Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1

by R. A. Witthaus; Tracy C. Becker

Inspection of the Injured Person at the Trial—Before Trial Improper.—In an action in which the injury is to a portion of the body which may be seen, such as the shortening of a limb on account of improper treatment of a fracture, the limb may be exhibited to the jury.

It has been much discussed whether the defendant in a malpractice or other negligence case can compel the plaintiff to permit his person to be examined by physicians before trial, to enable the defendant to know the full extent of the injury so far as it is perceptible. In the latest cases the examination of plaintiff before trial was not allowed.[205]

In 1877 the Supreme Court of Iowa in the case of Schroder v. C., R. I. & P. R. R. Co., 47 Iowa, 375, held that the court had inherent power and jurisdiction to compel the plaintiff to submit to such an examination.

This decision has been followed by the courts of several of the western and southern States, while in others the power has been denied. These cases will be found fully collected in Roberts v. O. & L. C. R. Co. and in U. P. R. R. Co. v. Botsford cited above.

The ground of the decision of the United States Supreme Court and of the New York Court of Appeals seems to be, that in the absence of legislative provision permitting a court to order such an examination, it has no inherent power to do so, and did not derive any such powers from the common-law courts of England, which never had exercised such powers.

In some of the cases which deny the right to compel such examination, it is claimed that if such a statute was passed as would confer upon the courts power to compel such an examination, the statute would be unconstitutional, and much is said in those decisions about the sacredness and immunity of the person. It seems difficult, however, to understand why such statutes should be considered as differing in any respect from statutes permitting orders for the examination of witnesses and parties before trial, or for the discovery and inspection of books and papers, and the like, which statutes have been enacted for many years and have never been held to be unconstitutional. Surely an honest suitor having a just claim for damages for personal injuries would not object to such an examination, because the result would often strengthen his case, while a dishonest suitor having a false and unmeritorious claim ought to be exposed and have his false claims defeated, in the interests of justice and truth. On the other hand, a suitor who was honestly mistaken in his belief that he had been disfigured or injured by an act of malpractice might often discover his mistake, and be saved the annoyance and expense of defeat after a trial in open court.

Some of the most frequent cases of alleged malpractice, brought before the courts, are those in which it is claimed that a fractured limb has been improperly set, with the result that it becomes crooked or shortened; when the fact is, as is conclusively shown by Prof. Frank H. Hamilton in a paper published by him many years ago, and quoted with approval by Professor Elwell, in his work on Malpractice, etc., that the percentage of cases, in certain kinds of fractures, in which perfect results are obtained by even the most eminent surgeons, is very small. In such cases as these the true state of affairs might often be disclosed by careful inspection prior to the trial. On the whole more good than harm would seem to be the probable outcome of permitting such examinations, in malpractice cases, if not in all cases of alleged personal injuries.

Evidence in Malpractice Cases.—The prevailing trial practice in malpractice cases is to prove the condition of the patient prior to the employment of defendant and at the time the treatment in question began, the methods of treatment adopted, and instructions given, and the condition of the patient during and after such treatment, and then to place other physicians on the witness-stand, and put to them hypothetical questions involving the facts as established by the evidence, and calling upon them to state whether the method of treatment adopted indicated proper skill and care, or even the usual and recognized methods of the profession.[206]

In some States evidence of the general reputation of the defendant for skilfulness or the contrary is held admissible. In other States such evidence is held inadmissible (see Vol. XIV., Am. and Eng. Encyclopædia of Law, p. 83, and cases collected in Note 6).