Mr. President and Gentlemen of the Santa Clara Medical Society:
In the almost infinite variety of human affairs there are possibly none more complex than those which are involved in adjusting the legal relations of the insane. And, certainly, no duty which the medical man is called to perform so tries his patience or tests his knowledge and his experience as the character of medical witness in Judicial investigations.
The points to which I particularly desire to call your attention to-night are the following, to-wit:
First.—The present uncertain position occupied by medical experts in California Courts.
Second.—The provision in our civil code which enables a person, who has been declared insane before a commission of lunacy, to demand a Judicial investigation before a Jury.
My own limited capacity, Mr. President, and the presence here to-night of older and more experienced members of the profession admonish me that my theme is ill-chosen, and whilst I feel that my effort is properly prefaced by an apology, I am likewise impressed with the conviction, that it is my duty and privilege to raise my voice, feeble though it be, against abuses which are alike derogatory to our profession and an injustice to society.
It is a confession no less mortifying than true, that medical experts, in California Courts, have no legal rights, and their testimony elicits neither respectable consideration nor carries with it authoritative weight. I assume these premises to be true, and if there is a medical man within the sound of my voice, whose experience as a legal expert in this State has been more fortunate, I shall unhesitatingly pronounce his case anomalous. Admitting then my hypothesis, let us inquire, if so we may, wherein lie the evils of which we speak and if possible their remedy.
Any person holding a diploma from a reputable school of medicine and engaged in the active practice of his profession, is in law an expert. In this capacity he may be summoned at any moment to testify to questions of fact, hypothetical or theoretical. The questions thus propounded to the medical witness are frequently complex in their nature, involve a wide range of inquiry, and necessitate on his part a just discrimination, extensive knowledge and large experience. Again, medical science is ever varying; it may be likened to an uncertain stream that shifts its banks—restless and aggressive, the land-marks change, but the river's course is ever onward. Principles like the rocks left in its ancient bed, alone remain to mark its passage and reveal its work; accepted truths of to-day may be untruths to-morrow. Errors have been enunciated by Philosophers, have been sanctified by the Church, and promulgated by Priests, but have finally been overtaken by this same resistless stream of progress, and by it have been swept out of the world. Even so to-day our science is changing its foundation stones. Insanity is but just emerging from a complex labyrinth of metaphysical obscurities, and has taken its place in pathology as a physical disease. Physiological Chemistry has scarcely conned its alphabet, and its unknown literature, pregnant with marvelous truths has yet to unfold its treasures to us. Equally unexplored is the vast field embraced in the ætiology of diseases, the character of morbid germs and their mode of entry into the economy. Organic Chemistry is filling our libraries with its new facts and experiments. The imperative demand therefore of the medical expert is constant study. The exigencies of the position require, in justice to the profession, a thorough acquaintance with all that is old, and an equal familiarity with all that is new. The range of judicial inquiry often embraces the entire field of medical and surgical knowledge, as well as all their collateral branches. No obsolete theory, no unborn or possible fact is too remote for searching investigation. Hypothetical questions, ingeniously framed, which include complex and unusual possibilities or specious probabilities, invite the attention, and tax the knowledge, the memory and the judgment of the expert.
Again, medical men are frequently summoned as experts by opposing counsel, between whom there is known to exist personal animosities or professional jealousies. The usual result is anticipated by the legal gentlemen. The doctors contradict each other; the lawyers are delighted, the jury puzzled, and the Court is disgusted with medical testimony. An advocate will not infrequently subp[oe]na his medical friends to testify in a given case. Testimony thus elicited is of necessity biased by the personal influence of the attorney and the ex-parte statements of facts derived from the same source. The medical witness is thus led by a piece of legal finesse to rebut the evidence of the experts on the other side, which he would have unhesitatingly endorsed in the consulting room. The doctor has perhaps satisfied a little ambitious egotism—he has assisted the attorney to win his cause; but he has done so at the sacrifice of personal dignity, professional unity, and the respect of both court and jury. Biased expert testimony is a shame and a disgrace to our profession. It is infinitely baser and more ignoble than rank perjury, for perjury is often the child of fear, of hate, of avarice; but what language shall be found adequate to characterize a student of science, enlightened by education and refined by gentle associations, who can so far forget his duty to himself and society as to prostitute his knowledge to so ignoble a purpose? Again, medical men, after graduation, are prone to neglect the systematic reading of new books and journals. Their reading is desultory, and as the increasing demand of professional duties press them for time, they come to rely more and more upon their own experience, with an overweening confidence as to its entire accuracy. Now, no sane man doubts the value of individual experience. As well might you deny the value of a single dollar because it is only one. "I have been in practice twenty years," exclaims a neighbor, "and I speak from experience; I am right!" True to the extent of that one experience for twenty years; but suppose twenty other observers, who have systematically recorded their experience for the same length of time—who are at least your equals in the profession and vastly your superiors in their opportunities for observation—should have met with results adverse to your own, would you not pause ere you ventured to assert the accuracy of your knowledge under oath in a public tribunal? The experience of one man, though of incalculable value, is as naught to establish the truth or falsity of a principle; observations must be numerous and widespread, least the inductions therefrom lead to erroneous conclusions. The most successful ovariotomist is he who has never lost a case, but can it be truly said that he who has had but a single case, and saved it, is the man?
I will here venture the belief that the medical man whose testimony will carry with it the greatest weight, will be he, who, in addition to his own experience, can supplement it by the accumulated experience of many others, whatever be his age or however limited his experience. An eminent lawyer once remarked in my presence: "You doctors make bad witnesses. When asked by counsel, questions which no man can answer, why don't you confess your inability to do so?" I have often seen a medical witness floundering through an attempted definition of insanity—of mind and its relations to matter. Herbert Spencer begins his chapter on mind by declaring that we do not know, and probably never shall know, anything concerning mind. It is in nowise derogatory, therefore, to our intelligence, to admit the same unwelcome truth.