damages for 
 want of ordinary care and ordinary skill on the part of 
 the defendant in his subsequent treatment, that it pro- 
 
356 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ceeded solely from this, and not from any subsequent 
 neglect of his own.'^ * 
 
 The defense of contributory negligence is one which 
 may be made in many cases ; it is therefore thought that 
 the importance of the subject will justify the particu- 
 larity with which it has been treated. 
 
 Survival of Action. — At common law a cause of ac- 
 tion arising from an injury to the person caused by want 
 of skill or negligence of a physician and surgeon did not 
 survive the death of either physician or patient, f The 
 law in this respect has, however, been greatly altered 
 in many of the States by statutes expressly providing 
 for its survival, so that in case of death of either party 
 suit may now be brought, or, if previously commenced, 
 may be continued by or against the personal representa- 
 tive of the deceased. 
 
 To whom Liable. — To whom the physician becomes 
 liable by reason of negligence or malpractice is often a 
 question that would confuse one not understanding the 
 fiction of the common law upon which these rights are 
 often based. 
 
 At common law the family formed a legal unit, 
 which was represented by the husband and father. An 
 injury to his person was one which created a cause of 
 
 * Hibbard vs. Thompson, 109 Mass., 286. 
 ■f- Wolf vs. Wall, 40 Ohio St., 111. 
 
CIVIL MALPRACTICE. 357 
 
 action in his favor alone and upon which he alone must 
 sue ; but should the injury be done to the wife, a double 
 cause of action arose — one in favor of the husband for 
 damages for the loss of her services and society during 
 the time she was suffering from the injury, also for 
 the cost of nursing and caring for her while ill. The 
 other cause of action arose in favor of the wife for the 
 injury inflicted upon her, in which the measure of dam- 
 ages was an amount adequate to compensate her for 
 the inconvenience and suffering caused thereby. In 
 this cause suit must be brought by the husband and wife 
 jointly. In case of injury to the child, the rule is near- 
 ly the same. A cause of action arises in favor of the 
 father for the loss of the child's services and for the 
 cost of curing and caring for him. A separate cause 
 of action arises in favor of the child for the personal 
 injury which he has sustained and for the suffering to 
 which he has been thereby subjected, and for any per- 
 manent injury reaching beyond his minority; upon this 
 cause of action suit is brought for the infant by his 
 guardian, or by a third person, who is styled the next 
 friend or prochein ami. The father, if living, usually 
 does, and by natural right may, appear for the infant 
 as next friend. 
 
 In cases where the cause of action is made to survive 
 tbe injured party by statute, the statute usually pro- 
 vides by whom the suit shall be brought and prosecuted. 
 
358 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 and in all such cases its provisions must be strictly fol- 
 lowed. 
 
 Liability for Act of Partner. — As a general rule of 
 law, each partner in a copartnership is bound by the acts 
 of his copartners performed in the scope of the part- 
 nership business. 
 
 This law has been held to apply where a patient 
 employed a firm of physicians to treat a broken leg. 
 Both members of the firm attended him. The treatment 
 of the one was skillful and proper, but the treatment 
 of the other was negligent and unskillful. Suit was 
 commenced against both, and the court held them to be 
 equally amenable.* 
 
 Effect of Judgment against Patient for Fee upon 
 Suit by him for Malpractice. — Although the effect of a 
 judgment obtained by a physician against a patient for 
 his fee in a given case upon a cause of action for mal- 
 practice in that particular case has already been treat- 
 ed, f it is thought advisable to refer to the subject again 
 at this point. 
 
 Should a physician begin a suit, say before a justice 
 of the peace, to recover the value of his services in a 
 given case, and the defendant appears and defends upon 
 the grounds that the services were valueless and that 
 he sustained injury from the physician's negligence, 
 
 * Whittaker v.i. Collins, 34 Minn., 299. 
 f See page 220. 
 
CIVIL MALPRACTICE. 359 
 
 etc., and a judgment is rendered in favor of the physi- 
 cian, this judgment, if unrepealed, stands as a complete 
 adjudication of the patient's cause of action for dam- 
 ages, and will prevent him from subsequently bringing 
 suit against the physician in another or higher court to 
 recover damages. But supposing the patient does not 
 appear, but suffers judgment to be entered against him 
 by default, or supposing he appears and defends upon 
 other grounds than those of the physician's negligence 
 or incompetence; what, then, is the effect of a judg- 
 ment for the physician ? This is a question upon which 
 the courts of different States differ. Those of Indiana, 
 Iowa, Ohio, and Wisconsin* hold that such a judgment 
 will not prevent the patient from afterward suing the 
 physician to recover damages sustained by reason of 
 his negligence or incompetency. Upon the other hand, 
 the courts of New York, New Jersey, f and West Vir- 
 ginia I hold that a judgment in behalf of the physician 
 
 * Goble vs. Dillon, 86 Ind., 327; Sykes vs Bonner, 1 Cin. Rep., 464; 
 Ressequie vs. Byers, 52 Wis., 650; Whitesell z^s. Hill, 101 la., 629, 66 
 N. W. Rep., 894. 
 
 f Gates vs. Preston, 41 N. Y., 113 ; Blair vs. Bartlett, 15 N. Y., 150 ; 
 Dunham vs. Bower, 77 Id., 76; Ely «.■?. Wilbur, 49 N. J. L., 685. 
 
 X In West Virginia the court goes only so far as to hold that the 
 judgment obtained by the physician for the amount of his fees is a bar 
 to an action by the patient for malpractice in that case, where the patient 
 appeared generally in the suit instituted by the physician. Had the 
 judgment of the physician been obtained by default, or had the patient 
 appeared specially to plead in abatement to the action, then he would 
 
360 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 for his fees in a particular case is a complete bar to 
 an action by the patient for damages sustained by him 
 from improper treatment of the physician in that case, 
 whether in the defense the character of the professional 
 services rendered is subject to adjudication or not. 
 K"or is the judgment in behalf of the physician for his 
 fees the less efficacious because the suit in which it was 
 obtained was begun before a justice of the peace after 
 suit was commenced in a higher court by the patient to 
 recover damages against the physician for negligent 
 treatment in the particular case.* 
 
 In those States in which the courts have not passed 
 upon this question it must be considered an open one. 
 
 Of Proving Malpractice. — In a former chapter of 
 this work it has been stated that the implied contract of 
 the physician is not that he will cure or even benefit his 
 patients, but simply that he will use ordinary skill and 
 diligence in that behalf; and the preceding pages of 
 this chapter have shown that the physician's liability to 
 a patient can not be predicated upon the mere failure 
 of his skill to benefit the patient, or upon the mere fact 
 that the patient has become worse under his treatment, 
 but that such liability must be founded upon incom- 
 petency, unskillfulness, or negligence shown in the 
 
 not be precluded thereby from maintaining an action of malpractice 
 against the physician. Lawson vs. Conway, 3*7 W. Va., 159. 
 * Bellinger vs. Craigue, 31 Barb., 534. 
 
CIVIL MALPKACTICE. 361 
 
 treatment of the particular case, from which unprofes- 
 sional treatment injury has resulted.* It therefore fol- 
 lows that, in an action brought to recover damages re- 
 sulting from malpractice, proof of the mere fact that 
 a fractured leg is shorter after healing does not amount 
 to prima facie evidence of want of skill or care in the 
 surgeon who attended the same.f 
 
 Justice Lyon, of the Wisconsin supreme court, in 
 commenting upon the danger of receiving conditions as 
 evidence of improper treatment, said : " The sad 
 thought, ' it might have been,' forces itself upon all 
 in hours of sorrow and gloom ; but, unless the thought 
 is verified by substantive and reasonably conclusive 
 proof, it furnishes no safe basis of judicial judgment. 
 
 " It is a frequent occurrence that patients change 
 their physicians; also, that the second physician called 
 disapproves the treatment of his predecessor, and 
 changes it, perhaps properly, and the patient dies. In 
 such a case, if it should appear that the practice of the 
 physician first called was incorrect, there is always 
 room to conjecture that had the patient been properly 
 treated in the first instance he would not h-ave died. 
 And yet, if a verdict based upon mere conjecture could 
 be sustained, holding the physician first employed guilty 
 of causing the death of the patient, the practice of med- 
 
 * "Wurdemann vs. Barnes, 92 Wis., 206. 
 \ Piles vs. Hughes, 10 Iowa, 5*79. 
 
362 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 icine and surgery would be most perilous callings. The 
 law does not subject the members of those or any other 
 professions to any such peril." * 
 
 And so, where an oculist operated upon a girl of 
 seven years, who had been cross-eyed for some years, for 
 the purpose of straightening her eye, and the evidence 
 showed that he performed the operation in the usual 
 and approved manner, and bandaged the child's eyes 
 and gave directions for her future treatment, other 
 evidence will be required upon which to base a verdict 
 against the oculist than that the child lost the sight of 
 the eye after the operation. To justify such a verdict 
 there must be evidence showing a want of the requi- 
 site skill, knowledge, or care on the part of the oculist. 
 The court, on review of this case, said : " We feel cer- 
 tain that a verdict in favor of the plaintiff was not au- 
 thorized by the evidence, and we believe that sympathy 
 for the plaintiff unduly influenced the jury in render- 
 ing such a verdict." f 
 
 In the case of Sims vs. Parker,J the plaintiff, feel- 
 ing certain pains, went to the defendant, who examined 
 him and told him that he was ruptured, and thereupon 
 applied a truss. After the truss was put on the plain- 
 tiff suffered great pain and went back several times, but 
 
 * Gores vs. Graff, 11 Wis., 114, 46 N. W. Rep., 48. 
 f Feeney vs. Spalding, 89 Me., Ill, 35 Atl. Rep., 1027. 
 X Sims vs. Parker, 41 111. App., 284. 
 
CIVIL MALPRACTICE. 363 
 
 was told that the pressure of the truss Tvas necessary. 
 The evidence showed that the plaintiff was a fleshy 
 man, that at the time he first applied to the defendant 
 there was a slight swelling or protuberance at the point 
 where he located the pain, and that the defendant ad- 
 justed the bulb of the truss over this. When the truss 
 was taken off at the end of two weeks this swelling had 
 increased and developed into an abscess. The physician 
 who attended the plaintiff for the abscess was unable to 
 say whether there was an incipient abscess at the time 
 the truss was first adjusted or whether the abscess was 
 produced by the truss. 
 
 The fair conclusion from the evidence given by the 
 experts was that there was no rupture on the plaintiff. 
 It was also shown that it is very difficult in certain 
 cases to tell with certainty whether there is in fact a 
 hernia or not, particularly in the ease of fleshy persons. 
 
 There was also evidence that tended slightly to show 
 that the abscess was caused by the pressure of the truss, 
 but there was no evidence that the defendant was negli- 
 gent or unskillful in his diagnosis or in fitting the 
 truss. 
 
 This evidence was held to be insufficient to warrant 
 
 a verdict for the plaintiff. The court said : " Proof 
 
 that he was mistaken as to the existence of a rupture, 
 
 or that the abscess was caused by the pressure of the 
 
 truss, was not enough to entitle plaintiff to a verdict. 
 24 
 
364 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 " Proof of a bad result or of a mishap is of itself no 
 evidence of negligence or lack of skill. The defendant 
 is qualified to practise medicine and surgery, and the 
 evidence of the experts in his profession show him com- 
 petent and skillful. Before a recovery could be had 
 against him it must be shown that his treatment was im- 
 proper or negligent, not merely that he was mistaken 
 or that his treatment resulted injuriously to the plain- 
 tiff. A physician or surgeon, or one who holds himself 
 out as such, is only bound to exercise ordinary skill and 
 care in the treatment of a given case, and in order to 
 hold him liable it must be shown that he failed to exer- 
 cise such skill and care. 
 
 " The jury can not draw the conclusion of unskillful- 
 ness from proof of what the result of the treatment 
 was, but that the treatment was improper must be 
 shoAvn by evidence." 
 
 From this and the preceding cases it may properly 
 be inferred that the burden of proof is always upon the 
 party attempting to show that the physician has been 
 guilty of lack of skill or of want of care. This has been 
 held to be the law in a number of cases,* whether the 
 question arises in a suit against the doctor for malprac- 
 tice, or whether the issue is raised in a suit begun by 
 
 * Chase vs. Nelson, 39 111. App., 53 ; Kobinson vs. Campbell, 4*7 la., 
 625. 
 
CIVIL MALPRACTICE. 365 
 
 the doctor against his patient for the recovery of fees^ 
 and incompetence and negligence are pleaded by the de- 
 fendant as a defense to the action. 
 
 The general rule regarding the burden of proof is 
 very well stated by Justice Mayham as follows : " The 
 burden of establishing affirmatively either want of ordi- 
 nary skill, or a failure to use his best skill, or some neg- 
 ligence in the care or attention of the plaintiff's case, 
 which resulted to her injury, must be met before she 
 can recover." * 
 
 And so in a case where the patients had sustained a 
 Pott's fracture and the physician, so the evidence 
 seemed to indicate, diagnosticated and treated it as a 
 fracture of both bones at a point about five inches above 
 the ankle, the court held there was no evidence upon 
 which to sustain a verdict of damages for permanent in- 
 jury by stiffening of the ankle joint. In this case an 
 expert witness introduced by the plaintiff stated, on 
 cross-examination, that he recognized the fact as an ex- 
 pert witness that a Pott's fracture will probably leave 
 the joint in a permanently inferior condition, even when 
 the very best surgical skill is employed, and is employed 
 at the most opportune time, and under the best circum- 
 stances. In answer fo the question, " You are not pre- 
 pared to say to the jury that the present condition that 
 
 * Winner vs. Lathrop, 67 Hun, 51L 
 
366 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the plaintiff presents is due to the fact of what he 
 says in regard to the treatment he received at the 
 
 hands of Dr. ? " the expert replied, " I have not 
 
 said it." 
 
 The court said : " It seems to us, therefore, that the 
 case is absolutely barren of any evidence from which it 
 may be inferred that the permanent injury which the 
 plaintiff would suffer had come from any neglect or 
 want of skill on the part of the defendant." * 
 
 But what is the character of proof required by the 
 courts to fix liability upon the physician for the unfor- 
 tunate results attending his treatment ? 
 
 The case of Pettigrew vs. Lewis et al. \ is instruc- 
 tive upon this point. The plaintiflE had undergone an 
 operation for strabismus. The evidence given by the 
 plaintiff was that prior to the operation her eye was 
 strong and in good condition, except as to the affection 
 for which it had been treated; that the operation was 
 successful in straightening the eye, but that afterward 
 neither eye was as strong as before; that some time 
 after the operation she had " a spell of sore eyes " ; that 
 the lids were afterward inflamed and her " eyes wa- 
 tered " when she went out in the wind or cold ; that she 
 found on attempting to use he^ eyes that they were 
 weak, and that it was necessary to bring objects close 
 
 * Smith vs. Dumond, 6 N. Y. Supp., 242. 
 
 f Pettigrew vs. Lewis et al., 46 Kan., 78, 26 Pac. Rep., 458. 
 
CIVIL MALPRACTICE. 367 
 
 to her in order to see clearly. This, it seems, is about 
 the extent of the evidence offered on behalf of the plain- 
 tiff. The supreme court, in reviewing the case, dis- 
 courses very comprehensively upon the character of evi- 
 dence required in such a case to fix liability upon the 
 physician. The following liberal extract is therefore 
 taken from the opinion : 
 
 " To maintain her action, the plaintiff should have 
 offered the evidence of skilled witnesses to show that 
 the present condition of her eyes was the result of the 
 operation, and that it was unskillfully and negligently 
 performed. ' This evidence must from the very iiature 
 of the case come from experts, as other witnesses are 
 not competent to give it, nor are juries supposed to be 
 conversant with what is peculiar with the science and 
 practice of the professions of medicine and surgery to 
 that degree which will enable them to dispense with all 
 explanations.' * 
 
 " * The question whether a surgical operation has 
 been unskillfully performed or not is one of science, and 
 is to be determined by the testimony of skillful surgeons 
 as to their opinion, founded either wholly upon an ex- 
 amination of the part operated on, or partly upon such 
 examination, and partly on information derived from 
 the patient; or partly on such examination, partly on 
 
 * Tefft vs. Wilcos, 6 Kan., 46. 
 
368 THE LAW IN ITS RELATIONS TO PHYSICIANS, 
 
 such information, and partly on facts conceded or 
 proved at the trial; or partly on such examination and 
 partly on facts conceded or proved at the trial/ * It 
 would have been easy for the plaintiff to have submitted 
 to an examination by an experienced physician or ocu- 
 list capable of determining whether the condition of her 
 eyes was the result of the operation, and whether that 
 operation was performed with reasonable skill and care. 
 Cases may arise where there is such gross negligence 
 and want of skill in performing an operation as 
 to dispense with the testimony of professional wit- 
 nesses; but not so in the present case. It is not con- 
 ceded or proved that the weakness of her eyes had mate- 
 rially resulted from the operation ; and even if it was the 
 question would still arise, Was she in a fit physical con- 
 dition to undergo the operation? Did the defendants, 
 before beginning the operation, make due examination 
 to determine her condition and the necessity for an 
 operation? Was the operation performed in a careful 
 and skillful manner? What was the standard of pro- 
 fessional skill and scientific knowledge required of these 
 men in that locality? Was the after-treatment and 
 were the directions given for the subsequent care of the 
 eye such as would meet the approval of the profession 
 in its present advanced condition? If a mistake was 
 
 * McClel. Mai., 304. 
 
CIVIL MALPRACTICE. 369 
 
 made, was it a case of reasonable doubt or "ancertainty or 
 a mere error in judgment, for which there is no respon- 
 sibility ? It was the duty of the defendants to exercise 
 ordinary care and skill; and, this being a duty im- 
 posed by law, it will be presumed that the operation 
 was carefully and skillfully performed in the absence 
 of proof to the contrary/' * 
 
 Exceptions. — It will be observed that in the forego- 
 ing statement the court says : " Cases may arise where 
 there is such gross negligence and want of skill in per- 
 forming an operation as to dispense with the testimony 
 of professional witnesses." This, in other words, means 
 that cases may arise in which a presumption of unskill- 
 fulness or negligence on the part of the physician will 
 arise from the condition in which such treatment has 
 left the patient. Such a case, it will be clearly seen, 
 forms an exception to all of the rules above laid down 
 for proving negligence and incompetency. A recent 
 Minnesota case appears to illustrate this exception. In 
 this case, however, the evidence is so meagrely stated in 
 the report that it can not be determined with certainty 
 whether the opinion of the court was based upon the 
 mere condition of the patient or whether there was evi- 
 dence before it of particular acts of negligence or un- 
 Bkillfulness which the record fails to disclose. The case 
 
 * State vs. Housekeeper et uL, 10 Md., 162. 
 
3Y0 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 was as follows : The patient had suffered a miscar- 
 riage, having been delivered of a five-months-old foetus. 
 The physician removed the placenta, but in so doing per- 
 mitted a piece of it about two inches long and two thirds 
 of an inch thick to remain ; blood poisoning and a septic 
 condition of the patient ensued from which her left leg 
 became gangrenous, necessitating amputation. Wheth- 
 er there was any evidence offered showing that the 
 defendant's treatment was improper may be reasonably 
 doubted from the report of the case, wherein the court, 
 upon this question, simply says : " Unexplained, the evi- 
 dence was sufficient to justify the conclusion that the de- 
 fendant, in the exercise of that degree of care and skill 
 which the law exacts of a physician, might and ought 
 to have reasonably discovered and removed the remnant 
 of the afterbirth." * A proper deduction from this 
 seems to be that the condition of the patient bespoke im- 
 proper professional treatment, which it became incum- 
 bent upon the defendant to explain; thus forming an 
 exception to the general rule prescribed for proving the 
 physician's liability. 
 
 Another case which seems clearly to be an exception 
 to the rule is that of Lewis vs. Dwinell,f in which the 
 defendant, after repeated examinations, informed the 
 plaintiff that she was " all right," notwithstanding 
 
 * Moratzky vs. Wirth, 67 Minn., 46. 
 •)- Lewis vs. Dwinell, 84 Me., 497. 
 
CIVIL MALPRACTICE. 3Y1 
 
 she had sustained a serious rupture of the perinaeum. 
 Upon the question of the defendant's liability as shown 
 from the evidence and from the plaintiff's condi- 
 tion, Justice Haskell said : " If the defendant knew of 
 the rupture and concealed it from the plaintiff, neither 
 taking measures for its repair or relief himself nor giv- 
 ing an opportunity for other professional skill to be em- 
 ployed, little can be said in his excuse. But if the de- 
 fendant neither discovered the lesion nor had any knowl- 
 edge of it, a different question arises: Was he profes- 
 sionally negligent in his examinations ? He was a phy- 
 sician of seven years' practice, a graduate of Boston 
 University, and must have possessed the ordinary skill 
 and learning required in such cases. His failure then to 
 discover, after repeated examinations, the serious injury 
 from which the plaintiff was suffering, must be held to 
 be actionable negligence. Eeasonable attention from a 
 physician of ordinary intelligence would have discov- 
 ered so palpable an injury." 
 
 Upon the trial of a suit for damages resulting from 
 malpractice, the liability of the physician is a matter 
 to be passed upon by the jury; aided by the evidence 
 of expert witnesses, who are supposed to enlighten them 
 upon all matters of professional knowledge involved in 
 the case, and guided in their deliberations by instruc- 
 tions from the trial judge upon the law applicable to 
 the questions before them. 
 
372 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Measure of Damages. — Damages is defined as "the 
 injury or loss for which compensation is sought," * and 
 the measure of damages refers to the amount or extent 
 of such " injury/' or " loss " ; or, perhaps, more proper- 
 ly, to the amount of compensation to be awarded in ad- 
 justment of such " injury " or '' loss." 
 
 In assessing the amount of damages which the in- 
 jured party should receive to compensate him for the 
 injury or loss he has sustained, three distinct classes 
 are recognized and awarded to suit the merits of the 
 case: First, nominal damages, or some trifling sum, 
 which is awarded when a breach of duty or an infraction 
 of the plaintifE's right is shown, but no serious loss is 
 proved to have been sustained. 
 
 Second, substantial or compensatory damages. 
 These are such as are designed and awarded to compen- 
 sate for the actual loss or injury sustained. 
 
 Third, exemplary damages, also termed punitive 
 and vindictive damages. This class of damages exceeds 
 the loss actually sustained, and is given as a kind of 
 punishment to the defendant. 
 
 Nominal Damages. — Nominal damages, it seems, are 
 implied by law when there is shown to have been a 
 violation of the plaintiff's right, but where no damages 
 are shown by the evidence to have been sustained. 
 
 * Bouv. Law Die. Title, Damages. 
 
CIVIL MALPRACTICE. 373 
 
 Nominal damages are also proper in those cases where 
 lack of skill or care is shown, but where it is impossible 
 to distinguish between the consequences of the physical 
 ailment for which the patient was being treated and 
 those of the lack of professional skill and care.* 
 
 Compensatory Damages. — Substantial or compensa- 
 tory damages can be awarded only when there is evi- 
 dence adduced at the trial of a loss or injury sustained 
 from the defendant's wrongful act upon which suit is 
 brought. In such a case it is the duty of the jury 
 to weigh the evidence and fix such an amount as in their 
 opinion properly compensates the injured party for the 
 loss suffered, as determined from the evidence before 
 them. 
 
 In estimating such damages it is proper for the 
 jury, when there is evidence before them to justify their 
 so doing, to take into consideration : 
 
 The expenses incurred by way of physician's or sur- 
 geon's fees, nursing, and drugs and medicines which 
 have been rendered necessary by the unprofessional 
 treatment complained of. They must, however, care- 
 fully exclude from this item all expenses of the sort 
 necessitated by the original sickness or injury for 
 which the defendant treated the patient. If the ex- 
 penses for the original illness and those necessitated by 
 
 * Becker vs. Janinski, 27 Abb. N. C, 45. 
 
374 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the aggravated injuries or injuries caused by the act 
 complained of can not be separated, then this item 
 should not be considered. 
 
 The loss of time caused by such injury, together 
 with the value of the same. 
 
 The physical and mental pain and suffering endured 
 as a direct result of such improper treatment. 
 
 And in cases where the injury is shown to be per- 
 manent, the jury may consider its effect upon the 
 plaintiff^s capacity to earn money in the future, and 
 also consider future pain and suffering, both physical 
 and mental. 
 
 Exemplary Damages. — ^Whenever the unprofessional 
 treatment upon which the suit is based is attended with 
 fraud, malice, or gross negligence, and such fact is 
 shown to the jury by the evidence, they may, in assessing 
 the plaintiff's damages, consider not only the actual 
 expense inflicted upon him, together with the amount 
 proper to compensate him for physical and mental an- 
 guish, but may go still further and inflict damages 
 upon the defendant for his intentionally vicious or 
 grossly improper act. Such damages are exemplary or 
 punitive, and are allowable upon the theory that they 
 will act as a punishment to the wrongdoer, and thereby 
 deter others from committing like flagrant acts. 
 
 While the foregoing general treatment of damages 
 as involved in the scope of these articles is calculated to 
 
CIVIL MALPRACTICE. 3Y5 
 
 give the practitioner a comprehensive although rather 
 superficial idea of the subject, it is thought that a more 
 particular and less extended examination will be of 
 greater value and more satisfactory to the reader. This 
 effect is designed to be accomplished by examining par- 
 ticular cases, thus showing correctly the application of 
 these governing rules. 
 
 Illustrations: Nominal Damages. — ISTominal dam- 
 ages are proper and are the only damages that the jury 
 will be permitted to assess either where no damages are 
 shown by the evidence to have been sustained or where 
 the injury sustained from the defendant's improper 
 treatment can not be distinguished from the sickness or 
 injury for which the plaintifE was treated. 
 
 In the case of Becker vs. Janinski,* the plaintiff had 
 a miscarriage. The evidence showed some improper 
 treatment by the defendant; it also showed that the 
 patient's general health was impaired. There was evi- 
 dence introduced on behalf of the defendant to show 
 the injurious effect of a miscarriage upon the general 
 health, from which it was argued that the injury com- 
 plained of to the plaintiff's health was the result of the 
 miscarriage, for which the defendant was not to blame; 
 and, at least, that, it was impossible to say the injury 
 was due solely to the alleged improper treatment. 
 
 * Becker vs. Janinski, 27 Abb. N. C, 45. 
 
3T6 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Upon this point the jury was instructed that " The de- 
 fendant not being responsible for the miscarriage, he is 
 not to be made liable for any of its consequences. If 
 liable at all, he is liable only for the effects of his mal- 
 treatment of the plaintiff. So that, should you find it 
 impossible to distinguish between the consequences of 
 the miscarriage and the consequences of the maltreat- 
 ment — should you be unable to find upon the evidence 
 that the plaintiff has suffered any injury distinctively 
 due to maltreatment — you will award only nominal 
 damages against the defendant." 
 
 Illustrations : Compensatory Damages. — In this class 
 of damages the jury are supposed to determine as accu- 
 rately as possible the extent of the injury suffered by 
 the plaintiff and give him damages which shall fairly 
 compensate him for the loss and injury sustained. 
 There are, however, so many elements to be considered in 
 determining damages in this kind of cases which can 
 not be reduced to an accurate monetary basis that the 
 verdicts of different juries will very materially differ in 
 the same case. 
 
 This is very well illustrated in the case of Barnes 
 vs. Means.* Here the plaintiff had sustained fractures 
 of the tibia and fibula ; that of the tibia was oblique and 
 near the upper part of the lower third of the limb, 
 while that of the fibula was nearly transverse, and was 
 » Barnes vs. Means, 82 111., Sl9. 
 
CIVIL MALPRACTICE. 3Y7 
 
 from three to fonr inches above the ankle joint. By 
 reason of not applying extension and counter-extension 
 at the proper time the bones were allowed to lap three 
 quarters of an inch. This case was twice tried. The 
 first jury assessed the damages at five hundred dollars. 
 On motion of defendant the verdict was set aside, a new 
 trial was had, and the damages were assessed by the new 
 jury at one thousand dollars. 
 
 Probably the most satisfactory manner of arriving 
 at an appropriate idea of what juries are disposed to 
 consider a fair compensation in this class of cases is by 
 observing the amount which they have given in a few of 
 their verdicts. 
 
 In the case of AVood vs. Clapp.* a verdict of one 
 thousand dollars was assessed where the evidence showed 
 an improper and unsuccessful treatment of an arm 
 which resulted in permanent disability. 
 
 In the case of Smothers vs. Hanks, f both bones of 
 the plaintiff's arm were fractured near the wrist. The 
 evidence showed unskillful treatment. The arm, hand, 
 and fingers were crooked and stiff — perhaps permanent- 
 ly so. The jury gave a verdict for two thousand dollars. 
 This, on motion for a new trml, was reduced to twelve 
 hundred dollars, probably by mutual consent of the 
 parties. 
 
 * Wood vs. Clapp, 4 Sneed (Tenn.), 65. 
 f Smothers vs. Hanks, 34 la., 286. 
 
378 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In the case of Teft vs. Wilcox,* the plaintiff, who 
 had suffered from rheumatism and neuralgia in his 
 shoulder, sustained a dislocation of the shoulder joint. 
 From the improper treatment of this injury the shoul- 
 der became permanently disabled. His damages were 
 assessed at two thousand nine hundred dollars. 
 
 It was held in the case of Kelsey vs. Hay f that a 
 verdict of four thousand five hundred dollars was not 
 excessive where the plaintiff was crippled in both legs 
 for life by the ignorance and mismanagement of his 
 physician. The deformity complained of resulted 
 from improper treatment of fractures in both legs, at 
 what points the report does not show. 
 
 In the case of Quinn vs. Higgins l damages amount- 
 ing to one thousand six hundred dollars were awarded 
 for maltreatment of a fractured leg which resulted in 
 a " false joint." 
 
 In the case of Williams vs. Poppleton * the plain- 
 tiff had received an injury at the ankle, probably a dis- 
 location and slight fracture. There was some evidence 
 of improper treatment; the bones became diseased and 
 the leg Avas amputated above the knee. The jury found 
 a verdict of nine hundred'dollars. Whether this verdict 
 
 * Teft vx. Wilcox, 6 Kan., 51. 
 \ Kelsey vs. Hay, 84 Ind.. 189. 
 
 X Quinn vs. Higgins, 63 Wis , 664. 
 
 * Williams vs. Poppleton, 3 Oregon, 139. 
 
CIVIL MALPRACTICE. 379 
 
 was intended as a compensation for the loss of the leg 
 through improper treatment of the defendant^ or wheth- 
 er it was for unnecessarily and improperly prolonging 
 the plaintifE's sufferings in not performing the amputa- 
 tion for a considerable time after it should have been 
 performed, does not appear. It was probably intended 
 for the latter. 
 
 The jury awarded damages to the amount of two 
 thousand and twenty-five dollars in the case of How- 
 ard vs. Grover,* where the defendant performed two 
 amputations upon the plaintiff's thigh, both of which 
 were unsuccessful. The first amputation was at the 
 proper place, but the bone was left protruding too far; 
 the second was not shown to have been improperly per- 
 formed, but was not performed at the right place. The 
 court, in commenting upon the amount of this verdict, 
 said: "The practice of surgery is indispensable to the 
 community, and while damages should be paid for negli- 
 gence and carelessness, surgeons should not be deterred 
 from the pursuit of their profession by intemperate 
 and extravagant verdicts. The compensation to sur- 
 geons in the country is small in comparison with what 
 is paid in cities for similar services, and an error of judg- 
 ment is visited with severe penalty, which takes from 
 one a large share of the surplus earnings of a long life." 
 
 * Howard vs. Grover, 28 Me., 97. 
 25 
 
380 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The court expressed the opinion that the jury must have 
 been actuated " by some undue influence " in assessing 
 the amount of damages; they expressed great reluc- 
 tance, however, to interfering, and therefore stated that 
 the verdict might stand if the plaintiff would remit five 
 hundred dollars of the amount assessed. 
 
 It is perhaps proper to say that this case arose in 
 Maine, and was tried in 1848. 
 
 For the improper treatment of an eye, from which 
 loss of sight in that eye resulted, a Missouri Jury gave 
 a verdict of $36.2.75,* evidently a compromise verdict. 
 
 For the failure of a physician to discover and repair 
 a serious rupture of the perinseum a Maine jury as- 
 sessed damages at four hundred and fifty dollars, f And 
 for improper uterine treatment, whereby the neck of 
 the womb became closed, entailing much suffering and 
 considerable expense, a Wisconsin jury assessed dam- 
 ages at three hundred and fifty dollars. J 
 
 Illustrations : Exemplary Damages. — ^TJpon the ques- 
 tion of exemplar}'' damages, the case of Brooke vs. 
 Clark * is instructive. In this case the attending phy- 
 sician tied a ligature around the child's penis, instead 
 of the umbilical cord, at his birth, whereby the glans of 
 the penis came entirely off. 
 
 * McMurdock vs. Kimberlin, 23 Mo. App., 523. 
 f Lewis vs. Dwinell, 84 Me., 49*7. 
 
 X Gates vs. Fleischer, 67 Wis., 504. 
 
 # Brooke vs. Clark, 57 Tex., 105. 
 
CIVIL MALPRACTICE. 381 
 
 The facts may probably be best gathered from the 
 evidence of the child^s grandmother, which was as fol- 
 lows : " Dr. was the attending physician. He was 
 
 standing at the foot of the bed and received the child 
 from its mother. Before receiving the child from be- 
 neath the bedclothes he tied one cord or ligature, and 
 then removed the cover, tied the second ligature, and cut 
 the umbilical cord, when the child was by Dr. hand- 
 ed to the witness, who wrapped it in a blanket and sat by 
 the stove trying to quiet it. When the first ligature 
 was tied the child cried out like it was hurt, and con- 
 tinued to cry for about an hour. The doctor then took 
 the child in his lap and examined it, and said the 
 string had slipped oS the navel cord. He asked for an- 
 other string, which I gave him. I had given him one at 
 his request before the child was born; both were com- 
 mon wrapping twine. Mrs. C. assisted Dr. , and 
 
 he tied a string on the navel cord and returned the 
 child to me, and I washed and dressed it and cared for 
 it until morning. The child had spells of crying 
 through the night ; all the dressing that was done next 
 day was changing its diaper, and that was done by me. 
 When washing the child next morning I found a string 
 hanging down, and, taking hold of it, I found it was 
 tied to the child's penis ; it was a part of the same cord 
 
 witness gave to Dr. the night before. I had charge 
 
 of the child at nio-ht. When Dr. came in I showed 
 
382 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 him what he had done, and he said it was probably 
 owing to Mrs. C. being excited and holding up the 
 wrong thing for him to tie. There was but one string 
 around the navel cord when I dressed the child. There 
 was no string tied after the child was dressed; no one 
 
 had the child before it was dressed but Dr. and 
 
 myself." Upon the trial of the case the jury fixed the 
 damages at five thousand five hundred dollars. 
 
 In commenting upon the propriety of exemplary 
 damages in this case Justice Gould said : " The criminal 
 indifference of the defendant to results was a fact 
 which the jury were at liberty to infer from the gross 
 mistake which he either made or permitted to be made, 
 and the grievous injury which was liable to result and 
 did result therefrom. If there was other evidence tend- 
 ing to negative any wrong intent or actual indifference 
 on his part, still the existence or non-existence of such 
 criminal indifference was a question of fact for the 
 jury, and was rightly submitted to them. If the con- 
 duct of the defendant in the discharge of his duty as 
 accoucheur was so grossly negligent as to raise the pre- 
 sumption of his criminal indifference to results, we 
 very greatly doubt whether it should avail to exempt 
 him from exemplary damages for him to show that he 
 had no bad motive, and that he acted otherwise in a 
 manner tending to show that he was not, at heart, in- 
 different. Where the act is so grossly negligent as to 
 
CIVIL MALPRACTICE. 383 
 
 raise the presumption of indifference, evidence that in 
 other matters connected therewith he had shown due 
 care, and that actual indifference would have been in 
 fact indifference to his own interest, should, we think, 
 not be allowed for any other purpose than to be consid- 
 ered by the jury in fixing the amount of exemplary 
 damages." 
 
 It is believed that in this case the court expresses 
 the true rule governing exemplary damages. The ques- 
 tion is, however, one upon which there is conflict of 
 authority. In an earlier Michigan case the court ex- 
 presses the opinion that when the evidence shows no 
 evil motive in the commission of an act, the jury can 
 not give exemplary damages; and this opinion was ex- 
 pressed in the face of evidence sufficient, to use the lan- 
 guage of the court, " to show such a total want of skill, 
 and such a degree of carelessness, as would in law make 
 the defendant below guilty of manslaughter." * The 
 court in this case also expressed sentiments upon other 
 phases of the question of damages which have not been 
 approved by the wisdom of recent years, and it may 
 reasonably be doubted that the law as expressed therein 
 relative to exemplary damages will be recognized in 
 future decisions as the correct doctrine. 
 
 Judgment for Plaintiff Bars Action for Subsequently 
 Accruing Damages. — It has been shown that the jury, in 
 
 * Hyatt vs. Adams, 16 Mich., 180. 
 
384 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 assessing damages, may properly consider the effect of 
 the injury upon the plaintiff's capacity to earn money 
 in the future; also the future pain and anguish, both 
 physical and mental, that will necessarily or naturally 
 result therefrom; in other words, the plaintiff's cause 
 of action includes the right to recover for damages past, 
 present, and future. The law will not tolerate a mul- 
 tiplicity of suits, but always compels a party litigating 
 to enforce his whole right in a single suit, when the 
 right is of such a nature as to render that possible; 
 therefore if, in a suit against a physician for malprac- 
 tice, the plaintiff fails, ignorantly or inadvertently, 
 to prove future damages, and a judgment is entered in 
 his favor against the physician for past and present 
 damages only, such judgment will be a complete bar to 
 another action brought for the recovery of such future 
 damages.* 
 
 * Howell vs. Goodricb, 69 lU., 556. 
 
CHAPTEPt VIII. 
 
 CEIMINAL LIABILITY. 
 
 Criminal Liability arises when Conduct becomes a 
 Public Menace. — The liability of the physician resulting 
 from the improper or wrongful exercise of the functions 
 of his profession which has heretofore been the subject 
 of examination is that of a civil nature, wliich is satis- 
 fied by the payment of an adequate compensation to 
 the particular patient who was thereby injured. Usu- 
 ally in such cases of nonfeasance or malfeasance, the 
 injury produced and the resulting right of prosecution 
 is a matter affecting only the immediate parties to the 
 transaction — viz., the physician and the patient — and is 
 one in which third parties generally, or, in other words, 
 the public or State, have no concern whatever. It is evi- 
 dent, however, that there may be cases in which the act 
 complained of is so grossly unprofessional as not only 
 to cause an injury to the patient for which he is en- 
 titled to compensatory damages but to amount as well 
 to a serious menace to the peace and safety of the pub- 
 lic. Such an act will, in addition to the civil liability 
 heretofore considered, give rise to another and more 
 
 385 
 
386 THE LAW m ITS RELATIONS TO PHYSICIANS. 
 
 important liability in^ favor of the public or the State, 
 known as a criminal liability. 
 
 Common Law and Statutes Regulate the Subject. — 
 Our criminal law, like our law relative to civil matters, 
 came from England as a part of the common law. To 
 this many alterations and additions have been made in 
 the several States by statutes, and in some few jurisdic- 
 tions the common law relative to criminal matters is so 
 abrogated by statutes that only those acts are considered 
 as criminal which their legislatures have expressly de- 
 clared so to be.* 
 
 The criminal law in its relation to the practice of 
 medicine is in its nature very largely statutory, and 
 differs in detail in the several jurisdictions; yet as a 
 whole it is sufficiently uniform to render practicable a 
 general treatment of the subject applicable to the sev- 
 eral States. 
 
 Criminal Intent Presumed. — The civil liability of the 
 physician, it has been observed, is based upon his failure 
 to possess ordinary knowledge, or to exercise the usual or 
 proper degree of care and diligence in applying the same. 
 Such an act ordinarily lacks the essential element of a 
 crime — viz., malice or a criminal intent — and can, there- 
 fore, be considered only in the light of a civil injury 
 affecting the individual patient. That malice or crimi- 
 
 * This is the condition in the States of Iowa, Kansas, and Ohio. 
 
CRIMINAL LIABILITY. 387 
 
 nal intent need not always be shown to exist, but may 
 be implied from the character of the acts complained of, 
 is, however, a well-recognized principle of the law, it 
 being held that one is presumed to contemplate the 
 natural consequences of his acts, and, if these conse- 
 quences are so disastrous or so fatal as to justify a 
 presumption of malicious intent, the act will be deemed 
 criminal even though it is in fact the result only of 
 negligent or reckless conduct. 
 
 Gross Ignorance and Reckless Negligence; English 
 Doctrine. — Whether or not the ignorance of a physician 
 may be so gross, or his conduct so grossly and recklessly 
 negligent, as to render him guilty of homicide where the 
 patient dies from his maltreatment is a question that 
 has been several times before the English and American 
 courts. The doctrine established by the English courts 
 seems to be that if the ignorance or the neglect is gross, 
 then the criminal intent will be implied. Chief -Justice 
 Parker says : " I call it acting wickedly when a man is 
 grossly ignorant, and yet affects to cure people, or when 
 he is grossly inattentive to their safety." * Some light 
 is thrown upon the question of what degree of ignorance 
 or what amount of negligence an English court consid- 
 ers gross by the words of Justice Miller, who says : " If a 
 man Imew that he was using medicine beyond his Icnowl- 
 
 * Eex vs. Long, 4 Car. and P., 410. 
 
388 THE LAW IN ITS RELATIONS TO PHYSICIANS, 
 
 edge, and was meddling with things above his reach, 
 that was culpable rashness. Negligence might consist 
 in using medicines in the use of which care was required, 
 and of the properties of which the person using them 
 was ignorant. A person who so took a leap in the dark 
 in the administration of medicine was guilty of gross 
 negligence.'' * 
 
 Early American Policy. — The policy of the Ameri- 
 can courts, as manifested in the earlier cases, was that 
 of much greater leniency, their policy being to hold 
 the defendant guilty only when an evil or mischievous 
 intent could be shown. In more recent cases, however, 
 our courts have followed the English precedents, and, it 
 is thought probable, will continue to do st), this doctrine 
 being more in accord with the ever advancing spirit 
 of medical and surgical science and better calculated 
 to relieve the medical fraternity of those quacks and 
 charlatans whose presence is a reproach upon the pro- 
 fession. 
 
 The earliest American case of any importance, and 
 one which is doubly interesting because it not only illus- 
 trates the policy applied by our courts for over half a 
 century, but also throws light upon the source of a sys- 
 tem or school of medicine which enjoyed more or less 
 patronage in this country for a number of years, is that 
 
 * Reg. vs. Markus, 4 F. and F., 356. 
 
CRIMINAL LIABILITY. 389 
 
 of Commonwealth vs. Thompson.* In this ease, which 
 was tried in 1809, Dr. Samuel Thompson, founder of 
 the Thompsonian system of medicine, sometimes re- 
 ferred to as the botanical system or steam system, was 
 tried for murder. The report of the case, it is thought, 
 presents matter of sufficient interest to the medical 
 profession to justify a liberal extract therefrom. 
 
 " On the trial it appeared in evidence that the pris- 
 oner, some time in the preceding December, came into 
 Beverly, where the deceased then lived, announced him- 
 self as a physician, and professed ability to cure all 
 fevers, whether black, gray, green, or yellow; declaring 
 that the country was much imposed upon by physicians, 
 who were all wrong, if he was right. He possessed 
 several drugs, which he used as medicines, and to which 
 he gave singular names. One he called coffee; another, 
 well-my- gristle; and a third, ramcats. He had several 
 patients in Beverly and in Salem previous to Monday, 
 the 2d of January, when the deceased, having been for 
 several days confined to his house by a cold, requested 
 that the prisoner might be sent for as a physician. 
 
 " He accordingly came and ordered a large fire to be 
 kindled to heat the room. He then placed the feet of 
 the deceased, with his shoes off, on a stove of hot coals 
 and wrapped him in a thick blanket, covering his head, 
 
 * Commonwealth vs. Thompson, 6 Mass., 134. 
 
390 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In this situation he gave him a powder in water which 
 immediately puked him. Three minutes after he re- 
 peated the dose, which in about two minutes operated 
 violently. He again repeated the dose, which in a short 
 time operated with more violence. These doses were 
 all given within the space of half an hour, the patient 
 in the mean time drinking copiously of a warm decoc- 
 tion, called by the prisoner his coffee. The deceased, 
 after puking, in which he brought up phlegm but no 
 food, was ordered to a warm bed, where he lay in a 
 profuse sweat all night. Tuesday morning the deceased 
 left his bed and appeared to be comfortable, complain- 
 ing only of debility ; and in the afternoon he was visited 
 by the prisoner, who administered two more of his 
 emetic powders in succession, which puked the deceased, 
 who, during the operation, drank of the prisoner's coffee 
 and complained of much distress. On Wednesday morn- 
 ing the prisoner came and, after causing the face and 
 hands of the deceased to be washed with rum, ordered 
 him to walk in the air, which he did for about fifteen 
 minutes. In the afternoon the prisoner gave him two 
 more of his emetic powders, with draughts of his coffee. 
 On Thursday the deceased appeared to be comfortable, 
 but complained of great debility. In the afternoon 
 the prisoner caused him to be again sweated, by placing 
 him, with another patient, over an iron pan, with vine- 
 gar heated by hot stones put into the vinegar, covering 
 
CRIMINAL LIABILITY. 391 
 
 them at the same time with blankets. On Friday and 
 Saturday the prisoner did not visit the deceased, who 
 appeared to be comfortable, although complaining of 
 increased debility. On Sunday morning, the debility 
 increasing, the prisoner was sent for, and came in the 
 afternoon, when he administered another of his emetic 
 powders with his coffee, which puked the deceased, caus- 
 ing him much distress. On Monday he appeared com- 
 fortable, but with increasing weakness, until the even- 
 ing, when the prisoner visited him, and administered 
 another of his emetic powders, and in about twenty min- 
 utes repeated the dose. This last dose did not operate. 
 The prisoner then administered pearlash mixed with 
 water, and afterward repeated his emetic potions. The 
 deceased appeared to be in great distress and said he 
 was dying. The prisoner then asked him how far the 
 medicine had got down. The deceased, laying his hand 
 on his breast, answered. Here ; on which the prisoner ob- 
 served that the medicine would soon get down and un- 
 screw his navel ; meaning, as was supposed by the hear- 
 ers, that it would operate as a cathartic. Between nine 
 and ten o'clock in the evening the deceased lost his rea- 
 son and was seized with convulsion fits, two men being 
 required to hold him in bed. After he was thus seized 
 with convulsions the prisoner got down his throat one or 
 two doses more of his emetic powders, and remarked to 
 the father of the deceased that his son had got the hyps 
 
392 "I'HE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 like the devil, but that his medicine would fetch him 
 down; meaning, as the witness understood, would com- 
 pose him. The next morning the regular physicians of 
 the town were sent for, but the patient was so complete- 
 ly exhausted that no relief could be given. The con- 
 vulsions and the loss of reason continued, with some 
 intervals, until Tuesday evening, when the deceased 
 expired." 
 
 The evidence showed that the " coffee " was a decoc- 
 tion of marsh rosemary mixed with the bark of the bay- 
 berry bush, which was not supposed to have injured de- 
 ceased. The emetic powder, upon which the prisoner 
 said he chiefly relied in his practice, and which was so 
 frequently administered to deceased, was the pulverized 
 plant commonly known as Indian tobacco, or the Lo- 
 belia inflata of Linngeus. 
 
 The prisoner in this case had been indicted for mur- 
 der, but under the practice the jury could have found 
 him guilty of manslaughter had they determined that 
 the offense amounted to that crime only. 
 
 The court instructed the jury that to constitute the 
 crime of murder the killing must have been with mal- 
 ice, either express or implied; that there was no ex- 
 press malice, and that they could not infer malice 
 without being satisfied that the prisoner was willfully 
 regardless of his duty and determined upon mis- 
 chief. 
 
CRIMINAL LIABILITY. 393 
 
 Upon the question of the prisoner's guilt of the 
 crime of manslaughter the court laid down the doctrine 
 that the killing must have been a consequence of some 
 unlawful act to constitute such a crime. This doc- 
 trine, it will be hereafter seen, has been distinctly re- 
 pudiated by the supreme court of the same State in 
 a recent decision. The court in this case continued: 
 " 'Now, there is no law which prohibits any man from 
 prescribing for a sick person with his consent, if he hon- 
 estly intends to cure him by his prescription. And it is 
 not felony if, through his ignorance of the quality of 
 the medicine prescribed, or of the nature of the disease, 
 or of both, the patient, contrary to his expectation, should 
 die. The death of a man killed by voluntarily follow- 
 ing a medical prescription can not be adjudged felony 
 in the party prescribing, unless he, however ignorant of 
 medical science in general, had so much knowledge or 
 probable information of the fatal tendency of the pre- 
 scription that it may be reasonably presumed by the 
 jury to be the effect of obstinate, willful rashness, at the 
 least, and not of an honest intention and expectation 
 to cure." The court, after observing that if the evi- 
 dence showed the administration of like remedies to 
 have previously caused similar injurious or fatal effects, 
 then the jury might have found the prisoner guilty of 
 manslaughter, concluded its opinion as follows : " It is 
 to be exceedingly lamented that the people are so easily 
 
394 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 persuaded to put confidence in these itinerant quacks, 
 and to trust their lives to strangers without knowledge 
 or experience. If tliis astonishing infatuation should 
 continue, and men are found to yield to the impudent 
 pretensions of ignorant empyricism, there seems to be 
 no adequate remedy by a criminal prosecution, without 
 the interference of the legislature, if the quack, however 
 weak and presumptuous, should prescribe with honest 
 intentions and expectations of relieving his patient." 
 
 Following this decision is one from the supreme 
 court of Missouri, decided in 1844.* Here the prisoner 
 was also a botanic physician. The patient, who was to be 
 treated for " sciatica," was in the family way and lacked 
 about six weeks of having completed the period of ges- 
 tation. The patient's husband informed the accused 
 of the patient's condition and told him that he had been 
 cautioned against giving her vapor baths and emetics 
 while in that condition. The accused declared his abil- 
 ity to treat the patient with perfect safety, and prompt- 
 ly began steaming and giving her lobelia. A few repeti- 
 tions of this treatment brought on a miscarriage, from 
 the effects of which the patient died. 
 
 The court applied the doctrine enunciated in the 
 case of Commonwealth vs. Thompson, and said that as 
 no improper motive or knowledge of the fatal tendency 
 
 * Rice vs. State, 8 Mo., 561. 
 
CRIMINAL LIABILITY. 395 
 
 of the treatment applied was shown the accused could 
 not be held guilty. 
 
 The case of Honnard vs. People * presents a question 
 rather of fact than of law. The patient, who was five 
 months advanced in pregnancy, was suffering from bil- 
 ious fever ; the accused was attending -her and, as the 
 evidence shows, was extremely careful about giving her 
 strong medicine, and was in no way responsible for her 
 miscarriage. After the labor pains commenced the ac- 
 cused was sent for. The patient's labor being ineffectual, 
 the doctor undertook to remove the foetus by force. Of 
 the first and, apparently, only presentation he succeed™ 
 ed in bringing away all but the head. Having no for- 
 ceps, he undertook to improvise a substitute by the use 
 of two spoons, but whether he used them to any extent 
 is doubtful. Being himself ill, he gave up his endeavors 
 to bring away the head and, going away, sent another 
 doctor. The patient was then given ergot and, after 
 a little time, the head and another foetus besides came 
 away. The patient from that time had no physician for 
 about a week — ^why, the evidence does not show — ^when 
 puerperal fever set in, from which she died in about two 
 days. The court, in considering the criminal liability 
 of the accused, said : " He may not have acted with 
 either the best judgment or even ordinary skill. But 
 
 * Honnard vs. People, 77 HI., 481. 
 26 
 
396 THE LAW IN ITS RELATIONS TO PHY&ICIANS. 
 
 no unprejudiced person can read the evidence without 
 being convinced that he acted with good motives, and 
 the evidence wholly fails to show that the puerperal fe- 
 ver, of which the patient died, was caused by anything 
 done or omitted to be done by the accused. 
 
 " If physicians and surgeons can be convicted of 
 manslaughter, and sent to the penitentiary, upon such 
 evidence as this record contains, there would be wit- 
 nessed a frightful devastation of their ranks. . . . 
 There is wanting in this case every element of the crime 
 of manslaughter, but that of the mere death of a human 
 •being." 
 
 In the ease of State vs. Schulz,* in which the ac- 
 cused professed to be a Baunscheidtist, the evidence 
 showed that the accused treated the deceased by using 
 an instrument consisting of fine teeth or needles all over 
 her body and applying oil ; he also gave eight drops of 
 the oil internally as a cathartic. In regard to the oil, 
 the accused testified : " Do not know what the oleum 
 Baunscheidtii is made of ; it is a secret of the inventor." 
 
 Upon the trial the court instructed the jury that 
 " a party, whether he be a physician or specialist, has no 
 right to hold himself out to the public as competent to 
 treat diseases, and induce the public to employ him, un- 
 less he knows what the medicine is he uses, and its rea- 
 
 * State vs. Schulz, 55 la., 628. 
 
CRIMINAL LIABILITY. 397 
 
 sonable effect upon the human system ; and to do so, and 
 administer internally poisonous medicines in sufficient 
 quantities to ordinarily produce death, and death is pro- 
 duced thereby, he would be guilty of murder. And if the 
 defendant in this case, through gross ignorance of the 
 medicine used, or its reasonable effect upon the deceased 
 as she was at the time, caused her death by an overdose 
 of poisonous medicine, he would be guilty as charged." 
 
 The supreme court, in reviewing the case, held that 
 this instruction was not the law, and that the physician 
 could not be held guilty unless in prescribing and treat- 
 ing the patient he had so much knowledge of the fatal 
 tendency of the prescription that it might be reasonably 
 presumed that he administered the medicine from an 
 obstinate, willful rashness, and not with an honest inten- 
 tion and expectation of effecting a cure. Thus follow- 
 ing, it will be observed, the cases of Commonwealth vs. 
 Thompson and Kice vs. State. 
 
 Present American Policy. — Upon the other hand, a 
 disposition to follow the English doctrine and hold the 
 profession to a more strict criminal accountability was 
 first manifested by the supreme court of Arkansas in 
 1883.* 
 
 Here the question arose upon a point of law as to the 
 sufficiency of the facts alleged in the indictment. These 
 
 * St::te vs. Hardister and Brown, 38 Ark., 605. 
 
398 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 facts alleged in brief were that the accused unnecessarily 
 administered to the patient, who was undergoing pains 
 of childbirth, a large quantity of morphine, by reason 
 of which the labor pains were retarded ; that he then ad- 
 ministered to her large and excessive quantities of fluid 
 extract of ergot, by reason of which she had convulsions, 
 and that he then bled the patient in the arm. That 
 he then improperly and carelessly attempted to deliver 
 the child with forceps. That he then improperly and 
 carelessly administered excessive quantities of chloro- 
 form, and then, improperly, etc., punctured the head 
 of the child with a pocket knife, unnecessarily killing 
 it ; that he inserted his finger in the mouth of the child 
 and forced its head out of the mouth of the vagina, 
 then tied a rope around its neck, and with force and 
 violence, and without due caution, delivered the child; 
 and that without delivering the afterbirth he aban- 
 doned the patient, from the effects of which she died in 
 about six days. 
 
 The court, after reviewing all the principal authori- 
 ties, English and American, said : " The court is of the 
 opinion that the indictment in this case is sufficient. 
 Whether the appellees are criminally responsible for 
 the death of Mrs. S must depend upon the evi- 
 dence. A felonious want of due care and circum- 
 spection in her treatment must be proved as alleged. 
 For a mere mistake of judgment in the selection and 
 
CRIMINAL LIABILITY. 399 
 
 application of the remedies and appliances named in 
 the indictment, they would not be criminally liable. 
 Were they grossly ignorant of the art which they as- 
 sumed to practise ? Did they manifest gross ignorance 
 in the selection or application of the remedies? Were 
 the remedies unusual, inapplicable, or rashly applied? 
 Were appellees grossly negligent or inattentive ? These 
 are all questions of evidence." 
 
 The next case in point of time seems to be that of 
 Commonwealth vs. Pierce,* passed upon by the same 
 court that decided the case of Commonwealth vs. 
 Thompson, but with quite a different result. Here 
 the physician caused the patient to be wrapped in 
 flannels saturated with kerosene for three days, from 
 which her flesh became so burned and blistered that 
 she died. 
 
 The counsel for the accused urged that if he made 
 the prescription with an honest purpose and intent to 
 cure the deceased, he was not guilty of the offense 
 charged, however gross his ignorance of the quality 
 and tendency of the remedy prescribed, or of the na- 
 ture of the disease, and that to prove his guilt it must 
 be shown that he had so much knowledge or probable 
 information of the fatal tendency of the prescription 
 that the death may be reasonably presumed to be the 
 
 * Commonwealth vs. Pierce, 138 Mass., 165. 
 
400 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 effect of obstinate, willful rashness, and not of an 
 honest intent and expectation to cure. This, it will 
 be remembered, is the doctrine enunciated by the su- 
 preme courts of Massachusetts and Missouri in the 
 cases of Commonwealth vs. Thompson and Eice vs. 
 State. The supreme court of Massachusetts, however, 
 in the present case, denied the correctness of this doc- 
 trine and declared that recklessness, in the moral sense 
 of indifference as to the result of one's actions, could not 
 be applied as a test of criminal responsibility. That 
 in criminal matters, as in civil, there must be an external 
 standard of what would amount to moral reckless- 
 ness in a man of reasonable prudence. That if the 
 prescriptions used were dangerous, according to com- 
 mon experience, one who made use of them could not 
 escape responsibility upon the ground that he had less 
 than the common experience. The court said : " Com- 
 mon experience is necessary to the man of ordinary 
 prudence, and a man who assumes to act as the de- 
 fendant did must have it at his peril. When the 
 jury are asked whether a stick of a certain size is 
 a deadly weapon, they are not asked further whether 
 the defendant knew it was so. It is enough that he 
 used and saw it such as it was," 
 
 The principles laid down in this case have been 
 followed in the late case of State vs. Gile,* and it is 
 
 * State vs. Gile, 8 Wash., 12; 35 Pac. Rep., Ul. 
 
CRIMINAL LIABILITY. 401 
 
 believed will be recognized by other courts as the cor- 
 rect law. 
 
 Guilt to be Determined by Jury. — In determining 
 whether or not, in a given case, a physician has been 
 guilty of such gross professional conduct as to render 
 him criminally liable, the question is one of fact which 
 it is the defendant's constitutional right to have sub- 
 mitted to a jury for determination.* The jury, in 
 arriving at their conclusion, are not to be governed by 
 the usual test applicable in civil matters, and find the 
 accused guilty because a preponderance of the evidence 
 submitted shows guilt, but they must, before convict- 
 ing, find the evidence showing guilt, to be so strong as 
 to exclude all reasonable doubt of innocence. Such 
 a doubt must, however, be one founded upon the cir- 
 cumstances and evidence, and not a doubt resting upon 
 mere conjecture or speculation, f This is the test ap- 
 plicable in all criminal matters. 
 
 Intoxication of Physician. — The fact that the fatal 
 treatment may have been superinduced by drunken- 
 ness, or that the physician may have been in an in- 
 toxicated condition while rendering the services that 
 resulted in the patient's death, would at common law 
 be a circumstance for the Jury to take into considera- 
 tion in determining whether the defendant had been 
 
 * Ex parte Wong You Ting, 106 Cal., 296, 39 Pac. Rep., 62Y. 
 f U. S. vs. Knowles, 4 Saw., 621. 
 
402 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 gnilty of grossly improper conduct. The legislatures 
 of several States have, however, expressly provided that 
 a physician who administers while intoxicated a poison- 
 ous drug or medicine which results in death shall be held 
 guilty of manslaughter, and many of the States have 
 passed laws making it a misdemeanor for one to prac- 
 tise as a physician while intoxicated.* 
 
 No Right to Terminate Life. — The question of 
 whether or not the physician ever has the right to 
 terminate life, either that of a patient hopelessly ill 
 and suffering intense agony, or that of a newly born 
 monstrosity, has been very interestingly discussed, 
 rather from an ethical than from a legal standpoint, 
 before the Medico-Legal Society. f Legally speaking, no 
 such right exists. 
 
 Obtaining Money under False Pretense. — Similar 
 to the civil liability resulting from deceit is the crimi- 
 nal liability from obtaining money under false pre- 
 tense. An interesting case of this sort was recently 
 passed upon by the court of appeals of Maryland. 
 Here the complaining witness called upon the defend- 
 ant for medical treatment. The details of the inter- 
 
 * Such acta have been passed in the States of California, Idaho, 
 Michigan, Minnesota, Montana, Nebraska, New Mexico, New Yorlc, North 
 Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, and 
 Wyoming. 
 
 f An interesting paper on the subject, by Clark Bell, Esq., may be 
 found in vol. Iv, Albany Law Journal, p. 136. 
 
CRIMINAL LIABILITY. 403 
 
 view are perhaps best told in the words of the witness, 
 which were as follows : " The professor offered me 
 paper and told me to write my name and age upon 
 it, and not let him see what I wrote. I wrote my 
 name and age upon the paper, and he walked up and 
 down the room and looked out of the window, and took 
 the paper and folded it up, and placed it against his 
 forehead, and then told me what I had written on the 
 paper. He said, ' You suffer from stomach trouble, and 
 I can and will cure you within six weeks; if not, I 
 will return you your money/ I asked him when I 
 should call again, and he said, ' Don't come ; I will come 
 and see you and work on you for hours, and after 
 that you will be well.' He also gave me a charm to 
 wear. I wore it around my neck for one hour. He 
 said to wear it was essential to the treatment. I am 
 not over the stomach trouble yet. He never came to 
 my house and worked on me. I paid him twenty-six 
 dollars and thirty cents." After this, and before the 
 time fixed for curing the witness, the defendant left. 
 
 It will be remembered that no expression of opin- 
 ion or promise of future events will ordinarily afford 
 ground for an action based upon deceit. Upon simi- 
 lar grounds it is held that the criminal action for 
 obtaining money under false pretense can not be based 
 upon a promise of future profits or benefits. The 
 counsel for the accused in the present case, therefore. 
 
404 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 contended that the accused's promise of future benefit 
 would not sustain such a prosecution. The court was, 
 however, of the opinion that the essential part of the 
 transaction was the accused's representation that, in 
 effect, he was then and there possessed of supernatural 
 power whereby he could cure witness. This part of 
 the transaction was no promise as to the future, but 
 a positive assertion of a present condition, and the 
 mere fact that a promise of future benefits operated 
 with this representation as a part of the inducement 
 under which the witness parted with his money would 
 not operate to defeat the prosecution. The prisoner 
 was held guilty.* 
 
 The purpose of this chapter being to examine only 
 those questions of criminal liability resulting from the 
 improper exercise of professional duties and the exer- 
 cise of professional functions which are in themselves 
 unlawful, notice will not be taken of those cases in 
 which the physician has been guilty of criminal con- 
 duct of an ordinary character, even though committed 
 in the course of his professional relations with his 
 patients. 
 
 Criminal Abortions. — The most prolific source of 
 criminal litigation growing out of the conduct of the 
 physician in the exercise of the functions of his pro- 
 fession is the procurement of abortions. 
 
 # 
 
 * Jules vs. State, 85 Md., 305, 36 Atl. Rep., 1027. 
 
CRIMINAL LIABILITY. 405 
 
 Abortion as a criminal act seems to be of com- 
 paratively recent origin, as neither the ancient law 
 writers nor the early English statutes refer to it as 
 such.* 
 
 In many of the States the procurement of an abor- 
 tion with the consent of the mother, before the child 
 became quick, was not at common law considered a 
 criminal act.f The theory upon which the courts 
 arrived at this conclusion was that the procurement 
 of an abortion, when the mother had given her consent 
 to the operation, could be considered a wrong as 
 against the child only. According to Blackstone, life 
 begins, in contemplation of law, as soon as the infant is 
 able to stir in the mother's womb; therefore, prior to 
 this period the law did not, at least for the purposes 
 of the present inquiry, recognize the child as in esse 
 and capable of being the object of a criminal in- 
 tent or act.;]; The early statutes in several of our 
 States apparently recognized this distinction in 
 providing that the killing of an unborn " quick '' 
 child should constitute the crime of manslaugh- 
 ter, etc. 
 
 This distinction is, however, forcibly repudiated by 
 
 * Archbold's Crim. Pr. and PI., Pomeroy's ed., vol. i, 951. 
 \ This was held to be the law in Iowa, Kentucky, Maine, Massa- 
 chusetts, Michigan, MisFouri, and New Jersey. 
 ^: State vs. Cooper, 22 N. J. Law, 52. 
 
406 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the Pennsylvania courts in the case of Mills vs. Com- 
 monwealth,* wherein the court, in reference to the con- 
 tention that the absence of an allegation that the 
 mother was quick, rendered the indictment defective, 
 said : " Although it has been so held in Massachusetts 
 and in some other States, it is not, I apprehend, the 
 law in Pennsylvania, and never ought to have been the 
 law anywhere. It is not the murder of a living child 
 which constitutes the offense, but the destruction of 
 gestation by wicked means and against Nature. The 
 moment the womb is instinct with embryo life and 
 gestation has begun, the crime may be perpetrated." 
 This case was followed as a precedent by the supreme 
 court of North Carolina, f 
 
 Notwithstanding the fact that it was at common 
 law not generally considered criminal to commit an 
 abortion upon a woman, with her consent, before the 
 child quickened, yet if one performed such an act and 
 the death of the mother ensued he was held guilty of 
 murder. This was upon the ground that the act was 
 without lawful purpose and dangerous to life, and that 
 the consent of the mother could not take away the 
 imputation of malice or criminal intent. | 
 
 * Mills vs. Commonwealth, 13 Pa. St., 633. 
 + State vs. Slagle, 83 N. Car., 630. 
 
 X Commonwealth vs. Parker, 50 Mass., 263 ; Smith vs. State, 33 
 Me., 48. 
 
CRIMINAL LIABILITY. 407 
 
 It seems that at common law an abortion, when 
 committed with the mother's consent, and after quick- 
 ening, was not a crime, but only a misdemeanor, which 
 could not be punished by imprisonment in the State 
 prison.* 
 
 This question is now regulated by statutes in the 
 several States which specify what acts shall be con- 
 sidered tantamount to the crime in consideration and 
 provide penalties for their violation, f These statutes 
 in most States now fail to draw any distinction be- 
 tween the commission of the offense or attempt at 
 commission before and after the quickening of the 
 child, making it a felony in either case. The statutes 
 of some States, however, preserve the distinction by 
 providing a more severe punishment when the act or 
 attempt is committed after quickening. 
 
 A detailed examination of the statutes of the sev- 
 eral States would require a greater space than can here 
 be devoted to that purpose ; we will therefore pass over 
 the subject with a general statement of the most usual 
 provisions contained in such statutes, which are that 
 any person who shall administer to any pregnant 
 woman any medicine, drug, or noxious thing, or 
 who shall use or employ any instrument or other 
 
 * Evans vs. People, 49 N. Y., 86 ; Holliday vs. People, 9 111., 111. 
 \ The matter in Kentucky seems to be without statutory regula- 
 tion. 
 
408 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 means with intent to produce a miscarriage, unless 
 the same shall be necessary to preserve her life, shall 
 be guilty of a felony. 
 
 Some States provide that the performing or at- 
 tempting to perform an abortion shall be a misde- 
 meanor, and that in case death results from the act 
 the party performing the same shall be guilty of man- 
 slaughter. The effect of such statutes is, however, 
 simply to reduce the crime of performing or attempt- 
 ing to perform an abortion from that of a felony to 
 a misdemeanor, for the provision that the party per- 
 forming the operation shall be guilty of manslaughter 
 when death ensues does not in any material respect 
 alter the common law. The common law upon this 
 subject seems to be that where one attempts to cause 
 an abortion in a way not to inflict serious injury upon 
 the mother, and the mother dies from negligence in the 
 operation, there being no intent to kill her, or to 
 inflict serious injury, and no likelihood of such result, 
 the offense is manslaughter; if, however, the act is 
 one from which death or great injury would be likely 
 to result, or if it were performed with intent to pro- 
 duce death or grievous injury, then the offense is 
 murder.* 
 
 The liability of the mother for causing herself to 
 
 * Wharton's Crim. L., § 325. 
 
CRIMINAL LIABILITY. 409 
 
 miscarry, it seems at common law was regarded much 
 the same as that of a third person. If she committed 
 the abortion before the child had quickened she was 
 not guilty of a crime, but if after quickening she was 
 considered guilty. The statutes of the several States 
 making it a crime for any person to administer to 
 any pregnant woman any drug, etc., for the purpose 
 of unlawfully producing an abortion, are construed 
 as applying to third parties who commit such acts, 
 but not as incriminating the mother who performs 
 an abortion upon herself.* Nor was the submission 
 of the mother at common law to the act of another 
 in producing an abortion upon her held to render her 
 an accomplice in the commission of the crime. She 
 was looked upon rather as a victim of the act than 
 as a particeps criminis.\ 
 
 Statutes have, however, been enacted in some States 
 making it a criminal offense for the mother to take 
 any medicine or use or submit to the use of any in- 
 strument for the purpose of procuring her own mis- 
 carriage. Such a statute, it will be seen, entirely super- 
 sedes and alters the common law.;]; 
 
 * Smith va. Safford, 31 Ala., 45; Hatfield vs. Gano, 15 Iowa, 111. 
 
 f Dunn vs. People, 29 N. Y., 523; Com. vs. "Wood, 11 Gray 
 (Mass.), 85. 
 
 \ Such laws exist in California, Connecticut, Idaho, Indiana, Minne- 
 sota, Montana, North Dakota, New York, South Carolina, South Dakota, 
 Utah, and Wisconsin. 
 
410 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Advice to Produce an Abortion. — The mere solici- 
 tation or advice given to a pregnant vt^oman that she 
 take medicine or adopt means to produce a miscar- 
 riage does not constitute a crime unless the solicita- 
 tion or advice is acted upon. In the case of Lamb vs. 
 State,* the act upon which the prosecution was based 
 was the solicitation of a pregnant woman to take cer- 
 tain drugs for the purpose of causing an abortion, but 
 it was not shown that the woman did take the drugs. 
 In this case, after observing that tlae act complained 
 of was not included in the terms of the statute, the 
 court said : '' It may be urged that a solicitation is 
 an attempt, and that an attempt to commit a mis- 
 demeanor is a misdemeanor. Pursuing the same train 
 of inference and reasoning, we may go a step farther, 
 and maintain that as the solicitation is a misdemeanor, 
 an attempt at solicitation would, by the same rule, be 
 also a misdemeanor. This process might be indefinitely 
 extended, so as to reach persons very remotely separated 
 from the act which the statute intended to punish. Cer- 
 tainly it would be a great calamity to invent crimes by 
 subtle, ingenious, and astute deduction. In all free 
 countries the criminal law ought to be plain, perspicu- 
 ous, and easily apprehended by the common intelligence 
 of the community. It is the essence of cruelty and 
 
 * Lamb vs. State, 67 Md., 624, 10 All. Rep., 208. 
 
CRIMINAL LIABILITY. 411 
 
 injustice to punish men for acts which can be con- 
 strued to be crimes only by the application of artificial 
 principles according to a mode of disquisition unknown 
 in the ordinary business and pursuits of life." 
 
 A more recent and a stronger case than the above 
 was decided by the New York court of appeals in 1892.* 
 Here the crime was charged as having been committed 
 by advising a pregnant woman to take a medicine, 
 drug, or substance, and to use means to procure a mis- 
 carriage; but it was not shown that the advice was 
 acted upon. The statute under which the defendant 
 was prosecuted provided that " a person who, with 
 intent thereby to procure the miscarriage of a woman, 
 unless the same is necessary to preserve the life of 
 the woman, . . . advises or causes a woman to take 
 any medicine, drug, or substance, ... is guilty of 
 abortion, and is punishable, etc." The court said : " It 
 would be a very strict and literal, if not extraordinary, 
 construction of this section to hold that proof of mere 
 suggestion or advice, without evidence of its being acted 
 upon, could convict a man." The court, in discussing 
 the question further, after observing that it would 
 be competent for the legislature to impose a penalty 
 for mere giving advice to a woman to take a medicine 
 to produce an abortion, irrespective of its being acted 
 
 * People vs. Phelps, 133 N. Y., 267; 30 N. E. Rep., 1012. 
 
 27 
 
412 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 upon, said : " For the man to be ' guilty of abortion ' 
 within the provisions of this chapter, who has advised 
 the woman to take a drug, it is necessarily and logic- 
 ally to be implied that his advice should have been 
 followed by the act. Otherwise we should have to draw 
 the apparently absurd conclusion that the legislature 
 intended that abortion could be committed or caused 
 by the act of offering advice." 
 
 Intent, Bather than Efficacy of Means Employed, 
 Governs. — In one of the first English statutes * en- 
 acted for the purpose of preventing the procurement 
 of abortions, the expression " any poison or other 
 noxious thing " was made use of in describing an un- 
 lawful means of performing the forbidden act. This 
 expression has been reenacted in the statutes of many 
 of our States, and is judicially defined as being any 
 drug, medicine, or other thing which is hurtful or 
 harmful. 
 
 Under the N'ew Jersey statute which makes it a 
 crime to administer any drug, poison, medicine, or 
 noxious thing with intent to produce an abortion, the 
 court held that it was not necessary that the drug 
 or medicine used should accomplish the effect designed, 
 or should even be capable of producing a miscarriage; 
 but if it is hurtful and is administered, prescribed, or 
 
 * 9 Geo. IV, c. 31, § 13, 
 
CRIMINAL LIABILITY. 413 
 
 advised with the intent to cause a miscarriage, the 
 crime is complete the moment the medicine is taken. 
 The reasoning of the court in this case is based upon 
 sound policy, and should commend itself as correct 
 law whenever the question may in the future arise. 
 Justice Scudder, in assigning the reason for this con- 
 clusion, said : " The design of the statute was not so 
 much to prevent the procuring of abortions, however 
 offensive these may be to morals and decency, as to 
 guard the health and life of the female against the 
 consequences of such attempts. ... It is dangerous to 
 the life and health of the mother and to the existence 
 of the child to experiment with any drug, medicine, 
 or noxious thing to produce a miscarriage. The igno- 
 rance of the operator may lead him to select some- 
 thing that will not have the effect he designs; but if 
 it be noxious in any degree, though in the judgment 
 of others who have greater knowledge it can not pro- 
 duce the effect intended, it is within the statute." * 
 
 In a case f similar to the one above, and in which 
 the law was held substantially as there stated, the su- 
 preme court of Colorado held that the character and 
 capabilities of any drug alleged to have been used in 
 the procurement or attempted procurement of an abor- 
 tion are questions of fact to be determined by the jury 
 
 * State vs. Gedicke, 43 N. J. Law, 86. 
 I Dougherty vs. the People, 1 Colo., 514. 
 
414 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 upon the evidence before them. In referring to the es- 
 sential element of the crime the court said : " The acts 
 sought to be prohibited and the crime sought to be pun- 
 ished are the using of noxious substances and instru- 
 ments with intent to produce miscarriage. It is not ne- 
 cessary that the miscarriage should take place — that is, 
 that the administering of the drugs or the use of the in- 
 strument should be followed by the expulsion of the 
 foetus. That is not necessary to constitute the crime. It 
 is the administering the noxious substance or the use of 
 the instruments with intent to produce miscarriage 
 that makes up the crime." 
 
 A recent case in apparent conflict with the doc- 
 trine upon which the preceding cases are based comes 
 from the Texas court of appeals.* A more careful 
 examination of the case, however, shows that the con- 
 flict is only apparent, for the decision is based upon 
 the wording of the Texas statute which requires that 
 the means employed to produce the abortion shall be 
 calculated to be efficacious. Here the accused admin- 
 istered cotton-root tea. Experts for the State testi- 
 fied that while medical books said an abortion was 
 liable to follow the administration of cotton-root tea, 
 they knew nothing of it by personal observation, and 
 thought that as administered to the prosecuting wit- 
 
 * Williams vs. State, Tex. App., 19 S. W. Eep., 89*7. 
 
CRIMINAL LIABILITY. 415 
 
 ness by the defendant it was not calculated to pro- 
 duce an abortion. 
 
 Upon the question in consideration the case of 
 Commonwealth vs. W.* is instructive. The statute 
 under which the defendant was prosecuted was as fol- 
 lows : " If any person, with intent to procure the mis- 
 carriage of any woman, shall unlawfully administer 
 to her any poison, drug, or substance whatsoever, or 
 shall unlawfully use any instrument, or other means 
 whatsoever, with like intent, such person shall be 
 guilty of felony." The evidence in this case tended 
 to show that the defendant had been guilty of im- 
 proper liberties with the complaining witness; that 
 shortly thereafter her fears were excited by an irregu- 
 larity in her monthly courses, and that she made this 
 known to the defendant. He expressed the belief that 
 she had taken cold, and advised the use of a tea, and 
 afterward brought her a phial of iron tincture, instruct- 
 ing her to take ten or fifteen drops before meals for 
 the purpose of strengthening her. Professional evi- 
 dence was given that the iron could do her no harm, 
 but on the contrary was a benefit to her. 
 
 The court instructed the jury, in effect, that the 
 motive or intent of the defendant in furnishing the 
 prosecutrix with the iron should govern in determin- 
 
 * Com. vs. W , 3 Pitt?b. R., 463. 
 
416 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing his liability; that at the time the iron was given 
 there was no certainty of pregnancy, and that his 
 motive as expressed did not indicate a criminal intent ; 
 yet if they concluded from all the circumstances that 
 the drug was administered with intent to procure a 
 miscarriage, they should find the defendant guilty. 
 The evidence further showed that the prosecutrix, after 
 undergoing violent and excessive exercise, jumped from 
 a ladder, the effect of which was to cause a miscar- 
 riage. Whether or not this means, if induced by the 
 defendant, rendered him liable under the statute was 
 a question strongly opposed by the defense, who urged 
 that the words of the statute defining the crime, " or 
 shall use any instrument or other means whatsoever," 
 imply some act to be done by the defendant and not 
 by the woman herself under his advice. Upon this 
 question of law the court said to the jury : " We have 
 given this question some reflection, and our conclusion 
 is, to submit the case to you upon the evidence, with 
 the instruction that the third count (alleging the ex- 
 cessive exercise and jump as an act induced by the 
 defendant) sets forth the offense within the intent and 
 meaning of the act of assembly. 
 
 " We are not prepared to adopt the view of the law 
 presented by the defendant's counsel, for the reason 
 that such an interpretation would greatly abridge what 
 we conceive to be the remedial design of the act, and 
 
CRIMINAL LIABILITY. 417 
 
 to a great extent frustrate the expressed intention of 
 its framers. If a person intent on inducing an abortion 
 must not only prescribe the drug, but with his own 
 hand put it to the victim's lips, or, after contriving 
 the mechanical means, must to moral constraint super- 
 add physical force, we can readily perceive how the 
 abortionist may practise his nefarious schemes with 
 impunity in the very face of the statute. Upon the 
 commonwealth's evidence, the case is one of crimi- 
 nal abortion — that is, unlawful means were made use 
 of to procure a miscarriage. The defendant, accord- 
 ing to the evidence, contrived these means, and used 
 the prosecutrix in rendering them efficacious; what she 
 did was as much his act as if she had been moved to it 
 by outward constraint. The means used to produce 
 the abortion, therefore, were used by the defendant 
 just as much as if he had employed physical instead 
 of moral force." 
 
 Upon the question of fact to be determined by the 
 jury the court instructed them that they were to con- 
 sider carefully all the evidence, and from that deter- 
 mine whether the defendant conceived the violent and 
 excessive exercise as a means of producing a miscar- 
 riage, and whether he induced her to employ it with 
 intent on his part of producing a miscarriage. 
 
 The jury failed to agree and were discharged. The 
 prosecutrix soon removed to another State, and it seems 
 
418 THE LAW IN ITS RELATIONS TO PHYSICIANS. ' 
 
 was prevented from returning and appearing in court 
 by declining health. A nolle prosequi was therefore en- 
 tered and the defendant dismissed. 
 
 Pregnancy not Necessary for Commission of the 
 Crime; Statutory Exceptions. — In harmony with the 
 above decision, and probably based upon the same rea- 
 son — viz., that the chief aim of the law is to protect the 
 woman from injurious attempts to cause her to mis- 
 carry — is the rule that it is not essential that the woman 
 shall, in fact, be pregnant when operated upon, in order 
 to render the person attempting to produce her miscar- 
 riage criminally liable.* This rule can not, of course, 
 exist where the statute under which the attempted abor- 
 tion is sought to be punished expressly provides that 
 the woman shall be pregnant; such statutes sometimes 
 provide that it shall be a crime to produce or attempt 
 to produce an abortion upon a woman " pregnant with 
 child." In such a case it is an essential part of the 
 crime that the person upon whom the attempt has been 
 made was in fact so pregnant, and if the prosecution 
 fails in showing this condition to have existed the ac- 
 cused can not be convicted even though it is clearly 
 shown that he has attempted to produce an abortion. 
 Nor will it make any difference in the necessity of prov- 
 
 * Regina vs. Goodchild, 2 Car. and K., 292; Com. vs. Taylor, 132 
 Mass., 261. 
 
CRIMINAL LIABILITY. 419 
 
 ing the pregnancy that a new law may have been en- 
 acted obviating this necessity by eliminating the words 
 '"' pregnant with child/' after the time of the alleged 
 attempt to perform an abortion and before trial,* it 
 being a constitutional guarantee that no person shall 
 be convicted of a criminal act upon less evidence or evi- 
 dence inferior to that which would have been requisite 
 to a conviction at the time the alleged criminal act was 
 committed. 
 
 Vitality of Foetus not Essential to Commission of 
 the Crime. — It has been contended that if the foetus had 
 lost vitality at the time the act intended to cause a mis- 
 carriage was committed, this will relieve the defendant 
 of criminal liability. Upon this question we have two 
 cases nearly contemporaneous — one from the supreme 
 court of Massachusetts, decided in 1858, and one from 
 the supreme court of Vermont, decided in 1859, which 
 at first blush appear to be in conflict. The Vermont 
 case lays down the rule squarely that where a physician 
 attempts, with unlawful intent, to produce an abortion, 
 it is no defense that it may be subsequently discovered 
 that the foetus had lost vitality previous to the opera- 
 tion or that the case was one in which it would have been. 
 necessary to destroy the foetus to save the mother. If 
 the physician did not know this fact at the time of treat- 
 
 * Com. vs. Grover, 82 Mass., 602. 
 
420 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing the patient and attempted to produce the miscar- 
 riage for other than a lawful purpose, he is criminally 
 liable.* In the Massachusetts case f there appears at 
 first glance to be a more lenient application of the law. 
 There the court says that if there had been evidence 
 that the foetus had lost its vitality, it might have been 
 the duty of the judge to say directly to the jury that, if 
 they so found, the case was not within the statute. 
 Upon examining the case more carefully, however, it is 
 apparent that the court had in contemplation the effect 
 that would have been produced by the introduction of 
 evidence on behalf of the defendant to show the exist- 
 ence of a condition justifying and requiring the opera- 
 tion performed. In such a case, it is apprehended, the 
 question of intent upon the part of the defendant at the 
 time he administered the drug or performed the opera- 
 tion would properly be submitted to the jury for deter- 
 mination, and that they should properly find him guilty 
 or innocent accordingly as they determine his motive 
 and purpose to have been to unlawfully relieve the 
 mother of the burden of bearing the child, or to save 
 her from the impending danger. With this interpre- 
 tation it will be observed that the Massachusetts case is 
 in complete harmony with the Vermont case. 
 
 * State vs. Howard, 32 Vt., 380. 
 f Com. vs. Wood, 11 Mass., 85. 
 
CRIMINAL LIABILITY. 421 
 
 Justification for Performing. — These cases bring us 
 to an examination of the question of when a physician 
 is justified in performing an abortion. The statutes of 
 many States, in making it a crime to procure an abor- 
 tion, expressly except those cases in which the abor- 
 tion may be necessary to preserve the life of the mother, 
 or shall have been advised by one (sometimes two) phy- 
 sicians to be necessary for such purpose. The proper 
 construction of such an act seems to be that if the phy- 
 sician operating believes the performance of an abor- 
 tion necessary to save the mother's life, and acts upon 
 this belief without availing himself of counsel and ob- 
 taining the advice of the number of physicians named 
 in the statute of his State that such operation is neces- 
 sary, he is not exonerated unless he is correct in such 
 belief. But if he calls in counsel, and, after proper 
 examination, they advise him that the operation is ne- 
 cessary, he is then justified in performing it, and will be 
 held harmless whether his advice was correct or not. 
 It is apprehended that the law is substantially the same 
 in those States having no provisions in their statutes for 
 securing the advice of other physicians as to the neces- 
 sity of performing such an operation. The fact that 
 the preservation of the mother's life requires that a 
 miscarriage be performed upon her is always a justifica- 
 tion for producing an abortion, whether the statute ex- 
 pressly so provides or not; if, however, the physician 
 
422 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 performing the abortion assumes the responsibility of 
 determining that the operation is necessary, and acts 
 upon his own judgment, he will be bound at his peril 
 to judge correctly ; but if he acts in good faith in secur- 
 ing a consultation he will then be protected in acting 
 upon the advice of the consultants, whether^ their opin- 
 ion of the patient's condition is, in fact, correct or not. 
 Should the physician's good faith in obtaining the con- 
 sultation be questioned, it would then be for the jury 
 to determine, from all the attendant circumstances, 
 whether the consultation was a mere sham and collusive 
 pretense made to give color of legality to an unlawful 
 act, or was, in fact, an honest effort made to deter- 
 mine the patient's actual condition with a view to ren- 
 dering to her such medical services as her real needs 
 required. Probably the physician's best safeguard 
 against an attack of this sort is the exercise of a wise 
 discrimination in the choice of consultants, for if a con- 
 sultation is secured with consultants whose professional 
 integrity is irreproachable, no imputation of bad faith 
 can be safely made, much less maintained. 
 
 The supreme court of Massachusetts, in a case be- 
 fore them some years ago,* expressed their approval of 
 an instruction given to the jury in the trial court, 
 wherein the legal duty of the physician in an emer- 
 
 * Commonwealth vs. Brown, 121 Mass., 69. 
 
CRIMINAL LIABILITY. 423 
 
 gency of the sort in contemplation was said to be at a 
 much lower standard than that above fixed. Therein 
 the trial judge said : " A physician may lawfully procure 
 the miscarriage of a woman pregnant with child by any 
 means applicable and reasonable for that purpose, di- 
 rectly or indirectly, if in so doing he acts in good faith 
 for the preservation of the life or health of such preg- 
 nant woman. The justification of a physician thus 
 acting must depend upon his exercising his best skill 
 and judgment, and in the honest belief that the acts 
 directly applied to produce a miscarriage, or applied to 
 the treatment of a disease so as to involve a miscar- 
 riage as a not unusual incident of such treatment, are 
 necessary to save such pregnant woman from great 
 peril to her life or health." 
 
 While the standard upon which this instruction is 
 based is the one underlying nearly the whole law of 
 civil and criminal liability, yet it can not be safely 
 advised that the courts will in similar cases follow the 
 opinion therein expressed. Moreover, should this opin- 
 ion be followed, the question of fact to be determined by 
 the jury of whether or not the physician did exercise 
 "his best skill and judgment" and act "in the honest 
 belief " that such operation was necessary, will be a per- 
 ilous one which will be eliminated from all cases in 
 which the physician observes the legal duties herein 
 first laid down. 
 
424 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The necessity of destroying the child to save the 
 mother's life, as contemplated by the statute, applies 
 to those cases only where the death of the mother ' 
 can reasonably be anticipated to result from nat- 
 ural causes unless the child is destroyed. For ex- 
 ample, it is evidently not within the meaning of the 
 statute that the physician's conduct in destroying the 
 child is justified as necessary to save the mother's life 
 when the only reason to anticipate the mother's death 
 from a continuation of her condition of pregnancy is 
 that she has threatened to commit suicide if she is not 
 operated upon.* Nor is the consent of the mother to 
 the operation, nor a desire to screen her from exposure 
 and disgrace, any justification for the act.f 
 
 Burden of Proving Existence or Non-existence of 
 Necessity for Operating. — Whether it is necessary for 
 the State to prove as an essential feature of the case of 
 the prosecution that an abortion was not necessary to 
 save the life of the mother, or whether, on the other 
 hand, this fact will be presumed and the burden of prov- 
 ing that such operation was necessary to the mother's 
 safety devolve upon the defendant, should he desire to 
 make such a defense, is a question upon which the 
 courts are divided. 
 
 The general rule of evidence regulating the burden 
 
 * Hatchard vs. State, 19 Wis., 35*7. 
 
 f Com. vs. Wood, 7*7 Mass., 85 ; Com. vs. Snow, 116 Mass., 4Y. 
 
CRIMINAL LIABILITY. 425 
 
 of proof is that the burden or requirement of proving 
 any fact lies upon the party who substantially asserts 
 the affirmative of the issue. This rule is, however, sub- 
 ject to a number of well-recognized exceptions, among 
 which is the rule that when a statute, in creating or de- 
 fining an offense, makes negative matter or a negative 
 condition a material element of the offense described, 
 then this negative condition must be proved by the party 
 enforcing the operation of the statute. That the stat- 
 utes of the several States prohibiting the production of 
 abortion, as usually worded, come within this exception, 
 seems evident; yet in apparent conflict with this rule, 
 at least in the present case, is the rule that where facts 
 are peculiarly within the knowledge of either party to a 
 suit the burden is upon that party to prove them. 
 
 The supreme court of Oregon, in a well-considered 
 opinion, denies the application of the last rule men- 
 tioned to this class of cases. The court, speaking 
 through Justice Thayer, says : " The relative conven- 
 ience of the parties to make the proof ought not, it seems 
 to me, to be taken into consideration ; but, in any event, 
 no such rule should be applied to a criminal case, where 
 the accused is presumed to be innocent, and the prose- 
 cution is required to prove him guilty beyond a reason- 
 able doubt. . . . Proof that a physician, in his profes- 
 sional treatment of a woman pregnant with a child, had 
 used means, with the intent thereby to destroy the child, 
 
426 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 and the death of the child was thereby produced, is not 
 evidence that the treatment was not necessary to pre- 
 serve the life of the mother; nor, if it produced the 
 death of the mother, that it was not an honest effort on 
 the part of the physician to preserve her life. The ex- 
 perience of mankind shows that cases have often arisen 
 in which such treatment has necessarily been resorted to, 
 and, in the absence of other proof, the law, in its benig- 
 nity, would presume that it was performed in good faith, 
 and for a legitimate purpose. The extent of proof to 
 establish the negative averment in such a case would 
 necessarily be limited by the circumstances. It could 
 not, in the nature of things, be made positive, except 
 as aided by the fact that the accused was able to refute 
 it absolutely, if untrue, and had failed to attempt to do 
 so." * The supreme court of Minnesota, in examining 
 a question very nearly related to this one, indicated 
 its disposition to hold the law as above laid down,f 
 while the supreme court of Ohio very clearly expressed 
 its opinion that it was incumbent upon the State to 
 prove that the producing of the abortion was not "ne- 
 cessary to preserve the life of such mother." The 
 ground, however, upon which this court arrived at this 
 conclusion was that the facts showinsr whether or not it 
 
 * State vs. Clement?, 15 Ore , 2^1, U Pac. Rep., 410. 
 f State vs. Mclntvre, 19 Minn., 93. 
 
CRIMmAL LIABILITY. 427 
 
 was necessary to perform the abortion to save the moth- 
 er's life were not peculiarly within the knowledge of the 
 defendant. Upon this point the court, speaking 
 through Chief-Justice Day, said : " The circumstances 
 attending the procurement of an abortion, tending to 
 prove that it was unnecessary for the purpose of pre- 
 serving the life of the mother, ordinarily can be shown 
 quite as easily upon the part of the prosecution as it 
 can be proved by the defendant that it was necessary for 
 that purpose." The negative of the fact that the abor- 
 tion was advised by two physicians, the court holds, 
 for a like reason, is not necessary to be proved by the 
 State. Here the fact that the physician obtained the 
 advice of two physicians of the necessity of the opera- 
 tion, if indeed he did, is one which is peculiarly within 
 his knowledge and one of which it might be impossible 
 for the State to prove the negative.* 
 
 Upon the other hand, it is held in several well-con- 
 sidered cases that it is not incumbent upon the State 
 to show that the operation is not necessary, but that this 
 is a matter of defense peculiarly within the knowledge 
 of the defendant, which he must prove if available. 
 
 The supreme court of Kew York lays down the rule 
 unqualifiedly that it is not for the State to prove 
 the absence of a necessity for performing the operation, 
 
 * Moody vs. State, 11 Ohio St., 110. 
 28 
 
428 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 but that this is a matter of defense which must be affirm- 
 atively proved by the defendant.* The same rule is ad- 
 hered to in the State of Wisconsin, f 
 
 Constitutional and Legal Safeguards in Criminal 
 Cases. — When one accused of a criminal offense enters 
 a court of justice sitting for the purpose of determining 
 his innocence or guilt of the crime charged, he is pro- 
 tected by constitutional guarantees and presumptions 
 of law, wisely designed to guard the innocent from the 
 untoward and sometimes perilous chain of circum- 
 stances which often falsely bespeak guilt. In all 
 criminal cases the place of trial must, by virtue of 
 the United States Constitution, be in the State and 
 district where the crime has been committed. This 
 provision prevents the possibility of taking the prisoner 
 to a distant State, where it would probably be impossi- 
 ble for him to secure evidence to disprove or combat 
 that produced by the prosecution. The manner of 
 trial, according to the guarantee of the United States 
 Constitution, shall be, in federal cases, by jury, and by 
 a similar guarantee contained in the constitutions of the 
 several States the trial of prisoners for crimes against 
 the respective States shall also be by jury. These guar- 
 antees, together with the wise laws which generally pre- 
 
 * People vs. McGonegal, 17 N. Y. Supp., 147, 136 N. Y., 62; Brad- 
 ford va. People, 20 Hun, 309. 
 
 f Hatchard vs. State, 79 Wis., 357, 48 N. W. Rep , 380. 
 
CRIMINAL LIABILITY. 429 
 
 vail for the purpose of securing unprejudiced juries, 
 insure the prisoner a reasonably fair trial. 
 
 The first, and probably one of the most important, 
 intendments of the law in the prisoner's favor is the 
 presumption of his innocence. This presumption can 
 only be overcome by the production of evidence on the 
 trial so strong as to remove from the mind of the jury 
 every reasonable doubt as to his guilt. In civil matters 
 it has been shown that the jury, after weighing the evi- 
 dence, are to give their verdict in accordance with the 
 preponderance of evidence; but in criminal matters, it 
 must be observed, the rule is different. Here the jury 
 can not find the accused guilty unless the evidence indi- 
 cating guilt preponderates so greatly over that calcu- 
 lated to show innocence as to remove from the mind of 
 the jury every reasonable doubt of the defendant's guilt. 
 
 In the manner of producing the evidence against 
 the prisoner the solicitude of our Constitution and laws 
 for justice to the accused is again shown. In civil 
 matters, if a witness is far distant from the place of 
 trial, or if he is sick and unable to appear in court, his 
 deposition may be taken and produced upon the trial 
 with a like effect as his personal statement made before 
 the jvLTj, or perhaps even greater; but not so in crimi- 
 nal matters. Here the Constitution says the accused 
 shall be confronted by the witnesses against him — that 
 is, he shall meet them face to face — and they shall testify 
 
430 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 in open court and in his presence. The prisoner is in- 
 sured the right of compulsory process to obtain witnesses 
 in his favor, and is spared the necessity of being himself 
 required to testify. Moreover, he is guaranteed the 
 right of being informed of the nature and cause of the 
 accusation against him, and is assured the assistance of 
 counsel for his defense. And, above all, when once 
 acquitted of the crime charged, his innocence can never 
 again be judicially questioned. But, notwithstanding 
 all these legal barriers thrown about the accused, it is 
 apprehended that many innocent men have suffered 
 because of inadvertent circumstances, or perhaps 
 through indiscretions. The evidence of circumstances 
 is, as all know, often most convincing, and yet some- 
 times leads to absolutely false conclusions. 
 
 Kules Governing Admission of Evidence in Abor- 
 tion Cases. — In order to understand more particularly 
 what character of evidence is admissible to prove the 
 commission of the crime in consideration and the 
 amount and weight of such evidence necessary to fix the 
 sruilt, an examination will be made of a few cases in 
 which the evidence has been passed upon and the pris- 
 oner's guilt or innocence determined by the jury. But 
 first a brief reference will be had to the general rules 
 of law regulating the admission of evidence. 
 
 In the trial of a case before a jury, whenever either 
 party offers evidence, the admissibility of that evi- 
 
CRIMINAL LIABILITY. 431 
 
 dence is a question of law to be decided by the judge. 
 If the judge decides that the evidence is proper and 
 admissible, it then becomes the province of the jury to 
 weigh and determine the effect of that evidence. The 
 judge, in passing upon the admissibility of the evidence, 
 must determine whether it is relevant to the question 
 at issue. In determining this, recourse is had, if in a 
 civil matter, to the pleadings, or preliminary written 
 statements of the facts or conditions claimed by the 
 respective parties; if in a criminal matter, to the in- 
 dictment or information, and herein will be found many 
 technical discussions, which can be neither interestingly 
 nor profitably examined. 
 
 The general rule, that the best evidence of which 
 the case in its nature is susceptible is required, has been 
 heretofore referred to. This rule simply means that 
 when a certain fact can be shown by authentic evidence 
 a secondary or inferior grade of evidence will not be 
 admitted to prove the same; if, for instance, the con- 
 tents of a certain letter or writing are desired to be 
 proved, then the letter or original writing itself is the 
 only admissible evidence; if, however, it can be shown 
 that the letter is lost or destroyed, then secondary evi- 
 dence of its contents may be admitted. 
 
 Similar in principle to this rule is the one rejecting 
 as incompetent all hearsay evidence. The rule regard- 
 ing hearsay evidence is that the witness may testify as 
 
432 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 to facts lying within his own knowledge^, but that he 
 can not testify from information given by others. There 
 are, however, a number of exceptions to this rule which 
 figure very importantly in the trials of the class of 
 cases we are about to examine. One of these excep- 
 tions, or apparent exceptions, is that the expressions of 
 another showing his bodily or mental feelings at the 
 time they were made may be given in evidence by a 
 witness who was present, where the physical or mental 
 condition of such party at that time is relevant to the 
 question in issue. Another and important exception, 
 and one which it is difficult to adequately and clearly ex- 
 press in few words, is the rule that the circumstances 
 and statements forming part of the res gestce are ad- 
 missible in evidence ; by the term res gestce is meant all 
 of those circumstances and things which are related to 
 or throw light upon the real question in issue. Mr. 
 Greenleaf, in his philosophical work upon Evidence, in 
 describing this rule, said : " The affairs of men consist 
 of a complication of circumstances so intimately inter- 
 woven as to be hardly separable from each other. Each 
 owes its birth to some preceding circumstance, and in 
 its turn becomes the prolific parent of others ; and each, 
 during its existence, has its inseparable attributes and 
 its kindred facts, materially affecting its character, and 
 essential to be known, in order to a right understand- 
 ing of its nature. These surrounding circumstances, 
 
CRIMINAL LIABILITY. 433 
 
 constituting parts of the res gestce, may always be shown 
 to the jury, along with the principal fact ; and their ad- 
 missibility is determined by the judge, according to the 
 . degree of their relation to that fact, and in the exercise 
 of his sound discretion; it being extremely difficult, if 
 not impossible, to bring this class of cases within the 
 limits of a more particular description." * To illus- 
 trate this rule, if one running from a room in which a 
 murder had just been committed were heard to use cer- 
 tain expressions or make certain statements, those ex- 
 pressions or statements would be competent as part of 
 the res gestce, they tending to throw light upon the 
 main question in issue. As a general rule, the circum- 
 stances or declarations offered in proof as part of the 
 res gestce must be contemporaneous with the main fact 
 under consideration and so connected with it as to illus- 
 trate its character. It has been held, however, that 
 where the witness reached the murdered person twenty 
 seconds after the injury and heard him say, " I'm 
 stabbed ; I'm gone ; Dan Hackett stabbed me," this evi- 
 dence could be admitted as part of the res gestce. The 
 admissibility of evidence under this rule must depend 
 largely upon the circumstances of the particular case, 
 as will be more particularly and practically seen in ob- 
 serving its application in the cases hereafter examined, 
 
 * 1 Greeulcaf on Evidence, § 108. 
 
434 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 More properly the foregoing rules admitting evi- 
 dence of statements expressive of bodily and mental 
 feelings, and statements which are part of the res gestce, 
 are not, in fact, exceptions, but are apparently excep- 
 tions to the rule debarring hearsay evidence, for the 
 veitness in neither of these cases attempts to testify as 
 to the truth of the subject matter of the declaration, but 
 simply as to statement or expression which he heard. 
 
 There are, however, several real exceptions to the 
 rule. One of these exceptions, which is of material im- 
 portance in this class of cases, is that dying declarations 
 will be received as evidence of the fact which they recite. 
 This rule is not applicable in civil matters, but only in 
 cases of homicide, and such declarations are then admis- 
 sible only for the purpose of showing the circumstances 
 of the death. Such declarations must, however, be 
 made while in extremis, the party realizing his condi- 
 tion and entertaining no hope of recovery. The theory 
 upon which this class of statements is received as evi- 
 dence of the fact recited is that a situation so solemn 
 and so awful is considered by the law as creating an 
 obligation equal to that which is imposed by a positive 
 oath in a court of justice,* 
 
 Another exception which sometimes has an impor- 
 tant bearing in this class of cases is the rule that con- 
 
 * 1 Greenleaf on Evidence, § 156. 
 
CRIMINAL LIABILITY. 435 
 
 fessions of the prisoner, or, in civil matters, admissions 
 against interest, may be admitted in evidence to prove 
 the subject matter of their contents. In view of this 
 exception and of the great zeal shown by certain minis- 
 terial officers whose duty it is to apprehend and retain 
 custody of the accused, to procure condemning evi- 
 dence, often irrespective of the merits of the case, one 
 who is so unfortunate as to have fallen under suspicion, 
 perhaps by force of untoward circumstances, for which 
 he is not accountable, should have this rule in mind, 
 and carefully guard his utterances lest some intention- 
 ally innocent remark, made under the excitement of the 
 occasion, be repeated in court, possibly with a slight 
 alteration of wording or a change of expression, to con- 
 vey an impression of guilt not intended and not justified 
 by the facts. 
 
 These are the principal rules of evidence adverted 
 to in determining the admissibility of evidence in this 
 class of cases. An examination will now be made of 
 the cases themselves for the purpose of ascertaining 
 the weight and effect of the evidence when admitted 
 before the jury. 
 
 Proving Unlawful Performance of Abortion; Illus- 
 trations. — In cases where the mother dies from the 
 operation it may happen that the fact that an abortion 
 has been performed can not be shown by any living 
 witness. In such cases the only manner of proving the 
 
436 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 corpus delicti, or body of the wrong, is by having a 
 competent medical man perform a post-mortem and 
 then testify before the jury as to the condition which he 
 found present. In addition to the evidence which such 
 a physician gives as to the condition of the deceased, it 
 is competent for him to also express his opinion or be- 
 lief as to whether she was pregnant, and, if so, whether 
 or not an abortion had been performed upon her, and 
 give his reasons for such belief.* And so, where the 
 defendant alleges that the deceased operated upon her- 
 self, and that he was called in after such operation 
 and superintended her delivery of a dead foetus and 
 afterbirth, and acted only as an honest medical prac- 
 titioner should act when called to attend a woman 
 suffering from such injuries, it is competent for a 
 skillful physician and surgeon who has examined the 
 uterus of the deceased to testify whether or not in 
 his opinion the injuries he found thereon were self- 
 inflicted, f 
 
 The case of State vs. Howard J is a revolting one, in 
 which the fact that an abortion had been performed 
 seems to have first become known through a post-mor- 
 tem examination. Here the evidence showed that two 
 girls, the deceased and her sister, left their homes for 
 
 * State vs. Smith, 32 Me., 369. 
 
 f State vs. Lee, 65 Conn., 265, 30 Atl. Rep., 1110. 
 
 X State vs. Howard, 32 Vt, 380. 
 
CRIMINAL LIABILITY. 437 
 
 the purpose of visiting relatives in a neighboring town. 
 Soon afterward they left the house where they were 
 visiting for the ostensible purpose of taking an ex- 
 cursion into an adjoining State, but instead they went 
 to the house of the defendant, a practising physician; 
 about two weeks after arriving there the deceased ex- 
 pired. Her body was placed in a cofhn and she was 
 sent to her home and buried, but a few days afterward 
 was disinterred and a post-mortem examination made. 
 The examination extended through the body and inter- 
 nal organs, but no examination was made of the brain. 
 The external opening of the vagina was greatly ex- 
 tended, so that the hand, without much difficulty, might 
 be passed in; the uterus was enlarged in size, its walls 
 were thickened, and its blood-vessels were increased in 
 size and number, as is usual in case of pregnancy, and 
 internally there were marks of the attachment of a pla- 
 centa, that had been removed, leaving open sinuses ; the 
 breasts were distended, and contained milk, and there 
 was a dark areola about each nipple ; the mouth of the 
 womb was then about half an inch in diameter ; the neck 
 of the womb was greatly inflamed, and the lining mem- 
 brane had all been taken off; there were sloughs and 
 holes in the substance of the neck; the body of the 
 womb was healthy, and all the internal organs of the 
 body were in a natural and healthy condition. The 
 physician who performed the post-mortem examination 
 
438 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 testified, upon tlie trial of the case, that in his opinion 
 the direct cause of tlie death was the inflammation of 
 the neck of the womb, and perhaps haemorrhage; that 
 that was a sufficient cause of death; that there had 
 been a foetus in the womb from four to seven months 
 old that had been expelled before the examination. He 
 also testified that he had removed the uterus and pre- 
 served it in alcohol, and upon request of the counsel for 
 the State he produced it. It was exhibited to the jury 
 and the various parts and marks were pointed out and 
 described. 
 
 The State then produced a witness who testified to 
 the finding of a foetus upon the premises of the defend- 
 ant. The admissibility of this evidence was contested 
 by the defendant, but it was admitted as tending strong- 
 ly to show the corpus delicti. 
 
 Deceased's sister then testified that when she and 
 deceased left home it was understood between them that 
 an abortion was to be performed upon deceased; that 
 just before going to the defendant, who lived in a vil- 
 lage some miles distant from the one in which they 
 were visiting, deceased met the father of her child, who, 
 it seems, had arranged with defendant to take the case ; 
 that arriving at the house of the defendant they told 
 him deceased's condition, that she was six months ad- 
 vanced, and that they desired him to procure an abor- 
 tion; that he did not consent at first, but, after corre- 
 
CRIMINAL LIABILITY. 439 
 
 spending with the child's father, agreed to go through 
 with the operation for one hundred dollars; that de- 
 fendant first gave deceased medicine in the form of 
 bitters, about a gobletful at a dose, which operated as an 
 emetic and cathartic. That about a week after their 
 arrival defendant performed an operation upon de- 
 ceased with instruments, she lying on the bed in their 
 room, the witness being present; that he used two or 
 three instruments; that he used the instruments in- 
 ternally upon the private parts of deceased, who com- 
 plained of pain and its hurting while the operation was 
 going on; that discharges of water came from her, 
 which continued to flow for two or three hours more; 
 that on the next day defendant made another operation 
 in a similar manner and attended by pain, which was 
 indicated by complaints and gripping of the hands; 
 that the result of this operation was flowing, and that 
 the witness saw considerable blood; that near night of 
 the same day defendant performed a third operation, 
 making the same use of instruments as in the former 
 operation, and in connection therewith introduced his 
 hand; that the result was a child about two thirds 
 grown; that defendant took the child from the room 
 and witness saw it no more. From the further evi- 
 dence it seems that deceased lived a week after the 
 first operation; that she was delirious several days be- 
 fore death and became violent. 
 
440 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The theory upon which the defense was conducted 
 was that deceased, before going to defendant's house, 
 had taken strong medicines, which were accountable for 
 the miscarriage and her subsequent death, and that the 
 professional services rendered to her by defendant were 
 only such as her condition required from a physician 
 in the honest and conscientious practice of his profes- 
 sion. To show this, an inmate of the defendant's house- 
 hold was introduced as a witness, who gave in evidence 
 as a dying declaration the following statement of the 
 deceased. The witness said that on Thursday, the day 
 before the patient's death, about noon she had a con- 
 versation with her while her sister was at dinner; that 
 deceased told witness she thought she could not live, and 
 did not expect to; that she had been taking powerful, 
 poisonous medicines before she came to defendant's, and 
 she thought she had destroyed her life, and that that 
 was what had caused her mouth to be sore; that she 
 hoped they would not blame the doctor; and that she 
 thought he had done everything he could to restore her 
 health, and that she had been out of health a long 
 while. The witness testified that she did not see any 
 indication that deceased was not perfectly sane, and 
 that witness had never discovered any insanity about 
 her, and had no suspicion of it; that she seemed sane 
 through that day, but that on the next morning she 
 seemed to have lost her reason. 
 
CRIMINAL LIABILITY. 441 
 
 The State introduced witnesses who testified that 
 about four o'clock Thursday morning, the day upon 
 which the above conversation was said to have taken 
 place, the deceased became violent and kicked off the 
 footboard, and that she was not in a condition to be able 
 to converse during the day. 
 
 Other evidence of a cumulative or corroborative 
 character was given by both sides. The jury found the 
 defendant guilty of the procurement of an abortion. 
 The case was appealed to the supreme court and there 
 affirmed, after which the defendant was sentenced to 
 the State prison. 
 
 In the case of State vs. Glass * is an illustration of 
 the application of the rule admitting evidence of state- 
 ments which form part of the res gestce. Here the de- 
 ceased applied to two physicians, informing them of 
 her condition and asking them to perform an abortion 
 upon her; they both refusing, she then went to. the 
 defendant. The State, in order to prove the condition 
 of the deceased, called these two physicians as witnesses 
 and had them testify regarding the statements made to 
 them by deceased. The introduction of this evidence 
 was objected to by the defendant, but it was admitted 
 as part of the res gestce. The supreme court, in re- 
 viewing the case, held that the trial court ruled cor- 
 
 * State vs. Glass, 5 Or., 73. 
 
442 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 rectly in admitting this evidence. Here the statements 
 admitted related so intimately to the condition which 
 was the principal inducement to the crime for which 
 the defendant was being tried, and were made under 
 circumstances where every possible inducement to sup- 
 press, conceal, or distort the truth was overcome, that 
 they could not well be considered otherwise than as 
 admissible upon the grounds named. 
 
 Nor, generally speaking, can the evidence of a physi- 
 cian who is called upon professionally to perform an 
 unlawful abortion be objected to upon the ground that 
 the knowledge thereby gained by him is privileged.* 
 
 This rule is illustrated in the case of State vs. 
 Smith, f In this case the evidence showed that the 
 prosecuting witness, an unmarried woman of twenty- 
 three, who was advanced between five and six months 
 in pregnancy, came to the house of the defendant, a 
 practising physician, on the 25th of September, where 
 she remained for some time, and that on the morning 
 of October 5th she had a miscarriage. 
 
 The prosecuting witness testified that previous to 
 the time of her going to defendant's house she was in 
 sound physical health and that no attempt had been 
 made to produce a miscarriage. She testified that on 
 the morning of her arrival defendant began treating her 
 
 * Sea pp. 483, 514 et seq. 
 
 f State vs. Smith, 99 la., 26, 68 N. W., 428. 
 
CRIMINAL LIABILITY. 44.3 
 
 for the purpose of producing a miscarriage, and that 
 certain medicines and instruments were used upon her, 
 and that a miscarriage followed their use. 
 
 The testimony of the defendant was that the com- 
 plaining witness came to her for treatment and that 
 she was in a deranged condition ; " that the uterus was 
 sore, swollen, and very much inflamed, and it looked like 
 it had been punctured in the mouth of it, and all 
 around the sides " ; and that it was " tipped," the parts 
 swollen, and a discharge coming therefrom. Defend- 
 ant admitted that she used the kind of instruments 
 named by prosecuting witness, but testified that they 
 were used in a dilferent way and for a different purpose 
 from that stated. She described the treatment given, 
 and said it was proper treatment under the conditions 
 to prevent a miscarriage. Several experienced physi- 
 cians confirmed her in this statement as to the propri- 
 ety of the treatment, under conditions such as she stated 
 existed, while one or two others condemned the treat- 
 ment. Defendant further testified that on the fourth 
 day of October she found the head of the foetus in the 
 vagina, and that it had commenced to leave the uterus ; 
 believing that a miscarriage could not be prevented, 
 and that the obstruction must be removed, and having 
 no instruments, defendant sent for another physician 
 who, upon arriving, refused to have anything to do 
 
 with the case, but, according to defendant's testimony, 
 29 
 
444: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 advised that Nature be allowed to take her course. 
 Whether anything further was done to prevent or pro- 
 duce the miscarriage the evidence does not show. 
 
 The physician who was called to remove the foetus 
 was produced as a witness by the State at the trial and 
 asked to state what he saw and did in the presence of 
 the defendant. The defendant objected to the witness 
 answering the question on the ground " that the things 
 he saw, and the conversation he had with this defendant 
 upon the occasion of the visit mentioned by him, were 
 confidential, and that the knowledge he obtained upon 
 that occasion was obtained in his capacity as a physi- 
 cian." The trial court admitted the testimony of the 
 witness. The defendant's counsel excepted to the ruling 
 and the question was reviewed by the supreme court, 
 who held, in accordance with the rule above laid down 
 relative to privileged communications, that as the facts 
 and the testimony of this witness showed "that the 
 communication of defendant to him was for an unlaw- 
 ful purpose and had for its object the commission of a 
 crime," it therefore was not privileged. 
 
 The witness testified as follows : " I went into the 
 room and took off my overcoat, and laid down my in- 
 struments. (Defendant) told me that she had a friend 
 from the southern part of the State ; that she came there 
 to be treated ; that she was in the family way, and was 
 to be married to a man in Pennsylvania, and must get 
 
CRIMINAL LIABILITY. 445 
 
 out of this fix before she was to be married. She 
 wanted that I should go into the room and examine 
 the patient, and I refused to go. She told me that the 
 girl was sick. I told her that I would have nothing 
 to do with the case. I went into the other room and 
 put on my coat." 
 
 There was considerable other evidence given on be- 
 half of both the defendant and of the State, yet the 
 foregoing seems to have been the principal evidence upon 
 which the case was decided. The jury found the de- 
 fendant guilty of producing a miscarriage and she was 
 sentenced to imprisonment in the penitentiary. 
 
 The question of what length of time will be con- 
 sidered sufficient to afford an opportunity to operate 
 is answered to a certain extent in the cases of Common- 
 wealth vs. Drake * and People vs. My Gonegal.f In 
 the former case the evidence showed that the woman 
 upon whom the abortion was performed and the defend- 
 ant were together fifteen minutes; this was thought to 
 be sufficient time to afford opportunity for the opera- 
 tion. Here the woman upon whom the abortion was 
 performed, and who for convenience will be designated 
 S., and a friend came from a distant town to the 
 city where defendant lived for the purpose of having 
 the abortion performed. The friend testified that they 
 
 * Com. vs. Drake, 124 Mass., 21. 
 
 f People vs. McGonegal, 17 N. T. Supp., 147, 13G N. Y., 62. 
 
446 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 went to defendant's house, where S. told defendant of 
 her condition; defendant and S. were then alone to- 
 gether for some fifteen minutes. In answer to a ques- 
 tion by defendant's counsel, the witness testified that 
 S. told her that defendant had operated on her with 
 something which she concealed with her handkerchief. 
 Witness further testified that S. suffered great pain 
 that night; that two days later, having been ordered 
 from their lodging house by their keeper, they went 
 to the house of defendant and remained there three 
 days. 
 
 The defendant denied that either S. or her friend 
 had ever been in the house. 
 
 A hack driver testified that he drove the two girls 
 from their lodging house to the corner near where de- 
 fendant lived, tut that he did not know where they 
 went. 
 
 There was nothing further to connect the defendant 
 with the procuring of the miscarriage except that the 
 friend, who had always lived in a distant town, described 
 accurately the interior arrangement of the house of the 
 defendant. The jury found the defendant guilty of the 
 crime of procuring an abortion. 
 
 In the case of People vs. McGoncgal the deceased 
 and defendant were alone together in defendant's office 
 for a length of time not exceeding five minutes in dura- 
 tion. The State showed by expert testimony that this 
 
CRIMINAL LIABILITY. 447 
 
 length of time might have been sufficient for the pur- 
 pose; this, in addition to the fact that the evidence 
 showed that defendant had met deceased some days 
 previously, and that there had then been an opportunity 
 to arrange for the operation, was held sufficient to jus- 
 tify the jury in finding that there was an opportunity 
 to commit the crime. In this case the defendant was 
 convicted upon circumstantial evidence. The evidence 
 showed that a friend and intimate companion of the de- 
 ceased, who knew of her pregnancy and her desire to 
 obtain relief by prohibited means, accompanied her to 
 the office of defendant on July 2d; that the friend re- 
 mained in the reception room while the defendant and 
 deceased were in the private office together, but that they 
 remained there not longer than five minutes. On the 
 4th of July deceased was taken sick and defendant went 
 to see her at her lodging house, and, it seems, was in- 
 formed by the landlady that if there was anything wrong 
 with the patient she must be removed. That night at 
 about eleven o'clock defendant took the patient to an- 
 other house where she remained until her death, which 
 occurred eight days later. Upon the death of the pa- 
 tient the defendant removed the body himself at about 
 twelve o'clock at night to the undertaker's, and gave a 
 certificate of death, ascribing it to inflammatory rheu- 
 matism of the heart. It also appeared that several 
 days subsequent to the patient's death defendant went 
 
448 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 to deceased's friend for the purpose of getting her to 
 write or sign a letter purporting to come from the de- 
 ceased which should say that she was doing nicely with 
 an old friend of hers, working every day and Sunday, 
 and would be home in a month or two; not to worry. 
 About ten days after patient's death the body was ex- 
 humed and an autopsy held which showed that the 
 death was caused by peritonitis, resulting from an abor- 
 tion which had been performed upon deceased. 
 
 The defendant's evidence was that when deceased 
 called upon him on July 2d she informed him of her 
 condition, from which he apparently inferred that she 
 desired him to operate upon her. She said that she had 
 been making efforts in that direction herself, and that 
 she was then complaining of the pains that are usu- 
 ally regarded as a premonition of a miscarriage; that 
 he would not do anything to aid her in the way of pro- 
 curing a miscarriage, but told her to go home and take 
 care of herself, and that he would treat her, if she 
 wanted him, to the best of his ability. Defendant stated 
 when he called upon deceased on 4th of July he did not 
 recognize her as having called upon him before, and 
 that he did not make any particular examination of 
 her, apparently because of the demand of the landlady 
 for her immediate removal. The defendant's evidence 
 does not show when he recognized deceased as the per- 
 son who visited him at liis office on July 2d. It seems 
 
CRIMmAL LIABILITY. 449 
 
 that defendant testified that during all the time he was 
 treating deceased for rheumatism, he made no examina- 
 tion whatever to ascertain whether the efforts made by 
 deceased to produce an abortion, as previously testified 
 to by him, had had any results or not. 
 
 The jury found the defendant guilty of man- 
 slaughter. An appeal was taken to the general term of 
 the supreme court where the judgment of conviction 
 was affirmed, and from there the case was taken to the 
 court of appeals, with like result. The court of appeals, 
 after reviewing the evidence, said : " If innocent, it was 
 his misfortune to voluntarily environ himself in a net- 
 work of circumstances which, to the minds of intelli- 
 gent men required to reach results by rational pro- 
 cesses, would admit of no other conclusion than that 
 of guilt." 
 
 Evidence of Willingness and Capability Admissible. 
 — While it is essential for the State, in proving the com- 
 mission of this sort of a crime, to show an opportunity, 
 it is also competent, although not essential, for it to 
 show a state of preparedness or of willingness on the 
 part of the defendant to render such services. It was 
 accordingly held proper to admit the evidence of a wit- 
 ness who testified that, several months before the al- 
 leged crime was committed, she saw a metallic instru- 
 ment in the defendant's hands, in two parts, about a 
 foot long, round and hollow, and that the defendant 
 
450 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 said it was the best kind of an instrument for procuring 
 an abortion, because safer than any other kind.* 
 
 Upon the trial of a physician in IsTew York State 
 it was held proper to admit in evidence a circular which 
 the defendant had issued several years previously. 
 
 In commenting upon the admissibility of this cir- 
 cular, f which, it seems, was a most flagrant production, 
 
 * Com. vs. Blair, 126 Mass., 40. 
 
 \ The following is the principal part of the circular: 
 
 " Dr. 's female regulator ; married ladies should not take it. 
 
 For reference apply at his office. Office hours from 8 to 11 a.m., and 
 from 1 to 5 p. M. 
 
 "^ Card. — Dr. would respectfully announce to the ladies of 
 
 S and vicinity that he is at all times ready and happy to have a 
 
 social consultation upon all matters relating to pregnancy or confinement, 
 or in regard to lawful production of a premature birth, which, in all 
 proper cases, he will produce in a skillful manner, guarantee an easy 
 time, and speedy recovery. For the information of all I insert the 
 statute in reference to the unlawful production of premature birth, which 
 is as follows, to wit: 
 
 " Every woman who shall solicit of any person any medicine, drug, 
 or substance, or anything whatsoever, and shall take the same, or shall 
 submit to any operation or other means whatsoever, with intent thereby 
 to procure a miscarriage, shall be deemed guilty of a misdemeanor, and 
 shall, upon conviction, be punished by imprisonment in the county jail 
 not less than three months nor more than one year, or by a fine not ex- 
 ceeding one thousand dollars, or by both such fine and imprisonment. 
 2 R. S., 694, § 21. 
 
 " It is a well-settled rule of law that a person can not be compelled, 
 under any circumstances, to answer a question where the answer would 
 convict or tend to convict the person of a crime. Ladies, your secrets 
 are with yourselves, and yourselves alone, whether in the street, at your 
 homes, or as a witness, and you need answer no question when the 
 answer would in any way tend to harm you, as stated above, or to make 
 
CRIMINAL LIABILITY. 451 
 
 and might well be calculated to strongly influence the' 
 minds of the jury. Justice Miller, of the supreme court, 
 said : " The circular was, I think, competent as a decla- 
 ration of the prisoner that he made a specialty of this 
 business, and was versed and skilled in regard to it. 
 It corroborated the proof introduced upon the trial, 
 and was a statement of himself to the effect that he 
 made it a part of his business to attend to cases of this 
 kind. With evidence that an abortion had been pro- 
 cured while deceased was under prisoner's charge, his 
 own advertisement that he was ready to perform opera- 
 tions of such a character certainly tended to strengthen 
 the testimony already introduced, and was clearly ad- 
 missible." * 
 
 In the case of Commonwealth vs. Brown f two 
 women appeared upon the trial and testified positively 
 to the details of the procurement of abortions upon 
 them. A police officer appeared and testified as to the 
 arrest of the defendant and produced the instruments 
 in court which he had found at the defendant's office, 
 
 you liable under this statute to a criminal action. And, ladies, should 
 you ever require legal assistance in any of these matters, of course 
 employ such counsel as you think proper ; but, if you are not pecuniarily 
 able, or too delicate to act in the matter, notify me, and I will protect 
 you at my own expense. 
 
 (Signed.) " Dr. 
 
 " s , N. Y." 
 
 * Weed vs. People, 3 Thomp. & C, 60. 
 f Com. vs. Brown, 121 Mass., 60. 
 
452 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 also a speculum chair. Experts testified that most of 
 the instruments exhibited were adapted to procuring 
 the abortion of pregnant women, although none of them 
 could be said to be so exactly designed for that pur- 
 pose as not to also be appropriate for use in necessary 
 and lawful acts of surgery. 
 
 The defendant in his own behalf testified that none 
 of the instruments exhibited were adapted to use in 
 producing abortion, bu.t were all in common use in law- 
 ful and necessary surgical operations ; he then explained 
 to the jury the use and purpose of each instrument and 
 of the speculum chair. He then offered to read to the 
 jury from books of medical authority to substantiate 
 his testimony, but was not permitted to do so. In 
 answer to the evidence of the two women above re- 
 ferred to, he testified that the first one came to him to 
 be treated for a tumor on the neck of her womb, and 
 that she did not think she was pregnant; that he ex- 
 amined and treated her medicinally and surgically for a 
 tumor which he discovered on the neck of her womb; 
 and that he gave her no medicine capable of producing 
 an abortive effect, nor did he use any instruments for 
 the purpose of producing an abortion. In answer to 
 the evidence of the second woman, he testified that she 
 came to his ofiiee, in company with a man, who stated 
 to him that the woman had been operated upon by 
 a midwife to procure an abortion, and that at the 
 
CKIMINAL LIABILITY. 453 
 
 request of the man he undertook to treat the woman, 
 medicinally and surgically, to relieve her of a dead 
 foetus. 
 
 The police officer, above referred to, testified that on 
 the day after arresting the defendant, he took him be- 
 fore the two women and asked them if they knew the 
 prisoner, and if they had been operated upon by him, to 
 both of which questions they answered in the affirma- 
 tive, and that the prisoner then asked them if they 
 had previously been operated upon by another per- 
 son. The prisoner's counsel objected to the admission 
 of this evidence, but it was admitted on the ground 
 heretofore referred to — viz., that it was an admis- 
 sion against interest. The court very clearly stated 
 the rule applicable in the following words : " The rule 
 is that a statement made in the presence and hearing 
 of a defendant, to which no reply is made, is not ad- 
 missible against him, unless it appears that he was at 
 liberty to make a reply, and that the statement was 
 made by such person and under such circumstances as 
 naturally to call for a reply unless he intends to admit 
 it. But if he makes a reply wholly or partially ad- 
 mitting the truth of the facts stated, both the state- 
 ment and the reply are competent evidence." The court 
 in applying the rule expressed the opinion that the 
 jeply was such as to justify an inference that the de- 
 fendant admitted the truth of the statements, and 
 
454 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 therefore that the statements both of the women and of 
 the defendant were admissible. 
 
 In regard to the effect and importance wliich the 
 jury should give the evidence relative to the surgical 
 instruments, the trial judge properly instructed them 
 as follows : " The possession by a physician of surgical 
 instruments adapted to use in procuring the miscar- 
 riage of pregnant women would be explained consist- 
 ently with that physician's innocence of any intention 
 to use them for unlawfully procuring miscarriages, if 
 they were instruments also adapted equally to other 
 and legitimate uses in surgery or midwifery, unless their 
 extraordinary number and variety was in more than 
 ordinary proportion to the whole number and variety 
 of surgical instruments possessed by him, or the exi- 
 gencies of his practice furnished him occasion for 
 using; but the significance, as evidence, of the posses- 
 sion of an}^ number or variety of surgical instruments 
 adapted especially to procuring miscarriage of pregnant 
 women, would more or less depend upon circumstances, 
 usual or unusual, ordinary or extraordinary, attend- 
 ing the mode of their possession and keeping, and the 
 exigencies of such physician's practice." 
 
 The jury in this case rendered a verdict of guilty, 
 which the supreme court, upon appeal, refused to inter- 
 fere with. 
 
 Similar to the rule of evidence admitting the cir- 
 
CRIMINAL LIABILITY. 455 
 
 cular and the instruments in evidence in the cases above 
 examined is that nnder which a mother-in-law was per- 
 mitted to testify that defendant had a conversation 
 with her in which the defendant, after being informed 
 that deceased was pregnant and desired to be relieved 
 of her child, said, " Send her to me," and stated in 
 effect that she had operated successfully five times on 
 one person. Upon further questioning the witness tes- 
 tified that she informed her daughter-in-law of this 
 conversation before leaving home to undergo the treat- 
 ment which proved fatal.* And so, in another case,f 
 the State was permitted to show by four different wit- 
 nesses conversations had with the defendant extending 
 through a period of four years preceding the act of 
 which defendant was accused, showing a willingness and 
 a preparedness to commit the crime for which she was 
 then on trial. The evidence showed that to one wit- 
 ness defendant stated that she had the instruments 
 with which to produce abortion, and had got rid of 
 a number of children; that she showed witness the in- 
 struments, at the same time saying that if she wanted 
 any help she could help her. To another she stated 
 that she had committed abortion, and could do it 
 again; that she had the instruments to use in doing 
 it. And to another she stated her terms for perform- 
 
 * Com. vx. Holmes, 103 Mass., 440. 
 
 t People vs. Session?, 68 Mich., 594, 2G N. W. Eep., 291. 
 
456 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing such services^ which she then proffered to the wit- 
 ness, who was in the family way, and told her she had 
 the instruments for the purpose. The admissibility of 
 this evidence was vigorously contested, but the court 
 held it admissible and proper. 
 
 Dying Declarations. — From the very nature of this 
 class of cases, dying declarations, and facts and state- 
 ments forming parts of the res gestce, are often essen- 
 tial features in the chain of evidence upon which the 
 jury is asked to base a verdict of guilt. It is therefore 
 desirable to examine more particularly the character 
 of evidence of this sort which is admissible and proper to 
 prove the case. 
 
 It has been heretofore shown that dying declarations 
 must be made while in extremis^ with a realization of 
 the approaching end and after hope of recovery is 
 abandoned. Also that they are admissible only in cases 
 of homicide. Whether this condition does not entirely 
 bar out dying declarations in abortion cases is a ques- 
 tion upon which the courts of different States differ, 
 some of them holding that they are not admissible in 
 this class of cases at all. Among the latter are the 
 courts of Pennsylvania,* Ohio,f and Kew York. J In 
 New York, however, the legislature has, since the deci- 
 
 * Railing vs. Com., 110 Pa. St., 100. 
 •f State vs. Harper, 35 Ohio St., 78. 
 \ People vs. Davi?, 56 N. Y., 95. 
 
CRIMINAL LIABILITY. 45Y 
 
 sion referred to, made dying declarations admissible in 
 this class of eases. In these States the reasoning of 
 the court is that the crime for which the defendant is 
 being tried is not the killing of the patient, but the 
 procurement of the abortion, and that the incidental 
 death of the patient does not change the nature of the 
 prosecution, but merely aggravates the penalty. The 
 better opinion probably is that the death of the patient 
 from the unlawful act of the accused gives to the offense 
 the character of a felonious homicide, and that the rea- 
 son for applying the rule is quite as plain as in cases of 
 •any other sort of homicide.* 
 
 A dying declaration, in order to be competent, must, 
 however, be a statement of material facts concerning 
 the cause and circumstances of the homicide. Thus, 
 when deceased said, " Aleck, what have we done ? 
 I shall die ! " the statement was held inadmissible, as it 
 contained no reference to the cause of death, and was 
 not made for the purpose of explaining any act con- 
 nected with the death, f ISTor is it sufficient that the 
 statement should relate to a distinct fact or transac- 
 tion which is the remote cause of the act producing the 
 death. Thus, in the case where the theory of the prose- 
 cution was that the defendant had seduced the deceased, 
 the following dying statement was held inadmissible: 
 
 * Montgomery vs. State, 80 Ind., 338, 41 Am. Rep., 815. 
 f People vs. Olmstead, 30 Mich., 431. 
 
458 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 " He is the cause of my death. Oh, those horrible in- 
 struments ! Laws is the cause of my death, he is my 
 murderer. They abused me terribly." In regard to 
 the nature of this statement, the court said : " These 
 declarations did not necessarily refer to any attempt to 
 produce an abortion. They are as plainly referable to 
 the former relations of the parties. If it be true that 
 the defendant had gotten the deceased with child, then 
 her declarations were such as she might naturally make 
 in her extremity, about her seducer, without intending 
 to charge him with any more than her seduction. The 
 expression, ^ Oh, those horrible instruments ! ' might 
 indicate that instruments were used, but in no wise 
 charges the defendant with having used them or aided 
 in their use." * In another case f the court, in com- 
 menting generally upon the admissibility of this class 
 of evidence, said: "The rule that dying declarations 
 should point distinctly to the cause of death, and to 
 the circumstances producing and attending it, is one 
 that should not be relaxed. Declarations at the best 
 are uncertain evidence, liable to be misunderstood, im- 
 perfectly remembered, and incorrectly stated. As to 
 dying declarations, there can be no cross-examination. 
 The condition of the declarant in his extremity is often 
 unfavorable to clear recollection, and to the giving of 
 
 * State vs. Baldwin, 19 Iowa, 714, 45 N. W. Rep., 29Y. 
 f State vs. Center, 35 Vt., 378. 
 
CRIMINAL LIABILITY. 459 
 
 a full and complete account of all the particulars which 
 it might be important to know. Hence, all vague and 
 indefinite expressions, all language that does not dis- 
 tinctly point to the cause of death and its attending 
 circumstances, but requires to be aided by inference or 
 supposition in order to establish facts tending to crimi- 
 nate the (defendant), should be held inadmissible." 
 
 Res Gestae. — In regard to the admissibility of state- 
 ments as part of the res gestce, the general rule has been 
 observed that the statements must be contemporaneous 
 with the main fact under consideration. The meaning 
 of the term contemporaneous, as here used, is not neces- 
 sarily that the conversation must have taken place at 
 the same moment that the operation was performed. 
 Thus, when deceased left defendant's office, where the 
 operation had presumably just been performed, walked 
 across the street, and met a friend who accompanied 
 her to that spot, and said, " Oh, dear, I feel weak ! " 
 the exclamation was held admissible.* This exclama- 
 tion, however, might have been admitted also upon the 
 ground that it was an expression of bodily feelings. 
 Also, conversations had relative to the purpose of an 
 intended visit to the physician's office before departure 
 are held admissible to show that the patient had formed 
 the purpose of going to the defendant to have an abor- 
 
 * Com. v,f. Fenno, 134 Mass., 217. 
 ■SO 
 
460 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 tion performed. Thus it was held proper to allow the 
 roommate of deceased to testify that on the day the 
 abortion was alleged to have been committed, she loaned 
 deceased ten dollars, and to state what deceased said 
 she was going to do with it, and where she was going 
 that afternoon, and for what purpose. It was also held 
 proper to permit the witness to testify as to conversa- 
 tions had with deceased on the Wednesday and Friday 
 before the Saturday on which the operation was sup- 
 posed to have been performed. In these conversations 
 witness testified that deceased said that she under- 
 stood or had found out that she was in the family way ; 
 that she had been to see the defendant about it; had 
 been or was going to defendant to get some medicine 
 or a syringe; that she had made an arrangement with 
 the defendant to have an operation performed upon her ; 
 was to give twenty-five dollars, and was to return to 
 the defendant's on Saturday afternoon for the purpose 
 of having instruments used to get rid of the child. 
 Upon the admissibility of these conversations the su- 
 preme court said : " It was certainly competent to prove 
 that the deceased went to the house of the defendant 
 at the time it was charged in the information the abor- 
 tion was produced. Upon the authorities, her intent 
 or purpose in going there might be shown by her decla- 
 rations then made or previously made; because such 
 declarations become part of the res gestce. For it is evi- 
 
CRIMINAL LIABILITY. 461 
 
 dent the declarations were connected with the act of 
 her going to the defendant ; were expressive of the char- 
 acter, motive, or object of her conduct; and they are to 
 be regarded as verbal acts indicating a present purpose 
 or intention, and therefore are admitted in proof like 
 any other material facts." * 
 
 In the case of Hays vs. State f the evidence showed 
 that deceased left her home and came to the house of 
 the defendant, where she was operated upon to produce 
 an abortion. After the operation was performed a 
 physician was called to attend her. This physician 
 was subsequently placed on the witness stand by the 
 defense and testified that deceased complained of a 
 pressing and burning in the stomach; he also testified 
 that she said that she had " been taking some stuff," 
 and that on the way from her home to the defendant's 
 house, a distance of six or seven miles, something like 
 a lump dropped from her, and that she did not know 
 what was the matter with her. In regard to the ad- 
 missibility of this evidence the court held that such 
 part of her statements as related to her then condition, 
 the seat of her pain, its character and extent, and any 
 expression of mental or bodily feelings was admissible 
 and proper; but that which she stated regarding her 
 having " been taking some stuff " and what happened 
 
 * State vs. Dickin?on, 41 Wis., 299. 
 t Hays vs. State, 40 Md., 633. 
 
462 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 to her on her Journey was a mere narrative of what 
 had taken place before the physician visited her, and was 
 not legally admissible, either as a dying declaration (the 
 deceased not having been shown to be in extremis when 
 the statement was made) or as part of the res gestce. 
 
 Conditions Existing Subsequent to Alleged Opera- 
 tion Admissible. — Facts and conditions existing subse- 
 quent to the alleged operation, but which tend to ex- 
 plain the patient's condition, are also relevant and may 
 be shown upon trial. It was accordingly held proper 
 to permit a witness to state that she had been sent 
 for the day before deceased's death to wash her and 
 change her clothes, and that she found blood stains 
 upon the bed and clothing, and that there was a peculiar 
 offensive odor which she had never noticed before at 
 any time or place, although she had noticed something 
 like it.* And so, a witness was permitted to testify 
 that about the middle of February (the operation being 
 alleged to have been committed about the middle of 
 January) she slept one night in the same bed with the 
 complaining witness, who looked unusually pale and 
 feeble, and sighed and groaned a good deal; that the 
 witness made the bed next morning and saw red stains 
 upon it, through the feather bed and upon the straw 
 bed, which she thought were quite recent, and some of 
 
 * People vs. Olmstoad, 30 Mich , 431, 
 
CRIMINAL LIABILITY. 463 
 
 them more recent than others. And another witness 
 in the same case was permitted to testify that she lived 
 in the same house with complaining witness; that 
 about January 20th complaining witness was confined 
 to her bed and that witness was called to aid her and 
 found that she had fainted ; that after she began to get 
 well, witness found her washing stains from the tick 
 of her feather bed, and noticed stains upon her straw 
 bed. Eegarding the admissibility of this evidence the 
 court said : " The objection that the facts occurred or 
 appearances were observed a month after the alleged 
 abortion does not render the evidence incompetent, 
 though it may affect its weight. That they were not 
 connected with the abortion we can not presume. We 
 can not know that the result of the injury did not con- 
 tinue thus long." 
 
 Effect of Proving an Alibi. — An element of defense 
 sometimes available is that of an alibi, or the proving 
 by the defendant that he was at another place than 
 that at which the crime was committed at the time of 
 the performance of the criminal act. The effect of 
 such evidence is admirably shown in the case of Com- 
 monwealth vs. Snow.* Here the woman upon whom 
 the abortion was alleged to have been performed testi- 
 fied positively that the operation was performed on 
 
 * Com. vs. Snow, 116 Mass., 47. 
 
464 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 May 20th; "that she knewit was upon that day; that she 
 set it down in her diary upon the evening of that day or 
 the next morning; that she had seen the memorandum 
 upon her diary a number of times since then, the last 
 time within a week prior to her testimony." 
 
 The woman's sister, also the father of her child, 
 each testified that May 20th was the day upon which 
 the operation was performed. The former testified that 
 her sister left home that day to have the operation per- 
 formed, and the latter testified that he took the com- 
 plaining witness to defendant upon that day, and that 
 defendant performed an operation upon her with an 
 instrument. 
 
 The defendant introduced evidence tending to show 
 that upon May 19th, 20th, and 21st he was more than 
 one hundred miles distant from the place where the 
 operation was alleged to have been performed. The 
 court, in instructing the jury upon the weight and effect 
 they should give this conflict of evidence, instructed 
 them that the exact day was not material; that "i:^ 
 the jury were satisfied that the witnesses for the gov- 
 ernment were in error as to the date stated by them, 
 this wa(S a proper matter to be considered upon the 
 question of the degree of credit they were entitled to 
 as to other matters; and if this, either alone or in con- 
 nection with other evidence, caused the jury so far 
 to doubt as to their truth and the reliability of their 
 
CRIMINAL LIABILITY. 465 
 
 testimony in other matters that they were not satisfied 
 beyond doubt that the defendant did perform the opera- 
 tion as alleged, then they should acquit the defendant." 
 The supreme court, in reviewing this case, said : " These 
 rulings and instructions were right. If the alibi was 
 satisfactorily proved, it was for the jury to say what 
 effect it ought to have upon the testimony of the wit- 
 nesses for the prosecution. It might discredit them 
 altogether. If it did not have that effect, then it re- 
 quired an inference of some mistake on their part, 
 either as to the person who performed the operation, or 
 the true date of its performance. Their testimony was 
 no more positive as to the date than it was as to the 
 person; and they were at least quite as liable to have 
 made a mistake as to the true date as they were in 
 regard to the identity of the person. But in any respect 
 it was entirely a question of fact for the jury, and was 
 rightly left to them to decide." 
 
 Illustrations. — Having generally reviewed the law 
 relative to this class of cases, the chapter will be brought 
 to a close with a brief examination of the evidence as 
 shown in the reported cases upon which juries have 
 based their verdicts in several instances. 
 
 The statute under which the case of State vs. Van 
 Zile * was prosecuted provides that any person who 
 
 * People vs. Van Zile, 73 Hun, 534, 26 N. Y. Supp., 390. 
 
466 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 with intent, etc., " either, first, prescribes, supplies, or 
 administers to a woman, whether pregnant or not, or 
 advises or causes a woman to take any medicine, drug, or 
 substance ; or, second, uses, or causes to be used, any in- 
 strument or other means, is guilty of abortion, and is 
 punishable, etc." The evidence in this case shows that 
 deceased, in company with a young man, went to de- 
 fendant's oiSce for the purpose of having deceased ex- 
 amined to determine whether or not she was pregnant. 
 Defendant made an examination, announced that the 
 girl was pregnant, and advised the young man, who 
 for the sake of convenience will be hereafter designated 
 A., to marry her. For the examination defendant 
 charged and received twenty-five dollars. Three days 
 afterward, and on the eleventh day of November, defend- 
 ant and A. met at a drug store, and, after a conversation 
 in the corner, which was not heard by the clerk, defend- 
 ant asked for pen and ink and paper, and wrote a pre- 
 scription, which he gave to the drug clerk and said: "Put 
 it up and give it to this young man." The prescription 
 specified several drugs, which were required to be com- 
 pounded and made into twenty capsules, one of which 
 was to be taken after each meal. This compound was 
 pronounced by a professor of materia medica to be an 
 abortive mixture. On December 19th deceased had a 
 miscarriage and sent for defendant. Upon his arrival 
 the following conversation took place, so he testified: 
 
CRIMINAL LIABILITY, 467 
 
 " The girl said, ' You don't remember me ? ' And I 
 said, ' No ; who are you ? ' And she said, ' I am the girl 
 that A. had at your office.' And I says, ' What is your 
 trouble?' and she said, *I am all through my trouble.' 
 ' When did it occur ? ' and she says, ' Last night.' " The 
 girl became worse, and on the 24th of December the 
 family physician was called in, who testified that the 
 following conversation took place between himself and 
 defendant. " He (defendant) told me that he had 
 been called into the case, I think the Thursday previous, 
 and that she had been getting rapidly worse, and was 
 now in a very bad condition. He did not seem to un- 
 derstand what was the matter — what the trouble 
 was," To the question, " Did he say so ? " the family 
 physician replied, " He said so." On the following day 
 the girl died. Defendant went to the druggist and 
 told him that the girl had died, and he thought if the 
 druggist would lend him two hundred and fifty dollars 
 he could pay the funeral expenses and in that way 
 settle with and satisfy the mother. That night de- 
 fendant fled from the city and remained absent for 
 about three months. 
 
 The jury rendered a verdict of guilty. The gen- 
 eral term of the supreme court, in reviewing the case, 
 said : " A careful examination of the testimony leaves 
 no doubt of the guilt of the defendant. While it is 
 true that the evidence is circumstantial, and leaves the 
 
468 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 question of guilt to be determined by inferences drawn 
 from establislied facts, yet the facts proved are not 
 only entirely inconsistent with, the innocence of the 
 defendant, but they can be reconciled upon no theory 
 except that of guilt." 
 
 The case of Solander vs. Peoj)le * is also one in 
 which there was no direct evidence of the commission of 
 the crime, and yet it is one in which the circumstances 
 point so strongly to the guilt of the accused as to ex- 
 clude all reasonable doubt as to her guilt. The prin- 
 cipal witness was a man, who, for convenience, will be 
 designated K. This witness testified that about three 
 weeks before deceased's death he procured some medi- 
 cine from IDenver at her request for the purpose of pro- 
 ducing an abortion, and that she took the medicine. 
 That a little more than two weeks afterward, on 
 Thursday, deceased went to see defendant, and that on 
 the way home she told him that she had visited defend- 
 ant for the purpose of employing her to procure an 
 abortion, and that defendant had stated that it would 
 be necessary to use an instrument and to procure medi- 
 cine from St. Louis, and that she would charge thirty 
 dollars for the services. K. further testified that on 
 the following Saturday he returned with deceased, a 
 distance of some eight miles, to defendant's office, and 
 
 * Solander vs. People, 2 Colo., 48. 
 
CRIMINAL LIABILITY. 469 
 
 that defendant and deceased were alone about an hour ; 
 that defendant and K. then returned with deceased to 
 her home, and that defendant remained there until 
 Monday morning. Witness said that defendant left 
 some powders with deceased Monday morning, and that 
 he gave deceased some of them, and that after taking 
 each powder she fainted. Next day deceased died. 
 Shortly before her death, however, the witness K. went 
 for defendant and told her that deceased desired to see 
 her. Witness testified to a conversation which then 
 took place between him and defendant in which de- 
 fendant disclosed knowledge of deceased's condition, 
 and of the nature of her illness. That defendant stated 
 that deceased had been taking medicine from Denver, 
 and that if she should die that medicine would be 
 the cause of her death; that, defendant said, would 
 clear her. Witness testified that defendant inquired 
 for the foetus which had come from deceased, and re- 
 quested him to take it away, as inquiry might be made 
 for it. Witness testified that on the following day he 
 returned with defendant to her home and that she 
 then told him that she wanted to get a certain man, 
 naming him, for her lawyer, and that she wanted to 
 get two certain doctors, who were good friends of hers, 
 to go over for the examination, and that she would 
 be all right; and that if any one should ask witness 
 what was the matter he should say that he did not know. 
 
470 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 There was expert evidence offered to show that death 
 was caused by an attempt to produce an abortion, and 
 that an instrument was used for that purpose. Evi- 
 dence was also adduced by the State that a bougie, 
 broken into three pieces, was found upon the premises 
 of the deceased, and that the injuries observed in the 
 womb of deceased might have been produced by that 
 instrument; also that the powders left with deceased 
 bore a striking resemblance to gossypium, and that 
 the effect of the drug was abortionary. A witness 
 testified that when the bougie was found defendant dis- 
 claimed any knowledge of it, and said she did not know 
 what instrument was used for procuring abortions ; that 
 she had never seen one. The coroner testified that at 
 the inquest defendant told him that she supposed de- 
 ceased was laboring under prolapsus uteri, and that 
 she was treating deceased for that, but that he saw no 
 indications in the body of deceased of prolapsus uteri. 
 Defendant took the witness stand in her own behalf 
 and denied having used any instrument, and also that 
 she had advised it. She admitted having given pow- 
 ders, but denied that they were gossypium, and averred 
 that they were not intended to produce abortion. 
 
 Among other instructions, the court gave the jury 
 the following : " Neither is it necessary that it should 
 appear by the evidence that the prisoner, with her own 
 hands, used any instrument upon the person of de- 
 
CRIMINAL LIABILITY. 4Y1 
 
 ceased, or that with her own hands prisoner adminis- 
 tered to the deceased any drug or substance. If pris- 
 oner furnished any instrument to deceased or to any 
 other person with intent that deceased or any other 
 person should use such instrument for the purpose of 
 procuring the miscarriage of deceased, she being then 
 pregnant, or if prisoner provided any noxious drug or 
 substance with intent that deceased, being then preg- 
 nant, should administer the drug or substance herself, 
 or that any other person should administer it to her 
 in order to produce the miscarriage of the deceased, 
 prisoner thereby constituted the deceased, or the per- 
 son to whom such instrument or drug was delivered or 
 provided, her agent, and is accountable for all the acts 
 of such person done in pursuance of the agency. And 
 if such person, whether the deceased herself or any 
 other, used such instrument upon the person of de- 
 ceased, or administered such drug to deceased with the 
 intent to produce the miscarriage of deceased, and by 
 reason of such treatment the deceased came to her 
 death, the prisoner is guilty as charged in the indict- 
 ment, even though she was not present at the time of 
 the use of the instrument or administration of the 
 drug." 
 
 The jury returned a verdict of guilty, and the pris- 
 oner was sentenced to confinement in the penitentiary 
 for a term of three vears. 
 
4Y2 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The supreme court, in reviewing the case, approved 
 of the instruction above quoted, and also gave their 
 opinion that the trial court had made no error in per- 
 mitting the witness K. to testify to the conversation 
 had between himself and deceased while returning from 
 their first visit to defendant. The court, in discuss- 
 ing the question of admissibility of this conversation, 
 affirms the correctness of the rule that a mere narra- 
 tive of past events, not made in furtherance of the 
 criminal design, is not evidence against one who was 
 not present when it was uttered, and consequently can 
 not be repeated on the witness stand. But the court 
 continued: "Although the statement of deceased was 
 made after the interview with prisoner, and was, in 
 one sense, a history of a past event, it was during the 
 pendency of the criminal enterprise, and closely attend- 
 ant upon an act done to promote the illegal purpose. 
 If the evidence was admissible upon the principle of 
 res gestcB, as I think it was, it would not have been 
 proper to exclude it upon the ground that it was merely 
 a narrative of past events." 
 
 The case of State vs. Clements * impresses one very 
 forcibly as illustrating the danger attending the pro- 
 fessional life of the medical man. Here the unfortu- 
 nate combination of circumstances which entangled the 
 
 * State vs. Clements, 15 Or., 237, 14 Pac. Rep., 410. 
 
CRIMINAL LIABILITY. 473 
 
 defendant and brought disgrace and conviction upon 
 him is one that is liable at any time to ruin an honest 
 practitioner who has not the opportunity of protecting 
 himself by the counsel and assistance of his reputable 
 professional brothers, and it is one against which 
 the honest physician can not take too great precaution. 
 The evidence in this case showed that the deceased 
 was a young unmarried woman who had been stopping 
 for some time at the hotel where she died; that on the 
 morning of her death defendant locked her door and 
 passed out of the hotel, and remarked to some one that 
 she was sleeping quietly, and that he did not want her 
 disturbed. A few hours afterward, at about nine 
 o'clock A. M., defendant came back, and, upon going to 
 deceased's room, called some one and stated that " Lena 
 was dying." The defendant was immediately arrested 
 and placed in charge of the constable. Upon leaving 
 the hotel defendant told the constable that he had some- 
 thing to show him at his office. Upon arriving at the 
 office he exhibited to the constable a foetus of which 
 he said deceased had been delivered. Shortly before 
 this, and at about the time deceased was first taken 
 sick, the defendant exhibited in the drug store to the 
 druggist a stout sharpened quill about six inches long, 
 being bloody, and having the appearance of having been 
 recently imbedded in living animal tissues, which he 
 claimed to have taken from her room. He stated to the 
 
474 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 druggist : " I want you to examine this. I may need 
 it for my protection. I am afraid this case will get 
 me into a scrape yet. Some woman has been using this 
 for a criminal purpose." 
 
 The post-mortem examination showed that there was 
 some abrasion or scratching of the interior walls of the 
 uterus, apparently caused by some rough instrument, 
 but that the injuries were slight. There was no indica- 
 tion that deceased met her death by abortion produced 
 by drugs. 
 
 The principal witness for the State was the colored 
 cook of the hotel, who testified to finding deceased lying 
 upon the floor of her room about the time she was taken 
 ill, and, contrary to the objections of defendant's coun- 
 sel and contrary to the law of evidence, was permitted 
 to testify to the following conversation : " I asked her 
 if the doctor had used instruments upon her. She said, 
 * Yes.' " This statement, it will be seen, was not admis- 
 sible as a dying declaration, nor was it a part of the 
 res gestce, but was mere hearsay and inadmissible. It 
 appeared also that defendant while attending deceased 
 misrepresented the nature of her illness. 
 
 The evidence given by defendant upon his own be- 
 half was that deceased applied to him on August 12th, 
 nineteen days before her death, to perform an abortion 
 upon her ; that he refused absolutely to do it ; that some 
 ten or twelve days prior to her death deceased called 
 
CRIMINAL LIABILITY. 475 
 
 upon him to treat her professionally for some derange- 
 ment of the uterus; that he made an examination and 
 found a sponge imbedded in the tissues in the mouth of 
 the womb ; that he used a metallic speculum and forceps, 
 and removed the sponge; that he found the place occu- 
 pied by the sponge lacerated, the sponge covered with 
 pus, and very offensive; that he treated her for about 
 six days, and dismissed the case. Defendant testified 
 that he did not see deceased again until August 25th, 
 when he was called by her; that she complained of 
 nausea of the stomach, and pains in the abdomen, and 
 upon being questioned denied having made any attempt 
 at abortion; that symptoms rapidly disclosed them- 
 selves indicating labor pains; that he prescribed anti- 
 abortive treatment ; that there were no other physicians 
 in reach with whom to consult, and deceased had no 
 means to employ medical assistance; that he continued 
 such treatment; that deceased then informed him she 
 had made an attempt to accomplish a miscarriage by 
 inserting a quill into the uterus, and told him where 
 the quill could be found, and which was shown to be 
 the same quill before referred to; that thereafter, on 
 the night of August 30th, deceased gave birth to a dead 
 foetus; that for a considerable time prior to this de- 
 ceased was in such a condition that to have exposed the 
 cause of her illness would have resulted in a nervous 
 shock extremely dangerous to her life; that defendant 
 
 ox 
 
476 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 removed the foetus and its appendages, and afterward 
 surrendered them to the officer; that he administered 
 opiates to deceased, placed her in bed for the purpose 
 of seciiring repose, gave directions that she should not 
 be disturbed, left the hotel, and went to his breakfast. 
 That upon returning in about an hour afterward, he 
 found her dying, uterine haemorrhage having set in dur- 
 ing his absence, and caused her death. 
 
 The jury returned a verdict of guilty, and judg- 
 ment was entered thereupon. The supreme court, how- 
 ever, upon reviewing the case, reversed the judgment 
 and sent the case back for a new trial, because of errors 
 committed by the court below. One of these errors was 
 permitting the cook to testify to the conversation be- 
 tween himself and deceased which was above referred to. 
 The result of the second trial of the case is not known 
 to the author. 
 
 Another case which shows to what extreme ver- 
 dicts juries will sometimes allow themselves to be per- 
 suaded by the great zeal that often actuates prosecuting 
 attorneys to secure a conviction, irrespective of the 
 merits of the case, is that of Clarke vs. People.* Here 
 the defendant was convicted of procuring an abortion 
 upon the deceased, a young unmarried woman. There 
 was much evidence taken, but very little of it reflects 
 
 * Clarke vs. People, 16 Colo., 511. 
 
CRIMINAL LIABILITY. 477 
 
 unfavorably upon the defendant. The substance of the 
 evidence of the prosecution was that a miscarriage had 
 taken place from the effects of which death ensued; 
 that defendant was the sole attending physician at the 
 time of the abortion and for some time prior and sub- 
 sequent thereto; that defendant burned the foetus in- 
 stead of burying it; and that in reply to a question 
 propounded by the landlady of the house where deceased 
 was stopping, defendant stated that the patient was 
 suffering from inflammation of the bowels. 
 
 Defendant testified that deceased first sought his 
 services on the twenty-fourth day of February, and 
 that she was at that time suffering from " bearing-down 
 pains " ; that upon his next visit, which occurred next 
 day, he cautioned her in reference to the danger she 
 was incurring, and warned her against the effects of 
 the course she had entered upon, advising her that she 
 should reconcile herself to her condition and let the full 
 time elapse before birth. At the end of this visit he 
 was paid for his services and considered himself dis- 
 charged from the case. Defendant testified that a few 
 days later he was called again, and that deceased was 
 threatened with a miscarriage; that it was too late to 
 prescribe medicine to counteract the effect of the drugs 
 she had previously taken, but that he did prescribe quiet 
 and rest ; that, finding this would not prevent the abor- 
 tion, he did what he could to relieve the patient and 
 
478 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 save her life. It was shown that on the day before the 
 patient's death defendant informed her she was not pro- 
 gressing so favorably as he had hoped, and that he de- 
 sired a physician in consultation, and advised that her 
 parents be notified. To both of these propositions de- 
 ceased objected. Finding deceased worse next morn- 
 ing instead of better, defendant telegraphed her father 
 and sent ont for another physician, but, owing to delay, 
 the latter arrived only shortly before her death. In 
 explanation of the burning of the foetus, defendant testi- 
 fied that decomposition had set in, rendering an immedi- 
 ate disposition of it necessary ; that the patient required 
 liis immediate attention, and that there was no other 
 man about the premises to bury it, and that burning 
 was the most effective as well as the most convenient 
 way to dispose of it. 
 
 It also appears that deceased, shortly before her 
 death, fully exonerated defendant, and said that he was 
 not the cause of her sickness. It further appears that 
 immediately after the death of deceased, defendant took 
 her effects to the coroner, and notified that oflQcial of 
 the cause and circumstances of her death. 
 
 How a jury of intelligent men could have rendered 
 a verdict of guilty upon this evidence it is difficult to 
 understand. The forces of eloquence and personal mag- 
 netism moved by a mistaken zeal are often potent 
 factors in working injustice and may have been largely 
 
CRIMINAL LIABILITY. 479 
 
 accountable for the termination of the present suit. 
 It is extremely gratifying^, however, to observe the whole- 
 some check which our higher courts place upon the trial 
 courts which are sometimes betrayed into a display of 
 feeling prejudicial to justice. In the present case it is 
 believed that every reader will heartily approve of the 
 sentiment expressed by the supreme court, which, in re- 
 versing the judgment, says : " The crime charged is one 
 that strikes at the foundation of our social fabric, and 
 is well calculated to arouse the indignation of all right- 
 thinking people; but to allow this conviction to stand 
 would be to violate the fundamental rule of the crimi- 
 nal law fixing the quantum of proof necessary to sustain 
 a conviction. We fully agree with the attorney-general 
 that prudence would have dictated the calling of counsel 
 at an earlier period in the case; but the neglect in this 
 particular can not be taken as a justification to the 
 verdict and judgment rendered in the court below." 
 
 At an early period in the examination of the sub- 
 ject of criminal abortions in this chapter it was stated 
 that the matter was regulated by statutes in the several 
 States. The cases and general rules of evidence which 
 have been examined will be found applicable in nearly 
 every instance in proving that the statute has been vio- 
 lated, but the exact act or series of acts which shall in 
 any given State amount to the crime of procuring an 
 abortion can be determined with certainty only by care- 
 fully examining the local statute regulating the matter. 
 
CHAPTER IX. 
 
 PRIVILEGED COMMUNICATIONS. 
 
 Privileged Matter Generally. — Upon the broad and 
 urgent ground of public policy certain matters are held 
 so sacred in the eyes of the law that one can not be 
 compelled to disclose his knowledge relative thereto, 
 even as a witness in a court of justice. Matters of this 
 sort may be generally classified as follows : 
 
 I. Political Matters. — Under this head are in- 
 cluded state secrets, oflScial transactions and communi- 
 cations between the heads of departments of state and 
 their subordinate officers, and all like communications. 
 
 II. Judicial Matters. — Herein are included pro- 
 ceedings in the jury room, consultations of judges, and 
 the like. 
 
 III. Professional Communications. — ^Under this 
 head are included all communications between client 
 and counsel or attorney necessarily made for the purpose 
 of securing professional services or assistance; commu- 
 nications between patient and physician or surgeon ne- 
 cessary to secure proper professional treatment ; and all 
 confessions or communications of like character made 
 
 to one's spiritual adviser. 
 480 
 
PRIVILEGED COMMUNICATIONS. 481 
 
 IV. Social Matters. — Under this head are in- 
 cluded all communications of a confidential nature made 
 between husband and wife. 
 
 Professional Communications at Common Law. — At 
 common law the protection accorded to professional 
 communications was in its scope very limited^ applying 
 only to the legal profession, nor does the protection 
 which that profession enjoyed seem to have been as 
 full and adequate as that now accorded to it by the 
 courts and legislatures.* The medical f and clerical J 
 professions were both outside the protection of the 
 common law,, both of England and the United States, 
 and whatever privileges of protected professional confi- 
 dence they now enjoy are expressly conferred by 
 statute. 
 
 Statutory Protection to Communications between 
 Physician and Patient. — In recognition of the impor- 
 tance of a full and absolute confidence existing between 
 physician and patient in all matters of professional 
 intercourse, the legislatures of about half the States ** 
 
 * Duchess of Kingston's case, 20 Howell's St. Tr., 5*78, 613, 
 
 f Rex vs. Gibbons, 1 C. and T., 91 ; Broad vs. Pitt, 3 C. and P., 518. 
 jj. Baker vs. Arnold, 1 Caine's Rep., 257. 
 
 * The following States have passed laws extending the privilege to 
 professional communications between physician and patient: Arizona, 
 Arkansas, California, Colorado, Idaho, Indiana, Iowa, Kansas, Michigan, 
 Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North 
 Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Utah, 
 Washington, Wisconsin, Wyoming. 
 
482 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 have passed wholesome laws which in effect assure the 
 patient that the information necessarily imparted to 
 secure proper and legitimate medical treatment shall 
 not be wrested from the physician to whom he confided 
 it, even in behalf of justice. The wording of the stat- 
 utes upon the subject, as enacted by the several States, 
 varies considerably; in New York, which was probably 
 one of the first States to recognize the need of this sort 
 of protection to the physician and patient by legislative 
 enactment, the law in force provides that : 
 
 "A person duly authorized to practise physic or 
 surgery shall not be allowed to disclose anj information 
 which he acquired in attending a patient in a profes- 
 sional capacity, and which was necessary to enable him 
 to act in that capacity." * 
 
 The restraining clause that the "physician or sur- 
 geon shall not be allowed to disclose any information, 
 etc.," is reenacted almost verhatim in the States of 
 Iowa, Michigan, Pennsylvania, and Nebraska; the 
 majority of the States having statutes upon the subject 
 impose practically the same restriction by using the 
 expression that the physician " shall not (or can not) 
 be examined," f or " shall not be a witness," X or " shall 
 not testify." * The statutes of four States, to wit, Indi- 
 
 * Code of Civil Procedure, § 884. 
 
 f California. Colorado, Idaho, Minnesota, Nevada, North Dakota, 
 Oregon, Utah, and Washington. 
 
 I Montana. * Ohio and Wyoming. 
 
PRIVILEGED COMMUNICATIONS. 483 
 
 ana, Kansas, Missouri, and Oklahoma, provide that a 
 physician shall not be competent to testify as to infor- 
 mation professionally obtained, while the statutes of 
 three States, to wit, Arkansas,* North Carolina, and 
 Wisconsin, provide that the physician " shall not be re- 
 quired (or compelled) to " testify. 
 
 The statutes in several States expressly restrict the 
 application of the protection to civil cases. f Whether 
 the protection of the statute in the absence of this 
 restriction extends to criminal cases is a question which 
 has been the subject of judicial decisions, which will be 
 examined in their proper order. 
 
 The statute of iNTorth Carolina is subject to the pro- 
 vision that "the presiding judge of a superior court 
 may compel such disclosure (of knowledge profession- 
 ally obtained), if in his opinion the same is necessary to 
 a proper administration of justice.'^ While the statute 
 of Arizona provides that the physician " can not with- 
 out the consent of his patient be examined in civil or 
 criminal cases as to any information acquired in attend- 
 ing the patient which was necessary to enable him to 
 prescribe or act for the patient." X 
 
 The privilege conferred by these statutes is pri- 
 
 * In Arkansas the privilege is extended by statute to include the 
 " trained nurse." Laws of 1899, Act XXXI, p. .38. 
 
 f The statutory restriction to civil cases exists in California, Idaho, 
 Minnesota, Montana, Oregon, Pennsylvania, Utah, and Washington. 
 
 X Laws of Arizona, 1899, p. 75. 
 
484: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 marily for the benefit of the patient, and he, therefore, 
 either by his acts or by express consent, may waive the 
 privilege and allow the physician to testify. By the 
 statutes of several States '^ it is expressly provided that 
 the privilege is waived whenever the patient voluntarily 
 testifies regarding the subject matter of the same. The 
 question of what acts shall in the absence of express 
 statutory provision be considered a waiver of the privi- 
 lege has been passed upon in a number of cases. 
 
 Communications with Unlicensed Physicians not 
 Protected. — The statute usually provides that commu- 
 nications shall be protected when made to persons 
 " duly authorized to practise," or to " licensed physi- 
 cians or surgeons," or to " qualified physicians and sur- 
 geons." These statutes will therefore not protect com- 
 munications of a confidential nature made to one not 
 legally qualified to practise medicine, but who is exer- 
 cising the functions of a physician ; such a person, upon 
 being called as a witness, may be required to disclose 
 all information that he has gained from a patient, and 
 the patient's protest will avail nothing, f 
 
 Relation of Physician and Patient must Exist to 
 Create Privilege. — Having learned that the physician 
 to whom the confidential communications were made 
 was duly licensed and authorized to practise medicine 
 
 * Kansas, Nevada, Ohio, Oklahoma, and Wyoming, 
 t Wiel vs. Cowles, 45 Hun, 307. 
 
PEIVILEGED COMMUNICATIONS. 485 
 
 and surgery, it next becomes pertinent to determine 
 whether or not the relations existing between the pa- 
 tient and the physician to whom the communications 
 were made were of such a character as to bring such 
 communications within the protection of the law. 
 
 The general proposition that because one is a 
 licensed physician and surgeon he is incompetent to tes- 
 tify regarding the condition in which he found a cer- 
 tain person without that person's consent is too absurd 
 to require refutation ; this privilege must be based upon 
 a relation of confidence similar to that of physician 
 and patient, and unless such relation, in fact, exists at 
 the time the information is obtained there is no privi- 
 lege ; * nor will the court presume the existence of such 
 confidential relations. The party invoking the aid of 
 the law must show that the relations which existed 
 between the physician and himself were of the confiden- 
 tial nature contemplated by the statute, f 
 
 In order to constitute the confidential relation of 
 physician and patient it is not essential that the physi- 
 cian should have been called or employed by the patient 
 himself; the legal effect is quite the same whether the 
 physician is summoned by the patient himself, by the 
 
 * Jacobs vs. Cross, 19 Minn., 623. 
 
 •I- People w. Schuyler, 106 N. Y., 298, 12 N. E. Rep., 783 ; Edington 
 vs. Insurance Co., 77 N. Y., 564 ; Stowell vs. Am., etc., Assn., 5 N. Y., 
 Supp., 233. 
 
486 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 patient's attending physician, by friends of the patient, 
 or even by strangers.* It therefore logically follows 
 that where the defendant in a suit for personal injuries 
 sends his physician to the plaintiff to make an exami- 
 nation for the purpose of testifying as to the plaintiff's 
 condition, and the physician, instead of simply making 
 the examination for the purpose intended, undertakes 
 the treatment of the plaintiff, the relation of physi- 
 cian and patient immediately arises, and the physi- 
 cian becomes incapable of disclosing the information 
 obtained.! In the case of Freel vs. Market Street Cable 
 Eailway Company,^ the plaintiff testified that defend- 
 ant's physician called upon her several times and pre- 
 scribed for her. The doctor, when questioned upon the 
 subject, failed to remember whether he did or did not 
 prescribe for her. Thereupon the plaintiff's counsel 
 asked him the following question : " It was during this 
 time that you were making these visits and prescribing 
 for her that you obtained any loiowledge that you have 
 of her case ? " to which the physician answered, " Yes, 
 
 sir; that is all, except conversations with Dr. ." 
 
 The court was of the opinion that even though the 
 physician was sent for the sole and exclusive purpose 
 of examining the plaintiff to enable him to disclose her 
 
 * Renihan vs. Dennin, 103 N. Y., 573. 
 
 f Weitz vs. Mound City Ry. Co., 53 Mo. App., 39. 
 
 i: Freel vs. Market St. Ry. Co., 97 Cal, 40. 
 
PRIVILEGED COMMUNICATIONS. 487 
 
 condition, yet by " visiting and prescribing for her " 
 the confidential relation of physician and patient was 
 created, which would preclude the disclosure of any in- 
 formation gained while making such visits. And so 
 in the case of People vs. Murphy,* where the public 
 prosecutor selected a physician and sent him to exam- 
 ine a woman upon whom an abortion had been per- 
 formed, for the apparent purpose of obtaining evidence, 
 and the physician treated the patient professionally, 
 he was not permitted to give any information obtained 
 while so treating her. 
 
 Where, however, a physician calls upon a person 
 and examines him only for the purpose of information, 
 and it is understood that the purpose of the call and 
 examination is not for professional treatment, no ques- 
 tion of privilege can be successfully urged, f There- 
 fore, where a physician, at the request of the prosecut- 
 ing attorney, entered the cell of a prisoner and had a 
 talk with him for the purpose of determining his men- 
 tal condition, but rendered to him no medical assistance 
 or advice, the physician's observations were properly 
 admitted in evidence. J And so, when a physician, at 
 the request of the prosecuting attorney, examined a pris- 
 
 * People vs. Murphy, 101 N. Y., 126. 
 + Nesbit vs. People, 19 Colo., 441, 36 Pac. Rep., 221. 
 t People vn. Kemmler, 119 N. Y., 580; People vs. Sliney, 137 N. Y., 
 570, 50 S. R., 391. 
 
488 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 oner while in jail for the purpose only of determining 
 "whether or not he was afflicted with a venereal disea&e, 
 the court held that no confidential relation existed, and! 
 that the information gained might properly be dis- 
 closed.* And for a like reason it is held, where two 
 physicians, not attending upon the testatrix profes- 
 sionally, are taken to her bedside for the purpose of 
 determining her mental condition, and while there wit- 
 ness the execution of her will, that no professional rela- 
 tion is thereby created between the testatrix and wit- 
 nesses, and that they are competent to disclose what they 
 learned at the examination. One of the physicians, in 
 answer to questions propounded to him at the trial, said 
 that he was not testatrix's physician or surgeon at the 
 time, and didn't prescribe for her; was not called, as 
 he understood it, to prescribe for her; that he was not 
 her family physician; that he made a charge for making 
 the examination upon his books to the attorney who 
 prepared the will and was present at the examination ; 
 that he made the examination the same as he always 
 did when called upon to examine a person with regard 
 to sanity, and after the examination the will was at 
 once executed. The other physician's statement of the 
 purpose of his visit was in legal effect much the same. 
 In considering the admissibility of the evidence of 
 
 * People vs. Glover, 11 Mich., 303. 
 
PRIVILEGED COMMUNICATIONS. 489 
 
 these physicians the court said : "In the present case 
 the physicians were not called to prescribe for the de- 
 ceased or to advise as to professional treatment; nor 
 did they so prescribe or advise. If the deceased at the 
 time of their visit had been in great need of good medi- 
 cal advice, and they had given no advice, they would 
 not have been chargeable with malice or neglect of 
 duty; because they were not under any obligation to 
 advise or to prescribe. Any advice or prescription would 
 have been an improper act, because they were not the 
 attending or consulting physicians, and they were under 
 no obligation to her. If they had conversed with her 
 as to her health, then, possibly, she might have conceived 
 the idea that they were consulting physicians. And if, 
 in such mistaken belief, she had stated anything as to 
 her health, very possibly that might have come within 
 the prohibition of this section. But . . . there is no 
 reason to believe that she thought them to be consulting 
 physicians, or recognized them to be anything more than 
 proper witnesses to her will." * 
 
 The proper test, it seems, to apply in determining 
 the competency of the physician to testify, is whether 
 he met the party professionally or non-professionally 
 at the time the information in question was obtained. f 
 Thus, when a physician offered to give evidence as to 
 
 * Tn re Freeman, 46 Hun, 4.')8. 
 
 f Fisher et al. vs. Fisher et al., 129 N. Y., 654. 
 
490 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 the mental capacity of the deceased, and this evidence 
 was objected to upon the ground that he had been the 
 attending physician of the deceased, the court, upon 
 being shown that the knowledge regarding which the 
 physician proposed to testify was not obtained while 
 acting in that capacity, properly permitted the physi- 
 cian to testify.* And upon the same principle a physi- 
 cian who had attended the deceased was permitted to 
 state what he had observed relative to deceased when 
 he called upon him for the purpose of collecting some 
 money which was due for professional services. The 
 physician was also permitted to testify that he met 
 deceased in the road near his home, and that the old 
 gentleman did not know him, and asked who he was.f 
 The physician must, however, be able to separate the 
 knowledge which he acquired from the patient while 
 attending him in a professional capacity from that 
 which he obtained upon meeting him in a non-profes- 
 pional way, otherwise he will not be permitted to testify 
 as to the latter.;!: 
 
 In the case of the Colorado Fuel and Iron Company 
 vs. Cummings,* the defendant, the Colorado Fuel and 
 Iron Company, together with a certain railroad com- 
 
 * In re Will of Peck, 4? N. Y. S. R., 898, 17 N. Y. Supp., 248. 
 4 Power ?».•?. Bower, 142 Ind , 194, 41 X. E. Rep., 523. 
 
 \ In re Darrnfrh, 52 Hur, 591. 
 
 * rolorado Fuel and Iron Co. vs. Cummings, 8 Colo. App., 541, 46 
 Pac. Rep , 875. 
 
.PRIVILEGED COMMUNICATIONS. 491 
 
 pany, had established a hospital for the use of the two 
 companies, which was supported by contributions from 
 the employees, certain amounts being deducted from 
 their monthly wages for that purpose, the general 
 contribution being termed the " hospital fund." The 
 plaintiff, who had been injured while in the course of 
 his employment with the defendant, was taken to this 
 liospital and attended by a physician who was employed 
 by the company and received his salary from it, prob- 
 ably from the " hospital fund." This physician offered 
 to testify regarding the plaintiff's condition, but his 
 evidence was refused. The court, in considering the 
 question of whether or not the relation of physician 
 and patient existed between the plaintiff and witness, 
 said : " We are, however, entirely satisfied that the cir- 
 cumstances under which the doctor was employed and 
 the relation existing between the company and its em- 
 ployees and the doctor were such as to put the physician 
 and the plaintiff directly in the relation of doctor and 
 patient. The plaintiff's contributions may have been 
 slight, but the circumstances of the situation were such 
 as to lead him to put himself implicitly under the care 
 of the surgeon and to trust himself in his hands for 
 care to the same extent and under the same circum- 
 stances as though he had sent out for another physi- 
 cian and put himself directly in his charge." 
 
 From this case an inference seems deducible that the 
 83 
 
492 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 confidential relation of physician and patient can not 
 exist when the physician is wholly paid by a third party. 
 However justly such an inference may be drawn from 
 the opinion of the learned court in this case, it is appre- 
 hended, that such a statement would not be correct law. 
 The law is probably better illustrated in the case of 
 Grossman vs. Supreme Lodge of Knights and Ladies 
 of Honor,* In this case the patient was at a hospital 
 and her regular attending physician was a Dr. W. A 
 Dr. N. was called as a witness to testify to the patient's 
 condition, but his evidence was objected to upon the 
 ground that the knowledge he possessed was privileged. 
 In order to determine the relation existing between 
 the patient and Dr. N., he was permitted to state his 
 connection with the hospital and the circumstances 
 under which he met the plaintiff. He stated that he 
 and Dr. W. had charge of different wards in the hos- 
 pital and that he and Dr. W. made the rounds of the 
 hospital together, and generally examined the cases 
 together; that he was not the physician attending the 
 patient, although he partly attended her. Eeferring 
 to the patient, he said : " I went with Dr. W., who was 
 the attending physician. We generally tried to confirm 
 diagnosis. I went there to find out the condition of 
 the patient, and the ailments." And again he said : " I 
 
 * Grossman vs. Supreme Lodge of Knights and Ladies of Honor, 6 
 N. Y. Supp., 821. 
 
PRIVILEGED COMMUNICATIONS. 493 
 
 went there just out of curiosity to acquire information 
 in interesting cases." And later in his examination he 
 said that when Dr. W. went to examine the patient 
 he went with him " and assisted him in making the ex- 
 amination." Eegarding the admissibility of Dr. N.'s 
 evidence of the condition of the patient, the learned 
 court said : " We think the court properly held that the 
 witness was disqualified. ' To bring the case within 
 the statute it is sufficient that the person attended as a 
 physician upon the patient, and obtained his informa- 
 tion in that capacity.' * Whether the witness was 
 actuated by curiosity or a higher motive makes no 
 difference. His own admission that he attended the 
 patient, although he qualifies the statement by the use 
 of the adverb ' partly/ suffices to establish the exist- 
 ence of the professional relation which debars him from 
 disclosing what he learned of her condition under the 
 circumstances." 
 
 A jail physician, it seems, is also incompetent to 
 testify as to the condition of a prisoner whom he has 
 attended in a professional capacity ; but unless it can be 
 shown that the information he offers to disclose was 
 obtained while attending such prisoner professionally 
 he will not be prevented from testifying, f 
 
 Whether or not the professional relation of physi- 
 
 * From Eenihan vs. Dennin, 103 N. Y., STS. 
 
 f People vs. Schuyler, 106 N. Y,, 298, 12 N. E. Rep., TSS. 
 
494 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cian and patient exists to such a degree as to protect 
 the communications made to the physician where a 
 third party comes to him and makes disclosures for the 
 purpose of getting medicine or a prescription for the 
 patient is a question that is largely dependent upon the 
 circumstances of the particular case. In an early New 
 York ease * the defendant repeatedly applied to a 
 physician for drugs to produce an abortion, and upon 
 one occasion told him the name of the female for whose 
 use the drugs were desired. The physician was permitted 
 to disclose the subject of these interviews, the court 
 expressing its opinion as follows : " The witness (the 
 physician) I think was not privileged. It is very doubt- 
 ful whether the communications made to him by the 
 defendant can be considered as consulting him profes- 
 sionally within the meaning of the statute." And so, 
 in the case of Babcoek vs. People, f a physician was per- 
 mitted to testify that defendant came to him and told 
 him that he wanted some medicine for a certain young 
 lady who had taken a cold and was suffering from sup- 
 pressed menses, and that subsequently, in about a 
 month, the defendant returned the medicine and said 
 it was for his wife and was not given because she was 
 pregnant. The court said : " The defendant was not 
 consulting him (the physician) for himself, nor does it 
 
 * Hewitt vs. Prime, 21 Wend., 79. 
 f Babcocli vs. People, 15 Hun, 347. 
 
PRIVILEGED COMMUNICATIONS. 495 
 
 appear that he was representing any one else who 
 needed or desired medical assistance." If, however, a 
 third party appears before a physician and confidentially 
 discloses to him the condition of a patient and procures 
 the physician to undertake the treatment of such pa- 
 tient, the relation of physician and patient exists in 
 its full sense, and the information conveyed through the 
 third party is as adequately protected as though com- 
 municated by the patient direct.* 
 
 It has been observed that the confidential relation 
 of physician and patient is not dependent upon the em- 
 ployment by the patient, but that such a physician may 
 be called by another. Similar to this is the rule that 
 a physician who is called by the attending physician as 
 consultant is within the law and not permitted to dis- 
 close knowledge gained in the course of such consulta- 
 tion.! The partner of the attending physician also 
 comes within the rule and is not permitted to disclose 
 knowledge imparted to him by the attending physi- 
 cian. 
 
 Justice Berkshire, in considering a question of the 
 sort, said : " Dr. L. (the partner) comes clearly within 
 the spirit, if not the letter, of the statute. He was 
 the partner of Dr. W. (the attending physician). They 
 were in active practice, occupying the same office. The 
 
 * People vs. Brower, 53 Hun, 217. 
 f Renihan vs. Dennin, 103 N. Y., 513. 
 
496 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 business of the one was the business of the other; when 
 necessary, it was the duty of one to consult with the 
 other, and in the absence of the one who was giving 
 special attention to a patient, it was proper for the 
 other, if not obligatory on him, to take his place." In 
 this ease the court, after stating that the information 
 possessed by Dr. L. was obtained while the patient was 
 at the firm's office to consult Dr. W., expressed itself 
 positively that to have permitted Dr. L. to disclose this 
 information " would have been a perversion " of the 
 statute.* It seems, however, that a physician merely 
 having office privileges with the attending physician, 
 but not interested in his business, does not come within 
 the law and will be permitted to disclose information 
 imparted to him by the other's patients, f 
 
 'Hot does the relation of physician and patient exist 
 as contemplated by the law when the physician per- 
 forms an autopsy, as a dead man can not be considered 
 a " patient," " but is a mere piece of senseless clay which 
 has passed beyond the reach of human prescription, 
 medical or otherwise." Therefore information disclosed 
 at such autopsy is not privileged. J 
 
 * The ^tna Life iDsurance Co. vs. Deming, 123 Ind., 384, 24 N. E. 
 Eep., 86. 
 
 \ Kendall vs. Grey, 2 Hilt., 300. 
 
 X Harrison vs. Suiter Street Ry. Co., 116 Cal., 156, 47 Pac. Rep., 
 1019. 
 
PRIVILEGED COMMUNICATIONS. 497 
 
 The statutes, in designating to what relations the 
 privilege shall extend, more frequently use the expres- 
 sion that no person authorized to practise "physic or 
 surgery '' shall be permitted to testify, etc. Such a des- 
 ignation as this is restricted to a physician or surgeon 
 and is not construed to include a dentist ; for while the 
 duties of a dentist include to a very limited extent those 
 of a surgeon, yet it has been held that a dentist is not, in 
 law, to be considered a surgeon; * therefore communica- 
 tions made to him will not be privileged, f 
 
 Knowledge Coining within the Law. — The question 
 of what knowledge is within the meaning of these 
 statutes is often a very nice one, and it is a question 
 upon which the courts have many times been unable 
 to agree. 
 
 There is no doubt, however, that the statute does 
 not preclude one from stating that he is the family 
 physician of another, nor from giving the number and 
 dates of his professional visits,^ and the date upon which 
 he discharged the patient.* The disclosures which the 
 law aims to preclude the physician from making are 
 those facts which he learns in the course of his pro- 
 
 * State vs. Fisher, 24 S. W. Rep., 167, 22 L R. A., 799. 
 
 f People vs. De France, 104 Mich., 563, 62 N. W. Rep., 709. 
 jj. Briesenmeister vs. Kniphts of Pythias, 81 Mich., 525 ; Patten vs. 
 U. L. and A. Ins. Assn., 133 N. Y., 450, 31 N. E. Rep., 342. 
 
 * Dittrich vs. City of Detroit, 98 Mich., 2-45, 57 N. W. Rep., 
 125. 
 
498 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 fessional employment,* and to construe tlie statutes so 
 as to give them this effect is the apparent design of 
 the courts. 
 
 The statute of New York provides that one prac- 
 tising medicine and surgery shall not be permitted to 
 disclose " any information which he acquired in attend- 
 ing a patient in a professional capacity," With the ex- 
 ception of five States f to be hereafter referred to, each 
 of the States having statutes upon this subject has 
 almost literally reenacted that part of the N"ew York 
 statute included within the quotation, which describes 
 the knowledge that is protected. 
 
 It seems well settled that this clause in the statutes 
 includes all knowledge gained in the professional inter- 
 course of a physician with his patient, whether obtained 
 from statements made to him by the patient or gained 
 from observing and examining the patient. A lead- 
 ing case upon this subject is that of Edington vs. 
 Mutual Life Insurance Company. J In this case Jus- 
 tice Miller says : " When it (the statute) speaks of in- 
 formation, 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 state- 
 ment of others who may surround him at the time, or 
 
 * Kelley vs. Highfield, 15 Or., 277. 
 
 ■f The five States not following the wording of the New York statute 
 in the above particular are Indiana, Iowa, Nebraska, Ohio, and Wyoming. 
 i Edington vs. Mutual Life Insurance Co., 67 N. Y., 185. 
 
PRIVILEGED COMMUNICATIONS. 499 
 
 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 ob- 
 server would readily comprehend his condition. In- 
 formation thus acquired is clearly within the scope and 
 meaning of the statute." The law, as stated by the 
 learned judge in this case, has been cited with approval 
 and followed in a number of succeeding cases in New 
 York and elsewhere.* The examination of the patient 
 referred to in these cases covers not only the thorough 
 and careful examination made for the purpose of pre- 
 scribing, but includes as well impressions or opinions 
 regarding the patient's condition formed from his gen- 
 eral appearance as disclosed at first sight, before the 
 physician has had an opportunity to examine or con- 
 verse with him.f Nor will the seal of silence be 
 removed from the doctor's lips because the exami- 
 nation may have been conducted in the presence of 
 others.;!; 
 
 In the States of Indiana, Iowa, Nebraska, Ohio, and 
 Wyoming the statute provides that physicians shall 
 
 * Grattan vs. National Life Insurance Co., 15 Hun, 74; Briggs vs. 
 Briggs, 20 Mich., 34 ; Gartside vs. Conn. Mutual Life Insurance Co., 76 
 Mo., 446; Corbett vs. St. L. I. M. and S. Ry. Co., 2fi Mo. App., 621. 
 
 f Grattan vs. Metropolitan Life Insurance Co., 28 Hun, 4B0, 92 
 N. Y., 274. 
 
 I Grattan vs. Metropolitan Life Insurance Co., 80 N. Y., 281. 
 
500 THE LAW IN ITS EELATIONS TO PHYSICIANS. 
 
 not be allowed to disclose matter " comnmnicated " to 
 them by tlieir patients, or to disclose any " communi- 
 cation/' etc. The wording of these statutes would seem 
 at first sight to restrict the protection of privilege to 
 such information as the physician received by communi- 
 cations from the lips of his patients; such, however, 
 does not seem to be the understanding of the courts 
 which have passed upon the question. The supreme 
 court of Indiana, after quoting the statute of that 
 State, says : " It sets the seal of secrecy and con- 
 fidence upon what a physician observes in respect to 
 the condition of his patient's person in the course of his 
 professional examinations, as well as upon communi- 
 cations made to him by his patient. Accident or dis- 
 ease may compel the submission of one's person to 
 examination by a physician, who thus acquires informa- 
 tion which would be confided to no one else. The fear 
 of disclosure often induces persons to suffer from 
 bodily ailments rather than submit to examination by 
 persons of skill. The policy of the statute is to protect 
 and render inviolable the confidence which should exist 
 between physician and patient. A physician is not per- 
 mitted to disclose the result of observations or examina- 
 tions made by him upon the person of his patient, 
 unless with the consent of the latter, or unless the 
 patient in some way waives his privilege." * And in 
 
 * Williams vs. Johnson, 112 Ind., 273. 
 
PRIVILEGED COMMUNICATIONS. 501 
 
 a late case * the supreme court of Iowa says : " Al- 
 though the statute of this State uses the word ' com- 
 munication ' it means much the same as the word ' in- 
 formation ' in the statutes of other States to which 
 we have referred. The prohibition of our statute refers 
 not merely to verbal communications^ but to those of 
 any kind by which information of the character of that 
 specified in the statute is imparted." The courts of 
 last resort in the other three States having statutes 
 similarly worded have not yet passed upon this par- 
 ticular question. It is hoped, however, that when a case 
 involving this point shall be placed before them, they 
 will be able to reach the same conclusion as that arrived 
 at by the courts of the two sister States, for such a 
 construction of the statute is more in accord with the 
 true professional spirit of reserve regarding matters 
 necessarily and confidentially disclosed to enable the 
 physician to properly perform the functions of his pro- 
 fession. 
 
 By the statute of nearly every State the protection 
 of the law is restricted to the knowledge gained by the 
 physician which was "necessary and proper to enable 
 him to discharge the functions of his office." The word- 
 ing of the statutes of several of the States is different, 
 yet the meaning conveyed is quite the same. In constru- 
 
 * Prader vs. Accident Association, 95 la., 149. 
 
502 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ing this elauseof the statute there has been a lack of har- 
 mony, the courts at one time having shown a disposi- 
 tion to place a strict construction upon the statute 
 and exclude all matter from the protection of the privi- 
 lege which was not essential or necessary for diagnosti- 
 cating or prescribing for the ailment ; while the courts at 
 a subsequent and previous period as well have shown a 
 disposition to give the statute a more liberal construc- 
 tion, and include within its protection all communica- 
 tions which might reasonably or even remotely relate 
 to the subject of the professional services. 
 
 There are certain communications that are mani- 
 festly outside of the protection of the law. Thus, where 
 an unmarried woman told the physician who attended 
 her at her confinement that the father of her child had 
 never promised to marry her, the communication could 
 not be withheld as privileged, for the statement was nei- 
 ther designee! nor calculated to throw any light upon the 
 patient's condition nor aid the physician in the remotest 
 degree in his professional treatment of her.* The courts 
 have, however, in many cases shown a disposition to ad- 
 mit every doubt in behalf of a liberal construction of the 
 statute. Thus, the evidence of a physician that he had 
 treated a certain patient for venereal disease and that 
 the patient told him he had contracted the disease 
 
 * Collins vs. Mack, 31 Ark., 684. 
 
PRIVILEGED COMMUNICATIONS. 503 
 
 from the cook on his canal boat, was excluded as com- 
 ing within the statute.* In this case the nature of the 
 patient's affliction and the length of time he had been 
 suffering from it are clearly within the protection of 
 the statute, but there is room for doubt that the state- 
 ment by the patient that he had had intercourse with 
 his cook could have been intended or in any way de- 
 signed to assist the doctor in the professional treatment 
 of the case. 
 
 Probably the case most cited in favor of a strict con- 
 struction of the statute is that of Edington vs. Mtna. 
 Life Insurance Company. f Herein Justice Earl says: 
 " It will not do to extend the rule of exclusion so far as 
 to embarrass the administration of justice. It is not 
 even all information which comes within the letter of 
 the statute which is to be excluded. . , . Suppose a 
 patient has a fever or a fractured leg or skull, or is a 
 raving maniac. All these ailments are obvious to all 
 about him. May not the physician who is called to at- 
 tend him testify to these matters? In doing so there 
 would be no breach of confidence, and the policy of the 
 statute would not be invaded. These and other cases 
 which might be supposed, while perhaps within the 
 letter of the statute, would not be within the reason 
 thereof." Justice Earl gives it as his opinion in this 
 
 * Hunn vs. Hunn, 1 T. and C, 499. 
 
 f Edington vs. Jiltna Life Insurance Co., 11 N. Y., 564. 
 
504 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ease that the party attempting to avail himself of the 
 privilege of the statute must show that the information 
 acquired by the physician was such as was necessary 
 to enable him to prescribe or to do some act as a sur- 
 geon. In harmony with the spirit of this decision is the 
 case of Campau vs. North,* wherein a physician was 
 permitted to testify to the date upon which a patient 
 had told him she received a breach, for which he was 
 treating her professionally. The court thought that the 
 time the patient received the rupture, or rather the 
 existence of the rupture, prior to a certain date, was 
 not information " necessary to enable the doctor to 
 prescribe for her as a physician or to do any act for 
 her as a surgeon." The case of Linz vs. Massachusetts 
 Mutual Life Insurance Company f presents the views of 
 a court favoring a strict construction of the statute. 
 Justice Hayden, in this case, after quoting with ap- 
 proval from the opinion of Justice Earl in the Edington 
 case, says : " Objective signs that are obvious, or such 
 an observation as implies no disclosure — symptoms 
 which are apparent before the patient submits himself 
 to any examination — the statute gives no authority for 
 excluding. That a patient had an inflamed face, a 
 bloodshot eye ; that fumes of alcohol proceeded from his 
 person; that he talked deliriously, could be excluded 
 
 * Campau vs. North, 89 Mich., 606. 
 
 I Linz vs. Mass. Mut. Life Ins. Co., 8 Mo. App., 363. 
 
PRIVILEGED COMMUNICATIONS. 505 
 
 only on the basis that the statute forbids a physician 
 to be a witness. These objective signS;, and others which 
 imply no knowledge obtained as the result of submis- 
 sion or exposure by the patient, and which would be 
 apparent before the initial act of service on the physi- 
 cian's part, the latter should testify to under our stat- 
 ute." 
 
 These three cases present the extreme view favoring 
 a strict construction of the statute. This view has not 
 been approved or followed by later cases, and it is very 
 much doubted whether it may be considered the law. 
 The case of Kling vs. The City of Kansas * probably 
 presents the true doctrine. In this case the question 
 was presented to the court whether or not a physician 
 should be permitted to disclose the condition of a pa- 
 tient with regard to sobriety at the time of calling upon 
 him to render professional services. The court, in an 
 elaborate and learned opinion, explains clearly and sat- 
 isfactorily the meaning of the statute with reference to 
 the question of what information is "necessary infor- 
 mation." The court is of the opinion that all informa- 
 tion, although unimportant in itself, which is neces- 
 sarily communicated to the physician in order to give 
 him the knowledge needed to act in a proper profes- 
 sional capacity is " necessary information." It is evi- 
 
 * Kling vs. City of Kansas, 27 Mo. App., 231. 
 
506 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 dent that the information necessarily imparted to a 
 physician to give him a clear understanding of all the 
 conditions and circumstances of the case to enable 
 proper professional treatment may, and oftentimes 
 does, include much irrelevant matter, and matter which 
 has no relation to the case as viewed from a medical 
 standpoint, but wliich in its relation to matter more 
 intimately related to the main question was necessarily 
 communicated to give a correct and comprehensive view 
 of the whole case. To illustrate, the court says: "If 
 the patient, suffering from a gunshot wound, neces- 
 sarily communicates the information to the physician 
 that the wound was received in a personal encounter, 
 in order to explain the probable course of the ball, in- 
 formation of which latter fact is needed or desired by 
 the physician, information of the fact that the patient 
 was wounded in a personal encounter, although that 
 fact is unimportant, would be privileged. If the patient, 
 suffering from a broken leg, in explaining to his physi- 
 cian the manner in which he received the injury, in 
 order to give needed information concerning the injury, 
 communicate to the physician information that he was 
 under the influence of intoxicating liquor at the time 
 of the accident, such information would be excluded.'' 
 It will be remembered that the protection of the stat- 
 ute applies as well to information gained by seeing and 
 observing the patient as to that acquired from oral com- 
 
PRIVILEGED COMMUNICATIONS. 50Y 
 
 munications of the patient; therefore, if a patient, to 
 enable a physician to treat an injury, necessarily ex- 
 poses his person, and thereby discloses a hidden defect 
 or a mark indicating the presence or former existence 
 of a loathsome disease, such an exposure, though having 
 no relation to the cause of the present professional 
 services, was necessarily made, and should therefore be 
 considered within the protection of the law. 
 
 The court then refers to the distinction made by the 
 strict construction case, above illustrated, between the 
 obvious signs and conditions, such as the " bloodshot 
 eye " and " fumes of alcohol," and the secret and hid- 
 den signs and defects. After showing that the Eding- 
 ton case is practically overruled, at least so far as the 
 subject of the present inquiry is concerned, the court 
 asserted that such a distinction had no support either 
 from the words or spirit of the statute. The court said : 
 " The physician called upon the plaintiff as his physi- 
 cian; any information as to the plaintiff's condition as 
 to sobriety, acquired by the physician by seeing him, 
 was necessarily acquired in order to treat him, and is 
 excluded by statute." 
 
 It logically follows that a physician attending a 
 patient that has been injured in an accident, railroad 
 or otherwise, will not be permitted to disclose state- 
 ments made to him by the patient as to how the ac- 
 cident occurred, especially if the communication was 
 33 
 
508 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 imparted to the physician for the purpose of aiding 
 him in determining the character or extent of the 
 injury. The decisions upon the subject are nearly all in 
 harmony with this proposition.* Thus, in the ease of 
 Eaymond vs. The Burlington, Cedar Eapids, and 
 Northern Eailway Company,! where the physician ques- 
 tioned the patient regarding the accident and said it 
 was absolutely necessary to enable him to obtain a diag- 
 nosis, and that the injury would be more severe if the 
 cars were in motion, the court held that the description 
 of the accident given in response to these questions was 
 privileged. In the case of The Pennsylvania Company 
 vs. Marion,! the court very justly went much further. 
 Here the questions were asked by the physician, as con- 
 tended by the defendant's counsel, for the purpose of 
 learning whether the railroad company was to blame for 
 the injury. But the court said : " The physician has 
 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 pro- 
 fessionally; and such communications are privileged, 
 and he can not disclose them. If the physician took ad- 
 
 * Heuston vs. Simpson, 115 Ind., 62. N. Y. C. and St. L. Ry. Co. vs. 
 Mushruph, 11 Ind. App., 192. 
 
 + Raymond vs. B. C. R. and N. Ry. Co., 65 la , 152. 
 X The Penn. Co. vs. Marion, 123 Ind., 415. 
 
PRIVILEaED COMMUNICATIONS. 509 
 
 vantage of the fact of being called professionally, and 
 while there in that capacity made inquiries of the in- 
 jured party concerning matters in which he had no 
 interest or concern professionally, or for the purpose 
 of qualifying himself as a witness, he can not be per- 
 mitted to disclose the information received. The 
 patient puts himself in the hands of his physician. He 
 is not supposed to know what questions it is necessary 
 to answer to put the physician in possession of such 
 information as will enable the physician to properly 
 treat his disease or injury, and it will be conclusively 
 presumed that the physician will only interrogate his 
 patient on such occasions as to such matters and facts 
 as will enable him to properly and intelligently dis- 
 charge his professional duty, and the patient may 
 answer all the questions propounded which in any way 
 relate to the subject or to his former condition, with 
 the assurance that such answers and communications 
 are confidential, and can not be disclosed without his 
 consent." 'Not, as shown in an earlier part of this chap- 
 ter, will it make any difference with regard to the seal 
 of secrecy placed upon the lips of the physician that 
 he was employed and paid by the railroad company, or 
 party accountable for the accident, provided the rela- 
 tion of physician and patient actually exists.* 
 
 * Louisville, etc., R. R. Co. vit. Berry, 9 Ind. App., 63 ; Citizens' 
 Street R. R. Co. vs. Stoddard, 10 Ind. App., 278. 
 
510 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 In conflict with the ahove cases is that of Kansas 
 City, Fort Scott, and Memphis Eailroad Company vs. 
 Murray,* wherein tlie court held that it was allowable 
 for a physician to state that his patient told him he 
 was leaning over the edge of a car and negligently fell 
 off, causing the injury. The court based tliis decision 
 squarely upon the ground that the statement in ques- 
 tion did not relate to the injury or ailment for which 
 he was being treated, but referred to circumstances 
 preceding the injury. This case, it will be observed, is 
 in direct conflict with those preceding, which are 
 thought to present the better view of the law. 
 
 In harmony with those decisions, representing a 
 liberal construction of the statute, a physician was 
 precluded in ISTew York from disclosing statements 
 made to him by his patient regarding the condition of 
 her health previous to the time she came under his 
 professional care.f 
 
 The law, in order to adequately protect all matter 
 confided to the physician, not only seals his lips, but 
 guards every avenue whereby such information might 
 be improperly disclosed. Thus, in a ISTew York case, the 
 court refused to direct that a physician's original books 
 of account, which contained information regarding the 
 
 * K. C, Ft. S., and M. Ry. Co. vs. Murray, 55 Kan., 336, 40 Pac. 
 Eep., 64 fi. 
 
 \ Barker vs. Cunard Steamship Company, 91 Hun, 495. 
 
PRIVILEGED COMMUNICATIONS. 511 
 
 nature of the maladies of his patients, be turned over 
 to a receiver, who under ordinary circumstances would 
 have been entitled to their possession. The court, in 
 assigning the reason for its refusal to grant the order, 
 said : " In the complicated affairs and relations of life, 
 the counsel and assistance of clergymen, physicians, 
 surgeons, and those learned in the law often become ne- 
 cessary ; and to obtain it, men and women are frequent- 
 ly forced to make disclosures which their welfare, and 
 sometimes their lives, make it necessary to keep secret. 
 Hence, for the benefit and protection of the confessor, 
 patient, or client, the law places the seal of secrecy upon 
 all communications made by those holding confidential 
 relations, and the courts are prohibited from compelling 
 a disclosure of such secrets. The safety of society 
 demands the enforcement of this rule." * A like con- 
 clusion would undoubtedly have been reached by the 
 court of every State having a statute protecting this 
 class of information. 
 
 Rule Applies to Knowledge Regarding Testamen- 
 tary Capacity. — There are certain classes of cases to 
 which the applicability of the statutes sealing the lips 
 of the physician regarding information gained in his 
 professional capacity have been or are seriously ques- 
 tioned. 
 
 * Kelly vs. Levy, 8 N. Y. Supp., 849. 
 
512 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 At an early date it was thought that the statutes 
 enjoining secrecy upon physicians could not have been 
 intended to apply to testamentary cases. Justice Brad- 
 ford, in 1850, after a somewhat extended examination 
 of the question, expressed it as his opinion that he did 
 not think they were within the reason or the intention 
 of the statute.* As late as 1883 this opinion was cited 
 with approval and followed in the surrogate court, f but 
 in 1886 the court of appeals of New York repudiated 
 the distinction between testamentary cases and those 
 of the ordinary sort. Justice Earl, in delivering the 
 opinion of the court, logically said : " But it is claimed 
 thai; the statute should be held not to apply to testa- 
 mentary cases. There is just as much reason for apply- 
 ing it to such cases as to any other, and the broad and 
 sweeping language of the two sections can not be so 
 limited as to exclude such cases from their operation. 
 There is no more reason for allowing the secret ailments 
 of a patient to be brought to light in a contest over his 
 will than tbere is for exposing them in any other case 
 where they become the legitimate subject of inquiry." | 
 This decision has been followed by an almost unbroken 
 line of decisions in several of the States having such 
 statutes, so that it may now be stated with reasonable 
 
 * Allen vs. Public Administrator, 1 Bradf., 221. 
 f Whelpley vs. Loder, 1 Demarest, 368. 
 X Renihan vs. Dennin, 103 N. Y., 51Z. 
 
PRIVILEGED COMMUNICATIONS. 513 
 
 certainty that the knowledge of a physician gained 
 from a professional relation with his patients is pro- 
 tected as fully in testamentary cases as in those of any 
 other sort.* There has, however, in New York been a 
 disposition shown to relax from the liberal and broad 
 interpretation of the law by permitting the physician 
 to be asked whether or not the information acquired by 
 him, which is desired to be shown in the case, was neces- 
 sary to enable him to act in his professional capacity, 
 and, upon his answering this question in the negative, 
 to permit him to disclose such information.! 
 
 The privilege which prevents the physician from 
 disclosing all information gained in the course of his 
 professional intercourse is one which may be waived 
 by the patient, and it has been very ^properly held that, 
 where the patient requests the physician to place his 
 name upon the patient's will as subscribing witness, 
 he thereby waives the privilege and invites a full and 
 proper examination of the matters and facts as to which 
 the physician's lips would otherwise have been sealed. J 
 
 * In re Flint, 100 Cal, 391, 34 Pac. Rep., 863; In re Redfield, 116 
 Cal., 637; Heuston vs. Simpson, 115 Ind., 62, lY N. E. Rep., 261 : Guv- 
 ley vs. Park (Ind.), 35 N. E. Rep., 279; Denning vs. Butcher, 91 la, 425, 
 59 N. W. Rep., 69 ; Fraser vs Jennison, 42 Mich , 206 ; Thompson vs. 
 Ish, 99 Mo , 160. 
 
 \ In re Halsey Estate, 9 N. Y. Supp , 441 ; Herrington vs. Winn, 14 
 N. Y. Supp., 612. 
 
 X In re Mullin's Estate, 110 Cal., 252, 42 Pac. Rep., 645; McMaster 
 vs. Scriven, 85 Wis., 162. 
 
5M THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Regarding Inquisition of Lunacy. — The question 
 whether or not a regular attending physician is com- 
 petent in an inquisition of lunacy to testify regarding 
 his patient's condition is one upon which there does not 
 seem to be a decision by a court of last resort. Justice 
 Werner was of the opinion that the statute did not 
 disqualify the physician ; he said : " I do not think the 
 section applies to a proceeding of this character. No 
 physician can be better qualified to testify to the sanity 
 or insanity of a person than he who has for some time 
 attended such person in a professional capacity." * The 
 latter part of this proposition is undoubtedly correct, 
 yet the same statement may be made with equal force 
 in case of the contest of a will upon the ground of a 
 want of testamentary capacity on the part of the testa- 
 tor ; and, yet we have just seen that the law applies in 
 such cases. Until this question is settled by a more 
 authoritative decision it may well be considered in 
 doubt. 
 
 Application in Criminal Cases. — It has been ob- 
 served that by the express limitation contained in the 
 statutes of several States the privilege extended to 
 knowledge professionally obtained by the physician 
 applies only to civil cases. This limitation precludes 
 both the physician and patient from the right of with- 
 
 * In re Benson (Co. Ct.), 16 N. Y Supp., 111. 
 
PRIVILEGED COMMUNICATIONS. 515 
 
 holding;, or having such information witlilield;, where it 
 is relevant to the subject of inquiry in a criminal pro- 
 ceeding.* In those States where the privilege is not 
 expressly limited by statute to civil proceedings there 
 is some difficulty in determining with certainty the 
 extent to which the courts allow the privilege. A care- 
 ful examination of the cases relative to the subject dis- 
 closes precedents extending to such knowledge the pro- 
 tection of the law and others denying it such protection. 
 The facts and circumstances upon which these con- 
 flicting decisions have been rendered seem to suggest a 
 classification of the precedents under three heads, by 
 wliich arrangement the apparent conflict of authority 
 is overcome, and, it seems, a uniform rule may be laid 
 down, as foUoAvs : 
 
 I. Communications had for the purpose of doing an 
 unlav/ful act or committing a crime are not within 
 the meaning of the law, and will not be protected, f 
 Thus, a consultation had with a physician relative to 
 the unlawful producing of an abortion is not within the 
 protection of the law, and the witness may be com- 
 pelled to disclose the ssnoac.X The procuring of an 
 abortion is not, however, necessarily a criminal act; 
 
 * People vs. Lane, 101 Cal, 513, 36 Pac. Rep., 16; People vs. West, 
 106 Cal., 89, 39 Pac. Rep , 207. 
 
 f 19 Am. and Eng. Enc. of Law, 140; State vs. Kidd, 89 la., 51. 
 I State vs. Smith, 99 la., 26, 68 N. W. Rep., 428. 
 
516 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 therefore in some jurisdictions it is held that before the 
 protection of the privilege will be denied it must be 
 shown that the mother's life or health did not neces- 
 sitate the operation.* 
 
 II. When the object of the criminal action is the 
 prosecution of the patient's murderer, then the privi- 
 lege can not be insisted upon by the accused murderer 
 so as to preclude the deceased's physician from disclos- 
 ing the condition in which he found deceased. Thus, 
 where a physician was called to attend a patient who 
 had been feloniously poisoned, the poisoner, upon trial, 
 objected to a disclosure by the physician of the condi- 
 tion in which he found the patient, claiming that such 
 information was privileged; but the court denied that 
 the • privilege applied in such a case.f The reason for 
 denying the privilege in such a case is that the evident 
 intention of the legislature in passing these laws was 
 to protect the patient from an improper disclosure of 
 his infirmities, whereas the application of the rule in 
 such a case would act as a shield to the patient's mur- 
 derer, a purpose which the legislature neither contem- 
 plated nor designed the act to accomplish. J 
 
 III. In ordinary criminal actions the privilege 
 
 * Guptill vs. Verback, 58 la , 98. 
 t People vs. Harris, 1 30 N. Y., 423. 
 X Piersou vs. People, 79 N. Y.; 424, 
 
PRIVILEGED COMMUNICATIONS. 517 
 
 applies equally as in civil matters.* Thus, where an 
 abortion had been performed and, after the discovery 
 of the commission of the crime, the district attorney 
 sent a physician to attend the girl, such physician was 
 not permitted to testify regarding knowledge which 
 he gained in attending her. The court, in discriminat- 
 ing between this case and those coming under the sec- 
 ond class, said : " But in that decision (one coming 
 under the second class) the statute was construed, and 
 we held it did not cover a case where it was invoked 
 solely for the protection of the criminal, and not at all 
 for the benefit of the patient, and where the latter was 
 dead, so that an express waiver of the privilege had 
 become impossible. The j)resent is a different case." f 
 In this connection it might be pertinent to inquire 
 whether the death of the patient after the witness 
 assumed professional care over her would have left him 
 free to disclose those facts which he learned in his 
 treatment of her, or whether the dishonorable and crimi- 
 nal acts causing her death would, if disclosed, cast such 
 a cloud of dishonor and shame upon her memory as to 
 still preserve a distinction between this case and the 
 one referred to under classification II, where deceased 
 came to his death by poisoning. There seems to be no 
 
 * Post V.I. State, 14 Ind. App., 452, 42 N. E. Rep., 1120; State vs. 
 Depoister, 21 Nev., 107, 25 Pac. Rep., 1000. 
 t People vs. Murpby, 101 X. Y., 126. 
 
518 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 case marking the exact line of distinction. It is be- 
 lieved, however, that so long as the physician's silence 
 is necessary for the welfare of the patient, whether 
 living or dead, the privilege will be enforced.* 
 
 To whom Privilege Belongs. — The privilege of 
 secrecy insured by legislative enactment respecting all 
 professional communications is a right extended to the 
 patient and not to the physician, f and it is a right 
 which the patient may assert or waive as he chooses; 
 and in the event of the patient's waiver the physician 
 may be compelled to testify. Nor does the right cease 
 with the death of the patient, as the physician is as 
 strongly bound to preserve silence after that event as 
 while his patient was in life. J IsTor does it seem that 
 the rule is otherwise regarding the extent of the right 
 vested in the patient in those States in which the stat- 
 ute reads that the physician " shall not be compelled to 
 disclose," etc. The supreme court of Wisconsin, in an 
 opinion both cogent and logical, shows that the protec- 
 tion of the patient, who alone would have been injured 
 
 * In the case of State vs. Harris, supra, a disposition was shown to 
 sacrifice the honor of the deceased patient, where knowledge profession- 
 ally obtained was material in the prosecution of deceased's murderer, 
 rather than impede justice. The evidence there oifered was admissible 
 upon other grounds, however, and therefore the opinion can not be con- 
 sidered authoritative upon this particular point. 
 
 f Johnson vs. Johnson, 14 Wend, 641. 
 
 X Grattan vs. Met. Life Ins. Co., 80 N. Y., 281. 
 
PRIVILEGED COMMUNICATIONS. 519 
 
 by the disclosure of his infirmities, was the object and 
 aim of the legislature, and that in order to accomplish 
 this end that right to make a disclosure can not be left 
 discretionary with the physician, but that "the physi- 
 cian can neither be compelled nor allowed to disclose 
 it, as a witness, against the will or without the consent 
 of the patient." * 
 
 The protection which the statute conveys to the 
 patient relates, it seems, only to the physician's giving 
 evidence in court relative to information professionally 
 acquired, but does not prohibit such disclosures in his 
 general intercourse.! The legislature, in framing this 
 law, evidently assumed that in all eases where the phy- 
 sician is not subject to coercion, as is an ordinary wit- 
 ness upon the witness stand, the patient's secrets 
 would be as sacred and inviolable in the breast of the 
 physician, unprotected save by his own sense of profes- 
 sional propriety, as though secrecy were enjoined by the 
 strictest legislative enactment. In this connection it 
 may be proper to add that no professional man having 
 a proper regard for the important relation which he 
 bears to society, and a just appreciation of the absolute 
 confidence which the proper performance of his duties 
 necessitates being reposed in him, will under any cir- 
 
 * Boyle vs. N. W. Mut. Relief Assn., 95 Wis., 312, '70 N. W. Rep., 
 351. 
 
 f See dictum in Boyle vs. N. W. Mut. Benefit Assn., supra. 
 
520 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 CTimstances be betrayed into violating such confidence, 
 or outraging the honor of his profession by improperly 
 disclosing facts necessarily learned in the course of his 
 professional duties. The temptation is undoubtedly 
 strong at times to publish the details of an opera- 
 tion or treatment which reflects favorably upon one's 
 professional skill, yet such a publication, unauthorized 
 by the patient, can not be regarded otherwise than rep- 
 rehensible in the extreme. In a Michigan case, which 
 arose nearly twenty years ago, Justice Campbell, in 
 delivering the opinion of the court, went beyond the 
 question at issue to rebuke one of the parties, a physi- 
 cian, who had published the details of an operation 
 recently performed by him. The justice said: "We 
 can not forbear, in the interest of public morality, to 
 call attention to the fact that the plaintiff, if a physi- 
 cian, has no right to publish matter of professional con- 
 fidence, and that the article, if published as he wrote it, 
 without the approbation of the person operated on, 
 would have been a very plain breach of professional 
 duty. Such publications, for no purpose of public in- 
 struction and only for private gratification or laudation, 
 deserve severe censure." * 
 
 Waiver. — ^We have just seen that the privilege is a 
 right belonging to the patient ; therefore the patient is 
 
 * SuUings vs. Shakespeare, 46 Mich., 412. 
 
PRIVILEGED COMMUNICATIONS. 521 
 
 capable of waiving this privilege, and permitting or, if 
 necessary, compelling his physician to testify regarding 
 matters of professional confidence between them; and 
 this is the law even in States where, by the wording of 
 the statute, the physician is incompetent to disclose 
 information obtained in the course of his professional 
 employment.* 
 
 The waiver need not always be express, but may 
 be implied from the acts or, under some circumstances, 
 from the silence of the patient; but to determine whether 
 or not the conduct of the patient in a particular case 
 amounts to a waiver is often a very difficult matter. 
 The patient, by calling his physician to testify, waives 
 the privilege.]' Also, the patient's attorney waives for 
 him when he calls the physician as a witness and states 
 that as the patient's attorney he waives the privilege 
 of the statute.;]: It is also held that a patient, by per- 
 mitting a physician to testify regarding privileged mat- 
 ters, either as his own or his opponent's witness, waives 
 the privilege.* It is advisable to state, however, in this 
 regard that a physician, whenever placed upon the wit- 
 
 * Davenport vs. Hannibal, 108 Mo., 471, 18 S. W. Rep., 1122. 
 
 •f Carrington vs. St. Louis, 89 Mo., 208 ; Squires vs. City of Chilli- 
 cothe, 89 Mo., 226. 
 
 X Alberti vs. N. Y., L. E., and W. R. Co., 118 N. Y., 11, 23 N. E. 
 Rep., 35. 
 
 * Hoyt vs. Hoyt, 112 N. Y., 403; Lincoln vs. City of Detroit, 101 
 Mich., 245, 59 N. W. Rep., GlT; Wheelock vs. Godfrey, 100 Cal., 51S. 
 
522 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 ness stand by another than his patient, for the purpose 
 of disclosing privileged matter between himself and 
 that patient, should, in justice to that patient, inform 
 the court that the matter he is asked to divulge was 
 learned by him in the course of his professional attend- 
 ance, and that he desires to submit the question to the 
 court whether he may, consistently with the confidence 
 reposed in him by the patient and with his own pro- 
 fessional integrity, disclose such confidential matter. A 
 case similar to the one supposed, in wliich the physi- 
 cian disclosed matter that should have been carefully 
 guarded, went to the supreme court of Michigan sev- 
 eral years ago, and Justice Conley, in delivering the 
 opinion of the court, took the opportunity to censure 
 both the physician and the commissioner who permitted 
 the evidence to be received, in the following words: 
 " Every reputable physician must know of the existence 
 of this statute (protecting confidential communica- 
 tions) ; and he must know from its very terms, as well 
 as from the obvious reasons underlying it, that it is 
 not at his option to disclose professional secrets. A 
 rule is prescribed which he is not to be ' allowed ' to 
 violate ; a privilege is guarded which does not belong to 
 him, but to his patient, and which continues indefinite- 
 ly, and can be waived by no one but the patient liim- 
 self. What was done in this case may have been 
 thoughtlessly done ; but if a physician is found disposed 
 
PRI^TELEGBD COMMUNICATIONS. 523 
 
 to violate both the law of the land and the precepts 
 of professional ethics by making such a disclosure, and 
 if counsel invite him to do so by their questions, the 
 commissioner, in the case of so plain a disregard of the 
 law to the prejudice of a third party, may well decline 
 to be an instrument of the wrong." * 
 
 In case of a criminal prosecution instituted by the 
 patient, who is prosecuting witness, he will be deemed 
 to have waived his privilege, and the physician who 
 attended the patient for the injuries inflicted by the 
 accused will be properly permitted to testify. Thus, 
 in a rape case where the criminal act was committed 
 upon a child, and the prosecution was inaugurated by 
 the child's parents, and the child and her mother testi- 
 fied at the trial regarding the criminal act and the 
 injuries thereby inflicted, the supreme court of Nevada 
 was of the opinion that the parents by their conduct 
 showed a desire to waive the protection of the statute, 
 and that the physician's evidence was therefore prop- 
 erly admitted, f 
 
 But whether or not the patient, by taking the wit- 
 ness stand in a civil suit and testifying regarding his 
 health, waives his privilege of objecting to the evidence 
 of his physician as to the condition of his health at the 
 time referred to in his testimony is a question upon 
 
 * Storra vs. Scougale, 48 Mich., 388. 
 f State vs. Depoister, 21 Nev., 107, 25 Pac. Kep., 1000. 
 34 
 
524 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 which the decisions are not in harmony. It has been 
 observed that in several States the statute extending the 
 privilege to the patient expressly provides that when 
 the patient voluntarily testifies he will be deemed 
 to consent to the examination of his physician.* In 
 States having such a statute there can be no doubt 
 that the patient, by testifying concerning matter within 
 the knowledge of his physicians, in law authorizes them 
 to make a full disclosure relative thereto, but whether 
 his testifying will have such effect in other States is 
 seriously doubted. In the court of common pleas of 
 New York, however. Justice Pryor held that the plain- 
 tift', who testified minutely and circumstantially to the 
 effect of a blow upon her physical condition, and dis- 
 closed to the jury without reservation all the ill conse- 
 quences of the injury to her health and comfort, there- 
 by waived the privilege of objecting to the evidence of 
 the physician who had attended her for the particular 
 injuries, f Almost contemporaneous with this case is 
 one from the supreme court of Iowa, in which the plain- 
 tiff testified minutely regarding the health she enjoyed 
 previous to the accident upon which the suit was based, 
 in such a way as to justify the belief that she was an 
 unusually vigorous and healthy woman. The defendant 
 
 * The statutes contain such a clause in Kansas, Ohio, Oklahoma, and 
 Wyoming. 
 
 f Treanor vs. Manhattan Ry. Co., 28 Abb. N. C, 4T. 
 
PRIVILEGED COMMUNICATIONS. 525 
 
 then offered the evidence of the physician who had at- 
 tended the patient occasionally during the time referred 
 to in her testimony, but the court denied that the plain- 
 tiff by her evidence hud waived her privilege of object- 
 ing to the disclosure proposed,* and therefore refused 
 to permit the physician to testify. The authorities 
 seem to be uniform upon the proposition that where a 
 patient at the trial testifies regarding his condition at 
 a certain time physicians who attended him at an- 
 other time than that covered in his testimony can not 
 be permitted to testify regarding the patient's condi- 
 tion at such other time contrary to liis objection. In 
 the case of Butler vs. Manhattan Eailway Company, 
 the plaintiff, who was pregnant, upon attempting to 
 board a car upon the elevated railroad, was struck a 
 severe blow in the side by the iron gate as it was forcibly 
 closed by the brakeman, producing a miscarriage. At 
 the trial the plaintiff testified regarding her physical 
 condition subsequent to the accident, whereupon the 
 defendant attempted to prove by the physicians who had 
 attended the patient previous to the accident what her 
 condition was during that period, but the court refused 
 to permit the disclosure offered. f 
 
 It also seems well settled that when a patient is 
 attended by several different physicians at different 
 
 * McConnell vs. City of Osage, 80 la., 293, 45 N. W. Rep., 550. 
 f Butler vs. Manhattan Ry. Co., 23 N. Y. Supp., 1C3. 
 
526 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 periods, and he calls one physician to testify to his con- 
 dition during the period in which that physician treated 
 him, he does not thereby waive his privilege as to 
 the other physicians.* Thus, where the patient, who 
 had been injured in a railway accident, first employed 
 Dr. A., but before recovering discharged him and em- 
 ployed Dr. B., it was held that by calling Dr. B. to tes- 
 tify regarding his condition he did not waive his privi- 
 lege as to Dr. A., and that Dr. A. could not be placed 
 upon the witness stand by the defendant to testify, con- 
 trary to the patient's objection, to facts learned while 
 attending him professionally, f And so, when a patient 
 called physicians to testify to his condition previous and 
 subsequent to a certain period, he did not thereby waive 
 his privilege to object to the evidence of another physi- 
 cian, who had attended him during the intervening 
 period, regarding his physical condition during such 
 intervening period. J But when two or more physicians 
 attend a patient at the same time the question of 
 whether, by calling one of them to disclose his condition, 
 he waives his privilege as to the others is one upon 
 which the decisions are conflicting. The court of ap- 
 peals of New York holds that by such an act he does 
 
 * Hope vs. Troy and Lansingburg Ry. Co., 40 Hun, 438. 
 f Mellor vs. The Mo. Pac. Ry. Co., 105 Mo., 455. 
 X Barker vs. Cunard Steamship Co., 91 Hun, 495, 86 N. Y. Supp., 
 256. 
 
PRIVILEGED COMMUNICATIONS. 527 
 
 waive his privilege of objecting to the evidence of the 
 others. The court says : " We think that a construction 
 of the statute which permits a patient who has been 
 attended by two physicians at the same examination or 
 consultation to call one of them as a witness to prove 
 what took place or what he learned, thus making public 
 the whole interview, and still retain the right to object 
 to the other, is unreasonable and unjust, and should not 
 be followed. The waiver is complete as to that consulta- 
 tion when one of them is used as a witness." * Upon 
 the other hand, the supreme court of Iowa in a recent 
 case held that a patient, by placing on the stand one of 
 several physicians who had attended her, presumably at 
 the same time, did not waive her right of objecting to 
 the evidence of the others as privileged, f 
 
 The question of whether the privilege, having once 
 been waived in a given case, may ever again be asserted, 
 is also one in which there is conflict of authority. In 
 the case of Grattan vs. Insurance Company,;]; the ISTew 
 York court of appeals held that a party having waived 
 the privilege at one trial could claim it upon a new 
 trial of the same case ; but the same court, in the case of 
 
 * Morris vs. N. Y., 0., and W. Ry. Co., 148 N. Y., 88, 42 N. E. 
 Rep., 410. 
 
 t Baxter vs. City of Cedar Rapids, 103 la., 599, 72 N. W. Rep., 
 790. 
 
 X Grattan vs. Insurance Co., 92 N. Y., 274. 
 
528 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 McKinney vs. Grand Street, etc., Eailroad Company,* 
 decided four jeaTS later that the patient having once 
 consented to the disclosure of privileged information 
 could never again assert his privilege regarding the sub- 
 ject of his former waiver. The supreme court of Michi- 
 gan, in a late case,f in passing upon practically the 
 same case, reviewed the decisions of the New York 
 court and, after expressing its preference of the rule 
 laid down in the Grattan case, held that a privilege hav- 
 ing been waived at one trial might be asserted at a new 
 trial of the same case. 
 
 That a patient fully and completely waives, all privi- 
 lege as to matters connected with the physician's treat- 
 ment of him when he sues the physician for alleged 
 malpractice in such treatment can not be justly doubted. 
 " To establish a contrary rule," said Justice Gavin, 
 '•' would be most manifestly unfair." J But a rule of 
 similar justice does not prevail where a physician sues a 
 patient to recover for the value of his professional serv- 
 ices, and the patient interposes an answer containing a 
 general denial. In such a case the patient does not waive 
 his privilege, and the physician may not testify as to any 
 information protected by the statute.* He may, how- 
 
 * MfKinney vs. Grand St., etc., R. R. Co., 104 N. Y., 362, 10 N. E. 
 Rep., 544. 
 
 f Briesenmeister vs. K. of P., 81 Mich., 525. 
 
 X Becknell vs. Hosier, 10 Ind. App., 5, 37 N. E. Rep., 580. 
 
 # Van Allen vs. Gordon, 83 Hun, 379. 
 
PRIVILEGED COMMUNICATIONS. 529 
 
 ever, testify that he is the family physician, and that 
 he attended the patient, giving the dates and number of 
 such visits made, and mentioning the examinations, 
 prescriptions, and operations, but he may not describe 
 them if the patient objects.* 
 
 The question of privilege has repeatedly arisen in 
 eases where insurance companies have sought to avoid 
 liability upon an insurance policy by showing by the 
 assured's physician that at or previous to the time of 
 entering into the contract of insurance he was afflicted 
 with a disease, the existence of which he had denied in 
 his application for insurance. 
 
 In an application for insurance it is usually required 
 of one to give the name of his physician for the purpose 
 of verifying the applicant's statements regarding the 
 condition of his health. This reference does not, how- 
 ever, amount to a waiver of the privilege, and will not 
 enable the insurance company to place such physician 
 upon the witness stand and elicit from him the as- 
 sured's physical condition at the time or times men- 
 tioned in the application, f 
 
 When, however, the application contains a clause 
 waiving all provisions of the law preventing a physi- 
 
 * Van Allen vs. Gordon, supra; Brie?enmeister vs. K. of P., 81 
 Mich., 525. 
 
 f Edington vs. Mutual Life Assn., 67 N. Y., 185 ; Masonic Mut. Ben. 
 Assn. vs. Beck, 77 Ind., 203. 
 
530 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 cian from disclosing any information acquired in at- 
 tending the applicant in a professional capacity, the 
 effect will be to completely waive the privilege, not only 
 as to the assured, but also to any one claiming a benefit 
 under the contract of insurance.* 
 
 The legislature of N"ew York in 1891 amended the 
 law providing for the protection of professional commu- 
 nications so that a physician could not be examined re- 
 garding information obtained in the course of his pro- 
 fessional intercourse " unless the provisions thereof are 
 expressly waived upon the trial or examination by . . . 
 the patient." This act was held by the court of appeals 
 not to apply to a waiver executed prior to the amend- 
 ment of the law.f And the supreme court has, in two 
 well-considered decisions,]; held that a waiver executed 
 subsequent to the enactment of the law may be used 
 upon the trial after the patient's death to authorize 
 a disclosure. In the case of Dougherty vs. Metropoli- 
 tan liife Insurance Company, the court said : " If the 
 patient be alive, an entry upon the record at his trial 
 by his counsel would be sufficient. In case of his inabil- 
 ity to attend the trial, a written stipulation signed by 
 
 * Adreveno vs. Mut. Res. Fund Life Assn., 34 Fed. Rep., 8 70. 
 
 f Foley vs. Royal Arcanum, 151 N. Y., 196, 45 N. E. Rep., 456. 
 
 \ Dougherty vs. Metropolitan Life Ins. Co., 87 Hun, 15, 33 N. Y. 
 Supp., 8*73; Holden vs. Metropolitan Life Ins. Co., 11 App. Div., 426, 
 42 N. Y. Supp., 310. 
 
PRIVILEGED COMMUNICATIONS, 5^1 
 
 him and entered upon the record would remove the pro- 
 hibition. 
 
 " That being so, it must certainly be immaterial 
 when the stipulation is signed. In this case it was 
 signed long before the trial in anticipation of that event, 
 and with design of having it used thereat. . . . The 
 reasonable construction of the statute, therefore, is that 
 the provisions are expressly waived upon the trial if a 
 proper stipulation to that effect be produced thereat and 
 entered upon the record, regardless of the time when the 
 waiver was executed." 
 
 With the evident intent of overcoming the effect of 
 this decision and nullifying the waiver contained in the 
 application for an insurance, the legislature of New 
 York, in 1899, amended the statute by adding to it the 
 following words : " The waivers herein provided for must 
 be made in open court, on the trial of the action or pro- 
 ceeding, and a paper executed by a party prior to the 
 trial, providing for such waiver, shall be insufficient as 
 •such a waiver. But the attorneys for the respective 
 parties may, prior to the trial, stipulate for such waiver, 
 and the same shall be sufficient therefor." * What the 
 effect of this amendment may be can not be stated until 
 the parties interested in its avoidance have devised 
 means to accomplish that end, and those means have 
 been passed upon by the courts. 
 
 * Code of Civil Procedure, § 836. 
 
532 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 It has been observed that the privilege does not 
 expire with the life of the patient. The question there- 
 fore naturally arises whether or not the privilege may 
 be waived after the patient's death, and, if so, to whom 
 does tliis right descend ? 
 
 The 'New York statute previous to its amendment 
 in 1892 provided that privileged communications should 
 not be disclosed unless the "provisions of the statute 
 were expressly waived by the patient." It was there- 
 fore held under tliis statute that a patient by dying 
 without first waiving his privilege rendered it impossi- 
 ble to remove the seal of secrecy from the lips of his 
 physician.* Thus, where one who was insured com- 
 mitted suicide, and his insurance policy contained a 
 clause providing that it should be void if the insured 
 committed suicide, it became vital to the validity of the 
 policy to show that the deceased was insane and either 
 unconscious of the act which he performed, causing his 
 death, or was unable to understand what the physical 
 consequences of it would be. In order to show this the 
 physician who had attended him was called, but upon 
 the evidence being objected to by the insurance com- 
 pany, the court held that under the statute the patient 
 alone could waive the privilege, and, as the patient was 
 dead, the right of granting permission to disclose privi- 
 
 * Loder vs. Whelpley, 111 N. Y., 239. 
 
PRIVILEGED COMMUNICATIONS. 533 
 
 leged matter between him and his physician had also 
 ceased, and that the physician could not properly be 
 permitted to make the disclosure asked.* That the 
 injustice worked by this law was realized is evident, for 
 the legislature in 1892 amended the statute so as to 
 permit the physician to testify when the privilege was 
 waived by the personal representative of the deceased, 
 or in case of a will contest by the executors, surviving 
 husband or wife, or an heir-at-law, or next of kin, or 
 any other party in interest, except that the physician 
 should not be permitted to disclose confidential com- 
 munications and such facts as would tend to disgrace 
 the memory of the patient, f 
 
 The rule enforced by the New York courts previous 
 to the amendment of the statute is followed by the 
 courts of California, where it is held that if the patient 
 dies without having waived the privilege, the matter 
 forever is closed, and the physician will under no circum- 
 stances be permitted to disclose the knowledge obtained 
 in rendering professional services to the deceased. J 
 The reason assigned for this strict rule is the similarity 
 of the California statute to that of New York as it for- 
 merly existed. 
 
 * Westover vs. JEtna Life Ins. Co., 99 N. Y., 56. 
 f L., 1892, p. 1042, ch. 514. 
 
 X In re Flint, 100 Cal., 391, 34 Pac. Rep., 863 ; Harrison vs. Sutter 
 St. Ry. Co., 116 Cal., 156, 47 Pac. Ref., 1019. 
 
534: THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 The supreme courts of Michigan, Missouri, and Indi- 
 ana hold to a contrary doctrine and permit the per- 
 sonal representative of the deceased to waive the privi- 
 lege, thus qualifying the physician to testify regarding 
 matters otherwise prohibited.* 
 
 In Indiana it is held that in the contest of a will 
 the waiver can he made only by a personal representa- 
 tive of the deceased — viz., an executor or administrator 
 — and if there is no such personal representative the 
 physician can not be permitted to testify ; f but in case 
 of a suit upon an insurance policy the wife of deceased, 
 who is named as beneficiary, is competent to waive the 
 privilege. J 
 
 The rule which seems best calculated to do justice 
 to all parties is that laid down by the supreme court of 
 Missouri in the case of Thompson vs. Ish,* which is that 
 in a will contest any party claiming under the deceased, 
 whether a devisee or heir-at-law, may waive the privi- 
 lege and call the attending physician to testify regard- 
 ing deceased's mental capacity. 
 
 * Fraser vs. Jennison, 42 Mich, 206; Morris va. Morris, 119 Ind., 
 341 ; Denning vs. Butcher, 91 la., 425, 59 N. W. Rep., 69. 
 
 ■f Gurley vs. Park, 135 Ind., 440, 35 N. E. Rep., 2*79. 
 t Penn. Mnt. Life Ins. Co. vs. Wiler, 100 Ind., 92. 
 
 * Thompson vs. Ish, 99 Mo., 160, 12 S. W. Rep., 510. 
 
INDEX. 
 
 Abortion, at common law, how regarded, 404. 
 
 at common law, not criminal before quickening, 405. 
 
 at common law, murder when death of mother ensued, 406. 
 
 at common law, misdemeanor after quickening, 407. 
 
 as regarded by statutes, 407. 
 
 advice to procure, when becomes criminal, 410. 
 
 conditions existing subsequent to operation, competent to show, 
 402. 
 
 corpus delicti, how shown, 435. 
 
 elBcacious means, not necessary to show adoption of, to establish 
 crime, 412. 
 
 Instruments for performing, possession of, admissible, 449^56. 
 
 justifiable, when legally, 421-424. 
 
 mother, when regarded guilty, 408. 
 
 necessity for performing, burden of proving, 424. 
 
 necessity for performing, how to be shown, 421. 
 
 pregnancy, not necessary to establish, 418. 
 
 proof of, illustrations, 430-449, 465-479. 
 
 time sufficient for performing, 445. 
 
 vitality of foetus not essential to commission of crime of, 419. 
 
 willingness to perform, evidence of, admissible, 449. 
 Adjudication, effect of former, 56, 1.58, 220, 358. 
 Advanced state of medical science, skill to be judged by, 61, 209-274. 
 Advertising, when unprofessional conduct, 51. 
 Agent, when act of, binds corporation for physician's fees, 105. 
 Alabama, qualifications to practise in, 10. 
 Alibi, effect of proving, 463. 
 Appeal from decision of examining board, 24, 
 Arizona, qualifications to practise in, 10. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Arkansas, qualifications to practise in, 10. 
 
 communications between physician and patient privileged in, 
 481, n. 
 
 535 
 
536 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Assistance, refusal of, by physician does not increase obliga- 
 tions, 284. 
 Assistant, physician entitled to fees for services of, 141. 
 Attendance, physician not to discontinue, without notice, 72, 297. 
 Attendant, non-professional, at confinement case, 325. 
 Autopsy, consent to perform, necessary, 31.5. 
 
 consent to perform, from whom to be obtained, 136, 317. 
 
 consent to perform, when not necessary, 319. 
 
 physician performing by coroner's orders protected, 136, 319. 
 
 Bandaging, case of improper, 241. 
 
 liability of physician operating but not attending for too tight, 
 258. 
 Best judgment, what is, 276-284. 
 
 what it implies, 68. 
 
 knowledge and skill necessary for its exercise, 274. 
 
 physician required to use, 68. 
 
 physician not liable for error of, 277. 
 
 physician should not operate contrary to, except, 69, 281. 
 Board of Medical Examiners. See Examining Board. 
 Books of account, how to be kept, 200-209. 
 
 what should show, 200. 
 
 admissibility of, in evidence, 197. 
 
 inadmissible because disclosing privileged communications, 
 when, 203, 510. 
 
 California, qualifications to practise in, 11. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Care and diligence, contract to use, implied, 63. 
 Care, degree required, 240, 254-262. 
 
 degree of required, not proportionate to injury treated, 65. 
 Certificate of admission, how issued and filed, 13. 
 
 registration or filing of, 32. 
 
 registration or filing of, failure of, when excusable, 37. 
 
 registration or filing of, rights of physician in other counties, 32. 
 Character of physician, not competent to be shown in defense of 
 
 action for compensation, 216. 
 Cherokee nation. See Indian Territory. 
 
 Child, adult, liability of parent to pay physician's fee for attend- 
 ing, 84. 
 Child, liability of parent to pay physician's fee for attending, 80. 
 Choctaw nation. See Indian Territory. 
 " Christian Scientist," entitled to compensation, 142. 
 Claims. See Estates of Decedents. 
 
 Clairvoyant, absent husband not liable for fees of, in attending 
 wife, 88. 
 
INDEX. 537 
 
 Colles's fracture. See Fracture. 
 Colorado, qualilications to practise in, 11. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Common law, described and defined, 2. 
 
 in the United States, 4. 
 
 stability of, how secured, 4. 
 Compensation. See Fees. 
 Compensation. See Recovery of Compensation. 
 
 right to, usually based on implied contract, 140. 
 
 physician entitled to, without rendering services, when, 140. 
 
 recovery of, 171-238. 
 
 proof of license when necessary to recovery of, 187. 
 
 right of unqualified practitioner to recover, 172-177. 
 
 right of unqualified practitioner to recover for medicines fui-- 
 nished, 177-181. 
 
 right of unqualified practitioner to recover compensation after 
 legal disability removed, 181. 
 
 proof of employment, 194. 
 
 statute of limitations, right to, when barred by, 184—187. 
 
 assistant, physician entitled to, for services of, 141. 
 
 carelessness in regard to contagious diseases, effect upon, 1G8. 
 
 " Christian Scientist," entitled to, 142. 
 
 failure to benefit patient, right to, not affected, 153-158. 
 
 gratuitous, intent that services shall be, 164-167. 
 
 incompetency and neglect, effect of, upon right to, 158. 
 
 intoxication of physician, effect of, upon right to, 167. 
 
 mistake as to disease does not affect right to, 157. 
 
 " no cure, no pay," right to, under contract of, 159-164. 
 
 services to physicians, right to, for, 167. 
 
 " spiritualist " entitled to, 142. 
 
 student, physician entitled to, for services of, 141. 
 
 subsequent visits, physician entitled to, for, 141, 215. 
 
 Sunday, physician entitled to, for services on, 143. 
 Conductor, no authority in, to bind railroad for physician's fees, 
 
 111. 
 Confessions. See Evidence. 
 
 Confidential communications. See Privileged Communications. 
 Connecticut, qualifications to practise in, 10. 
 
 non-resident physician, right of, to consult in, 16. 
 
 non-resident physician, right of, to practise in, 15. 
 Consent, examining without, 3.36. 
 
 necessity for, before operating, 313. 
 
 necessity for, before performing autopsy, 315. 
 
 to performance of operation presumed, 134. 
 Consideration, contract must be based upon, 92. 
 Consultant's fee, patient liable for, 151. 
 
538 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Consultation, meeting of plij^sicians does not necessarily consti- 
 tute, 152. 
 
 right to meet in, in foreign States, 16-20. 
 Contagious disease, duty of physician to protect patients from, 72. 
 
 effect of carelessness in regard to, upon right to compensation, 
 168. 
 
 liability of physician for conveying, to patient, 338. 
 
 physician destroying property in case of, protected, 137. 
 Contract, defined and classified, 59. 
 
 express, defined, 59. 
 
 implied, defined, 59. 
 
 for medical treatment includes surgical cases, 73. 
 
 Sunday, for medical services valid, 79. 
 Contract of patient, implied by law, 75. 
 
 payment of physician's fees, 75. 
 
 to obey instructions of physician, 78. 
 Contract of physician, implied by law^, 60. 
 
 implied, not altered by refusal of profllered assistance, 65. 
 
 not implied to effect a cure, 71. 
 
 payment of consultant's fees, 77. 
 
 to continue attendance while needed, 72. 
 
 to follow established modes of treatment, 69. 
 
 to give proper instructions, 71. 
 
 to protect patients from contagious disease, 72. 
 
 to use best judgment, 68. 
 
 to use care and diligence, 63. 
 
 to use skill and knowledge, 60. 
 
 where services are gratuitous, 66. 
 Contributory negligence, what is, 347. 
 
 in mitigation of damages, 351. 
 
 wlien a defense to suit by patient, 348. 
 
 when not defense to suit by patient, 350. 
 Coroners, right of, to choose physician to perform post-mortem, 
 
 128, 129. 
 Coroners' inquests, fees for performing post-mortems at, liability 
 
 of towns for, 122. 
 Corporation, liability of, for fees when summoning physician to 
 attend employee, 102, 104-121. 
 
 who has authority to bind, for payment of fees, 105-111. 
 - who has not authority to bind, for payment of fees, 111-113. 
 
 except when, 113, 114. 
 
 ratification of unauthorized employment for, 114. 
 
 ratification of unauthorized employment, method of securing, 
 119. 
 Counties and towns, services to paupers, liability of, for, 121. 
 Counties, negligence of physician in treating patients at county 
 hospitals, not liable for, 132. 
 
INDEX. 539 
 
 Counties, partial allowance of bill by, extinguishes elaim against 
 
 patient, 1(J9. 
 Criminal abortion. See Abortion. 
 Criminal intent, when presumed, 386. 
 Criminal law, subject to statutory regulation, 386. 
 Criminal liability, distinguished from civil, 385. 
 
 jury to determine when negligence amounts to, 401. 
 
 when ignorance or negligence becomes, 387-401. 
 Criminal trials, legal safeguards to accused in, 428. 
 Cure, no implied contract to, by physician, 71. 
 
 Damages, measure of, defined, 372. 
 
 nominal, defined, 372. 
 
 nominal, illustrated, 375. 
 
 substantial or compensatory, defined, 372. 
 
 compensatory, includes what, 373. 
 
 compensatory, illustrated, 37G. 
 
 exemplary, defined, 372, 374. 
 
 exemplary, illustrated, 380. 
 
 assessment of, to include future loss, 374, 383. 
 Dead body, legal status of, 315. 
 
 right to, in whom, 136, 317. 
 
 of child, right to, in father, 136, 317. 
 
 of husband, right to, in wife, 136, 317. 
 
 of parent, right to, in child, 317. 
 
 of wife, right to, in husband, 136, 317. 
 Deceit and misrepresentation, what amounts to, 344. 
 Delaware, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 Dentist, implied by contracts to use skill and care, 67. 
 Diagnosis, incorrect, legal effect of, 246. 
 Diligence. See Care. 
 Diploma, as requirement to practise, 10. 
 
 must be shown to belong to applicant, 11. 
 
 how proved, 192. 
 Dishonorable. See Revocation of License. 
 Dislocation, failure to reduce, legal effect, 247-252. 
 District of Columbia, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 non-resident practitioners, right of, to practise in, 15. 
 Division superintendent, authority in, to bind railroad for physi- 
 cian's fees, 108. 
 Doctor, physician and surgeon defined, 21. 
 
 Drunkenness of physician defense to action for compensation, 219. 
 Dying declaration. See Evidence. 
 
 Emergency case, what is, 49. 
 35 
 
540 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Emploj'er, not liable for negligence of physician in treating em- 
 ployee, 131. 
 Employer. See Corporation. Servant. Seaman. 
 Engineer. See Corporation. 
 Estabiislied mode of treatment, what is, 69, 288. 
 
 physician's contract to follow, implied, 69. 
 
 physician must follow, 69, 286. 
 Estates of decedents, collection of claims against, 22L 
 
 amount of claim affected by value of, 146. 
 
 claims against, by whom to be presented, 222. 
 
 claim against, co whom to be presented, 223. 
 
 claims against, manner of presentation, 223. 
 
 claims against, how to be prepared, 223. 
 
 order of payment of debts against, 225. 
 
 validity of claims against, 231. 
 
 claim for services to deceased wife not valid against estate of, 
 except when, 231. 
 
 contested claims against, how proved, 233 et seq. 
 
 communications with deceased when not admissible to prove 
 claim against, 233. 
 
 competency of evidence of physician's wife to prove claims 
 against, 235. 
 
 books of physician, when admissible to prove claim against, 234. 
 See 197. 
 Evidence, admissibility of, to be decided by judge, 430. 
 
 admissions against interest, admissible, 434, 453. 
 
 best evidence only is admissible, 431. 
 
 conditions existing subsequent to operation, competent to show 
 abortion, 462. 
 
 confessions admissible, 434. 
 
 dying declarations, admissibility of, 434. 
 
 dying declarations, must state material facts, 457. 
 
 dying declarations, when admissible, 456. 
 
 expressions showing feelings as competent, 4.32. 
 
 hearsay not competent, 4,S1. 
 
 hearsay not competent, exceptions, 432-435. 
 
 possession of suitable instruments for performing abortion ad- 
 missible as, 449-456. 
 
 res gestce, admissible, 432. 
 
 res gestw, what admissible as, 459-462. 
 
 res gestw, what constitute, 432. 
 
 willingness to perform abortion admissible as, 449^56. 
 Examination, consent necessary before making, 336. 
 
 liability for erroneous conclusion at, 335. 
 
 medical college can not arbitrarily refuse, 28. 
 Examining board, power to issue license, 13. 
 
 power to revoke license, 51. 
 
INDEX. 541 
 
 Examining board, action not final, 27. 
 
 appeal from decision of, 24. 
 
 decision of, reviewed by mandamus, when, 25. 
 
 irregularly appointed, certificate from, valid, 50. 
 Extension. See Fracture. 
 
 False pretense, wliat amounts to obtaining money under, 402. 
 Fees. See Compensation. Counties and Towns. Coroners' In- 
 quest. Estates of Decedents. Recovery of Compensation. 
 
 amount of, affected by value of patient's estate, 146. 
 
 amount of, not affected by patient's financial circumstances, 149. 
 
 collection of, from estates of decedents, 221. 
 
 consultant's, patient liable for, when, 77, 151. 
 
 consultant's, physician liable for, when, 77, 151. 
 
 contract reserving right by employer to determine amount of, 
 when valid, 110. 
 
 corporation, liability of, for summoning physician to attend em- 
 ployee, 102, 104-121. 
 
 father, liability of, for payment of, 80. 
 
 husband, liability of, for payment of, 86. 
 
 judgment for, effect upon action for malpractice, 220. 
 
 implied contract of patient to pay physician's, 75. 
 
 implied contract of patient to pay consultant's, 77. 
 
 malpractice as defense to action for recovery of, 217. 
 
 master, liability of, for attendance upon servant, 89. 
 
 mother, liability of, for attendance upon child, 83. 
 
 prolonged visit, increase of, for, 143. 
 
 rate of, determined by local customs, 143. 
 
 rate of, not determined by local customs, when, 144, 151. 
 
 rate for performing operation less affected by customs, 144, 
 149. 
 
 third parties, liability of, for summoning physician, 94. 
 
 third party, liability of, must be based on consideration, 92. 
 
 third party, when contract of, for payment of, must be in writ- 
 ing, 91. 
 
 unqualified physicians, right of, to, prohibited by statute, 14. 
 
 vessels, liability of, for attendance on seamen, 89. 
 
 who ma3' bind corporation for payment of, 105-111. 
 
 wlio may not bind corporation for payment of, 111-113; except 
 when, 113, 114. 
 Felony, definition of, 12, note. 
 
 disqualification to practise in certain States, 12. 
 Filing certificate. See Certificate of Admission. 
 Florida, qualifications to practise in, 10. 
 Former adjudication, effect of, 56, 158, 220, 358. 
 Fracture, Colles's, illustrating case of, improper treatment of, 242. 
 
 effect of failure to discover, 246. 
 
542 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Fracture, failure to apply extension to, legal effect of, 252-254. 
 Future damages, can not be recovered in separate action, 374, 383, 
 
 General manager, autliority in, to bind railroad for physician's 
 
 fees, 108. 
 Georgia, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 Gratuitous services, contract of physician with patient not altered, 
 
 66, 308. 
 Gross negligence, when criminal, 387-401. 
 
 Husband, consent of, to operation on wife, 133. 
 liability of, for fees in attending wife, 86. 
 
 absent, not liable for fees of clairvoyant for attending wife, 88. 
 rights of, 138-137. 
 
 supposititious, liability of, for physician's fees in attending sup- 
 posed wife, 87. 
 
 Idaho, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Illinois, qualifications to practise in, 10. 
 Immoral conduct. See Revocation of License. 
 Incompetency, effect of, upon right to compensation, 158. 
 Indiana, qualifications to practise in, 11. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 non-resident practitioners, right of, to practise in, 15, 16. 
 
 communications between physician and patien* privileged in, 
 481, n. 
 Indian Territory, qualifications to practise in, 11. 
 Inquisition of lunacy, privileged communications, application of, 
 
 514. 
 Insanity, liability for wrongful certificate of, 327. 
 Instructions, physician required to give proper, for care of patient, 
 
 70, 293. 
 Instructions of physician, patient bound to obey reasonable, 78, 348. 
 Intoxication of physician, legal effect of, 401. 
 
 effect of, upon right to compensation, 167. 
 Iowa, qualifications to practise in, 10. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Irregularly appointed board, certificates or licenses from, valid, 50. 
 Issuing and filing certificate or license, 13. 
 Itinerant and traveling doctors, who are, 38. 
 
 Judgment. See Best Judgment. Qualifications of Physicians. 
 Jury trial, guaranteed in criminal cases, 428. 
 
INDEX. 54,3 
 
 Kansas, qualifications to practise in, 11. 
 
 communications between physician and patient privileged In, 
 481, n. 
 Kentuclcy, qualifications to practise in, 11. 
 
 non-resident practitioners, right of, to practise in, 15. 
 Knowledge, degree of, required, 60, 254-262. 
 
 admission of inadequacy of, effect, 284. 
 
 Last Illness, expenses of, when preferred, 227. 
 
 what is construed to be, 227. 
 Law, origin and development of, 1. 
 
 divisions of, 2. 
 
 statute, construction of, 6. 
 Laws, how enforced, 14. 
 
 Legislature has authority to prescribe qualifications of physicians, 9. 
 Liability, to whom right of action accrues, 3.56. 
 Liability of physicians. See Qualifications of Physicians. 
 
 how affected by dismissal from case, 244. 
 
 to father for injury to child, 356. 
 
 to husband for injury to wife, 356. 
 License. See Certificate. 
 
 registration of, 32. 
 
 registration of, failure of, when excusable, 37. 
 
 when necessary prerequisite to recovery of compensation, 172, 
 187. 
 License to practise, to be issued by examining board, 13. 
 
 how Issued and filed, 13. 
 
 previous practice as qualification foi', 19. 
 
 proof of, 102. 
 
 revocation of, 51. 
 Life, right of physician to terminate, 402. 
 Limitations, statute of, when bar to recovery of compensation, 
 
 184-187. 
 Location of physician, considered In determining amount of skill 
 
 and knowledge required, 62, 255. 
 Louisiana, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 Maine, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to practise in, 15. 
 Malpractice, as defense to action for recovery of fees, 217. 
 
 burden of proving, 364. 
 
 burden of proving on party alleging, 217. 
 
 character of proof required to show, 218. 
 
 effect of judgment for fees upon action for, 220, 358. 
 
 how mnst, be proved, .360. 
 
 may bo assumed, when, CGO. 
 
544 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Mandamus, writ of, definition, 25. 
 
 proper to review decision of examining board, when, 25. 
 Maryland, qualifications to practise in, 10. 
 
 non-resident practitioners, riglit of, to consult in, 16. 
 Massachusetts, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to practise in, 15. 
 Master, liability of, for physician's fees in attending servant, 89, 105. 
 Master and servant. See Corporation. 
 
 Messenger summoning physician, liability of, for physician's fees, 94. 
 Michigan, qualifications to practise in, 11. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Minnesota, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult In, 16. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Mississippi, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to practise in, 15, 16. 
 Missouri, qualifications to practise in, 11. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Montana, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 communications between physician and patient privileged in, 
 481, n. 
 
 Neliraska, qualifications to practise In, 11. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Neglect, effect of, upon right to compensation, 158. 
 Negligence, counties not liable for that of physicians in treating 
 patients in county hospitals, 132. 
 
 employer not liablefor thatof physician in treating employee, 131. 
 
 liability for, in making examination, 139. 
 
 liability of physician for that of physician recommended, 304. 
 
 physician liable for that of partner, 3.58. 
 
 physician liable for that of student, 286. 
 Nevada, qualifications to practise in, 11. 
 
 communications between physician and patient privileged in, 
 481, n. 
 New Hampshire, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 non-resident practitioners, right of, to practise In, 15, 16. 
 New Jersey, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 
 non-resident practitioners, right of, to practise in, 35, 16. 
 
INDEX. 545 
 
 New Mexico, qualifications to practise in, 11. 
 New Yorli:, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. 
 non-resident practitioners, right of, to practise in, 15, 16. 
 communications between physician and patient privileged in, 
 481, n. 
 " No cure, no pay," rights to compensation under contract of, 
 
 159-164. 
 Non-professional attendant, physician liable for having, at confine- 
 ment case, 325. 
 Non-resident physician, privileges accorded to, by certain States, 15-20. 
 North Carolina, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 16. ' 
 non-resident practitioners, right of, to practise in, 15. 
 communications between physician and patient privileged in, 
 481, n. 
 North Dakota, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 communications between physician and patient privileged in, 
 481, n. 
 
 Ohio, qualifications to practise in, 11. 
 
 non-resident practitioners, right of, to consult in, 17. 
 
 non-resident practitioners, right of, to practise in, 15, 16. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Oklahoma Territory, qualifications to practise in, 11. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Operation, consent to, when necessary, 133, 313. 
 
 consent to, when presumed, 134, 313. 
 
 duty to advise against, when contrary to best judgment, 69. 
 Oral contracts, defined, 60. 
 Oregon, qualifications to practise in, 10. 
 
 communications between physician and patient privileged in, 
 481, n: 
 
 Parent, liability of, for physician's fees, 80. 
 
 liability of, for physician's fees when divorced, 83. 
 liabilitj- of, for fees for attendance on adult child, 84. 
 Partner, liability of physician for negligence of, 358. 
 Passengers, railroad liable for services rendered to, upon request 
 of certain oflicers, 105. 
 railroad not liable for services rendered to, upon request of cer- 
 tain agents. 111. 
 Patent medicines, when venders of, held to be practising medi- 
 cine, 47. 
 
546 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Paupers. See Counties and Towns. 
 Pennsylvania, qualilications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 
 non-resident practitionei's, right of, to practise in, 15, 16. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Physician, surgeon, doctor, defined, 21. 
 Physicians, right to compensation for medical services rendered 
 
 to, 167. 
 Place of trial in criminal cases, 428. 
 Police power of the State defined, 18. 
 Post-mortem. See Autopsy. 
 
 fees for performing, at coroner's inquest, 122. 
 Practice, right of a physician to leave temporarily, considered, 299. 
 Practice of medicine, early English statutes regulating, 8. 
 
 no restrictions upon, at common law, 8. 
 
 right to practise, generally, 8. 
 
 general classification of requirements for, 9. 
 
 former practice in other State as qualification for, 30. 
 
 statutory restrictions on, in United States, 9. 
 
 statutory regulations constitutional, 17. 
 
 statutory regulations, certain, unconstitutional, 21. 
 
 laws regulating, how enforced, 14. 
 
 without license, improper refusal of Certificate no defense, 50. 
 Practising medicine, what constitutes, 89. 
 
 without license, eiTect of repeal of statute, 58, 181. 
 Prescriptions, liability for negligence in writing, 343. 
 President of railroad, authority in, to bind railroad for physician's 
 
 fees, 106. 
 Presumption of innocence, how overcome, 429. 
 Previous practice as qualification of candidate to practise, 30. 
 Privileged communications, classification of, 480. 
 
 professional communications as regarded at common law, 481. 
 
 autopsy, knowledge gained at, is not, 496. 
 
 based upon public policy, 480. 
 
 books of account when inadmissible because disclosing, 510. 
 
 consultant, knowledge obtained by, at consultation is, 493, 
 
 criminal cases, application to, 483, 514. 
 
 dentist, information imparted to, is not, 497. 
 
 criminal case, not extended to, by several States, 483. 
 
 inquisition of lunacy, application in, 514. 
 
 jail physician, information imparted to, in professional way 
 is, 493. 
 
 mental condition may be shown by physician when, 488. 
 
 partner of attending physician, information imparted to, is, 495. 
 
 regulations of, by laws of several States, 481. 
 
 relation of phj'siciau and patient must exist, 484. 
 
INDEX. 547 
 
 Privileged communications, relation of physician and patient, pa- 
 tient must show exists, 485. 
 
 testamentary capacity, applies to knowledge regarding, 511. 
 
 third party, when information imparted by, is, 4'J4. 
 
 to whom privilege belongs, 518. 
 
 unlicensed physicians, communications with, not, 484. 
 
 waiver of, 520. 
 
 waiver, effect of, in application for insurance, 529. 
 
 waiver, effect of, made at former trial, 527. 
 
 waiver, general deuial of patient in suit by physician for fees 
 does not amount to, 195, 528. 
 
 waiver, how made, 521. 
 
 M'aiver, in whom is right of, after patient's death, 532. 
 
 waiver, suit for malpractice against physician constitutes, 528. 
 
 waiver, Avhat amounts to, 521. 
 
 what information is, 497-511. 
 
 what information not included, 497-511. 
 Professional communications. See Privileged Communications. 
 Promissory note, for future services conditional, 168. 
 Proprietary mediciues, when seller of, is practising medicine, 47. 
 Proving diploma, 12. 
 
 Qualifications of physicians, general, required by law, 240. 
 general rule of, illustrations of application of, 240. 
 required of all professing to act as physicians, 63. 
 
 Railroad. See Corporation. 
 
 Railroad physician, no power in, to bind railroad for care and board 
 of employee, 312. 
 
 not l)ound to attend trespasser injured by railroad, when, 111. 
 •Ratification, by corporation of unauthorized employment, 114. 
 
 by corporation of unauthorized employment, method of secur- 
 ing, 119. 
 
 chief surgeon, not authorized to bind corporation by, 120. 
 
 must be by whom, to bind corporation, 115. 
 Reason, foundation of law, 6. 
 Recovery of compensation. See Estates of Decedents. 
 
 action for, did not lie in England, 182. 
 
 books of account, when admissible to prove case, 197. 
 
 defenses to actions for, 215. 
 
 drunkenness of physician as defense to, 219. 
 
 license, when necessary to prove, 14, 187. 
 
 negligence of nurses in hospital no defense to action for, 219. 
 
 professional services, how may be shown, 194. 
 
 proof of, value of services, 209. 
 Refusal to accept patient, physician's right of, 239. 
 Registration of certificate, 32. 
 
548 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Registration of certificate, rights of pliysician in others than coun- 
 ty of, 32. 
 
 when failure to, excusable, 37. 
 Removal to another county, 13. 
 liemoval to another State, 12. 
 
 Repeal of statutes restricting practice, effect of, 58, 181. 
 Requirements of physician, general classification of, 9. 
 
 admission of inadequacy of skill, effect upon, 284. 
 
 not affected because services gratuitous, 66, 308. 
 
 not increased by refusal of proffered assistance, 284. 
 
 same attach to all exercising functions of physician, 310. 
 Res gestw. See Evidence. 
 
 Ken judicata, effect of judgment for fees upon action for malprac- 
 tice, 1.58, 220, 358. 
 Revocation of license, grounds for, 51. 
 
 misrepresenting character of disease, ground for, 52. 
 
 power usually in examining board, 51. 
 
 practise in, 57. 
 
 unprofessional, dishonorable, and immoral conduct ground for, 51. 
 
 act of board not final, 57. 
 
 rights of physician pending appeal from order revoking li- 
 cense, 57. 
 Rhode Island, qualifications to practise in, 11. 
 
 non-resident practitioners, right of. to practise in, 15. 
 Roadmaster, no authority in, to bind railroad for physician's fees, 
 111. 
 
 School of medicine, skill to be judged by one's, 262-269. 
 
 clairvoyants belong to none, 267. 
 Seanian, liability of vessel's owners and masters for attendance 
 
 upon. 89. 
 Servant, liability of master for payment of physician's fees in at- 
 tending, 89, 105. 
 Skill. See Qualifications of Physician. 
 
 degree required, 60, 254-262. 
 
 liability for absence of, in making examination, 139. 
 
 rules for determining, 61-63, 262-274. 
 
 admission of inadequacy of, effect, 284. 
 Skill and knowledge, location of physician considered In fixing 
 
 amount reeiuired, 62, 255. 
 South Carolina, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 South Dakota, qualifications to practise in, 11. 
 " Spiritualist," entitled to compensation, 142. 
 Sidints, improper application of, 245. 
 
 Station agent, no authority in, to bind railroad for physician's 
 fees, 111. 
 
INDEX. 549 
 
 Statute law, what is, 6. 
 
 Statute of frauds, what contracts fall within, 91. 
 
 Student, physician entitled to fees for services of, 141. 
 
 physician liable for negligence of, 286. 
 Summoning physician, liability of party, for payment of fees, 94. 
 Summoning physician for employee, liability of corporation for part 
 
 of fees, 102, 104-121. 
 Sunday contracts for medical services valid, 79. 
 Sunday, physician entitled to compensation for services on, 142. 
 Superintendent, authority of, to bind railroad for physician's fees, 
 
 lOG. 
 Surgeon, physician, doctor, defined, 21. 
 Survival of action, common-law doctrine changed by statute, 356. 
 
 Tennessee, qualifications to practise In, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 Texas, qualifications to practise in, 10. 
 Third parties, who are, 80. 
 
 liability of, for physician's fees, 80-131. 
 
 liability of, for fees when summoning a physician, 94. 
 
 liability of, for physician's fees must be based upon considera- 
 tion, 92. 
 
 must be privity of contract with physician to be bound for fees, 
 110. 
 
 rights of, 133. 
 
 when promise of, to pay must be in writing, 91. 
 Towns, liability of, for services to paupers, 121. 
 
 partial allowance of bill by, extinguishes claim against patient, 
 l(i9. 
 Traveling doctor. See Itinerant. 
 
 Unlicensed physicians, communications with, not privileged, 484. 
 Unprofessional conduct. See Revocation of License. 
 Unqualified practitioner, right to compensation for services ren- 
 dered before repeal of disqualifying act, 181. 
 
 riglit of, to recover compensation, 172-177. 
 
 right of, to recover for medicines furnished, 177-181. 
 Utah, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 
 communications between physician and patient privileged in, 
 481, n. 
 
 "Value of services, how proved In suit to recover compensation, 209. 
 
 Vermont, qualifications to practise in, 11. 
 
 Vessel, liability of, for attendance upon seamen, SO. 
 
 Virginia, qualifications to priicti.«e in, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 
550 THE LAW IN ITS RELATIONS TO PHYSICIANS. 
 
 Washington, qualifications to practise in, 10. 
 
 communications between pliysician and patient privileged in, 
 481, n. 
 West Virginia, qualifications to practise in, 10. 
 
 non-resident practitioners, right of, to consult in, 17. 
 Wisconsin, qualifications to practise in, 11. 
 
 non-resident practitioners, right of, to consult in, 17. 
 
 communications between physician and patient privileged in, 
 481, n. 
 Witnesses, accused may compel attendance of, 430. 
 
 accused to be confronted by, 429. 
 Written contracts defined, 59. 
 Wyoming, qualitications to practise in, 11. 
 
 non-resident practitioners, right of, to practise in, 15, 16. 
 
 non-resident practitioners, right of, to consult in, 17. 
 
 communications between physician and patient privileged in, 
 481, n. 
 
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