Text-book of forensic medicine and toxicology

by R. J. M. Buchanan

In the case of a husband seeking a nullity of marriage on the grounds of impotence or sterility in his wife, the question at issue is not whether she can bear children, but can she permit sexual intercourse? Many conditions which cause sterility in the woman need not render her impotent, and unless the latter obtains a nullity of marriage would not be allowed. Further, the conditions which render the woman impotent must be permanent and irremediable.

SURVIVORSHIP

The question of survivorship is not infrequently raised when a mother and her new-born infant are found dead, or where several persons have perished by a common accident. In the first case the mother is generally presumed to have lived longest; and this presumption may be borne out by the fact of the delivery being premature, or if there be considerable disproportion between the size of the child and the maternal passages. As pointed out before, important civil rights may depend upon the question as to the live birth of an infant; and the husband‘s rights to be tenant to the courtesy will, of course, depend upon the view taken as to the probable survivorship or not of the child.

With regard to the second question, much will depend upon the relative ages and strength of the individuals. Sex will also have to be taken into consideration. In the case of one or more persons found dead, either from wounds or other causes, the fact of some being warm and others cold, the presence of the rigor mortis in one and absence in the other, will point to the probable survivorship. The severity of the wounds and injuries to large arterial trunks must also be considered. (See test case, Underwood v. Wing, 1 Jur. N.S. 169.) In this case a man, his wife, and three children were washed overboard and drowned, one child, however, being seen alive a few minutes after the others were submerged. The question at issue was, Did the husband survive the wife, or the wife the husband? and on this Wightman, J., in summing up, said: “We may guess, or imagine, or fancy, but the law of England requires evidence, and we are of opinion that there is no evidence upon which we can give a judicial opinion that either survived the other; in fact, we think it unlikely that both did die at the same moment of time, but there is no evidence to show who was the survivor.” Verdict for the plaintiff.

MALPRAXIS AND NEGLECT OF DUTY

A medical man is liable to a civil action for damages who, by a culpable want of care and attention, or by the absence of a competent degree of skill and knowledge, causes injury to a patient. And it is not necessary that the patient should have employed or was to have paid him, provided always that there be no negligence or carelessness on the part of the patient. Lord Chief-Justice Tindall remarks: “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonably fair and competent degree of skill.” It has also been decided that if the defendant acted honestly, and used his best skill to cure, and it does not appear that he thrust himself in the place of a competent person, it makes no difference whether he was at the time a regular physician or surgeon or not (R. v. Van Butchell; R. v. Williamson, &c.). A surgeon does not undertake to perform a cure, nor does he profess to bring the highest professional skill into the consideration of the case; but he does undertake to bring a fair and reasonable amount. The degree of skill required by law is good common sense, or such knowledge as the operator had, joined with a good purpose to help the afflicted, even if such interference rendered the patient a cripple for life. “It would be dreadful,” says Hullock, B., “if every time an operation was performed an individual was liable to have his practice questioned.” “So, if a physician or surgeon give his patient a potion or plaster to cure him, which, contrary to expectation, kills him, this also is neither murder nor manslaughter, but misadventure.” A medical man is only liable for gross negligence, not for every slip he may make; but the distinction between criminal and actionable negligence cannot be defined; but it appears that the negligence must be so gross as to come under the legal meaning of the word “felonious.” ([See p. 82].)

FEIGNED DISEASES—MALINGERING

Human ingenuity is not wanting among those who, for private ends, pretend to be suffering from disease. The soldier or sailor, anxious to escape the dangers of active service, finds a ready means of evading his duties by shamming; the prisoner, in order to lighten the burden of his punishment, does the same. A man declares himself impotent to save the expense of keeping an alleged bastard child, or to avoid punishment for rape. Beggars appeal to the public by feigning some painful disease, and incautious benevolence becomes the dupe of the clever impostor.

Any attempt at classification is here out of the question, nor does it appear necessary to give a long list of diseases which have been feigned, or the means that have been employed by artists in deception. To give some general hints for guidance is all that will be attempted here, leaving matters of detail to the acumen of the medical examiner, who, if in active practice, will have many opportunities of testing his powers of discernment:

1. Never be satisfied with one visit, but pay a second at a short interval, and unannounced.