A physician should take all possible care to prevent the spread of smallpox or any other contagious disease, and use all such precautionary measures as may appear desirable. So, where the paper upon the walls of a room in which there had been smallpox patients had become so soiled and smeared with the smallpox virus as to make its removal necessary, a physician or other attendant may order the paper to be torn down; and the landlord cannot successfully maintain an action against the physician for doing this ([388]).
Apparently a surgeon may retain the limbs he cuts off a patient, upon the ground that parts of the body when severed become dead, and at common law there is no property in a dead human body. The point was once contested in Washington ([389]). |144|
A surgeon who attends a duel, although to save by his skill if possible the lives therein imperilled, will be held guilty of aiding and abetting the principal offender in the event of death ensuing ([390]).
If a medical practitioner wilfully injures a patient he is liable to be indicted for an assault, and if death ensue from the injuries so inflicted he may be indicted for murder. And this is so even though the patient might have submitted at the time from the supposition that the treatment was for his good. Having or attempting to have carnal connection with a female patient under pretence of treating her medically is an assault ([391]). Making a female patient strip naked, under pretence that the defendant, a medical practitioner, cannot otherwise judge of her illness, if he himself takes off her clothes, contrary to her wishes, is an assault. In this case the jury found that the defendant had stripped the girl wantonly, and not from any belief that it was necessary ([392]).
Where a physician takes an unprofessional unmarried man with him to attend a case of confinement, and no real necessity exists for the latter’s assistance or presence, both are liable for damages; and it makes no difference that the patient, or her husband, supposed at the time that the intruder was a medical man, and therefore submitted without objection to his presence; or that the intruder accompanied the physician reluctantly on a dark and stormy night to carry a lantern or umbrella, and some instruments, and that there was only one room in the house. The Court remarked: “Dr. De May therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house of the plaintiff, when it was apparent that he could hear at least, |145| if not see, all that was said and done, and, as the jury must have found under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of the third party. It would be shocking to our sense of right, justice and propriety even to doubt that 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 pretended 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 Scattergood, supposing him to be a physician, does not preclude her from maintaining an action, and recovering substantial damages upon afterward ascertaining his true character. In obtaining admission at such a time and under such circumstances, without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterward sustained, from shame and mortification, upon discovering the true character of the defendants.” The action was brought by the wife ([393]).
If physicians, who have certified to the insanity of a person, have not made the enquiry and examination which the statute requires, or if their evidence and certificate in any respect of form or substance are not sufficient to justify a commitment to an asylum, the authorities should not commit, and if they do it is their fault and not that of the physicians, provided the latter have stated facts and opinions truly and have acted with due professional care and skill ([394]). |146|
If a medical man takes upon himself the responsibility of imprisoning a person on the ground of insanity, upon mere statements made to him by others, he will be liable to an action, and also for an assault, unless he can indeed show that the party imprisoned was insane at the time ([395]). He is not liable for an assault if he has signed a certificate under the Lunacy Acts and has done nothing more towards causing the confinement of the alleged lunatic ([396]). A medical man or other person may justify an assault where it is committed for the purpose of putting a restraint upon a dangerous lunatic in such a state that it is likely he may do mischief to some one ([397]).
In Ontario, except under order of the Lieutenant-Governor, no one can be admitted into a lunatic asylum without the certificate of three medical men, each attested by the signatures of two subscribing witnesses. Their certificates must state a personal and separate examination, and that after due enquiry the patient was found insane; and the physicians must also specify the facts upon which they formed their opinion of the insanity. In England, except in the case of paupers, two certificates are required ([398]).
The practice of abortion is forbidden by the oath of Hippocrates. The act is recognized as a crime in almost every code of medical ethics: its known commission has always been followed by ignominious expulsion from medical fellowship and fraternity. At Common Law a child en ventre sa mere is not considered a person the killing of whom is murder; but if one, intending to procure abortion, causes a child to be born so soon that it cannot live, and |147| it dies in consequence, it is murder ([399]). And it is murder if one, attempting to procure abortion, either by means of drugs or instruments, cause the death of the woman ([400]).
In most civilized countries it is now either a felony, or grave misdemeanor, to attempt to procure the miscarriage of a woman by any means; or to supply or procure any thing knowing that it is intended to be unlawfully used or employed to procure a miscarriage ([401]). In some States the crime of abortion may be committed at any stage of pregnancy ([402]). The thing prescribed must be noxious in its nature, but it is not necessary to prove that it will produce miscarriage ([403]).