Willcock, in his “Laws relating to the Medical Profession,” in his tenth chapter, when considering the lawfulness or unlawfulness of taking bodies for the purpose of dissection, says: “The whole question must depend upon the proper answer to these inquiries. Is it a violation of property? |158| Is it a personal injury to any individual? Or is it an injury to the public? Every lawyer who has mentioned the subject has admitted that there is no violation of property in respect of the corpse itself, which is necessary to constitute the removal an offence; and Blackstone has distinctly stated that the only property violated is the grass and soil of the land wherein the body was interred, in respect of which the person may bring his action of trespass, and the law has not provided any punishment as for an offence. It is equally clear that it is not an injury to any person; for the shrewd lawyers of Coke’s time determined that the body was no person but a lump of clay; and the only injury which can give a right of action to—that is which amounts to a violation of any legal right of—a relative or master, is such as may be said to recoil upon him, by causing him expense, labor, or loss of valuable service. The unpleasantness which may arise from an attack upon prejudices, however intimately blended with good feeling and delicacy of sentiment, is ranked by the court with that class of wrongs which are technically designated damna absque injuria.”
“In Lynn’s case, the judges assumed to answer the third question, that is to assert that it is an injury to the public. Society is not injured by the disinterment of the dead for the purposes of science, for it could hardly exist without such a sacrifice of fastidiousness; society is not insulted by the secret abstraction of the corpse from the vermin which crowd to pollute it, and they who so curiously seek the remains of those they hold dear, behind the veil of science, would do well to pry for one moment into the secrets of the sepulchre. They alone are the violators of every sentiment of delicacy and benevolence who insult the disconsolate relatives with the tale of the robbery and the pursuit, and with the foul spectacle of dismemberment they may have at length discovered.” |159|
It would appear that in a proper case the Court, in the interests of justice, will compel the exhuming and examination of a dead body which is under the control of a plaintiff, if there is strong reason to believe that without such examination a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it. However, such an order should be made only upon a strong showing to that effect. “It would be a proceeding repugnant to the best feelings of our nature, and likely to be in many cases so abhorrent to the sensibilities of the surviving relatives, that they would prefer an abandonment of the suit to a compliance with the order.” Thus spake the court in a case where the order for exhuming was asked for and refused as not being justified under the circumstances. The action was on a policy of insurance, and the defence was, that the insured had falsely warranted that he had never received any serious personal injury, whereas his skull had been fractured in boyhood, and had been healed by trephining. To prove this, the company proposed to disinter his body, after the suit had been pending eighteen months, upon the sole testimony of his physician, that the deceased had said that he had been told of such an accident and operation. The counsel for the plaintiff called the proposal “revolting,” and said that to break the signet of the grave, and take from its resting place the sacred property of relatives to gratify the corporation’s mercenary curiosity, would be worse than Shylock’s demand ([432]).
CHAPTER XIII. DENTISTS.
The need of dentists existed long before dentistry. The Preacher knew of the inconveniences which arise when the grinders are few. Marcellus, about B. C. 380, gave two receipts for toothache. One is, “Say, ‘argidam, margidam, sturgidam;’” the other is, “Spit in a frog’s mouth and request him to make off with the complaint.” These are given in Glenn’s “Laws affecting Medical Men.”
In England, in the tenth and eleventh centuries, priests and monks were the dentists of the day. Afterwards, a decree of the Council of Tours having forbad clergymen undertaking or engaging in any bloody operation, all surgical practice fell into the hands of blacksmiths and barbers. The latter soon became the more important class, and in 1461 (as we have seen already), Edward IV. incorporated them as “The Freeman of the Mystery or Faculty of Surgery.” By degrees other persons assumed to practise pure surgery, and these two bodies, in 1560, were united by Act of Parliament, and became “The Masters or Governors of the Mystery and Commonalty of the Barbers and Surgeons of London.” By the third section of this Act ([433]), because of fear of the spread of contagious diseases, any one in the City of London using barbery or shaving, was forbidden to |161| occupy any surgery, letting of blood, or any other thing belonging to surgery, drawing of teeth only excepted. In those days one wishing to find a drawer of teeth had to resort to one of those shops where was exhibited the bandaged pole as a sign or symbol that “all the King’s liege people there passing by might know at all times whither to resort in time of necessity.”
Something more than a sign is now required of dental surgeons. The Royal College of Surgeons in England has now the power to appoint examiners for testing the fitness of persons to practise as dentists, and to grant certificates of such fitness. To become a Licentiate of Dental Surgery in England, it is necessary to be engaged for four years in the acquirement of professional knowledge; to attend at a recognized school one course of lectures, at least, in anatomy, physiology, surgery, medicine, chemistry, and materia medica, and a second course on the anatomy of the head and neck; one course on metallurgy, and two on dental surgery and anatomy, dental physiology and mechanics; to have dissected for nine months; to have taken a course of chemical manipulation; to have attended a hospital for two or more sessions; and to have spent three years in acquiring practical familiarity in mechanical dentistry under a competent practitioner; and then to pass the examination required by the board.
In Ontario, “The Royal College of Dental Surgeons” has power to appoint a Board of Directors, who have authority to fix the curriculum of studies to be pursued by students, to determine the period during which they must be employed under a practitioner, to appoint the examiners, and arrange the examinations, for those who desire to obtain a license to practise dental surgery in the province. The Board may also confer the title of “Master of Dental Surgery” upon any licentiate who passes certain examinations and |162| conforms with certain regulations. The College is composed of all those entitled to practise in the Province; and no one who is not a member of the College can practise dentistry for hire, gain or hope of reward, or pretend to hold, or take, or use any name, title, addition or description, implying that he holds a license to practise, or that he is a member of the College, or shall falsely represent, or use any title representing that he is a graduate of any dental college, under a penalty of $20 and costs for every offence, to be recovered in a summary way before a magistrate, or in a Division Court by suit. Persons contravening the Act cannot recover for work done or materials provided. Of course, the Act does not interfere with legally qualified medical practitioners ([434]).
Dentists are subject to the same rules, as to negligence, as are physicians or surgeons ([435]), and if by a culpable want of attention and care, or by the absence of a competent degree of skill and knowledge, a D.D.S. causes injury to a patient, he is liable to a civil action for damages, unless, indeed, such injury be the immediate result of intervening negligence on the part of the patient himself, or unless such patient has by his own carelessness directly conduced to the injury ([436]). The law is ever reasonable; so it only requires of a dentist a reasonable degree of care and skill in his professional operations, and will not hold him answerable for injuries arising from his want of the highest attainments in his profession. The rule is, that the least amount of skill with which a fair proportion of the practitioners of a given locality are endowed, is the criterion by which to judge of the professional man’s ability or skill ([437]). As far as the liability is concerned, no distinction is made |163| between those who are regular practitioners and those who are not so; the latter are equally bound with the former to have and to employ competent skill and attention.
A patient must exercise ordinary care and prudence ([438]); so that, if one tells the dentist to pull out a tooth, but does not say which one is to go, and the wrong one is taken out, the sufferer has no legal ground of complaint, unless, indeed, it is quite apparent which is the offending member. A patient may have been a little careless and negligent; still, if the dentist has been so very neglectful of his duty that no ordinary care on the part of the patient would have prevented the mistake or injury complained of, the injured party will recover, i.e., recover damages for the injury received ([439]).