1. 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.
2. To constitute guilt, gross ignorance or negligence must be proved. |92|
3. A defendant who, with competent knowledge, makes a mistake in a remedy is not answerable, but it is otherwise when a violent remedy, shewn to have occasioned death, is administered by a person grossly ignorant but with average capacity, in which case malice is presumed in the same way that it is presumed when a man compos mentis lets loose a mad bull into a thoroughfare, or casts down a log of wood on a crowd.
4. Where competent medical aid can be had, the application of violent remedies by an ignorant person, though with the best motives, involves him in criminal responsibility.
5. Express malice, or an intent to commit a personal or social wrong, makes the practitioner criminally responsible in all cases of mischief.
These well known writers say, that according to Caspar and Böcker, in the treatment of internal diseases, the physician can never be held guilty of criminal carelessness for failing to use any particular remedy, since there is never any remedy upon which all authorities are agreed, and since it is always possible the patient may recover without the use of such remedy ([224]).
CHAPTER VII. PROFESSIONAL EVIDENCE.
It was decided nearly one hundred years ago, in the Duchess of Kingston’s case, that a medical man has no privilege to avoid giving in evidence any statement made to him by a patient, but that he is bound to disclose, when called upon to do so in a court of justice, every communication, however private and confidential, which has been made to him by a patient while attending him in a professional capacity ([225]). This has often been deemed a grievance by medical men, and considered a compulsory breach of professional ethics; for the relations between patient and physician, being necessarily of a confidential character, communications made to a physician are looked upon, by the profession, as confessions which should be kept religiously locked in the brain of the physician. Lord Mansfield said, “If a medical man was voluntarily to reveal those secrets, to be sure he would be guilty of a breach of honour and of great indiscretion, but to give that information which by the law of the land he is bound to do will never be imputed to him as any indiscretion whatever” ([226]).
A French writer says, the tribunals neither ought, nor have they the power, to exact from a physician the revelation of a secret confided to him because of his office; at all events, he may and ought to refuse to tell. Religion, |94| probity, nay, the rights of society, make this the law. Still more are we bound to secrecy when not compelled to disclose. Upon this point casuists and jurisconsults are of one opinion ([227]).
These communications between physician and patient, which may relate to the history of a transaction in which a wound has been received, or a particular disease communicated, whenever essential to the treatment of the patient’s case, are in some States of the American Union considered privileged communications, which the physician is either expressly forbidden, or not obliged, to reveal. This is the law in Arkansas, California, Indiana, Michigan, Iowa, Missouri, Minnesota, Montana, New York, Ohio and Wisconsin. In Wisconsin he is not compelled, and in the other States named he is not allowed to make the disclosure; but in Minnesota the prohibition extends only to civil cases; and in Iowa, Indiana and Minnesota, the seal can be removed by the patient himself. In these States the confession, in order to be protected against disclosure, must relate exclusively to such matters as are indispensable to the professional treatment of the patient. Communications made outside of this sphere acquire no immunity from having been entrusted to physicians, for at common law such are not deemed privileged, and wherever so recognized they are the creatures of statutory enactment ([228]).