When a medical man is called as a witness before a court, to testify as to facts within his knowledge, he must attend and give evidence upon payment of the same fees as other witnesses are entitled to; unless it is otherwise provided by statute.
Where a statute provides that a medical man should be paid a certain witness fee, he is entitled to that fee although he be not called to give professional evidence, and it is not necessary to prove that he is in practice ([48]). A witness should be paid his fees when he is subpœnaed; but even if he attends he can refuse to give evidence until he is paid, unless he takes the oath before making the objection ([49]). A subpœna should be served a reasonable time before the trial, to enable a witness to put his affairs in such order that his attendance on the court may be as little detrimental as possible to his interests ([50]).
Where a medical man is summoned to attend a coroner’s inquest, unless the statute law is clearly to the contrary, |27| he is only entitled to be paid for each days attendance, not for each body on which the inquest was held ([51]).
Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the deceased was attended during his last illness, or at his death, by a duly qualified medical man, may summon that medical man to attend the inquest; if he finds that he was not so attended, he may summons any legally qualified neighbouring practitioner, and may direct him to hold a post-mortem examination; but a second practitioner will not be entitled to any fees, unless a majority of the jury have, in writing, asked him to be called ([52]). The fees are, for attendance without post-mortem $5, if with post-mortem, without an analysis of the contents of the stomach or intestines, $10; if with such analysis, $20; together with a mileage each way of twenty cents. If the practitioner when duly summoned fails to attend, without sufficient reason, he is liable to a penalty of $40 ([53]).
Is an expert witness entitled to receive greater compensation than an ordinary witness? or can he be compelled to give a professional opinion without being paid for it? The States of Iowa, North Carolina and Rhode Island have answered these questions by statutes which say such witnesses shall be entitled to extra compensation to be fixed by the court, in its discretion: while Indiana says experts may be compelled to appear and testify to opinions without payment or tender of compensation other than the per diem and mileage allowed by law to other witnesses ([54]).
The subject does not appear to have been very much considered in England. In a case, at Nisi Prius, Lord |28| Campbell declared that an expert was not bound to attend upon being served with a subpœna, and that he ought not to be subpœnaed; that he could not be compelled to attend to speak merely to matters of opinion ([55]). And Mr. Justice Maule, where an expert demanded additional compensation, said there was a distinction between a witness to facts and a witness selected by a party to give his opinion on a subject with which he is peculiarly conversant from his employment in life. The former is bound as a matter of public duty to testify as to all facts within his knowledge, the latter is under no such obligation, and the party who selects him must pay him for his time before he will be compelled to give evidence ([56]).
Worden, J., of the Supreme Court of Indiana, in considering the question, in a case that came up prior to the statute above referred to, reviewed most of the American decisions and the opinions of the text writers, and concluded “that physicians and surgeons, whose opinions are valuable to them as a source of their income and livelihood, cannot be compelled to perform service by giving such opinions in a court of justice without payment.” The Court further said, “It would seem, on general principles, that the knowledge and learning of a physician should be regarded as his property, which ought not to be extorted from him in the form of opinions without just compensation.” “If the professional services of a lawyer cannot be required in a civil or criminal case without compensation, how can the professional services of a physician be thus required? Is not his medical knowledge his capital stock? Are his professional services more at the mercy of the public than the services of a lawyer? When a physician testifies as an expert by giving his opinion, he is performing a strictly |29| professional service. * * * The position of a medical witness testifying as an expert is much more like that of a lawyer than that of an ordinary witness testifying to facts. The purpose of this service is not to prove facts in the cause, but to aid the Court or Jury in arriving at a proper conclusion from facts otherwise proved” ([57]). In an earlier case (in 1854), in Massachusetts, the Court said, “to compel a person to attend because he is accomplished in a particular science, art or profession, would subject the same individual to be called upon in every case in which any question in his department of knowledge is to be solved. Thus, the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. This is so unreasonable that nothing but necessity can justify it” ([58]).
On a trial for murder the prosecution had procured the attendance of Dr. Hammond to testify professionally, and had agreed to give him $500 as his fee. This fee was complained of as an irregularity, but the Court in delivering judgment remarked, “The district attorney, it is true, might have required the attendance of Dr. H. on subpœna, but that would not have sufficed to qualify him as an expert with clearness and certainty upon the questions involved. He would have met the requirements of the subpœna if he had appeared in court when he was required to testify and given impromptu answers to such questions as might have been put to him. He could not have been required, under process of subpœna, to examine the case, and to have used his skill and knowledge to enable him to give an opinion upon any points of the case, nor to have attended during the whole trial and attentively considered and carefully |30| heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony, as an expert, in respect to the question of the sanity of the prisoner;” and held “that there was no irregularity in the payment of such a fee” ([59]).
Such text writers of high repute as Taylor, Phillips, Redfield and Ordronaux, all agree that an expert cannot be compelled to give professional opinions without proper remuneration. The last named writer says, “Where a subpœna is served upon an expert he must obey it, if within the range of physical possibility. But once on the stand as a skilled witness his obligation to the public ceases, and he stands in the position of any professional man consulted in relation to a subject upon which his opinion is sought. He cannot be compelled to bestow his skill and professional experience gratuitously; whoever calls for an opinion from him in chief must pay him, and the expert may decline to answer until the party calling him has paid. When he has given his evidence he cannot decline repeating it, or explaining it. A similar rule will, by parity of reasoning, apply to personal services demanded from the expert, as well as to opinions asked” ([60]).
On the other hand, the Supreme Court of Alabama, in 1875 ([61]), confirmed a fine imposed upon a physician for refusing to state the nature and character of a wound received by a man and its probable effect, upon the ground that he had not been remunerated for his professional opinion, nor had compensation for it been promised or secured. And the Court of Appeals in Texas, in 1879, held, that the court could compel a physician to testify as to the |31| result of a post-mortem examination; adding, that a medical expert could not be compelled to make a post-mortem examination unless paid for it, but an examination having already been made by him he could be obliged to disclose the results thereof ([62]).