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MEDICAL
JURISPRUDENCE

FORENSIC MEDICINE

AND

TOXICOLOGY

BY

R. A. WITTHAUS, A.M., M.D.

Professor of Chemistry, Physics, and Hygiene in the University of the City of New York, etc., etc.

AND

TRACY C. BECKER, A.B., LL.B.

Counsellor at Law,
Professor of Criminal Law and Medical Jurisprudence in the University of Buffalo

WITH THE COLLABORATION OF

J. Clifton Edgar, M.D.; D. S. Lamb, M.D.; W. B. Outten, M.D.;
Hon. Wm. A. Poste; Edward S. Wood, M.D.;
E. V. Stoddard, M.D.;
Hon. Goodwin Brown; J. C. Cameron, M.D.; E. D. Fisher, M.D.;
H. P. Loomis, M.D.; Roswell Park, M.D.; Irving C. Rosse, M.D.;
F. P. Vandenbergh, M.D.; J. H. Woodward, M.D.;
George Woolsey, M.D.

VOLUME ONE

NEW YORK

WILLIAM WOOD & COMPANY

1894

Copyright, 1894,
By WILLIAM WOOD & COMPANY

PRESS OF
THE PUBLISHERS’ PRINTING COMPANY
132-136 W. FOURTEENTH ST.
NEW YORK

CONTENTS.

————

INTRODUCTION.

The terms Forensic Medicine, Legal Medicine, and Medical Jurisprudence have heretofore been used interchangeably to apply to those branches of state medicine and of jurisprudence which have to deal with the applications of medical knowledge to the elucidation of questions of fact in courts of law, and with the legal regulation of the practice of medicine.

Medico-legal science therefore includes all subjects concerning which members of the legal and medical professions may seek information of one another, each acting in his professional capacity. It consists of two distinct branches: that treating of medical law, to which the designation of Medical Jurisprudence properly applies; and that relating to the application of medical, surgical, or obstetrical knowledge to the purposes of legal trials, Forensic Medicine.[1]

The term State Medicine, which is sometimes erroneously used as synonymous with forensic medicine, properly applies to a more extended field of medical inquiry; i.e., to all applications of medical knowledge to the public welfare. State medicine, therefore, while excluding medical jurisprudence, includes, besides forensic medicine, public hygiene, medical ethics, medical education, and military and naval medicine.

Toxicology, the science of poisons, may be divided into medical toxicology, whose object is the prevention or cure of all forms of poisoning, and forensic toxicology, whose aim is the detection of criminal poisoning. In its last-named relation toxicology differs from forensic medicine in one important particular. In all cases other than those of poisoning in which questions involving medical knowledge arise, the answers are entirely within the functions of the physician, the surgeon, or the obstetrician, but the problems of forensic toxicology require for their solution the further aid of the chemist and the pharmacologist.

Forensic medicine is an applied science, partly legal, partly medical, calling for information and investigation in widely divergent lines, and becoming more minutely ramified with the progressive advances in medical knowledge and in those sciences of which medicine is itself an application. Its development has been dependent partly upon the slow though progressive tendency of medicine from the condition of an empirical art toward that of an exact science, and partly upon the more rapid and more advanced development of criminal jurisprudence. Medical jurisprudence had reached a high development during the early history of the Roman Empire, and at a period long anterior to the first recognition of forensic medicine.

Although the literature of modern medico-legal science is very largely written from the medical point of view and by physicians, its earlier history is to be found in fragmentary form, partly in medical literature, but principally in the writings of historians, in the earlier criminal codes, and in the early records of legal proceedings.

In the earliest historical periods the functions now exercised by the priest, the lawyer, and the physician were performed by the same person, who, presumably, made use of what medical knowledge he possessed in the exercise of his legal functions. Among the Egyptians at a very early period it is certain that medical questions of fact were considered in legal proceedings, and that the practice of medicine was subject to legal regulation. According to Diodorus,[2] “when a pregnant woman was condemned to death, the sentence was not executed until after she was delivered.” The same author tells us[3] that “the physicians regulated the treatment of the sick according to written precepts, collected and transmitted by the most celebrated of their predecessors. If, in following exactly these precepts which are contained in the sacred books, they did not succeed in curing the sick, they could not be reproached, nor could they be prosecuted at law; but if they have proceeded contrary to the text of the books, they are tried, and may be condemned to death, the legislator supposing that but few persons will ever be found capable of improving a curative method preserved during so long a succession of years and adopted by the most expert masters of the art.” With the system of legal trial in use among the Egyptians[4] it is difficult to imagine that the question of the existence of pregnancy in the one case, or of malpractice in the other, would not be the subject of contest, and, if contested, determined without the testimony of obstetricians or of physicians.[5]

Medical knowledge among the Hindoos was further advanced than among the Egyptians. In the Rig Veda (about 1500 B.C.) occur a few medical references, among which is the statement that the duration of pregnancy is ten (lunar) months.

The earliest purely medical Sanskrit texts are the Ayur Vedas of Châraka and Sûsruta, which were probably written about 600 B.C., but which are undoubtedly compilations of information which had been handed down during many centuries before that time. In each of these is a section devoted to poisons and their antidotes (Kalpa), in which it is written that a knowledge of poisons and antidotes is necessary to the physician “because the enemies of the Rajah, bad women, and ungrateful servants sometimes mix poison with the food.” Full directions are also given for the recognition of a person who gives poison, and to differentiate the poisons themselves, whose number, from all the kingdoms of nature, is legion. The age at which women may marry is fixed at twelve years, while men may not marry before twenty-five. The duration of pregnancy is given as between nine and twelve lunar months, the average being ten. The practice of medicine is restricted to certain castes, and requires the sanction of the Rajah, and the method of education of medical students is prescribed.[6]

It is singular that the Greeks were apparently destitute of any knowledge of legal medicine. Although medicine and jurisprudence were highly developed among them, allusions to any connection between the two are of very rare occurrence and uncertain.

The Hippocratic writings (ca. 420 B.C.) contain many facts which are of medico-legal interest: the possibility of superfœtation was recognized;[7] the average duration of pregnancy was known, and the viability of children born before term was discussed,[8] the relative fatality of wounds affecting different parts of the body was considered,[9] and the Hippocratic oath makes the physician swear that he “will not administer or advise the use of poison, nor contribute to an abortion.” The position of the physician in Greek communities was an exalted one. No slave or woman might be taught medicine,[10] although later free-born women were permitted to practise in their native places. Homer also refers to physicians as men of learning and of distinction.[11] The Greek physician was therefore in a position, both from his information and from his standing in the community, to aid in the administration of justice.

The Greeks were also extremely litigious and possessed a code of criminal procedure which was elaborate, and in many respects resembled those now in use in England and the United States.[12] The writings of the Greek orators, Demosthenes, Æschines, Lysias, Antiphon, Isocrates, etc., which have come down to us substantiate the claim of Ælian that “to Athens mankind is indebted for the olive, the fig, and the administration of justice.”[13]

The writings of the Greek physicians contain no reference to any legal application of their knowledge, and certain passages in the writings of the orators seem to indicate that, while a physician was called to inspect and treat a wounded person, the testimony as to the patient’s condition was given in court by others.

Thus in the case against Euergos and Mnesibulus, in which an old woman had died some days after an assault, Demosthenes[14] states that he notified the accused to bring a surgeon and cure the woman; but that as they did not do so, he himself brought his own surgeon and showed him her condition in the presence of witnesses. Upon hearing from the surgeon that the woman was in a hopeless condition, he again explained her state to the accused and required them to find medical aid. Finally, on the sixth day after the assault the woman died. He further asserts that these statements would be proved by the depositions.[15]

The third Tetralogy of Antiphon[16] (B.C. 480) relates to a case in which the defence was essentially the same as that which was the subject of a vast amount of medical expert testimony in a celebrated trial for murder in New York not many years ago. A person wounds another, who dies some days afterward. The assailant is accused of murder and sets up the defence that the deceased perished, not from the wounds inflicted, but in consequence of unskilful treatment by the physicians.

In neither of these cases is any mention made of physicians having been called upon for testimony; indeed, the statements would lead to the inference that they were not. In another case in which a poor and sick citizen is accused of malingering to obtain the customary pecuniary aid from the State, Lysias[17] summons no medical evidence but relies entirely upon a statement of his client’s case.[18]

Medical legislation was not more advanced during the ascendancy of the Roman Empire, although medical science was greatly developed, principally by the labors of Celsus, and of Galen and other Greek physicians. A few cases are mentioned by the historians which would seem to indicate a closer connection between law and medicine than had existed among the Greeks, but they refer rather to the custom of exposing the bodies of those who had died by violent means to public view, in order that any one might express his opinion as to the cause of death, than to any appeal to medical science in the administration of justice. Thus Suetonius[19] says that the physician Antistius examined the dead body of Julius Cæsar (B.C. 44), and declared that of all the wounds only that received in the breast was mortal.

Pliny[20] cites an early instance of contested interpretation of post-mortem appearances in the case of Germanicus, who died A.D. 19, by the action of poison, said the enemies of Piso, because the heart did not burn. The friends of Piso, while admitting the fact of non-consumption, attributed it to the deceased having had heart disease. The same author[21] quotes Masurius as having declared a child born after thirteen (lunar) months to be legitimate, in an action for the possession of property, on the ground that no certain period of gestation was fixed. The Emperor Hadrian (A.D. 117-138), according to Gellius, sought medical information in a similar case, and decreed the legitimacy of a child born in the eleventh (lunar) month, “after having considered the opinions of ancient philosophers and physicians.”[22]

Although the Justinian collections, the “Codex” (A.D. 529), the “Institutes” (A.D. 533), the “Digests,” or “Pandects” (A.D. 534), and the “Novels” (A.D. 535-564), prepared by the best legal talent of the age, under the direction of Tribonian, do not provide for the summoning of physicians as witnesses; they contain an expression which indicates that at that time the true function of the medical expert was more correctly appreciated than it is to-day. His function was stated to be judicial rather than that of a witness.[23] There is also a provision that in cases of contested pregnancy, midwives (who were considered as belonging to the medical profession) should, after examination of the woman, determine whether or no pregnancy exist, and that their determination should be final. The practice of medicine, surgery, and midwifery was regulated. Those desiring to practise must have been found competent by an examination. The number of physicians in each town was limited. They were divided into classes, and were subject to the government of the Archiatri. Penalties were imposed upon those guilty of malpractice or of poisoning. The Justinian enactments contain abundant internal evidence of having been framed in the light of medical knowledge. They contain provisions relating to sterility and impotence, rape, disputed pregnancy, legitimacy, diseased mental conditions, presumption of survivorship, poisoning, etc., which indicate that the medical knowledge of the time was fully utilized in their construction.[24]

The Germanic peoples at about the same period possessed codes in which traces of a rudimentary medical jurisprudence existed. The most ancient of these was the Salic law (A.D. 422), in which the penalties to be paid for wounds of different kinds are fixed. The Ripuarian law, of somewhat later date, takes cognizance of the crime of poisoning. The laws of the Bavarians, Burgundians, Frisians, Thuringians, and Visigoths contain practically nothing of medico-legal interest. The Lex Alamannorum has numerous provisions relating to wounds, and expressly provides that the gravity of the injury shall be determined by a physician.[25]

During the period of about a thousand years, intervening between the Justinian and Caroline (vide infra) codes, the advancement of medicine and jurisprudence suffered almost complete arrest. The guilt or innocence of an accused person was determined rather by his own confession under torture, or by “the judgment of God” as shown by ordeal or by judicial combat, than by testimony either expert or of fact.

Even during the night of the Middle Ages, instances are recorded in which the opinions of physicians were sought to determine questions of fact in judicial proceedings.

In the duchy of Normandy, in 1207-45, the laws provided for the examination of those claiming to be sick (to evade military service or appeal to judicial duel), of persons killed, and of women.[26]

In a decretal of Innocent III., in 1209, the question whether a certain wound was mortal was determined by physicians.[27]

There is extant in the statutes of the city of Bologna, under date of 1249, an entry to the effect that Hugo di Lucca had been assigned the duty, when called upon by the podesta, and after having been sworn, to furnish a true report in legal cases.[28]

In the kingdom of Jerusalem (ca. 1250) a person claiming exemption from trial by battle because of sickness or of wounds was visited by a physician (fisicien au miége) and a surgeon (sérorgien), who examined him and made oath as to his condition.[29]

Sworn surgeons to the king are also mentioned in letters patent of Philippe le Hardi in 1278, of Philippe le Bel in 1311, and of Jean II. in 1352.[30] That of Philippe le Bel refers to Jean Pitardi as one of “his well-beloved sworn surgeons in his Chastelet of Paris,” whose functions are partly indicated by the extracts from the registers given below.

The registers of the Châtelet at Paris from 1389 to 1392 record several instances in which medical aid was rendered in judicial proceedings. Under date of March 22d, 1389-90, “Maître Jehan Le Conte, sworn surgeon to the king our sire,” reports to Maître Jehan Truquam, lieutenant to the provost, that “upon that day in the morning one Rotisseur had gone from life unto death in consequence of the wounds which he had received on the Monday evening preceding.”[31] Under date of July 22d, 1390, is an account of the examination of one Jehan le Porchier, accused of intent to poison the king (Charles VI.), in which there is reference to a very early instance of toxicological expert evidence. In the wallet of the accused certain herbs were found. The account proceeds: “Richart de Bules, herbalist, was summoned, to him the above-mentioned herbs were shown, and he was commanded that he should examine them and consider well and duly, reporting the truth of what he should find. The said Richart, after having examined them with great diligence, reported that in the box in which these herbs were he had found six leaves, namely: one leaf of jacia nigra, and one of round plantain, called in Latin plantago minor, and four of sow-thistle (lasseron), called in Latin rosti poterugni, and says that the leaf of jatria nigra is poisonous, but that in the others there is no poison known to the deponent.”[32] On August 12th, 1390, “Jehan Le Conte and Jehan Le Grant, sworn surgeons of our sire the king,” are present at the torture of a prisoner, but for what purpose does not appear. In another case the same Jehan Le Conte testified that a wound in the head of a deceased person was made with an axe.[33] At a later period in Italy, the infliction of “the question” took place under medical supervision. Zacchias devotes a chapter, De Tormentis et Pœnis,[34] to the consideration of the different methods of torture, the degrees of pain and danger attending each, and the conditions of age, sex, and health which render its application inadmissible.[35]

During this period, as indeed from the earliest times, the practice of medicine was regulated by law. Thus a law of King Roger of Sicily (1129-54) punished those who practised medicine without authority with imprisonment and confiscation of goods; and an edict of Frederick II. (1215-46) imposed like penalties upon those who presumed to practise except after graduation at the school of Salernum.[36]

Medico-legal science was formed in the middle of the sixteenth century by a simultaneous awakening of jurists and physicians to the importance of the subject.

It was in Germany that expert medical testimony was first legally recognized. In 1507, George, Bishop of Bamberg, proclaimed a criminal code in his domains. This was subsequently adopted by other German states, and finally was the model upon which the Caroline Code, the first general criminal code applying to the whole empire, was framed and proclaimed at the Diet of Ratisbon in 1532.[37]

These codes, particularly the Caroline, distinctly provide for utilizing the testimony of physicians. Wounds are to be examined by surgeons who are “to be used as witnesses;”[38] and in case of death one or more surgeons are to “examine the dead body carefully before burial.”[39] They also contain provisions for the examination of women in cases of contested delivery, or suspected infanticide;[40] for the regulation of the sale of poisons;[41] for the detection and punishment of malpractice;[42] and for examination into the mental condition in cases of suicide and of crime.[43]

An early work on the practice of criminal law, based on the Caroline Code, was published by the Flemish jurist, Josse de Damhouder, in 1554. It contains a chapter treating of the lethality of wounds, which should be determined by expert physicians and surgeons,[44] and describes the course which is to be pursued in the judicial examination of dead bodies. This is probably the earliest printed book (other than the laws themselves) containing reference to medico-legal examinations,[45] and antedates the writings of physicians upon the subject.

Although it was only in 1670 that the Ordinances of Louis XIV. gave to France a uniform criminal code, medico-legal reports were made by physicians and surgeons to the courts more than a century before. Indeed, the earliest medico-legal work written by a physician[46] is the 27th book of the Œuvres d’Ambroise Paré, first printed in 1575, in which he directs the forms in which judicial reports shall be made in various medico-legal cases.[47] During the remainder of the sixteenth century France produced but three treatises on medico-legal subjects.[48] One of these, written by the jurist A. Hotman, distinctly mentions the employment of physicians to determine questions of fact.

In Italy works on medical jurisprudence were published at the close of the sixteenth and beginning of the seventeenth century. The earliest of these was a chapter of Codronchius, treating of the “method of testifying in medical cases,” in 1597.[49] At about the same time, but certainly later, appeared the work of Fortunatus Fidelis, to whom the honor of being the first writer on medical jurisprudence is given by many.[50]

The great work of Paulus Zacchias, physician to Pope Innocent X., was first printed at Rome, 1621-35. This medico-legal classic contains in the first two volumes the “Quæstiones” and in the third the decisions of the Roman Rota. It treats of every branch of medico-legal science, and discusses physiological questions of legal interest, besides dealing with questions such as the infliction of torture and miracles.[51]

Although the “Quæstiones Medico-legales” of Zacchias was the first systematic work upon medical jurisprudence, his countrymen in succeeding centuries have contributed but little to this science. It is only during the latter part of the present century that Italians have again become prominent in medico-legal literature.

In France legal medicine progressed but little from the time of Paré to the latter part of the eighteenth century. Several treatises appeared, being chiefly upon legitimacy and kindred subjects,[52] with a few treating of reports, signs of death, etc.[53]

Toward the end of the eighteenth century the labors of Louis, Petit, Chaussier, and Fodéré elevated legal medicine to the rank of a science. The investigations of Louis (Ant. L.) were numerous and important in this as in other subjects,[54] and the “causes célébres” contain reports of many trials in which he threw light upon doubtful medical questions.[55] Antoine Petit, a contemporary of Louis, contributed an extensive work on the duration of pregnancy as affecting legitimacy.[56]

Somewhat later Fr. B. Chaussier, between 1785 and 1828, published at Dijon a number of treatises on infanticide, viability, surgical malpractice, etc.[57] Fodéré, a Savoyard, was the first to publish a systematic treatise on medical jurisprudence in France, which was first printed in 1798 and in a much enlarged form in 1813.[58] This last edition is an exhaustive treatise upon all branches of legal medicine and public hygiene, and won for its author the appointment as Professor of Forensic Medicine in the University of Strassburg.

At about the same period appeared the works of Mahon[59] and of Belloc,[60] both of which went through three editions in ten years, and those of Biessy.[61]

The most industrious and original of French professors of legal medicine was Orfila. A native of Minorca, he graduated in medicine at Paris in 1811, and devoting himself to chemical and toxicological investigations, published the first edition of his “Traité des Poisons” in 1814. This work, which may be regarded as the foundation of experimental and forensic toxicology, went through five editions to 1852, and was translated into several foreign languages. The first edition of his “Leçons de Médecine légale” appeared in 1821, and the fourth in 1848. Besides these Orfila published a work on the treatment of asphyxia and a great number of papers on medico-legal subjects, principally in the Annales d’Hygiène, of which he was one of the founders with Andral, Esquirol, Leuret, and Devergie. Orfila occupied the chair of chemistry and medical jurisprudence in the University of Paris for upward of thirty years, and was employed as expert in innumerable cases before the courts.

Contemporaneous with Orfila, and almost as prominent, was Devergie, the first edition of whose “Médecine légale,” in three volumes, appeared in 1836, and the third in 1852.

In 1820 the first edition of the Manual of Briand and Brosson was published. This work, the tenth edition of which was published in 1879, is the first in which a jurist was associated with a physician in the authorship,[62] and is one of five of which one of the authors is a lawyer.[63]

Special treatises on the medico-legal relations of insanity were published by Georget (1821), Falvet (1828), Esquirol (1838), and Marc (1840), and on midwifery by Capuron (1821).

Tardieu, Professor of Legal Medicine in the University of Paris (1861-79), published a most important series of monographs on hygienic and medico-legal subjects,[64] besides many papers, principally in the Annales d’Hygiène, etc., and testified before the courts in many “causes célébres.”

The first work of medico-legal interest to appear in Germany was the “Medicus-Politicus” of Rodericus à Castro, a Portuguese Jew living in Hamburg, printed in 1614, which deals principally with medical ethics and the relations of physicians, but contains chapters on simulated diseases, poisoning, wounds, drowning, and virginity.[65]

It was only toward the end of the seventeenth century that the subject was scientifically treated, and during the latter part of the seventeenth century and the beginning of the eighteenth great progress was made in the development of forensic medicine in Germany. Johannes Bohn, one of the originators of the experimental method of investigation in physiological chemistry and physics, at the University of Leipzig, was also one of the earliest German contributors to the literature of legal medicine. Besides smaller works he published two noteworthy treatises: in 1689 a work on the examination of wounds and the distinction between ante-mortem and post-mortem wounds, and between death by injury, strangulation, and drowning.[66] In 1704 a work giving rules for the conduct of physicians in attending the sick and in giving evidence in the courts.[67] At about the same period M. B. Valentini, professor in the University of Giessen, published three important works, containing collections of medico-legal cases, and of the opinions and decisions of previous writers.[68] Another extensive collection of cases and decisions was published in 1706 by J. F. Zittmann, from a MS. left by Professor C. J. Lange, of the University of Leipzig;[69] and still another by J. S. Hasenest[70] appeared in 1755.

During the latter part of the eighteenth century, the Germans cultivated legal medicine assiduously, and a great number of works upon the subject were published. Among these may be mentioned those of M. Alberti, professor at the University of Halle;[71] H. F. Teichmeyer, of the University of Jena;[72] A. O. Gölicke, of the universities of Halle and Duisburg, who was the first to prepare a bibliography of the subject;[73] J. F. Fasel (Faselius), professor at Jena;[74] J. E. Hebenstreit and C. S. Ludwig, professors at Leipzig;[75] C. F. Daniel, of Halle;[76] J. D. Metzger, professor at Königsberg, the author of a number of works, one of which, a compendium, was translated into several other languages;[77] J. V. Müller, of Frankfurt;[78] J. C. T. Schlegel, who collected a series of more than forty dissertations by various writers;[79] M. M. Sikora, of Prague;[80] J. J. von Plenck, professor in Vienna, who published a work on forensic medicine and one on toxicology;[81] K. F. Uden, subsequently professor in St. Petersburg, who was the first to publish a periodical journal devoted to legal medicine, which was afterward continued by J. F. Pyl at Stendal;[82] and J. C. Fahner.[83]

At this period compends for students were published in Germany, which indicate by their number the extent to which this science was the subject of study. Among these those of Ludwig (1765), Kannegieser (1768), von Plenck (1781), Frenzel (1791), Loder (1791), Amemann (1793), Metzger (1800), and Roose may be mentioned.

The Germans of the present century have maintained the pre-eminence in legal medicine achieved by their forefathers. Among a great number of investigators and writers a few may be mentioned: C. F. L. Wildberg, professor at Rostock, was a most prolific writer, edited a journal devoted to state medicine, and contributed a valuable bibliography of the subject;[84] A. F. Hecker, professor at Erfurth and afterward at Berlin, and J. H. Kopp each edited and contributed extensively to a medico-legal journal.[85] A much more important periodical was established in 1821 by Adolph Henke, professor in Berlin, and was continuously published until 1864. Henke also wrote a great number of articles and a text-book on legal medicine.[86] Jos. Bernt, professor at Vienna, published a collection of cases, a systematic treatise, and a number of monographs,[87] as well as the MS. work left by his predecessor in the chair, F. B. Vietz. A handbook containing an excellent history of medico-legal science was published by L. J. C. Mende, professor at Griefswald,[88] who also contributed a number of monographs, chiefly on obstetrical subjects. K. W. N. Wagner contributed but little to the literature of the subject, but it was chiefly by his efforts, while professor in the University of Berlin, that a department for instruction in state medicine was established there in 1832. A. H. Nicolai, also professor at Berlin, published a handbook[89] besides numerous articles in the journals. F. J. Siebenhaar published an encyclopædia of legal medicine, and in 1842 established a journal devoted to state medicine, which in its continuations was published until 1872.[90] J. B. Friedreich, professor at Erlangen, after editing a journal devoted to state medicine from 1844 to 1849, established one of the most important of current medico-legal periodicals in 1850,[91] to both of which he was a frequent contributor until his death in 1862. Ludwig Choulant, professor at Dresden, and more widely known as the author of important contributions to the history of medicine, published two series of reports of medico-legal investigations.[92]

The foremost forensic physician of this period in Germany was unquestionably John Ludwig Casper, professor in the University of Berlin and “forensic physician” (gerichtlicher Physicus) to that city, who greatly extended the department established in the university under Wagner. He made innumerable investigations, some of which are preserved in several collections of cases,[93] others in his classic Handbook,[94] and still others in the periodical which he established in 1852, and which is now the most important current medico-legal journal.[95]

It is necessary in this place to make mention of one work by living authors, as its appearance marked a new departure in medico-legal literature, and as in it the fact that forensic medicine extends over so wide a field of inquiry as to require treatment at the hands of specialists was first recognized. To Josef von Maschka, professor in the University of Prague, the credit is due of having been the first to produce, with the collaboration of twenty-two colleagues, a truly systematic work on modern forensic medicine.[96]

English works upon this subject did not exist prior to the present century,[97] although physicians were employed by the courts to determine medical questions of fact at a much earlier date. Paris and Fonblanque, in the third Appendix of their “Medical Jurisprudence,” give the text of reports by the Colleges of Physicians of London and of Edinburgh concerning the cause of death as early as 1632 and 1687 respectively.[98]

Lectures on medical jurisprudence were given at the University of Edinburgh by A. Duncan, Sr., at least as early as 1792.[99] The title of Professor of Medical Jurisprudence in a British university was conferred for the first time, however, upon A. Duncan, Jr., at the University of Edinburgh in 1806.[100]

The first English work on medical jurisprudence worthy of consideration is the medical classic known as Percival’s “Medical Ethics.” This was first published in 1803, and contains in its fourth chapter an admirable epitome of legal medicine.[101] A more elaborate work, based very largely, however, upon the writings of continental authors, was published by G. E. Male in 1816.[102] In 1821 Professor John Gordon Smith published the first systematic treatise on forensic medicine,[103] and was one of the first in Great Britain to show the importance of the subject.

Two years later, in 1823, appeared the elaborate and scholarly work of Dr. Paris and Mr. Fonblanque, the first in the English language in whose authorship members of the medical and legal professions were associated.[104] In 1831, Prof. Michael Ryan published the first edition of his “Manual of Medical Jurisprudence” from the memoranda of his lectures on the subject in the Westminster School of Medicine.[105] A similar work was published by Professor T. S. Traill, of the University of Edinburgh, in 1836.[106] The awakened interest in medico-legal subjects among the medical profession during the decade 1830-40 is evidenced by the publication in the medical journals of the lectures of A. Amos, in 1830-31; of A. T. Thomson, at the London University, in 1834-35; of H. Graham, at Westminster Hospital, in 1835; of W. Cummin, at the Aldersgate Street School, in 1836-37; and of T. Southwood Smith, at the Webb Street Theatre of Anatomy, in 1837-38.[107]

Among the noteworthy contributions to the science previous to 1850 are the writings of Dease (1808), Haslam (1817),[108] Christison, the successor of Professor Duncan in the University of Edinburgh, and best known as a toxicologist, Forsyth (1829),[109] Chitty (1834),[110] Watson (1837),[111] Brady (1839),[112] Skae (1840),[113] Pagan (1840),[114] and Sampson (1841).[115]

In 1836, Dr. Alfred Swaine Taylor (b. 1806, d. 1880), the first Professor of Medical Jurisprudence in Guy’s Hospital, published his “Elements of Medical Jurisprudence.” This, the most important work upon the subject in the English language, is now in its twelfth English and eleventh American edition. During forty years of devotion to forensic medicine Dr. Taylor also contributed other important works and numerous papers, published for the most part in the Reports of Guy’s Hospital.[116] In 1844, Dr. Wm. A. Guy, Professor of Forensic Medicine in King’s College, published the first edition of his excellent work.[117] In 1858, Fr. Ogston, Professor of Medical Jurisprudence in the University of Aberdeen, published a syllabus and subsequently (1878) a complete report of his lectures.[118] In 1882, C. M. Tidy, Professor of Chemistry and Forensic Medicine in the London Hospital, who had previously (1877) been associated with W. B. Woodman in the authorship of a valuable handbook, began the publication of a more extended work, which was interrupted by his death in 1892.[119]

The first Spanish work on legal medicine was that of Juan Fernandez del Valles, printed in 1796-97.[120] No further contribution to medico-legal literature was furnished by Spain until the appearance in 1834 of the work of Peiro and Rodrigo, which went through four editions in ten years.[121] Ten years later, in 1844, Pedro Mata, Professor of Legal Medicine and Toxicology at Madrid, published the first edition of a work, which in the development of its subsequent editions, has become the most important on the subject in the Spanish language.[122]

The first Portuguese medico-legal treatise was that of Jose Ferreira Borjes, first printed at Paris in 1832.[123]

A posthumously published report of the lectures of Albrecht von Haller was the earliest Swiss work on forensic medicine.[124]

In Sweden the earliest medico-legal publication was a comprehensive treatise by Jonas Kiernander, in 1776,[125] which was followed in 1783 by a translation of Hebenstreit, by R. Martin. The voluminous writings of the brothers Wistrand (A. T. and A. H.), including a handbook, were published at Stockholm, between 1836 and 1871. Between 1846 and 1873, several articles upon medico-legal subjects were published at Helsingfors, in Finland, by E. J. Bonsdorff, O. E. Dahl, and J. A. Estlander. In 1838 Skielderup[126] published his lectures on legal medicine, delivered at Christiania, and Orlamundt[127] published a handbook at Copenhagen in 1843. The earliest recognition of medico-legal science in Russia was in the lectures of Balk,[128] begun in 1802 at the then newly founded University of Dorpat.

Although dissertations upon subjects of medico-legal interest were published at the University of Leyden as early as the middle of the seventeenth century,[129] and the works of Pineau,[130] Zacchias,[131] Ludwig,[132] von Plenk,[133] and Metzger[134] were printed in Holland, either in Latin or in the vernacular, no original systematic work on legal medicine in the Dutch language has yet appeared.

The only Belgian contribution to the literature of forensic medicine, other than articles in the journals, is a text-book by A. Dambre, first published at Ghent in 1859.[135]

Two medico-legal works have been printed in the Japanese language, one a report of the lectures of Professor Ernst Tiegel, at the University of Tokio,[136] the other a treatise by Katayama.[137]

In the United States the development of forensic medicine has kept pace with that in the mother country. In an introductory address delivered at the University of Pennsylvania in 1810, the distinguished Dr. Benjamin Rush dwelt eloquently upon the importance of the subject.[138] In 1813, Dr. James S. Stringham was appointed Professor of Medical Jurisprudence in the College of Physicians and Surgeons of New York, and a syllabus of his lectures was published in the following year.[139] At the same period (1812-13) Dr. Charles Caldwell delivered a course of lectures on medical jurisprudence in the University of Pennsylvania.[140] In 1815, Dr. T. R. Beck was appointed Lecturer on Medical Jurisprudence in the College of Physicians and Surgeons of the Western District of the State of New York; and soon after Dr. Walter Charming was appointed Professor of Midwifery and Medical Jurisprudence in Harvard University. In 1823, Dr. Williams, in the Berkshire Medical Institute, and Dr. Hale, of Boston, each lectured upon the subject.[141]

In 1819, Dr. Thomas Cooper, formerly a judge in Pennsylvania, and at that time Professor of Chemistry and Mineralogy in the University of Pennsylvania, reprinted, with notes and additions, the English works of Farr, Dease, Male, and Haslam.[142] The works of Ryan, Chitty, Traill, and Guy were also reprinted in this country shortly after their publication in England.

In 1823, Dr. Theodric Romeyn Beck published at Albany the first edition of a treatise as admirable for scholarly elegance of diction as for profound scientific research. This remarkable work, facile princeps among English works on legal medicine, has had twelve American and English editions, and has been translated into German and Swedish.[143]

Papers upon medico-legal subjects or reports of lectures were published by J. W. Francis,[144] J. Webster,[145] R. E. Griffith,[146] R. Dunglison,[147] J. Bell,[148] and S. W. Williams[149] between 1823 and 1835. In 1840, Amos Dean, Professor of Medical Jurisprudence at the Albany Medical College, published a medico-legal work, followed by another in 1854, which with the later work of Elwell are the only treatises on forensic medicine upon the title-pages of which no physician’s name appears.[150]

Numerous papers and tracts upon medico-legal subjects were published by J. J. Allen, T. D. Mitchell, H. Howard, D. H. Storer, J. S. Sprague, J. S. Mulford, J. F. Townsend, and A. K. Taylor between 1840 and 1855. In the latter year appeared the first edition of the admirable work of Francis Wharton and Dr. Moreton Stillé, the first American product of the collaboration of members of the two professions, now in its fourth edition.[151]

Between 1855 and 1860 no systematic treatises on legal medicine were published, although the medical journals contained numerous articles bearing upon the subject. In 1860 the first edition of a treatise written from the legal aspect was published by J. J. Elwell.[152] In 1869 Dr. J. Ordronaux, recently deceased, widely known as a teacher of legal medicine and a graduate in law as well as in medicine, published a treatise which has been extensively used as a text-book.[153] At the present time the great number and variety of articles published in the medical and legal journals, bearing upon every branch of forensic medicine and of medical jurisprudence, and written for the most part by specialists, is evidence of the assiduity with which the science is cultivated.

The wide appreciation of the importance of medico-legal science in the United States is also indicated by the fact that at the present time there are but few medical schools in which the subject is not taught. To ascertain the extent of medico-legal instruction at the present time, a circular of inquiry was sent to the deans of 124 medical schools and of 56 law schools in the United States and British provinces. Answers were received from 103 medical colleges. Of these only 3 are without a teacher of “medical jurisprudence.” In 38 the teacher is a physician, in 50 he is a lawyer, in 5 he is a graduate in both professions, and 3 have two teachers, one a lawyer, the other a physician. The average number of lectures given is 21, and the average in those schools in which the teacher is a lawyer, and therefore presumably teaches only medical jurisprudence, is 15. The medico-legal relations of their subjects are taught in their lectures by the neurologist in 62 schools, by the surgeon in 66, by the obstetrician in 69, and by the chemist (toxicology) in 91. It appears from these reports that not only is the importance of medico-legal science appreciated, but that in the majority of our medical schools the distinction between medical jurisprudence and forensic medicine is recognized in the fact that the instructor is a lawyer, who presumably teaches medical jurisprudence, while the different branches of forensic medicine and toxicology are taught by the specialists most competent to deal with them. Every practising physician requires thorough instruction in medical jurisprudence, which, being strictly legal, is best taught by one whose profession is the law. The general practitioner only requires so much knowledge of the different branches of forensic medicine as will enable him to intelligently fulfil his obligations in such medico-legal cases as will be forced upon him as results of his ordinary practice. He can become a medical expert only by a particular study of and a large experience in some particular branch of the subject.

In our law schools the teaching of medico-legal science is not as general as in schools of medicine. Of 35 law schools, only 10 have professors of medical jurisprudence. Of these 6 are lawyers, 1 is a physician, 2 are graduates in both professions, and 1 is a doctor of divinity.

In this work the existence of specialists in the various branches of medico-legal science has been recognized for the first time in a treatise in the English language. Each branch has been assigned to a specialist in that subject, or at least to one who has made it a particular study.

In the arrangement of the matter, the primary division into the three sciences of medical jurisprudence, forensic medicine, and toxicology has been adopted. The division of pure medical jurisprudence is contained in the present volume, while the legal aspects of neurology, obstetrics, etc., will be treated of in future volumes along with the subjects to which they relate. In the division of forensic medicine the classification of Casper has been followed: i.e., Thanatological; including those branches in which the subject of inquiry is a dead body (contained in the present volume). Bio-thanatological; relating to questions concerning both dead bodies and living persons (in the second volume). Biological; relating to living persons (in the second and third volumes). The applications of the microscope to forensic medicine will be treated of in the second volume. The fourth volume will contain the division relating to toxicology.

R. A. W.

MEDICAL JURISPRUDENCE.

THE LEGAL RELATIONS

OF

PHYSICIANS AND SURGEONS,

INCLUDING

THEIR ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND
SURGERY; THEIR LEGAL DUTIES AND OBLIGATIONS; THEIR RIGHT
TO COMPENSATION; THEIR PRIVILEGES AND DUTIES WHEN
SUMMONED AS WITNESSES IN COURTS OF JUSTICE,
AND THEIR LIABILITY FOR MALPRACTICE.

BY

TRACY C. BECKER, A.B., LL.B.,

Counsellor-at-Law; Professor of Criminal Law and Medical Jurisprudence in the Law
Department of the University of Buffalo; Chairman Executive Committee
New York State Bar Association, etc.

LEGAL STATUS OF PHYSICIANS.

CHAPTER I.

OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY.

Legal Definition and History of the Terms
Physician and Surgeon.

At common law the right to administer drugs or medicines or to perform surgical operations was free to all. And such was the rule of the Roman civil law. But the importance of prescribing certain educational qualifications for those who made such practices their means of gaining a livelihood soon became apparent, and as early as the year 1422, during the reign of Henry the Fifth in England, an act of Parliament was adopted forbidding any one, under a penalty of both fine and imprisonment, from “using the mysterie of fysyck unless he hath studied it in some university and is at least a batchellor of science.”

As a result of this and other statutory regulations, a class of professional men grew up, who were called “physicians,” because they professed to have the qualifications required by such legal regulations to wisely prescribe drugs and medicines for the cure of diseases. A chirurgeon or surgeon—Latin, chirurgus; Greek, χειρουργος, compounded of χειρ, the hand, and ἐργειν, to work—as the derivation of the word shows, was one who professed to cure disease or injuries by manual treatment and appliances.

It would be more interesting than profitable to trace the history of these terms, and of the professions of medicine and surgery from the early times, when the clergy administered healing to the body as well as to the soul, and when barbers were generally surgeons, and blood-letting by the knife-blade and the use of leeches caused the common application of the term “leech” to those who practised surgery.

Definition.—For the purposes of this treatise, however, it will be sufficient to define the term “physician,” as meaning any one who professes to have the qualifications required by law to practise the administration of drugs and medicines, and the term “surgeon,” as meaning any one who professes to have the like qualifications to perform surgical operations, for the cure of the sick or injured.

For a list of the early statutes of England relating to the practice of medicine the reader may consult Ordronaux’ “Jurisprudence of Medicine,” p. 5, note 2.

The present statutory regulations throughout the United States and in England and Canada will be more particularly referred to and synopsized hereafter in this volume.

CHAPTER II.

ACQUIREMENT OF LEGAL RIGHT TO PRACTISE MEDICINE AND SURGERY.

Now Generally Regulated by Statute.—In nearly all of the United States, as well as in England, France, Germany, and other civilized and intelligent communities, the legal right to practise the administration of drugs and medicines, or to perform operations in surgery for the purpose of curing diseases or injuries, has for many years been the object of statutory legislation. The necessity and propriety of regulating by law such practices is generally conceded. It is manifest to all that a person engaging in the practice of medicine or surgery as a profession is holding himself out to the world, and especially to his patients, as one qualified by education and experience to possess more than ordinary skill and ability to deal with the great problems of health and life. He professes to the world that he is competent and qualified to enter into the closest and most confidential relations with the sick and afflicted, and that he is a fit and proper person to be permitted freely, and at all hours and all seasons, to enter the homes, the family circle, and the private chamber of persons suffering from disease or injury. All this he professes and does upon his own account, and for his own profit.

Statutory Regulation of the Right to Practise, Constitutional.—The exercise by the States of these statutory powers is upheld as a valid exercise of the “police power,” to protect the health of the community. When the constitutionality of such enactments has been questioned, it has been attacked upon the alleged ground that the statutes under question unjustly discriminated in favor of one class of citizens and against another class; and as depriving those already engaged in the practice of medicine or surgery of “their property without due process of law.” State v. Pennoyer, 18 Atl. Rep., 878; ex parte Spinney, 10 Nev., 323; People v. Fulda, 52 Hun. (N. Y.), 65-67; Brown v. People, 11 Colo., 109.

Opinion of United States Supreme Court.—This subject has been carefully considered by the United States Supreme Court in a recent case, and the broad extent of the legislative powers of the States to regulate such matters clearly and fully declared. Dent v. West Va. (129 U. S., 114). The Court say—pp. 121 et seq.—Mr. Justice Field delivering the opinion, in which all the other Justices concur: “The unconstitutionality asserted consists in its [the statutes] alleged conflict with the clause of the Fourteenth Amendment, which declares that no State shall deprive any person of life, liberty, or property, without due process of law; the denial to the defendant of the right to practise his profession, without the certificate required, constituting the deprivation of his vested right and estate in his profession, which he had previously acquired.

“It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different States, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of the parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation.

“Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society, may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practise in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance in its practice, but for the earnestness with which the plaintiff in error insists that, by being compelled to obtain the certificate required, and prevented from continuing in his practice without it, he is deprived of his right and estate in his profession without due process of law. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practise medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the State as competent to judge of his qualifications. As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms ‘due process of law’ a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden. They come to us from the law of England, from which country our jurisprudence is to a great extent derived, and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law. They were deemed to be equivalent to ‘the law of the land.’ In this country the requirement is intended to have a similar effect against legislative power, that is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property. Legislation must necessarily vary with the different objects upon which it is designed to operate. It is sufficient, for the purposes of this case, to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters: that is, by process or proceedings adapted to the nature of the case.”

Early Common-Law Rule Concerning Suits by Physicians.

The common-law rule was that the physician could not sue and recover for his services, though he might for the medicines he furnished. The theory of the law followed the etiquette of his profession and forbade him from making a specific contract for pay for his services, and obliged him to receive what his patient chose to give him, which was called his “honorarium.”

The Early Common-Law Rule No Longer in Force.—As time went on this theory vanished from the law. For many years it has lost its place among the rules of professional etiquette. In its stead statutory provisions have been adopted which forbid a recovery for services performed by persons not legally authorized to practise. The right to contract with the patient or with those who employ the medical man, and his remedies to enforce such contracts, will be treated of hereafter.

Statutory Regulations in New York State.—Most of the States of the United States have enacted statutory regulations prescribing in one form or another the necessary qualifications which entitle a physician or surgeon to practise, and prescribing penalties for practising without having complied with such statutory requirements. In the State of New York such matters were regulated for the first time by statute in 1787. This was followed by a general enactment on the subject of the organization of county medical societies, and of State medical societies having boards of censors, to whom was committed the power to examine applicants for license to practise, and of issuing licenses (Laws of 1813, p. 94). This law remained in force, with certain modifications, until 1844, when all acts regulating the practice of medicine and surgery were repealed. A history of the statutory regulations in New York State up to the act of 1844 on this subject will be found in the case of Bailey v. Mogg, 4 Denio, 60.[154]

At the time of the passage of the act of 1813, and for many years afterward, nearly all of the physicians in New York State practised in accordance with the theories and precepts of what is now called the regular or allopathic school of medicine. That act provided that the physicians in the respective counties of the State of New York should meet in the respective counties and organize county medical societies. As a consequence of the fact that the physicians of that day were chiefly of the allopathic school, they necessarily obtained the control of the county medical societies and State medical societies. Hence it became difficult, if not impossible, for physicians who wished to practise upon other theories and tenets than those obtaining in that school, to obtain licenses to do so. With the growth of the homœopathic school of medicine and the eclectic school of medicine, came applications to the legislature asking for those practising under those schools the same rights and privileges of organizing county and State societies as had been extended to physicians generally by the act of 1813; so that in 1857, by Chapter 384, the legislature of New York State enacted that the homœopathic physicians might meet in their respective counties and organize county medical societies, with boards of censors having the same powers and privileges which were granted by the act of 1813; and by other laws similar privileges were granted to the so-called eclectic school. After the passage of the act of 1844, down to about 1874, as hereinbefore stated, there was no limitation upon the right to practise medicine or surgery in this State.

The inharmonious and injurious effect of such policy of the State becoming manifest, the legislature, by Chapter 436 of Laws of 1874, required all persons desiring to practise medicine or surgery to obtain a certificate as to their qualifications from the censors of some one of these medical societies. By the Laws of 1880, Chapter 513, additional and more extensive and particular provisions were made in reference to this matter, and all the physicians then practising were required, on or before the time limited in the act, to file with the county clerks of their respective counties their licenses to practise granted by the censors of their county medical societies, or a diploma of some chartered school of medicine; and those persons who desired to become licensed who were not in practice were likewise required to obtain similar licenses or certificates and file the same. A diploma of a chartered school or medical college was given the same effect as a license issued by the censors.

Recent Legislation in New York State.—The whole matter, however, of licensing physicians to practise has, in the State of New York, been recently regulated by Chapter 468, Laws of 1889, and 499 of 1890, which have reference to the qualifications of persons becoming medical students, and Chapter 507 of 1890, which gives to the Regents of the University of the State of New York power to select boards of examiners from persons nominated by each of the three State medical societies, viz., the New York State Medical Society, Homœopathic Medical Society, and Eclectic Medical Society. These boards prepare questions which are to be approved by the State Board of Regents; examinations are held in different parts of the State upon these questions, the examination papers are certified to that one of these boards of examiners which the student may elect, and that board in turn certifies whether or not the examination has been successfully undergone; and upon its certificate the Board of Regents licenses the student to practise, and his examination papers are filed in the office of the Board of Regents and become a matter of record. These provisions have been enlarged and modified slightly by various statutes since enacted. They are all now embodied in Chapter 601 of Laws of 1893. They will be found carefully synopsized below.

Penal Provisions in New York State.—The New York Penal Code, which went into effect in 1882, enacted that a person practising medicine or surgery, or pretending to be a physician or surgeon, without a license or a diploma from some chartered school, should be deemed guilty of a misdemeanor punishable by fine or imprisonment (Penal Code, Section 356); and the same statute, 357, made it a misdemeanor for a person, whether licensed or not, to practise medicine or surgery, or do any other act as a physician or surgeon, while intoxicated, by which the life of any person is endangered or his health seriously affected.[155]

Giving “Patented” Medicines No Exception.—At one time an attempt was made to claim, that under the patent laws of the United States a person had the right to administer patent medicines without being punishable for practising without a license, but this doctrine was repudiated by the courts. Thompson v. Staats, 15 Wend., 395; Jordan v. Overseers, etc., 4 Ohio, 295.

Courts may Compel Granting of License.—A person who is qualified and complies with reasonable rules of a licensing body, can compel such body to license him. This was held to be the law in the case of The People ex rel. Bartlett v. The Medical Society of the County of Erie, which is also an important authority in respect to a vexed question of medical ethics. It appeared in that case that under the general laws of New York in regard to the organization of medical societies, a medical society had refused to receive as a member a person otherwise qualified, because he had advertised in the public prints a certain cure, including a mechanical appliance used in treating throat troubles; it being forbidden by the code of ethics of the American Medical Association, which the County Medical Society had adopted as one of its by-laws, that a physician or surgeon should advertise. The Court of Appeals of the State of New York held that this constituted no defence to a proceeding instituted by such person to obtain a mandamus compelling the society to admit him to membership, if otherwise qualified.[156]

It has also been decided that a medical society had no right to make a by-law establishing a fixed fee-bill, or tariff of charges, and providing for the expulsion of a member charging at a different rate than that prescribed. Such a by-law was declared unreasonable and void in the case of People v. Medical Society of Erie County, 24 Barb., 570.

The effect of these decisions was, so far as they affect the validity of by-laws, attempted to be avoided in that State by Chapter 445 of Laws of 1866, by which it is expressly enacted that the county medical societies of the State of New York may make such rules and by-laws as they see fit, “not inconsistent with the laws of said State, and may enforce them by expulsion or other discipline.” It may be considered doubtful whether this legislation can accomplish its purpose in the case of the adoption of a by-law void as against public policy.

No Particular Schools Recognized by the Courts.—The general trend of the decisions in all the States, whenever any questions in reference to schools of medicine have been before our courts, is to avoid recognizing any particular system or school. The theory of the New York courts upon this subject is well expressed by the liberal-minded and learned Judge Daly in the New York Court of Common Pleas, in the case of Corsi v. Maretzek, 4 E. D. Smith, 1-5. In that case it was claimed that a certificate of incapacity because of sickness, given by a “homœopathic” physician to an opera-singer, was not binding. It was argued that the employment of a “homœopathic” physician under the contract did not fulfil a provision thereof which required the event of the singer’s sickness to be certified to by “a doctor,” to be appointed by the director.

The Court said: “The system pursued by the practitioner is immaterial. The law has nothing to do with particular systems. Their relative merit may become the subject of inquiry, when the skill or ability of a practitioner in any given case is to be passed upon as a matter of fact. But the law does not, and cannot, supply any positive rules for the interpretation of medical science. It is not one of those certain or exact sciences in which truths become established and fixed, but is essentially progressive in its nature, enlarging with the growth of human experience, and subject to those changes and revolutions incident to any branch of human inquiry, the laws of which are not fully ascertained. The labors of the anatomist, the physiologist, and the chemist have contributed an immense storehouse of facts; but the manner in which this knowledge is to be applied in the treatment and cure of diseases has been, and will probably continue to be, open to diversity of opinion. No one system of practice has been uniformly followed, but physicians from the days of Hippocrates have been divided into opposing sects and schools. The sects of the dogmatists and the empirics divided the ancient world for centuries, until the rise of the methodics, who, in their turn, gave way to innumerable sects. Theories of practice, believed to be infallible in one age, have been utterly rejected in another. For thirteen centuries Europe yielded to the authority of Galen. He was implicitly followed—his practice strictly pursued. Everything that seemed to conflict with his precepts was rejected; and yet, in the revolutions of medical opinion, the works of this undoubtedly great man were publicly burned by Paracelsus and his disciples; and for centuries following, the medical world was divided between the Galenists and the chemists, until a complete ascendency over both was obtained by the sect of the Vitalists. This state of things has been occasioned by the circumstance that medical practitioners have often been more given to the formation of theories upon the nature of disease and the mode of its treatment, than to that careful observation and patient accumulation of facts, by which, in other sciences, the phenomena of nature have been unravelled. I am far from undervaluing the great benefits conferred upon mankind by the study of medicine, and have no wish to minister to any vulgar prejudice against a useful and learned profession, but it is not to be overlooked that, as an art, it has been characterized, in a greater degree, by fluctuations of opinion as to its principles and the mode of its practice, than, perhaps, any other pursuit. That it has been distinguished by the constant promulgation and explosion of theories, that it has alternated between the advancement of new doctrines and the revival of old ones, and that its professors in every age have been noted for the tenacity with which they have clung to opinions, and the unanimity with which they have resisted the introduction of valuable discoveries. They still continue to disagree in respect to the treatment of diseases as old as the human race; and at the present day, when great advances have been made in all departments of knowledge, a radical and fundamental difference divides the allopathist from the followers of Hahnemann, to say nothing of those who believe in the sovereign instrumentality of water.

“In fact, nothing comparatively is known of the philosophy of disease. Its eradication or cure, where the result of human agency is, in the great majority of instances, attributable rather to the careful observation, judgment and experience of the particular practitioner, than to the application of general or established methods available to all. The popular axiom, that ‘doctors differ,’ is as true now as it ever was, and as long as it continues to be so, it is impossible for the law to recognize any class of practitioners, or the followers of any particular system or method of treatment, as exclusively entitled to be regarded as doctors. In adverting to the conflicting views and differences of opinion, that exist and have ever existed in the practice of the healing art, it is not to call in question the value of learned, skilful and experienced physicians, but merely to show the error of attempting, in the present state of medical science, to recognize, as matter of law, any one system of practice, or of declaring that the practitioner who follows a particular system is a doctor, and that one who pursues a different method is not.” And see also White v. Carroll, 42 N. Y., 161; Ordronaux’ “Jurisprudence of Medicine,” 27.

This decision was prior to the statute of 1874 and the provisions of the Penal Code before noted. Since those statutes, it is a misdemeanor to practise except as permitted by the provisions of those statutes.

IN NEW YORK AND ELSEWHERE PRACTITIONER WITHOUT LICENSE CANNOT SUE AND RECOVER FOR HIS FEES.

Since the passage of the New York Act of 1844 (Laws of 1844, p. 406), there has been no precise statutory provision in that State prohibiting in terms persons who practise physic or surgery without a license, from suing to obtain a recovery for services performed. But this is of little consequence, for, as we have already stated, so practising has been declared to be a misdemeanor by the Penal Code of New York.

It is a well-settled principle that when any act is declared by statute to be criminal, a contract calling for the performance of such an act is illegal and void. The early English authorities on this point are fully collated in Wheeler v. Russell (17 Metc., Mass., 258), and the later English and American cases may be found in “American and English Cyclopædia of Law,” title “Contracts,” Vol. III., p. 872 et seq.; see also id., Vol. XVIII., p. 440. Further consideration of the validity of contracts for medical and surgical services will be had hereafter. A full synopsis of the statutes of the different States regulating the licensing of physicians and surgeons in force at the time this volume goes to press will be placed in another chapter.

In a suit between a person who has performed medical and surgical services, and one who employed him, it is said that the person performing the services is presumed to have been licensed to do so.[157] If the State sues for a penalty, a different rule is claimed to prevail.[158]

How may a Diploma or License be Proved in a Court of Law?

It is evident from the foregoing considerations that in any proceedings to punish for practising without license or legal authority, and in actions to recover payment for professional services in the States and countries, where a license or diploma of a regularly chartered school or college is required by statute to entitle the person to practise, it may become important to establish—first, the legal authority to grant the license or diploma; and second, the genuineness of the license or diploma produced. It frequently happens that the diploma or license has been obtained in another State or country. Under the New York statutes, especially the laws of 1880 and 1890, it was made necessary to file a diploma. When it had been issued by a chartered school of another State it must be certified to by some lawfully incorporated medical college in this State, before being received for filing, or regarded by the law as conferring upon its possessor the right to practise in that State.

As to the chief element of authenticity, namely, the legal incorporation or authority of the body or institution granting the diploma, it is clear that the act of incorporation itself would be the best evidence of the incorporation of the college or school, and a special act granting the power to license to a board of censors or other official body or board would have to be produced to show the right vested in that board or body to grant a license. In Georgia it has been held (Hunter v. Blount, 27 Ga., 76), that to prove a diploma given to a physician in another State, the existence of the college, and the fact of its being a chartered institution, must be shown by producing its act of incorporation.

In Thornton’s case (8 Term Rep., 303; same case, 3 Esp., 4), it was held that the mere production in court of a diploma under the seal of one of the universities, is not of itself evidence to show that the person named in the diploma received the degree which the diploma specified. In another and later case, however, Simpson v. Dunmore (9 M. & W., 45; same case, 5 Jurist, 1012), it was held that it was unnecessary for the person producing a license from the Apothecaries’ Company (an incorporated body) to practise as an apothecary, the seal on which license was proved to be genuine, to give any additional evidence of his identity with the person named in the license. The reason for this doctrine is probably to be found in the well-known rule of evidence, that identity of both christian name and family name, is sufficient to raise a presumption of fact that the person bearing the name is the identical person so named in any written instrument.

In Walmsley v. Abbott (1 K. & P., 309; same case, 5 D. & R., 62), proof of the signature of one of the examiners who signed a certificate of examination was held sufficient to warrant the acceptance of the certificate in evidence in the first instance. In another case the proof was that a person previously a stranger to the place went to a town which was the seat of a university, and was told that a certain building was the college, and that a certain person whom he saw there was the librarian, and that this librarian showed him what purported to be the seal of the university, and also a book which the librarian stated was the book of acts or records of the university, and the seal so shown him was compared with the seal of a certain diploma, the genuineness of which was in question, and a copy was made from the said book of acts, of an entry stating that the degree of M. D. had been conferred by the university upon a person bearing the same name as that in the diploma, and this proof was held a sufficient authentication of the diploma, and of the act or authority of the university conferring the degree. Collins case, 1 Addison & Ellis, 695; same case, 3 N. & M., 703.[159]

The Rule in Criminal Prosecutions.—We have seen above, that in a criminal prosecution the burden is on the defendant to produce and prove his license, but to warrant a conviction for practising without a license it must be shown that the accused actually practised. It is not enough to show that he is called by persons whom he attends personally, that is, for whom he prescribes, or to whom he gives medicine or whom he treats. There must be proof shown that he has done this on his own account or for his own profit. But proof of a single act connected with other circumstances, such as tend to show that he held himself out as a physician, is enough. Burham v. State, 116 Ind., 112; Hill v. Bodie, 2 Stew. and P. (Ala.), 56; Pedgrift v. Schiller, 8 C. B., N. S., 200 (same case, 6 Jurist, N. S., 1341). And if he simply practises “massage,” he does not fall within the acts against practising medicine, even though he pretends to accomplish as much good as could have been accomplished by a regular physician. Smith v. Lane, 24 Hun, N. Y., 632. But see also Leech v. Ripon, 12 Cent. L. J., 479; State v. Schultz, 11 Reporter, 701.[160]

Falsely Pretending to be a Licensed Practitioner Generally a Misdemeanor.—In some of the States, and in England, it is not only made a misdemeanor to practise without a license, but falsely pretending to be a licensed practitioner is made a misdemeanor. Such is the provision of the Penal Code of New York heretofore cited. In England such a statute has been somewhat strictly construed in the case of Carpenter v. Hamilton (37 Law Times Rep., 157). In that case it appeared that a person advertised himself as “John Hamilton, M.D.,” of the “Metropolitan Medical College of New York.” It further appeared that he was not registered as required by the law of England. In a prosecution against him for falsely pretending to be a licensed physician, the only proof of his practising being as just stated, an acquittal was sustained by a majority of the court, which held that it was a question of fact to be determined by a trial court whether or not what he did was pretending to be a physician authorized to treat a patient. The Court intimated that the person simply pretended to be what he really was, namely, a doctor of medicine of the Metropolitan Medical College of New York.

State and Local Boards of Health—Powers Governed by Special Statutes.

In addition to the rules and regulations prescribed by the general statutes, modern sanitary science has developed so broadly throughout most of the civilized states and countries, that the different governments have established state boards of health, and in many instances local boards of health, the latter being limited in their authority and operation to specific municipal divisions, to which boards the government has committed the power to pass certain sanitary rules and regulations, which rules and regulations may have an important bearing upon and relation to the practice of medicine and surgery. The jurisdiction and powers of these boards are to be found in the special statutes creating them, and prescribing their powers and duties, and cannot be treated of extensively here. They will be considered further under the special subjects to which they relate.

Physicians Bound to Report Contagious Cases and Not Liable for Mistaken Report.—The duty to promptly report[161] to boards of health every case of contagious or infectious disease is manifest.

CHAPTER III.

OF THE CONTRACTUAL RELATION BETWEEN PHYSICIAN AND PATIENT.

Employment and Rights in Regard To Compensation.

Legal Character of the Employment.—Whatever may have been the theories of the Roman civil law, and following it of the early English common law, as to the character of the employment of physicians and other professional men, it is now so well settled that the reciprocal duties and obligations arising between physician and patient, or attorney and client, and the like, are to be classed under and governed by the law of contracts, that any extended discussion of these theories is unnecessary here.[162] Mr. Ordronaux, in the second chapter of his interesting work on the “Jurisprudence of Medicine,” has considered them fully, and has quoted amply from the books of the earlier and later text-writers, and from the expressions of the judges, to show what these theories and rules were; and he and all later authorities agree that the ancient notion, that professional services are always gratuitous unless a special contract to pay for them is made, has long been abandoned. He observes (pp. 13 and 14): “But in our day the increase in the number of professional practitioners, and their exclusive devotion to a special class of services as a means of living, has essentially modified the practical character of the contracts with their patrons. Although in legal acceptation a mandate, yet from force of circumstances growing out of an altered state of society, the mandate is practically changed into a contract of hire (locatio operis). This doubtless reduces professions to the status of artisanship, and places them on a par with manual labor, conjoined to the special skill of a particular calling. But it also simplifies the contract, removes it from the category of innominate or imperfect obligations, requiring the intervention of legal fictions to furnish a means for their enforcement, and brings it within the pale of consensual agreements based upon a sufficient consideration.”

The physician’s right to sue on contract in England was declared by legislative enactment by Chap. 90 (Sec. 31), 21 and 22 Victoria. It has never been denied in the United States. Adams v. Stephens, 26 Wend., 451-455.

Physicians’ and Surgeons’ Service in a Sense Voluntary.—Though it is true, as in the case of many other doctrines of ancient law which were formulated under social conditions far different from those which prevail in modern times, that these rules and theories have long since lost their potency as distinct rules governing actions at law, nevertheless the legal aspect of the peculiar relationship between physician and patient, is still affected by the idea that the service on the part of the physician is voluntary—that is, the physician or surgeon is not bound to come and perform services whenever or wherever he is called. He is at liberty to refuse any and every patient who attempts to employ him.

Patients may Cease Employing at Any Time, unless there is a Contract for a Certain Period.—And when he is employed, the patient may at any moment discharge him, without incurring liability in damages, unless a special contract has been entered into between them that the services shall be rendered for a fixed period.

Service once Begun by Physician must be Continued until Notice of Intention to Cease is Given by Him.—If, however, the services are begun, they must be continued until notice has been given of the intention to discontinue them, and a reasonable time allowed the patient to obtain the services of another person. The reasons for this rule will be considered more fully below.

Contracts either Express or Implied.—The contract between the physician and patient may be an express one, that is, one in which all the terms are agreed upon or expressed between the parties, or it may be what is called an implied contract, or one in which the patient, or another person, simply calls on the physician or surgeon to come and perform services, and neither party specifically stipulates or agrees upon any of the terms of the employment.

Express Contracts may Include any Stipulation Not Contrary to Public Policy.—In the case of an express contract the agreement of the parties settles and determines their mutual obligations, whether it be written or merely verbal. But an express contract may also be made in such a form that certain conditions are required to be performed by the physician before he becomes entitled to any compensation for his services. It may also embody an agreement that the patient shall pay certain sums at certain times as the treatment goes on, or that no other physicians shall be employed without the consent of the attending physician, or if so employed that they shall be under the direction of the attending physician.

Almost anything may be stipulated which is not contrary to public policy, and a breach of any such stipulation entitles the aggrieved party to rescind the contract and cease from performing it.[163]

Qualifications of the Rule that Express Contracts may Include any Stipulation.—Some qualifications of this rule of law must, however, be noted. A breach by the patient of any one of these stipulations would entitle the physician to treat the engagement as terminated like any other contractual relation, and to bring his action for a recovery for services rendered up to the time of the breach; but it is doubtful whether he would have any action for damages for failure to permit him to perform further services. This doubt arises from the legal doctrine, hereinbefore referred to, that a patient is always at liberty to dismiss his physician at any time without notice, and without assigning any cause, which recognizes and grows out of the fact that if the trust and confidence of the patient are destroyed, or impaired, no matter how unreasonably or unjustly, the relation between them must thereafter be unprofitable to both parties, and dangerous to the patient. On the other hand there is little doubt but that whenever an express contract is made by a physician to treat a patient for a certain length of time for a particular disease or injury, the physician is not at liberty to arbitrarily terminate that relation or his connection with the case, unless he has in the contract specifically reserved the right so to do.

Contracts Making Payment Contingent upon Successful Treatment Valid.—The express contract between the parties may also contain a stipulation, by which the physician makes his compensation contingent upon his effecting a cure. Smith v. Hyde, 19 Vt., 54; Mack v. Kelly, 3 Ala., 387. See also Coughlin v. N. Y. Cen. R. R. Co., 71 N. Y., 443. In such a case, however, if the patient does not permit the physician opportunity to treat him during the time named in the contract, or for a reasonable time, if no specific time is fixed, the courts would probably permit the physician to recover a reasonable compensation for his services for the time during which he treated his patient.

Physician must Allow Reasonable Time to Supply his Place if he Quits his Patient.—In any event, whether the contract be express or implied, conditional or unconditional, the law through motives of public policy, and with a just regard for the welfare of the sick and injured, undoubtedly requires that if a physician has once taken charge of a case, and determines to abandon it, he must give the patient reasonable notice and reasonable opportunity to supply his place. If he fails to do this he is liable in damages for the results that follow as the proximate consequence of his abandoning the case.

This Rule True even in the Case of a Charity Patient.—This is true, it is believed, even when the patient is a charity patient, and the services are gratuitous. Shiels v. Blackburn (1 H. Blacks., 159). For any other rule less strict might entail the most serious consequences. Ordronaux, “Jur. of Med.,” 13 and 14, citing Inst., lib. 3, 26, 11; Pothier, “Du Contrat Mandat,” Chap. I., § 4.

Elements of the Contract Between Physician and Patient.

Duties of Physician.—When the relations between physician and patient are not defined otherwise by express contract, the implied contract is, and the law presumes, that the physician contracts, first, to use the necessary care and attention; second, to use the necessary skill; third, in case the physician furnishes his own medicines (and the obligation to furnish them would probably be imposed, if it was the custom of the school or class of physicians to which the particular physician belonged to do so), that the medicines are proper and suitable. As a corollary of these duties it necessarily follows, also, that the physician contracts that the instruments or appliances which he uses are free from taint or contagion, and are suitable and proper for the uses to which they are put. Upon this theory an action could be maintained against a physician for using impure vaccine.

Duties of Patient.—The patient on his part contracts, first, to give the physician information concerning the facts and circumstances of the case, and full opportunity to treat him properly; second, to obey his instructions and follow his directions, and, third, to pay him the reasonable worth and value of his services. The different branches of this contract are reciprocal. The failure of either party to fulfil the obligation of any one of them which is imposed upon him, would bar him of his remedies against the other party to recover damages for any breach, or any proximate result of his breach, of such obligations. The necessary care and attention required of the physician in such a case are measured by the requirements of the case and the physician’s duties to his other patients, modified, however, by the rule that the physician is presumed to know, at the time he takes up the case, the condition and situation of his other patients at that time. Consequently, if those who have first employed him are so situated at the time that his services for them are likely to be soon and continuously required, he cannot without making himself liable in damages undertake another case and then neglect it, but he should either decline to take it, or should with the full knowledge and consent of the patient make provision for the temporary substitution of some other physician, during the time that his prior obligations engross his attention. Nevertheless, if the situation and condition of those to whom he has first contracted his services is such that he had, although he exercised due professional knowledge and skill, no reason to apprehend that these patients would need his exclusive service, and by a sudden development, arising from those occult causes which obtain in all serious diseases and injuries, any of his prior patients suffer a sudden and dangerous relapse, or from an accession of new and dangerous symptoms and conditions so that he must fly to their aid, he would not be liable to another patient, to whom he had afterward contracted his services, for neglecting his case; still he should in such instances use extra means to obtain the services of some other and equally skilful man.

Only Ordinary and Usual Skill Required.—The degree and character of necessary skill contracted for has been variously defined by the courts. When malpractice is discussed, a more extended consideration of this matter will be required. At present the doctrine laid down in Shearman and Redfield on “Negligence,” paragraphs 433-435, may be adopted. It is as follows:

“Although a physician or surgeon may doubtless by express contract undertake to perform a cure absolutely, the law will not imply such a contract from the mere employment of a physician. A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected it must be expressly stipulated for.... The general rule, therefore, is, that a medical man, who attends for a fee, is liable for such want of ordinary care, diligence or skill on his part as leads to the injury of his patient. To render him liable, it is not enough that there has been a less degree of skill than some other medical man might have shown, or a less degree of care than even himself might have bestowed; nor is it enough that he himself acknowledged some degree of want of care; there must have been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result.... But a professed physician or surgeon is bound to use not only such skill as he has, but to have a reasonable degree of skill. The law will not countenance quackery; and although the law does not require the most thorough education or the largest experience, it does require that an uneducated, ignorant man shall not, under the pretence of being a well-qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations. If the practitioner, however, frankly informs his patient of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the lack of that which he knew did not exist.”[164]

Average Standard of Skill of any Professed School must be Attained.—It is also a rule that one who professes to adhere to a particular school must come up to its average standard, and must be judged by its tests, and in the light of the present day. Thus a physician who would practise the reckless and indiscriminate bleeding which was in high repute not very many years ago, or should shut up a patient in fever and deny all cooling drinks, would doubtless find the old practice a poor excuse for his imbecility. So, if a professed homœopathist should violate all the canons of homœopathy, he would be bound to show some very good reasons for his conduct, if it was attended with injurious effects. Upon many points of medical and surgical practice all of the schools are agreed, and indeed common sense and universal experience prescribe some invariable rules, to violate which may generally be called gross negligence. Yet the patient cannot justly complain if he gets only that quality and kind of service for which he bargains. If he employs a cheap man, he must expect cheap service. Puffendorf, in his “Law of Nature and Nations,” observes: “We read a pleasant story of a man who had sore eyes and came to a horse-doctor for relief. The doctor anointed his eyes with the same ointment he used among his horses, upon which the man falls blind, and the cause is brought before the judge, who acquits the physician. For if the fellow, says he, had not been an ass he had never applied himself to a horse-doctor.” See also Jones on Bailments, 100; 1 Field’s “Lawyers’ Briefs,” sub. Bailments, Sec. 573; Musser v. Chase, 29 Ohio St., 577; Lanphier v. Phipos, 8 Carr. & Payne, 478.

Degree of Care and Skill Used a Question of Fact.—In an action at law, whether brought by a physician to recover for his services, or by a patient to recover for malpractice or neglect, it is always a question of fact, to be determined by the jury under proper instructions as to the measure of care and skill required, whether or not the physician has in a given case used that degree of care and displayed that amount of skill which might reasonably be expected of a man of ordinary ability and professional skill. These same rules apply to the surgeon. He must possess and exercise that degree of knowledge and sense which the leading authorities have announced, as a result of their researches and experiments up to the time, or within a reasonable time before, the issue or question to be determined is made.[165]

Rule in Leading Case of Lanphier v. Phipos.—In the case of Lanphier v. Phipos, 8 C. & P., 478, already cited, Chief Justice Tyndall enunciated the rule as to the degree of skill required of a physician or surgeon, which has been followed by all the courts since then. He said: “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not, if he is an attorney, undertake at all events to gain the cause, nor does a surgeon undertake that he will perform a cure; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable and competent degree of skill. And in an action against him by a patient, the question for the jury is whether the injury complained of must be referred to a want of proper degree of skill and care in the defendant, or not. Hence he is never presumed to engage for extraordinary skill, or for extraordinary diligence and care. As a general rule, he who undertakes for a reward to perform any work is bound to use a degree of diligence, attention and skill, adequate to the performance of his undertaking; that is, to do it according to the rules of the art; spondet peritiam artis. And the degree of skill arises in proportion to the value and delicacy of the operation. But he is in no case required to have more than ordinary skill, for he does not engage for more.”

Physician Must Instruct Patient how to Care for Himself, etc.—A corollary of these rules is, that the physician must give proper instruction to his patient how to take care of himself, how to manage a diseased or injured member, when and how to take any medicines that may be prescribed, what diet to adopt, and that in case the physician fails to give these instructions he is liable for any injuries that result from this failure. Carpenter v. Blake, supra.

Patient Must Inform Physician Fully Concerning his Case—His Communications Privileged.—On the other hand, as we have already stated, the patient owes the duty to his physician of informing him fully of all the varied symptoms of his disease, or the circumstances attending his injury, and to freely and with due confidence answer all questions concerning his past history which would tend to throw any light upon his present condition. To battle with the occult forces which play so important a part in determining the course or consequences of disease, it is absolutely essential that the physician should know all that is possible to be known of the patient’s history, and of the history of the patient’s family. As we shall see later on, all such communications are, in most of the States of the Union and elsewhere, by statutory enactment made privileged, and without the consent of the patient the physician or surgeon is absolutely forbidden to divulge any communication or information which he receives in order to enable him to prescribe. This rule applies equally whether the physician or surgeon is acting for hire or is treating the person as a charity patient, and it has been extended by construction by the courts in some States, so as to include examinations made by jail physicians or other physicians sent by the prosecuting officials of the State to examine a prisoner, for purpose of giving evidence, but who allowed the prisoner to suppose that they were there simply to treat him in their professional capacity. People v. Murphy, 101 N. Y., 126. At the same time the courts have been careful to make an exception in the case of advice given for the purpose of enabling the person receiving the advice to commit a crime, and of any information received by the physicians while the persons asking for it were engaged in a criminal attempt. All of these interesting questions will be examined and treated of at length hereafter.[166]

Conditions of Contract Between Physician and Patient Further Considered.—It has been observed that the contract between the physician and patient may be conditional or unconditional. By this it is meant that limitations upon the reciprocal obligations between them may be imposed, or extensions of such obligations made, by special agreement. The physician may contract to cure, and may make the cure a condition precedent to receiving any reward for his services or medicaments, and a breach of such a contract will be enforced by the courts as a bar to an action for services rendered or medicines furnished. The patient may agree to come to the physician’s home or to a hospital or other place agreed upon between them, for the purpose of being treated, or of being operated upon by a surgeon, and a failure to perform such an agreement on the part of the patient absolves the medical man from carrying out his agreement to treat the patient. In the case already suggested of a request by the medical man for information as to the patient’s past history, or that of the patient’s family, or the circumstances concerning the injury or symptoms of the disease, if the patient should give false information, or should wilfully neglect to give true information, the physician would have a right, upon giving reasonable and due notice, and opportunity to employ some one else, as already intimated, to decline to proceed further with his care of the case, and might sue and recover pay for the services rendered.

Physicians Cannot Contract that they shall Not be Responsible for Want of Ordinary Care and Skill.—An important and salutary exception to the general rule that all parties may contract freely as between themselves stipulations measuring their reciprocal obligations, doubtless applies to the relations between physician and patient. It is an exception which has been applied to the contract relations existing between a common carrier and a shipper or a passenger. This is that persons contracting to perform services which are to a certain extent public in their nature, and which, as in the case of the common carrier or in the case of the physician or surgeon, are founded upon conventional relations, and affect the public welfare, are not permitted, from reasons of public policy, to contract for a release or escape from liability arising out of their own negligence or wrong. In short, a physician or surgeon cannot contract with a patient that the patient shall waive any claim for damages growing out of his want of ordinary care and skill. Nevertheless, the physician or surgeon may frankly inform his patient of his want of knowledge and experience as to the particular kind of treatment required by any special and unusual disease or injury. If after full information on this point, and full opportunity to employ some one else, the patient insists that the physician or surgeon go on with such treatment as he is able to give to the case, and injuries result which a more skilful and experienced practitioner might have avoided, it is probable that the courts would hold that the practitioner was not liable under such circumstances, or that such circumstances could be pleaded in mitigation of damages. But it would be the duty of the practitioner in such a case to be exceedingly careful in performing any surgical operations, and not administer any powerful drugs with the strength and medicinal qualities of which he was not acquainted. If he should assume to perform such operations or administer such drugs instead of confining himself to modifying the ravages of disease by the use of well-known simple remedies, or protecting against the consequences of severe injury by the use of ordinary antiseptic dressings and treatment, he would no doubt be liable for any resulting damage, and could not recover pay for his service.

Experiments Not to be Tried on Patients—This Rule Applies to Charity Patients.—For like reasons of public policy it has been held that a physician has no right to try experiments on his patient.[167] In this respect a charity patient will be protected by law and compensated for damages received from experiments on his health and person, just as much as a person from whom a large fee could be expected. Humanity and public policy both forbid that experiments should be tried upon one class of patients any more than another. However this may be, in a case of extreme danger, where other resorts have failed and everything else done that could reasonably be required, and if the patient and his family consent after full information of the dangerous character of the operation, or the unknown qualities and powers of the drug to be administered, the practitioner would be justified and protected if some new methods of treatment not entirely developed or known to the profession, but supposed to be efficacious, should be adopted, although the result might prove unfavorable. In such a case, however, it would be extremely perilous for the physician to stand upon his own judgment alone. He should consult the best talent in his profession available, and abide by the judgment of his colleagues or a fair majority of them; and even then should apply to his course of action the maxim. When in doubt run no risks; better let a patient perish from disease or injury, than while attempting uncertain experiments with the surgeon’s knife or the use of dangerous drugs. The safe rule is to take no chances, unless there is a consensus of judgment of several physicians. It may be objected that if no experiments are tried no new medicines or surgical devices could be discovered, or their effects observed. The answer to this objection is that vivisection, and other experiments upon live animals, permit of experimentation to a considerable degree, and often effectually point out the proper course of treatment of the human subjects. In the case of drugs and medicines the practice is well known of physicians trying the effects thereof upon their own persons, in their zeal and anxiety to give to the world new discoveries. But, as heretofore observed, the law does not recognize the right of the medical or surgical practitioner to tamper with his patients’ health by the use of untried experiments, without imposing upon the practitioner liability for all injuries proximately resulting from their use. All of such matters will, however, fall more properly under consideration when the liability of the physician and surgeon for malpractice is considered.

CHAPTER IV.

OF THE LEGAL RIGHT OF PHYSICIANS AND SURGEONS TO RECOVER COMPENSATION FOR SERVICES.

Liability to Pay for Services.—An important matter for physicians and surgeons is the question as to who is responsible, or liable to pay for their services. If there is an express contract this question does not arise; but in most instances the person performing the services renders them upon call, and it is necessary for him to understand his legal right to recover pay for services in the absence of an express contract.

Person Treated, and not Person calling in Physician, Employs Him and is Liable.—In the first place, it must be stated as a general proposition that the person for whom the services are actually rendered, or upon whom the operation is performed, is bound to pay for them, if otherwise capable in law of making contracts and incurring obligations. And secondly, that one who calls a physician or surgeon to attend a patient is not presumed to have contracted to pay for the services rendered, unless his relations with the patient are such that he would be obligated in law to pay, even if he had not himself called in the medical man.

In the first case it is presumed that the patient is liable, because he receives the benefit of the services, and nothing less than a distinct understanding that he was not to pay will relieve him from this obligation.

Married Women and Infants Generally Not Liable.—Where such a person is a married woman, unless the case arises in States or countries where married women have been declared by statutes to be liable the same as if single, this rule does not obtain. Nor is an infant personally liable when he is living with his parent or guardian. Hull v. Connelly, 3 McCord (S. C.), 6; Klein v. La Amoreaux, 2 Paige Ch., 419; Atchinson v. Bruff, 50 Barb., 384; Wilcox v. Smith, 26 Barb., 341. But the contract of an infant for medicine and medical attendance is deemed a contract for necessaries, and will be held valid and enforced against his estate if there is no person standing in loco parentis who can be held liable. 3 Barn. & Cress., 484; 2 Kent Com., 236. In cases when the parent of the infant or the husband of the married woman is liable, this liability obtains because the services rendered are deemed necessary, and fall within the common-law obligation of such persons to provide and pay for necessaries for those whom they are bound to support and maintain.

Burden upon Physicians Treating Minors to Show Services Necessary.—But even in such cases the burden is upon the person performing the services, to show that they were necessary, and it is his duty to know, or learn, the true legal status of the patient, and the true legal relations of the patient to the person other than the patient from whom payment is to be claimed. As said in the case of Crain v. Baudouin (55 N. Y., 256-261), “in the case of minor children even, the law imposes this duty upon those who would furnish them with necessaries, relying upon the credit of their fathers, and seeking to charge them. (Hunt v. Thompson, 3 Scam., 179; Van Valkinburgh v. Watson, 13 J. R., 480).” “A fortiori, it is so in the case of an adult married daughter living with her husband.” And as to the liability of the husband of a married woman in the absence of statute giving her legal capacity to contract and charge her separate estate. Consult Moody v. Osgood, 50 Barb., 628; Potter v. Virgil, 67 Barb., 578; Crain v. Baudouin, 55 N. Y., 256-261.

Mother of Infant probably Liable after Father’s Death.—It has been a much disputed question whether after the father’s death the mother becomes responsible for necessaries furnished for her minor children. The theory of law upon which a father is made liable proceeds upon the ground that he is bound to support the child and has a right to the child’s services during its minority.[168] It has been held that the mother after the death of the father is entitled to those services. Campbell v. Campbell, 3 Stock. (N. J.), 265; Cain v. Dewitt, 8 Iowa, 116; Furman v. Van Size, 56 N. Y., 435-439, disapproving Bentley v. Richtmeyer (4 Comstock, 38), and approving In re Ryder, 11 Paige, 185. If she is entitled to the services of her child, she must be bound to support and care for it; and so it was held in Furman v. Van Size cited above.

Estates of Insane Persons Liable in a Proper Case.—Persons of unsound mind are liable for necessaries furnished for their benefit, and can be made to pay therefor at reasonable and proper rates, but they cannot make contracts for a specific rate. It is always a question of fact as to what sum should be charged against their estates, if they have any.

Master Not Liable for Services Rendered Servant without Special Contract.—In the case of master and servant, while at common law as between a master and servant the master was bound to provide medicine and food for the servant when the servant was an inmate of the master’s house, this is an obligation which a third person could not enforce, and the master can only be held liable for services rendered to the servant, upon proof of a specific contract with him to pay for them.

Case of Crain v. Baudouin Considered.—The case of Crain v. Baudouin, supra, affords an interesting discussion before the highest court of New York State, as to the question as to how far a father calling a physician for an adult child for whom he is not bound to provide, although lying sick at the father’s house, can be held liable for the services rendered upon such call. In that case the plaintiff attended as a physician upon the daughter of the defendant, who was sick at his house. The daughter was of full age, married and living with her husband, but was brought from that of her husband to that of her father in order that she might be under the care of her mother. Defendant was present when plaintiff made his calls, gave the latter a history of the patient’s illness, and received directions as to her treatment. He told others of the frequency and length of the plaintiff’s visits, and of his opinion of the case, without any disclaimer of liability. The Court held, however, that these facts were insufficient to imply a promise on the father’s part to pay for the services, and that the additional facts that the defendant consented to the calling in of a consulting physician, and that a bill was sent in by the plaintiff, unless acknowledged and acquiesced in by defendant, or that he had before this employed other physicians, were also insufficient to raise an implication of law of such a promise to pay. The plaintiff relied in his argument upon the fact that the patient was a daughter of the defendant, but the Court held that any presumption which might arise from this had the daughter been under age, was overcome by the fact that she was past a majority, and was married and lived with her husband and children. The plaintiff also relied to support his cause of action upon the interest exhibited by the defendant in the course of treatment pursued, and the other facts as to the presence of the defendant when the plaintiff made his professional calls alone and in consultation; his receiving directions as to treatment; his recognition to others of the fact that the plaintiff was in attendance; his reciting to others a knowledge of the frequency and length of the visits of plaintiff without any disclaimer on the part of the defendant of liability. The Court said as to these facts: “It is true that particular acts will sometimes give rise to particular obligations, duties and liabilities. But the party whose acts are thus to affect him must be in such predicament as that those acts have, of legal necessity, a significance attached to them, at the time, which he may not afterward repel.... It has been held that a special request by a father to a physician to attend upon his son, then of full age but lying sick at the father’s house, raised no implied promise on the part of the father to pay for the services rendered.” See Boyd v. Sappington, 4 Watts (Pa.), 247; and so in Veitch v. Russell, 3 Ad. & Ell. (N. S.), 927, it is said: “A physician attends in every case on request; that fact alone is not enough for the inference of a special contract;” and see Sellen v. Norman, 4 Carr. & P., 284. Still less where there has been no special request by the father to the physician, and no more than acquiescence in his calls. As it would be unnatural for the parent of an invalid child, though legally emancipated, or for an intimate and confidential friend of hers, not to know the rise and course of her malady, not to be interested in the state of it as disclosed at any time to skilled inspection, not to be so anxious as to be in waiting when scientific skill was to be applied for its cure, not to be ready to receive directions for treatment in the intervals; so it is not to be implied in the one case more than in the other that, from these manifestations, because unaccompanied with an express repudiation of liability, a liability may be implied. They are to be referred to natural affection and friendly sympathy, rather than to an acquiescence in the rendition of a personal benefit, or counted as acts done under a sense of legal obligation.” The Court further said that “even if it should be assumed that the usage exists that the physician called to consult with him who is in attendance, with the consent of the person who has employed the latter, is in contemplation of law in the hire of that person, still the assent of the defendant to the calling in of the consulting physician, and his expression of desire to be present when he came—until he is shown to have employed the plaintiff—is a basis too weak for an implication of law, that he promised to pay his consultation fees. Still less it is a fact from which to imply a promise to pay the plaintiff.” This case is, however, close to the border line, and it may be well criticised and denied its apparent full weight of authority, notwithstanding the very great learning and ability of the learned Judge Folger, who wrote the opinion, upon the ground that it appears that the father had as a witness expressly denied calling in the plaintiff or authorizing anybody to call him in, or authorizing the employment of a consulting physician, and that on the trial the Court had found upon the whole testimony in the case that the defendant had never employed the plaintiff. Taking the decision as a whole it cannot be regarded as determining that upon such a set of circumstances as is there disclosed, the father could not in any event have been held liable, but rather that the trial court having found upon the whole testimony that the defendant was not liable, having witnesses before it fully able to judge of their capability, the appellate court could not say as a matter of law that a finding in favor of the defendant should be overruled. This case is considered here at some length chiefly for the purpose of affording an illustration to physicians and surgeons which will suggest to them the advisability of care in ascertaining in all cases who is responsible for their charge for services. See also Bradley v. Dodge, 45 How Pr. (N.Y.), 57; Smith v. Riddick, 5 Jones (N. C.), 42.

Liability of Third Persons Calling a Physician—General Rule.

As to liability for services rendered, when the medical man is called by one person to attend another, it may be stated as a general rule that in order to create such a liability it must appear that the person calling either actually intended to become responsible, or acted in such a manner that the physician was led to suppose that he so intended.

Liability of Railway Company Calling Physician in Case of Accident to Employees, etc.—Another more troublesome question has arisen where physicians and surgeons have been called in by employees of a railway company in case of sudden accident or injury. In one case in New York, the Superior Court of New York City held, that although the general superintendent of a railroad company testified that he had general authority to hire and discharge men, and that he had employed a physician, the railroad company was not liable.[169]

This doctrine seems to be opposed to the weight of authority. See cases collated in Vol. 18, “Am. and Eng. Cyclopædia of Law,” p. 434 et seq., some of which are: Toledo, etc., R. R. Co. v. Rodrigues, 47 Ill., 188; Same v. Prince, 50 Ill., 26; Indianapolis, etc., R. R. v. Morris, 67 Ill., 295; Cairo, etc., R. R. Co. v. Mahoney, 82 Ill., 73; Atchison, etc., R. R. v. Beecher, 24 Kansas, 228.

Same Rule does Not Prevail in United States in Case of Accidents to Passengers.—The cases just noted were all cases of employees. In the cases of injured passengers it has been doubted whether the same rule applied, some State courts holding that in that case there is no obligation to furnish medical and surgical attendance, but that the physician attending must look to the persons whom they attended. Union Pacific R. R. Co. v. Beatty, 35 Kansas, 265; Brown v. Missouri, 67 Missouri, 122.

Different in England.—In England a different rule prevails—one more humane and in consonance with the moral obligation imposed by the relationship of the parties. In Walker v. The Great Western R. R. Co., a recent case (Law Reports, 2 Exch., 228), Chief-Justice Kelley, in the course of the argument, made this remark: “Must a board be convened before a man who has his legs broken can have medical attendance?”

But in Cox v. The Midland Counties R. R. Co. (3 Wellsby, H. & G., 268), the station master, employed as the chief officer of the passenger and other departments, called in a surgeon to perform an operation upon a passenger injured by a train. The road was held not liable.

On the other hand, in Langan v. Great Western R. R. Co. (30 Law Times, N. S., 173), a sub-inspector of railway police was held to have implied power to employ a surgeon for an injured employee. But in Arkansas an attorney for a railroad company was held not authorized to do so. St. Louis, etc., R. R. Co. v. Hoover, 53 Ark., 377.

Doctrine in Indiana the More Sensible One.—The more sensible doctrine seems to be established in this country, in the State of Indiana at least, in the case of Terre Haute R. R. Co. v. McMurray (98 Ind., 358), in which the Court held that where there was great necessity for the employment of a surgeon, the conductor of a train has authority to employ the surgeon, if the conductor is the highest officer in rank on the ground at the time. But in that case the Court expressly states that this liability grows out of the exigencies of the case; not out of any theory of general authority.

Authority of Railroad Physician to Employ Nurses, etc., Doubtful.—It has also been disputed whether the authority of the company’s physician extended far enough to render the company liable for services performed by nurses employed by him, or for board and lodging engaged by him for injured employees. In Bingham v. Chicago, etc., R. R. Co. (79 Iowa, 534), it was held that the authority was sufficient, but in that case testimony appeared tending to show that an agent of the company who had authority to employ the physician had authorized him to employ two nurses. The converse doctrine—namely, that the fact that a physician of the company was authorized to buy medicines on the credit of the company does not authorize the inference that he has power to render the company liable by a contract for board and nursing of a person injured on the company’s road—was held in Maber v. The Chicago, etc., R. R. Co., 75 Missouri, 495; Brown v. The Missouri R. R., 67 Missouri, 122. To the same effect, see Louisville, etc., R. R. Co. v. McVeigh, 98 Ind., 391; Cooper v. N. Y. C. & C., 6 Hun, 276; and St. Louis, etc., R. R. Co. v. Hoover, 53 Arkansas, 377. 2 Redfield on Railways, 114:

On the other hand, where a physician and surgeon has been duly employed by a sub-officer or servant of the railroad company, ratification of this employment, by those having authority to employ him and to render the company liable, will be inferred from slight circumstances.

Such was the case of Louisville R. R. Co. v. McVeigh, which has been cited.

And in another case where information of the fact of the employment had been conveyed to the company’s general manager, and he had neglected and omitted to repudiate the employment or to terminate it, and the surgeon went on and performed services, it was held that from these facts a ratification will be inferred. Indianapolis R. R. Co. v. Morris, supra. See also Toledo, etc., R. R. Co. v. Rodrigues, supra; Same v. Prince, supra; Terre Haute, etc., R. R. Co. v. Stockwell, 118 Ind., 98.

Presentation and Retention of Doctor’s Bill Raises No Presumption of Liability.—The presentation of a bill to a person containing charges against him for services rendered another person, and his retention of that bill without disclaimer of liability, does not raise a presumption of liability, for it is not necessarily an account stated. To constitute an account stated, there must be not only a statement of account, but acquiescence in it; mere retention of the account is not sufficient.

Bills Presented Not Conclusive as to Amounts Charged.—On the other hand, if a bill is presented which contains charges which are not acquiesced in, the person making out and presenting the bill is not absolutely bound by the charges therein contained, although such a bill affords some evidence as to the value of the services rendered.[170]

Claims Against Estates of Deceased Persons.—A bill for a physician’s services constitutes a claim against the estate of a deceased person, like any other debt. In some States it is a preferred claim.[171] In this connection it should be observed that short statutes of limitation exist in most countries and States applicable to such cases, shorter than the ordinary limitation imposed by law upon the right to sue upon claims for services rendered (which is six years). In order to preserve his legal rights, the physician should as soon as possible after the death of the person for whom his services have been rendered, ascertain who is the administrator or executor of the estate of such person, and file with such representative, personally, proof of his claim.

Patient who Receives Benefit of Services of Consulting Physician Liable.—The liability of a patient for the services of a consulting physician is generally governed by the same rules as his liability to the physician in immediate charge of the case.[172]

Where the patient accepts the services of a consulting physician, although he has not directly requested them, he must pay for them if he receives the benefit of them without objecting, because it will be presumed that he ratified the act of the physician who was in charge of the case, in calling the other physician into consultation.[173]

But, however this may be, it is a principle of professional ethics, which has almost acquired the authority of legal doctrine, that a physician in charge of a case should obtain the full assent of a patient, or of his family and friends, if he is too ill to give his own consent, to the calling of another physician in consultation.

No Other Stranger can be Called into Sick-Room without Assent of Patient.—A limitation upon the authority and right of an attending physician is, that if he desires or attempts to call in a stranger not a physician, he must obtain his patient’s consent. The obligation of a physician toward his patient of secrecy and confidence is regarded as very strict, and if a physician should call in a student or other stranger, without first consulting his patient, or those who are in some measure related to him and connected with him, it would be a very severe stretch of morals and possibly of law. In fact, in a recent case in Michigan, a physician was held liable for damages who called in a stranger, an unmarried man, who was an unprofessional man, to be with him while he was in attendance on a confinement case. In that case both the physician and the person so called in, and who was present at that time, were held liable in damages; and it was further held that the right to recover was not affected by the fact that the patient supposed that the person so called in was a medical man, and therefore submitted to his presence without objection.[174]

The statutes which create the privilege as to professional communications and information necessary to enable the physician to prescribe, might not apply to students or other strangers, and this is probably the reason for the rule of law laid down in the Michigan case. The obligation to preserve inviolate a communication as a privileged communication, including in the meaning of the word “communication” all knowledge or information received while in attendance upon a case, would be held to have been broken by the act of the physician in bringing in a stranger who would not be privileged from testifying.

Measure of Recovery for Services Rendered.

Terms of Express Contract Govern—Reasonable Worth the Rule in Implied Contracts.—In case of an express contract its terms necessarily measure the amount of the charges. In the absence of an express contract fixing the value of the services to be rendered, the measure of damages for breach of payment is like that in any other case of personal services, the reasonable worth and value of the services performed. So likewise if medicines or appliances are furnished, which are not reasonably to be expected and furnished, according to the custom of the school to which the physician or surgeon belongs, the reasonable worth and value at the time of furnishing them, and at the place of furnishing them, is the measure fixed by the law to determine what shall be recovered for them.[175]

Value—How Proved.—When the medical man is compelled to go into court to enforce payment for his services, it has been questioned whether he can testify to the services rendered, and the facts and circumstances surrounding the patient at the time of the treatment, because it has been claimed that he could not do so without violating the statute against the disclosure by physicians of information received which is necessary to enable them to prescribe. The tendency of the later decisions, however, seems to be that the breach of the patient’s contract to pay relieves the physician from his obligation of secrecy, and consequently, that if it is necessary for him to go into court and prove the value of his services, he may testify, within reasonable limitations, to all matters necessary to inform the court fully as to the nature and extent of the disease or injuries of the patient, in order that he may show the responsibility imposed upon him and the extent of the services that he has rendered. This subject will be fully considered under the head of “Privileged Communications.” The usual course of practice where there is not an express contract fixing the charges, is to prove the facts and circumstances showing the treatment and services, and then to produce other physicians who, in answer to a hypothetical question stating the facts and circumstances in the case, assuming them as true, are allowed, if they state they know the value of such services, to give an expert opinion as to what that value is.[176] It has also been said (Ordronaux, “Jurisprudence of Medicine,” § 43), that if a fee-bill of charges for such services has been established by an association of physicians recognized by law, such as a county medical society or a State medical society, incorporated pursuant to statute, such fee-bill can, if properly authenticated as having been adopted by the association, be offered in evidence on behalf of the patient and against the physician. But such a fee-bill in such a case would not be held to be conclusive evidence of the value of the services, but will be received in evidence, if at all, merely for the purpose of showing what was the usual and ordinary charge in such cases. As we shall see later on, under “Malpractice,” a judgment for services rendered, however small, is a bar to an action of malpractice, because a judgment for the value of the services rendered involves proof on the part of the plaintiff, and a finding on the part of the court, that the services had value and were skilfully performed and properly rendered.[177]

Custom of Physicians to Treat Each Other Gratis, Enforceable.—Physicians frequently treat each other, and it has been held, where the custom exists to do so without charge, that such a custom is binding. Of course, this rule does not prevent physicians from making an express contract to waive the custom and agreeing that the services be compensated.

Elements to be Proved in an Action for Service, etc.—General Advice.—The result of these rules may be thus summarized, viz.: The elements to be established in an action for services by a physician against a patient are three in number—(1) the employment; (2) the performance of the services;[178] and (3) the value of the services, that value being either a fixed value determined by the terms of the contract between the parties, or the reasonable worth and value of the services determined by evidence of experts upon that subject. It is, therefore, important that physicians and surgeons should be advised, when entering upon the practice of their profession, to keep a record of their transactions and of their business generally. Because, if they are compelled to go into court to recover for their services, they will be called upon to describe with minuteness the character and extent of the services they have performed in order that the value thereof may be correctly ascertained and determined in the suit. Any person in active practice who is not blessed with a most tenacious and particular memory is liable to forget a great many details which, with a record in hand, properly kept, could be brought to his memory and be testified to with absolute truthfulness and conviction. And the record itself, when properly shown to be a book of original entry, is generally receivable in evidence, as a memorandum of the transaction.[179]

CHAPTER V.

OF THE PRIVILEGES AND DUTIES OF PHYSICIANS AND SURGEONS WHEN SUMMONED AS EXPERT WITNESSES IN COURTS OF JUSTICE.[180]

Introductory—Distinction Between Expert Witnesses and Other Witnesses.—One of the most important positions that a medical man is called upon to assume by virtue of his professional character, is the position of expert witness. Most writers on medical jurisprudence confine themselves, in the discussion of this subject, to presenting the medico-legal rules which appertain to this position, and concede its high importance. Before defining what is meant by the term expert witness, or treating of the rules which determine the status of such witnesses in court, and their duties, it seems advisable to introduce the subject by a brief consideration of the distinction between ordinary witnesses and expert witnesses. When medicine and law are united in the purpose of investigating facts, and bringing about a legal determination as to what are or are not facts, they co-operate with each other in this way. The law furnishes the machinery for the inquiry and the rules which determine how it shall be prosecuted. The medical man, however, is called upon as an assistant to the law, because of his skill and experience in his profession, which enable him to ascertain and interpret the circumstances from which the facts sought to be established are to be inferred. Ordinary witnesses testify concerning matters of observation, the court and jury being endowed with the sole power to determine the credibility of their evidence and the true result of their observations. Yet the border line of distinction between witnesses who testify merely to actual matters of observation, and those who give their opinions upon and draw inferences from established facts and circumstances, is a wavering one. The general rule of evidence is well understood, that hearsay evidence is inadmissible, and yet, like any other rule, this has its exceptions which grow out of the necessities of given cases. This is so because there are and always will be, matters brought before courts for investigation and determination, long after the witnesses who personally saw the facts and circumstances of the particular case in which such matters are concerned have died, or have withdrawn beyond the reach of the process of the court. Possibly no record in writing of such facts and circumstances has been left, or if in writing it lacks the sanctity of being a judicial writing, and hence is no better evidence than any other form of hearsay evidence. For this reason in matters of family history, pedigree, custom, and the like, hearsay evidence is permitted, and is entitled to as much weight as any other evidence, if the witnesses giving it be trustworthy.

In Matters of Common Experience Witnesses in General Often State Conclusions.—Moreover, in matters of common experience, the testimony of any witness, if carefully analyzed, often shows that he is sometimes allowed to draw, and state, his conclusions and inferences, instead of being required to confine his evidence simply to telling in the strictest possible way, and with the closest limitations, what he actually witnessed. A good illustration of this is the case of a person who sees a crime of homicide committed by shooting, and is called upon to testify in court. He would be allowed to testify that the defendant, if he could identify the prisoner at the bar as such, was the person whom he saw fire the shot, although he might not have examined him with close scrutiny, and might never have seen him before the crime. In saying that the defendant was the person who fired the shot, while he would be in terms testifying to a fact, he would still be drawing an inference, and giving an opinion, based upon his recollection of the person whom he saw engaged in the act of firing, and of the likeness or resemblance of such person to the prisoner at the bar, which would be a matter of comparison and of opinion. So, too, although he could not see the bullet take its course from the mouth of the gun and imbed itself in the body of the deceased, yet if he saw the firing, heard the explosion, saw the flash and smoke of the powder, observed the direction in which the accused pointed the weapon, and saw the deceased stagger and fall, he would be allowed to testify in answer to a direct question whether or not the accused shot the deceased. And, yet in making up that answer he would be testifying not simply to a matter of actual observation, but to a conclusion. As it is in reference to the question of identity so it is as to many other matters which come before our courts, in all of which the witnesses are permitted, without objection, to testify to conclusions and to give answers which are the result of inferences which they draw themselves, rather than a statement of their actual observations. The law is not a metaphysical but a practical science, limited and confined by the practical restrictions which experience has shown must be put upon it, in order to enable it to accomplish its object of administering justice between man and man. Men form such conclusions as have been indicated, instinctively and unconsciously, and it would be practicably impossible for them to narrate any occurrence without embodying in their narration some of these natural and unconscious conclusions. The law, therefore, includes among the matters which witnesses are permitted to characterize as facts, those daily and hourly inferences and deductions which all men are accustomed to make, and concerning which no two men who are properly constituted can greatly differ. It is true that this practice sometimes leads to error, but it has grown out of necessity. The greatest safeguard is, that upon the trial of a question of fact both sides are represented by counsel, and the opportunity which cross-examination offers to an advocate of even reasonable and ordinary skill is such, that these conclusions and inferences may be sifted down through the chain of observation, and the process of drawing these conclusions and inferences from a series of facts, tested in such a manner that the improbability, probability, or truth of any given inference or conclusion may be determined with substantial accuracy. The illustrations which have been given above exhibit the simplest form in which so-called direct testimony can be demonstrated to be not always positive and direct testimony, but somewhat a matter of inference. Other examples and illustrations of common occurrence will exhibit still more closely the line between actuality and opinion. At times it becomes essential to the determination of a question, that the courts should know whether or not a person was angry, whether or not he was intoxicated, or whether or not at a given time, when his mental status was under observation, he acted rationally or irrationally. Lay witnesses have for many years been permitted to testify from observation, and without possessing any special qualification to do so, as to the existence or non-existence of such conditions as those just mentioned in a person whose actions are under consideration. It is manifest that in making any such inferences the witnesses’ testimony is mainly a conclusion based on inference. Take the case of anger. How shall that be determined? It is difficult to describe anger. A loud voice, a flushed face, the use of bitter words, nervous, excitable, demonstrative action—all these symptoms might occur, or but few of them might occur. So, too, in the matter of intoxication. It is well known that some individuals exhibit the effects of intoxicants in an entirely different manner and degree from others. Some men who are very much intoxicated, so as to be quite incapable, in the eye of the law, of forming a criminal intent, or of contracting an obligation which would be valid, may still be able to walk perfectly straight, or to talk without much confusion. Others, whose walk and demeanor would indicate a considerable degree of intoxication, might be mentally clear and unruffled and even stimulated by intoxicants to precise mental co-ordination and reasoning. Again, there are persons, as to whom a witness, after stating that he had observed them, and after stating the particular matters and things in which such persons were engaged, might with apparent accuracy state that they acted rationally or irrationally, and yet such persons might nevertheless, upon further examination, be found to have been acting according to a particular custom or habit, or idiosyncrasy of long years’ standing. Thus it is apparent that in each of these cases, when the witness attempts to state what, out of necessity, the court treats as a fact—viz., whether a given person is or is not angry, or intoxicated, or irrational—the witness is really testifying to the result, in his own mind, of his observations of the condition and conduct of the person who is under investigation, when compared with a standard which the witness has erected for himself. Hence such results are really matters of opinion evidence, pure and simple. Other examples of a like character are found in statements as to weight, height, distance, speed, and the like, as to which men of common powers of observation, who are not strictly experts, are, because of convenience and necessity and the probability of reasonable and ordinary accuracy, commonly permitted to give their own judgment and conclusions as evidence.

All Witnesses Often Permitted to Draw and State Conclusions in Matters involving Numerous and Complicated Details.—Thus the practical necessity of the administration of justice has led to the establishment of the rule, that where the details of an occurrence are numerous and complicated, and are incapable of precise description by ordinary observers, witnesses are permitted to use, in testifying, general expressions which really embody their conclusions from the facts or details observed by them. Greenleaf on Evidence, Section 440, note A; Wharton on Evidence, Section 434.

Wharton says that “the distinction between expert witnesses and ordinary witnesses is this: the non-expert witness testifies to conclusions which may be verified by the adjudicating tribunal; the expert, to conclusions which cannot be so verified. The non-expert gives the results of a process of reasoning familiar to every-day life; the expert gives the results of a process of reasoning which can be determined only by special scientists.” See also People v. Fernandez, 35 N.Y., 49. People v. Deacons, 109 N.Y., 374-382.

This learned writer (Wharton) also says, at Section 437 of the same treatise:

“Where conclusions depend upon facts whose evidential weight can only be determined by those familiar with a particular specialty, then these conclusions may be given by experts in such specialty.” Such also is the exact derivative meaning of the word expert, it being derived from the Latin word “expertus,” meaning, literally, “experienced,” and hence skilled by experience.

Functions of an Expert Witness Essentially Judicial.—It is the function of an expert witness to reason about facts, to explain their connection with one another, and to draw conclusions and inferences from them. Hence, a witness, however expert in any ordinary sense in his specialty, when he is called upon merely to narrate facts which he has observed, is an ordinary witness, and is governed by the same rules which apply to the ordinary witnesses. When, however, he is called upon, in addition to recounting facts, to explain or interpret them by reference to assumed facts, he becomes properly an expert witness. It thus appears that an expert witness must necessarily perform a part of the duties which devolve upon the court or the jury. His position is, therefore, essentially judicial, except that he has no power to enforce his determinations by judicial process. The importance and responsibility which the law thus confers upon an expert are of the highest character. He ranks the coequal with the tribunal itself in his peculiar province, so far as relates to his individual responsibility. That this should tend to elevate such witnesses to a high social position, and ought to require the most exact and faithful integrity of purpose and statement, is self-evident.

Difference Between Status of Expert Witnesses in France and Germany and in the United States and England.—In some foreign countries, notably in Germany and in France, experts in medico-legal matters have an assured official position, and are generally not allowed to be selected at hap-hazard according to the will or the length of the purse of those who need their services. The consequence of this method of obtaining expert evidence is, that expert witnesses in those countries command a high measure of respect and honor.

Unfortunately, however, in this country, where the opposite practice prevails, the weaknesses of human nature are such that the common people, newspapers, lawyers, and even the courts in some recorded opinions and decisions, have come to express a great want of confidence in the weight and value of expert testimony. This deplorable result of a bad system of procedure is universally recognized, yet our State legislatures have as yet refrained from attempting to correct it.

Hence, in considering the value of expert testimony in matters of medical jurisprudence, it must be conceded, in the first instance, that the difference between the system prevailing in this country and in England, and that which prevails on the Continent, notably in Germany and France, has not tended to raise but to depress the value of such testimony in the first-named countries. In the latter countries, the experts upon medico-legal questions are officers of the court, or are treated as such. They form, in a sense, a part of the judicial system, and the expression of their opinions consequently carries with it great weight. Moreover, under the system which prevails there, it has been possible for men to be educated up to a high degree of skill and experience in the particular branches of physiological or psychological or physical investigations which they pursue, while here in America, and to a certain extent also in England, experts are such for other reasons, and by the operations of other causes, than the fact of their permanent employment in that capacity. As a general thing they become skilled in their profession or in the particular branches of it in which they practise as specialists, and are summoned to testify simply because they are selected by one party or another to a lawsuit.

Mr. Wharton’s View of this Question in the Main Hostile to the Prevailing System Here.—The effect of the methods which thus prevail has not been entirely to the advantage of the medical profession or of our courts. Wharton, in his work on “Evidence,” Section 454, observes upon this point: “When expert testimony was first introduced it was regarded with great respect. An expert was viewed as the representative of a science of which he was a professor, giving impartially its conclusions. Two conditions have combined to produce a material change in this relation. In the first place it has been discovered that no expert, no matter how learned and incorrupt, speaks for his science as a whole. Few specialties are so small as not to be torn by factions, and often the smaller the specialty the bitterer and more inflaming and distorting are the animosities by which these factions are possessed. Particularly is this the case in matters psychological, in which there is no hypothesis so monstrous that an expert cannot be found to swear to it on the stand, and to defend it with vehemence. ‘Nihil tam absurdo,’ which being literally translated means that there is nothing so absurd that the philosophers won’t say it! In the second place, the retaining of experts by a fee proportioned to the importance of their testimony is now as customary as is the retaining of lawyers. No court would take as testimony the sworn statement of the law given by counsel retained on a particular side, for the reason that the most high-minded men are so swayed by an employment of this kind as to lose the power of impartial judgment; and so intense is this conviction that in every civilized community the retention by a judge of presents from suitors visits him not only with disqualification but disgrace. Hence it is that, apart from the partisan character of their opinions, their utterances, now that they have as a class become the retained agents of the parties, have lost all judicial authority and are entitled only to the weight which sound and consistent criticism will award to the testimony itself. In making this criticism a large allowance must be made for the bias necessarily belonging to men retained to advocate a cause, who speak not as to fact but as to opinion, and who are selected, on all moot questions, either from their prior advocacy of them or from their readiness to adopt the opinion to be proved. In this sense we may adopt the strong language of Lord Kenyon, that skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.”

This author then proceeds to show that under the civil law system the conclusions of experts were formerly treated as unassailable facts, but under the English and American common law system this is not the case, but their testimony is to be weighed by the court. He says: “The grounds on which the conclusion is reached may be asked for: the expert’s capacity for drawing conclusions, as well as his premises, may be assailed. Cases of conflict are to be determined, not by the number of witnesses, but by the weight of their testimony, and though the opinion of an expert of high character may be entitled to great respect, yet if questioned, its authority must ultimately rest upon the truth, material and formal, of the reasoning on which it depends.”

Judge Davis, of the Supreme Court of Maine, in Neil’s case (cited in Wharton and Stille’s “Medical Jurisprudence,” Vol. I., Section 294), said: “If there is any kind of testimony that is not only of no value, but even worse than that, it is in my judgment that of medical experts. They may be able to state the diagnosis of a disease more learnedly, but upon the question whether it had at a given time reached a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinions of his neighbors, of men of good common sense, would be worth more than that of all the experts in the country.”

Such stinging criticisms as these, and others which might be cited, of a like character, may not be always merited. It is certain that medical experts’ opinions, if fully enlightened by scientific research and free from partisan bias, ought to occupy a position like that of judicial opinions in weight and decisiveness upon the questions submitted to them. Such was the position occupied in the public estimation, and in that of judges and counsel, by the great Dr. Caspar in Germany, and Foedere or Pinel, and others since their time, in France. But this position was acquired chiefly because of the fact already mentioned, that under the system of administration of justice which prevails in those countries these great men were regarded, and acted, as a component part of the judicial system. They were called in as officers of the law to assist the court in forming a judgment, and determining disputed questions of fact, in cases involving life and death, or the devolution of property, where scientific experience, knowledge and skill, not possessed by judges or by counsel, was necessary for the determination of the questions involved. The root of the evil in America is, as already pointed out, to be found in the system which allows parties to retain and pay their own experts without any substantial restrictions. Sooner or later, among the other reforms in our judicial system, it will be found necessary to reform this evil by the enactment of laws requiring that the witnesses in medico-legal cases, particularly those in which a crime is alleged to have been committed, shall be designated by the court, or by some public authority, and paid from the public treasury instead of by the parties. Such experts would then occupy their proper position of special counsel, advising and assisting the legal counsel and the court, but they would not be taken out of this sphere and put in the utterly inconsistent one of witnesses. Their status and their duties would be as clearly distinguished from that of expert witnesses as now known, as the status and duty of the lawyer are from the status and duty of the judge. The present system has been said to be very much like putting a lawyer, who has just argued his client’s case, on the bench to decide it. Whether experts should be appointed as permanent government officials, like our judges, or should be selected specially for each case like juries, referees, or arbitrators, and in the latter event whether they should be nominated by the parties and selected by the court from such nominees, or otherwise, are all questions of detail.

Our judges and lawyers seem slow to recognize the fact that the duties of experts are judicial, or at least quasi-judicial; to pass upon certain facts which neither the court nor the jury can understand without their aid. But, as we have seen from the citations just given, judges and lawyers have fully recognized the unreliability of expert testimony, produced as it now is in England and in this country at the whim and selection of the parties and paid for, much or little, according to the means of the parties.[181]

Method of Preliminary Examination of Experts—On Medical Questions a Licensed Physician Presumed Competent.—As the system exists here, the only power that the court has over the selection of an expert, is to determine, in advance of his testimony and of the elucidation of his opinions, whether or not he is competent as an expert. But this power affords little or no check or restriction, because in the effort to get all the light that is possible upon the questions under consideration, and to avoid unduly interfering with counsel in the conduct of the case at bar, the practice has become universal, and is recognized in the decisions and text writers, of permitting any medical man who has a license to practise his profession, to testify as an expert, and to give his opinion as such on any question cognate to his profession. This is so without regard to the amount of study and experience he may have had in the particular matter under consideration. The naked fact that he is licensed to practise is enough. He then—that is, after testifying that he is a practising physician—is clothed with the garment of authority. The only way in which his knowledge can be tested is by cross-examination as to his experience and skill, and possibly by contrasting him as he appears upon the witness-stand and his history as he gives it, with other and more or less experienced and skilful men who follow him.

The rule is, that when a witness is produced to give an opinion on a medical question, he is interrogated by the counsel who produces him as to his qualifications. At this point, before he is allowed to give his opinion, it is proper and customary that the counsel upon the other side of the case should be allowed an opportunity to cross-examine as to his competency, and then the court determines whether or not he is a competent witness. If the court pronounces him competent, a hypothetical question is put to him stating the facts of the case, as the counsel interrogating him claims them to be established by the evidence, and the expert is then asked to give his opinion on the question at issue, based upon an assumption that the facts stated are truly stated. Then the opposing counsel has the right to cross-examine, and to ask his views and opinions upon the same question at issue, but assuming as true other and different facts or premises, as he claims them to be established by the evidence. This often involves a test of wit and intelligence, and of forensic acumen, between the counsel and the witness, which serves very little useful purpose, except perhaps to elucidate more strongly than has been here stated the defects of the system which now obtains. It is also not unusual, and in fact is the result of the workings of human nature, that under the manipulations of counsel skilled in cross-examination, skilled in methods of indirection in stating facts, and armed with the powerful weapon of the rule which permits them to insist upon a categorical yes-or-no answer to a question, the jury and the court become confused, the witness loses his temper, or becomes affected more strongly than ever before by bias against his persecutors, as he feels them to be, and the examination ends in a farce. This is not always the case, and the illustration given is an extreme one. Like the citations from judicial criticism of expert testimony which have been given, these matters are only adverted to here as danger signals, a warning to both professions, and with an earnest suggestion of the necessity of reform.

EXPERTS, HOW SUMMONED INTO COURT.

They Must Obey the Summons and Appear and be Sworn. In General they need Not Give their Opinions unless Duly Compensated.—An expert witness is brought into court like an ordinary witness by the usual process of the court. This process is, under the American system, an ordinary subpœna, and, being process of the court, whether or not he has been paid or promised compensation for giving his opinion he must obey the process to the extent at least of appearing in court when called, to be sworn. Interesting questions have been raised as to his obedience to the subpœna to the extent of testifying when he has not been compensated. It has been argued, and the argument is sustained by the decisions of courts of high authority in some States, that his knowledge and skill, acquired by study and by experience, is his property, of which he cannot be deprived without just compensation, under his constitutional rights guaranteed to him by the organic law of this country. On the other hand, in some other States it has been held that he is so far a necessary part of the judicial system that he may be called upon to give the results of his experience, knowledge, and skill forming his opinion, without payment other than the ordinary compensation to witnesses. It is believed, however, that the better opinion is the former; that he does not stand on the same footing as an ordinary witness, whose province it is to testify solely to matters of observation of fact, but that he stands in the position of one who has something to give; something to impart in the way of knowledge or experience, which is his property as much as any other thing movable or immovable of which he is possessed.

A somewhat different question has arisen in the case of a witness who, like a family physician or attending physician, has learned facts and has been paid for his attendance, or who exacts payment for his attendance, as a physician from his patient, and this question is; when such a professional man has been called upon to testify to the information he thus attained, whether he can be asked for, and required to give, opinions based on those facts? Necessarily, having learned the facts by observation, such as the appearance, symptoms, and actions of the patient, he is, when testifying as to these matters, nothing more or less than an ordinary witness, because he is testifying to matters of observation. As to these matters public policy requires, except so far as it has been modified, or rather extended, by our statutes which forbid testimony as to privileged communications, that he must testify, the same as any other witness. But suppose that, having so testified to the facts, he is asked to give his opinion; for example, in an insanity case, whether the symptoms that he found in his patient led him to the belief as a professional man of experience and skill that his patient was sane or insane. The question is, Can he be compelled to give that opinion, if he chooses to decline to give it without the promise or assurance of further compensation than the mere per diem fee and mileage of an ordinary witness? The best authority is to the effect that he must so testify, the reasoning of the court being that his opinion is only a part of what he derived from his original relation of physician to his patient. Wright v. The People, 112 Ill., 540; same case, 33 Alb. L. J., 79.

Same Rule in Civil and Criminal Cases.—The rule is the same whether the professional man is called to testify as an expert in civil or criminal cases. In either one he is not obliged to give an opinion as such, independent of a personal knowledge of the facts in the case, without being paid or assured reasonable compensation therefor. His proper course of conduct is, when he has obeyed the subpœna and is in the presence of the court and has been sworn, and the questions put by counsel disclose that the object of his examination is to elicit from him an opinion, to state to the court that he has not been paid any other compensation than that of an ordinary witness, and that he respectfully declines to give an opinion in the case as an expert, without compensation proportionate to the value of his opinion.[182]

Whether Witness Competent a Question for Court in Limine.—After the expert is placed upon the stand, as we have seen, the counsel upon the side of the case by which he is summoned interrogates him as to his capacity, the purpose of the interrogation being that his answers shall qualify him and show him to be an expert. Whether or not he is an expert so as to permit the giving of his opinion as part of the case to go to the jury, is for the court to decide in limine, that is, at the threshold, and as a matter of discretion, and the exercise of that discretion, if fair and reasonable, will not be disturbed upon appeal by the higher court. It is permissible, but also discretionary, after the counsel calls the witness and has apparently qualified him, for the counsel upon the other side to cross-examine the witness as to his qualifications before he is examined in chief, with a view of determining whether or not there are limitations upon those qualifications which should prevent the court from permitting him to testify as an expert. The general rule is as stated by Greenleaf in his work on Evidence, Sec. 440, that it is not necessary that the medical expert should have actually practised his profession. Nor is it essential that the witness should belong to any particular school of medicine. The law does not undertake to pass upon conflicting theories of medical practice, in determining the question of the qualification of a medical expert. It is proper, however, for counsel to inquire as to what school of medicine the witness is an adherent, because of its importance in weighing the value of his testimony after it has been given.

Persons Not Duly Licensed Sometimes Held Not Competent.—It has also been a mooted question in those States where it is necessary, in order to enable a person to practise physic or surgery, that he should be licensed, whether a person practising without a license, however extensive his reading and practice, would be considered qualified as an expert witness in a court of justice. This point, so far as diligent examination discloses, has not been determined in any reported case, although it has been suggested at nisi prius and has been, in one instance within the knowledge of the writer, decided that he is not to be considered an expert in matters involving medical knowledge and skill. The reasoning of the court was that the policy of the State is to prohibit persons not possessing the qualifications required to obtain a license, from acting in any capacity as professors and practitioners of medicine or surgery. If the witness is a member of the profession, legally qualified as such, it has been held that he is sufficiently qualified as an expert if he shows that he possesses the average ability of members of his profession. Hall v. Costello, 48 N. H., 176; Tellis v. Kidd, 12 Ala., 648; Wharton on Evidence, Sec. 446; Rogers on Expert Testimony, Secs. 17 and 18; Slocovich v. Orient Mutual Ins. Co., 108 N. Y., 56.

As to the question whether it is necessary that the witness should actually have practised his profession, see the last-cited text-writer, Secs. 43 and 44, who seems to have entertained views opposite to those stated by Professor Greenleaf.

Wharton on Evidence, Sec. 439, states the rule as follows: “He must have special, practical acquaintance with the immediate line of inquiry more than a mere vague, superficial knowledge. But he need not be acquainted with the differentia of the specific specialty under consideration.... A general knowledge of the department to which the specialty belongs would seem to be sufficient.”

Interested Persons may still Testify as Experts.—Since the law forbidding interested persons from being witnesses has been changed, it has been suggested that an interested person although otherwise qualified might not be a competent witness to give an opinion as an expert. But the established doctrine is that he may give such an opinion; the weight of it, however, would be for the jury to determine. Greenleaf on Evidence, Redfield’s edition, Sec. 440, citing Lockwood v. Lockwood, 2 Curtis, 309; Dillon v. Dillon, 3 Curtis, 96, 102. See also Dickinson v. Fitchburg, 13 Gray, 546.

Testimony of Expert, how Impeached.—Sometimes, on cross-examination or otherwise, the fact becomes known that the witness who is proposed as an expert has expressed an opinion on the subject in hand contrary to that which he has given upon the witness-stand, and the question has been raised as to establishing that fact at the outset and before his testimony goes before the jury, in order to enable the trial judge to determine whether he is competent. The rule in that case is that the testimony as to his prior expression of opinion is not to be received at that time, but will come properly up as rebuttal, he having been asked upon his cross-examination, giving time and place, whether he has made the statements attributed to him. An expert witness may in other respects be impeached like any other witness, that is, by the oaths of persons who know him and have known his reputation, and who testify that his reputation for truth and veracity is bad and that they would not believe him under oath. He may also be impeached by producing witnesses to prove that his special knowledge or technical skill is not reliable or adequate to the undertaking which he has assumed. But this testimony must be from personal knowledge of the man and not from general reputation. Wharton on Evidence, Sec. 437; Le Rose v. Commonwealth, 84 Pa. St., 200.[183]

General Rule as to Required Amount of Skill and Experience Stated.—The general rule may be stated thus, as derived from these and other authorities:

The extent of the previous study and investigation, and the amount of skill and information which must be shown, will depend upon the facts of each particular case. But some special and peculiar knowledge or skill must be established, the amount of it to be determined by the trial judge in his discretion. The possession of such knowledge and skill is presumed in medico-legal cases if the witness is a licensed practitioner.

Some Practical Suggestions as to Conduct of Witnesses on the Stand.—In this preliminary examination, the conduct and demeanor of the witness are of no little importance, because it is then and there that he makes his first impression upon the court and jury. He should be perfectly open and unreserved in stating his means of special information, in explaining what are the limits of his personal experience and the extent of his reading; but, at the same time, it would be well for him to avoid all appearance of self-glorification and all tendency to exaggerate his individual acquirements. Often has it occurred that expert witnesses of undoubted capacity and honesty, who are unfortunately grandiose and self-assertive in their manner, have, however honest and able they might be, lost entirely their weight with the court and jury by undue self-complacency and exaggeration of their personal qualifications, during their preliminary examination. This is a matter requiring tact and judgment and nerve, and should be fully understood between counsel calling him and the witness, before the witness is placed upon the stand. In that event, it will be quite safe for the witness to closely follow the questions of counsel by his answers, and to volunteer little or nothing. If his answers are not full and complete enough, counsel can renew the question in the same or in other form or carry the matter into greater detail. If, on the other hand, his answer is too full or he appears too eager, he may create a prejudice against him which nothing can overthrow, and which the art of counsel upon the other side in cross-examination and in making comments upon his testimony when summing up before the jury, will very effectually use to destroy his weight as an expert.[184]

Scope and Extent of Examination of Expert Witnesses.—Having stated how experts may be summoned and qualified, it remains to consider the scope and extent to which they may be examined.

The advancement of the sciences and the progress of research in special fields of knowledge have made expert testimony of large importance during the present century. The basis of its admission is the fact that there are certain processes of reasoning which an ordinary jury is incapable of performing, even with the assistance of courts and lawyers. Oftentimes in the administration of justice in our courts, proof is given of circumstances which although admitted would have little or no significance in the mind of an ordinary juror, and which he would be unable to contrast and compare with other facts, successfully, without the aid of those more familiar with scientific matters and the inductive process of reasoning than he is. In such cases it is necessary that the jury should be specially enlightened by persons who have, through training, skill and experience, acquired the power to enlighten them. A common instance and illustration of this matter is to be found in the case of homicide by poisoning. A human body is found dead; externally there may be no indicia to show positively the cause of death. Under such circumstances the laws of all civilized countries permit what is called a post-mortem examination by skilled physicians, who, finding no external evidences of the cause of death, are permitted by the officers of the law to remove the internal portions of the body for special and careful examination. If this discloses traces of inflammation or of lesions of an abnormal character, further power is vested in the authorities to have at the expense of the State a chemical examination of the internal organs. If this examination, which is necessarily long and excessively technical, results in the discovery of any poisonous substance, such as would produce death, and if it is found in sufficient quantities to produce death, these persons who made the post-mortem examination and discovered the outward indications of the administration and effects of the poison, and the chemists who discovered the poison itself in the tissues of the body, in sufficient quantities to produce death, are called as experts before the jury. The post-mortem examiners explain what the appearance of the body was, as distinguished from the appearances of the body of an individual who had died from natural causes. The chemist describes his course of experimentation, the various deductions which he made from his experiments, the tests which he applied in his investigation in discovering poison, and is then allowed to testify that the poisonous substance was found in sufficient quantities to produce the physical appearances which the post-mortem examiners have described, and to accomplish the death of the human being in whose body the poison was found. It is obvious that the power of observation and the skill, which the skilled chemists and physicians used as the basis of their reasoning in this case, were such as an ordinary man, unskilled and inexperienced, would not possess, and the ability to use them must have come from the study of treatises on such subjects, and from teaching and experience, to such an extent as to entitle the persons so testifying to be considered by the courts as qualified to express an accurate and sound opinion on the matters and things under investigation. Thus it appears how, in such cases, a departure became essential to the successful administration of justice, from the strict rule that witnesses shall testify solely to matters of fact and observation, and why it has long been considered that some witnesses must be allowed to testify to opinions and conclusions.

Again, in a like case, a body is found bearing evidences of wounds or bruises. The question to be determined is whether they were inflicted before or after death; if before death, whether they were sufficient to cause death. Some wounds and injuries might be sufficiently apparent and dangerous so that the common, inexperienced eye would at once detect that they were sufficient to cause death. But in most instances this is not the case, and in such instances the testimony of experts is required by the necessity of the case, to show that the wounds and injuries were sufficient to cause death.

The General Rules Stated as to Subjects for Expert Testimony.—Hence the general rule is, that wherever the facts to be investigated are such that common experience and knowledge of men do not enable them to draw accurate conclusions, but are such that the study and experience of specialists do enable such specially endowed persons to draw accurate conclusions, then the inferences and deductions they have drawn can be testified to by those who qualify themselves before the court as persons having sufficient skill and experience as such specialists to entitle them to give opinions. The cases in which expert testimony is permitted to be given are set forth in Rogers on Expert Testimony, Sec. 6, quoting from Jones v. Tucker (41 N. H., 546), as follows:

“1. Upon questions of science, skill, or trade, or others of like kind.

“2. Where the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment without such assistance.

“3. Where the subject-matter of investigation so far partakes of the nature of science as to require a course or previous habit of study in order to the attainment of knowledge of it.”

So also Chief Justice Shaw of the Supreme Court of Massachusetts, in New England Glass Co. v. Lovell (7 Cushing, 319), said:

“It is not because a man has a reputation for sagacity and judgment and power of reasoning that his opinion is admissible in testifying as a witness. If so, such men might be called in all cases to advise the jury, and it would change the mode of trial; but it is because a man’s professional pursuit, or his peculiar skill and knowledge of some department of science not common to men in general, enable him to draw inferences where men of common experience, after all the facts have been proved, would be left in doubt.”