tlling. 2 M. & Rob. 107. (/») K. V. Chambcrlaine, 10 Cox, C. C. 486; Blackburn, J. (/■) State V. Shitlz, 55 la. 628. {J) Rex V. IVilliainson, 3 C. & P. 635 ; 14 Eng. Com. Law Rep. 297. (k) Cap. 4, sec. 16. t I i-'S^ws'^'i^gH.'M 80 THE LAW AND MEDICAL MEN. charged the jury very similarly in one of St. Jolin Long's celebrated cases. "If," said his Lordship, "you think there was gross ignorance or scandalous inattention in the conduct of the prisoner, then you will find him guilty ; if you do not think ?i, then your verdict will be otherwise" (l). Wharton considers that the position assumed by Lord Ellenborough depends upon the honesty and ])ona fides of the practitioner ; and that if he is pursuing a plan of bold imposture the lav/ would be otherwise (?»). In Long's case, Baron Garrow said, " I make no distinc- tion between the person who consults the most eminent physician and the cases of those whose necessities or whose folly may carry them into any ether quarter. It matters not whether the individual consulted be the President of the College of Surgeons, or the humblest bone-setter of the village ; but, be it one or the other, he ought tc bring into the case ordinary skill and diligence. I am of opinion that if a person who has ever so much or so little skill sets . my leg and does it as well as he can and does it badly, he is excused ; but, suppose the person comes drunk, and gives me a tumbler full of laudanum, and sends me into the other world, is it not manslaughter ? And why is that ? Because I have a right to have reasonable care and cau- tion." In a subsequent case against the same practitioner, Bayley, B., said to the jury, " I have no hesitation in saying for your guidance, that if a man be guilty of gross neglect in attending to his patient after he has applied a remedy, or of gross rashness in the application of it, and death ensues in consequence, he will be liable to a convic- tion for manslaughter." "I consider rashness will be suffi- cient to make it manslaughter. As, for instance, if I have the toothache, and a person undertakes to cure it by (/) Rex V. St. yohn Long, 4 C. & P. 378 ; 19 Eng. Com. Law Rep, 404. (wt) Wharton on Homicide, sec. 148. CRIMINAL MALPRACTICE. 87 administering laudanum, and says, ' I have no notion how much will be sufficient,' but gives one a cupful, which immediately kills ; or if a person prescribing James' pow- der says, ' I have no notion how much should be taken,' and yet gives one a tablespoon ful, which has the same effect ; such persons, acting with rashness, will, in my opinion, be guilty of manslaughter. A prosecution is for the public benefit, and the willingness of the patient cannot take away the offence against the public " («)• The matter has been well put in a Missouri ease. " If," said thf Judge, " the party prescribing has so much knowledge of the fatal tendency of the prescription that it may reasonably be presumed that he administered the medicine from an obstinate and wilful rashness, and not from an honest intention and expectation of effecting a cure, he is guilty of manslaughter at least, though he might not have intended any bodily harm to the patient "(o). It is the presence of intention which determines the moral complexion of an action, and whenever this intention (al- ways presumed to be good) is proved to be bad, then, and then only, does a physician become criminally responsible for his wrongdoings. Doubtless, a bad intention may be at times inferred from the character of the misconduct ; and neglect, particularly when gross, may be classed among those reasons which justify such an inference (p). "What the law deems gross negligence has been thus defined in a case where a " Herbalist " was on trial for manslaughter, for the death of a patient through an over- dose of colchium seeds and brandy for a cold. " Gross negligence might be of two kinds ; in one sense, where a man, for instance, went hunting, and neglected his patient, (n) Rex V. St. John Long, 4 C. & P. 423 ; 19 E. C, L. R. 440. (0) Rice V. The State, 8 Mo. 561. - (p) Ordronaux, sees. So, 77. But see R. v. JSlancy Simpson, 4 C. & P. 407 n. '1 i 88 THE LAW AND MEDICAL MEN. 'tm who died in consequence. Another sort of ^'ross ncpliRence consisted in rashness, where a person was not sufficiently skilled in dealing with dangerous medicines which should be carefully used, of the properties of which he was ignor- ant, or how to administer a proper dose. A person who, with ignorant rashness, and without skill in his profession, used such a dangerous medicine, acted with gross negli. gence. It was not, however, every slip that a man might make that rendered him liable to a criminal investigation. It must be a substantial thing. If a man knew that he was using medicines beyond his knowledge and was med- dling with things above his reach, that was culpable rash- ness. Negligence might consist in using medicines in the use of which care was required, and of the properties of which the person using them was ignorant. A person who so took a leap in the dark in the administration of medi- cines, was guilty of gross negligence. If a man was wounded and another man applied to his wound sulphuric acid, or something which was of a dangerous nature, and ought not to be applied, and which led to fatal results, then the person who applied this remedy would be answerable, and not the person who inflicted the wound, because a new cause had supervened. But, if the person who dressed the wound applied a proper remedy, then, if a fatal result ensued, he who inflicted the wound remained liable." In these words Willes, J., charged the jur^ , and they, after a long deliberation, brought in a verdict of " not guilty " iq). And in the very recent case of State v. Har- dister (r), it was held that a physician is criminally liable for his gross ignorance causing the death of his patient, but not for a mere mistake of judgment. However, in the celebrated case against the father and founder of the botanic or steam system of medicine, whose {q) Rex V. Markiiss, 4 F. & F. 356. (r) 38 Ark. 605. " ^ " ^. -^ - - CHIMINAL MALPRACnCE. 89 fiivoritt' i-eiuedios were coffee, ** well-my-gristle," aud "ram cats," it was hekl, that if a person assuuiing to be a pliysi- cian, through gross ignorance, but lionestly and Imiki jidf, administers medicine which <3au8es the death of the patient, he is not guilty of manslaughter (s). This was in the yeai 1809 ; and the doctrine laid down was followed in 1844 in Missouri in an exactly similar case {t). And quite recently in Iowa, where one Shulz was tried for manslaughter because his patient died under the 13aun;:^cheidt practice, J. e., pricking the body and rubbing in a certain kind of oil, the Court on review said: "In 2 Bishop's Criminal Law, (4th Ed.) sec. 61)5, the law upon this subject is declared as follows : * From the relationship of physician and l)atient the death of the latter not unfrecpiently arises. On this subject the doctrine seems to have been held that whenever one undertakes to cure another of disease or to perform on hira a surgical operation, he renders himself thereby liable to the criminal law, if he does not carry to his duty some degree of skill, though what degree may not be clear ; consequently, if the patient dies through his ill- treatment, he is indictable for manslaughter. On the other hand, a more humane doc.rine is laid down, that since it is lawful and commendable for one to cure another, if he undertakes this office in good faith and adopts the treat- ment he deems best, he is not liable to be adjudged a felon, though the treatment should be erroneous, and in the eyes of those who assume to know all about this subject, which in truth is understood by no mortal, grossly wrong, and though he is a person called, by those who deem themselves wise, grosslj- ignorant of medicine and surgery. The former doctrine seems to be the English one, and so in England a person, whether a licensed medical practitioner or not, who undertakes to deal with the life or health of ••T[ 'i (s) Com. V. Thompson. 6 Mass. 134. (0 Rice V. State. 8 Mo. 561. n I 90 THE LAW AND MEDICAL ME!:. 1 ;:, i i|' i-( !r 1 (!-" H ill . . c! Ill %'^- people, is bound to have competent skill or suffer criminally for the defect. Now, if a man thinks he has competent skill, and makes no misrepresentation to his patients concerning the amount or kind of medical education actually received by himself, he seems in reason to stand on exactly the foundation occupied by every person who honestly undertakes medical i^iactice after full advantages, so far as concerns his state of mind, and it is the mind to which we look in questions of legal guilt. Any person undertaking a cure, but being gi ossly careless and thus producing death, is for a different reason liable to a charge of manslaughter, whether he is a licensed practitioner or not.' These cases seem to us to announce a correct rule. The interests of society will be subserved by holding a physician civilly liable in damages for the consequences of his ignorance, without imposing upon 'lim criminal liability when he acts witb good motives and honest intentions "(it). If the death of a man has been accelerated by the want of due skill and competency, or by the carelessness, of his pi.ysician, the latter cannot defend himself by proving that his patient was afflicted with a mortal disease (r). If a man who has received a sei'ious wound is placed under the charge of a surgeon who, in probing the wound or otherwise operat- ing on the patient, immediately causes his death ; then, if the surgeon has acted negligently, or maliciously, he is indictable for the homicide, and the original assailant only for an attempt. But, if the surgeon using due skill and care occasions death while he is endeavouring to heal the wound, then he who inflicted the \vOund is chargeable with t)ie death ; for he \vho does an unlawful act is respon- sible for all the consequences that in the ordinary course of events flow from it. It is an ordinary consequence of a wound that a suigeon should be called in to attend to it, (h) ^5 Iowa, 698. (V) R. V. Webb, i :M. Ot R. 405 Wharton on Homicide, sec. 405. CRIMINAL MALPRACTICE. 91 and it is a necessary incident ot sui-gevy that patients should die under the knife. It is no defence, where a death is not shewn to have been produced by the medical attendant's negligence, that the deceased might have re- covered ii a higher degree of professional skill had been employed (w). If a person is assailed by a fatal disease, and there is no escape from it, save by a dangeroas surgical operation, then, if he gives his free and intelligent consent to the operation, and it is skilfully performed, the burgeon cannot be blamed even though the patient perish under the knife. The German Jurists go still further and say, suppose a dangerous opsration is required as the last hope of resusci- tating an unconscious person ; if the operation is performed with the skill usual to surgeons under such circumstances, and death ensue, the surgeon is blameless [x). If a woman is in such a state of labor that her life can only be pre- served by the sacrifice of that of the child, then it is not only the right but the duty of the attendant to save the mother at the expense of the babe. Wharton says that this position is indisputable (?/). From the leading cases the following propositions may be extracted, say Wharton and Stille, sec. 1063. 1. If the defendant acted honestly and used his best skill to cure, and it does not appear that he thrust himself in. the place of a competent person, it makes no difference whether he was at the time a regular physician or sui'geon, or not. 2. To constitute guilt, gross ignorance or negligence must be proved. (iv) R. V. Lcc, 4 F. & F. 63 ; Com. v. McPikc, 3 Cush. 181 ; Com, v. Hackctt, 2 Allen, 137; Wharton on Homicide, sec. 38^. {x) Wharton on Homicide, sec. 554. (y) Wharton on Homicide, sec. 557. i. m ■1 ■I 92 THE LAW AND MEDICAL MEN. 3. A defendant who, with competent knowledge, makes a mistake in a remedy is not answerable, but it is other- wise when a violent remedy, shewn to have occasioned death, is administered by a person grossly ignorant but with average capacity, in which case malice is presumed in the same way that it is presumed when a man compos mentis lets loose a mad bull into a thoroughfare, or casts down a log of wood on a crowd. 4. Where competent medical aid can be had, the appli- cation of violent remedies by an ignorant person, though with the best motives, involves him iu criminal responsi- bility. 5. Express malice, or an intent to commit a personal or social wrong, makes the practitioner criminally responsible in all cases of mischief. These well known writers say, that according to Caspar and Bocker, in the treatment of internal diseases, the phy- sician can never be held guilty of criminal carelessness for failing to use anj' particular remedy, since there is never any remedy upon which all authorities are agreed, and since it is always possible the patient may recover without the use of such remedy {z). (z) Medical Jurisprudence, sec. 1059. PROFESSIONAL EVIDENCE. 93 CHAPTER VII. *■ PEOFESSIONAL EVIDENCE. It was decided nearly one hundred years ago, in the Duchess of Kingston's case, that a medical man has no privilege to avoid giving in evidence any statement made to him by a patient, but that he is bound to disclose, when called upon to do so in a court of justice, every communica- tion, however private and confidential, which has been made to him by a patient while attending him in a profes- sional capacity {a) . This has often been deemed a grievance by medical men, and considered a compulsory breach of professional ethics ; for the relations between patient and physician, being necessarily of a confidential character, communications made to a physician are looked upon, by the profession, as confessions which should be kept religi- ously locked in the brain of the physician. Lord Mansfield said, "If a medical man was voluntarily to reveal those, secrets, to be sure he would be guilty of a breach of honour and of great indiscretion, but to give that information which by the law of the land he '"s bound to do will never be imputed to him as any indiscretion whatever " (h). A French writer says, the tribunals neither ought, nor have they the power, to exact from a physician the revela- tion of a secret confided to him because of his office ; at all events, he may and ought to refuse to tell. Religion, (a) Duchess of Kingston's Cnsc, 20 Howell St. Tr. 573 ; Wilson v. Rastall, 4 T. R. 760; Grecnougli v. Gaskill, i Myl. & K. 103; /?. v GibbonSr I C. & P. 97 ; Broad v. Pitt, 3 C. & P. 579. (6) Duchess of Kingston's Case, supra. ;< 1 'jp «r ^ f y ■ »i 94 THE LAW AND MEDICAL MEN. probity, nay, the rights of society, make this the law. Still more are we bound to secrecy when not compelled to disclose. Upon this point casuists and jurisconsults are of one opinion (c). These communications between physician and patient, which may relate to the history of a transaction in which a wound has been received, or a particular disease com- municated, whenever essential to the treatment of the pa- tient's case, are in some States of the American Union con- sidered privileged communications, which the physician is either expressly forbidden, or not obliged, to reveal. This is the law in Arkansas, California, Indiana, Michigan, Iowa, Missouri, Minnesota, Montana, New York, Ohio and ^Yis- consin. In Wisconsin he is not compelled, and in the other States named he is not allowed to make the disclosure ; but in Minnesota the prohibition extends only to civil cases ; and in Iowa, Indiana and Minnesota, the seal can be removed by the patient himself. In these States the con- fession, in order to be protected against disclosure, must relate exclusively to such matters as are indispensable to the professional treatment of the patient. Communications made o'ltside of this sphere acquire no immunity from having been entrusted to physicians, for at common law such are not deemed privileged, and wherever so recognized they are the creatures of statutory enactment {d). As stated, in some of the above-mentioned States, the party interested may waive the privilege, in which case the communication may be disclosed (e). But in New York it is expressly enacted that *' no person duly authorized to 2)ractise physic, or surgery, shall be allowed to disclose any information which he may have acquired in attending any (c) Belloc. C'^urs de Med. leg. 17. ((/) I Greenleaf on Evidence, sec. 248 ; Campan v. North, 39 Mich. 606. (t) Harris v. Russel, 16 Ind. 209 ; StaimtoH v. Parker, 19 Hun. 55 ; Fraser y. yenneson, 42 Mich. Z06. , i ., PROFESSIONAL EVIDENCE. 95 patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon "(/). Yet, even there, the statute will not be construed so as to shield a person charged with a crime, instead of being a protection to the victim, the patient (ri). The seal upon the physicians lips is not taken away by the patient's death (h). Necessarily all communications to be privileged must 1 e of a lawful character, and not against morality or public policy : hence a consultation as to the means of procuring an abortion on another is not privileged ; nor, by parity of reason, would any similar conference which was held for the purpose of devising a crime or evading its consequences (/). It must appear not only that the information was acquired during professional attendance, but was such as was neces- sary to enable the physician to prescribe. It is for the party objecting to shew that the information sought to be obtained is within the statutory exclusion. " It will not do to extend the rule of exclusion so far as to embarrass the administration of justice. It is not even all informa- tion which comes within the letter of the statute which is to be excluded. The exclusion is aimed at confidential communications of a patient to his physician, and also such information as a physician may acquire of secret ailments by an examination of the person of his patient. The policy of the statute is to enable a patient, without danger of exposure, to disclose to his physician all inform- (/) 2 N. Y. Rev. St. 406, sec. 73 ; Hunn v. Hunn, i Thomp. & C. 499. . (g) Pierson v. People, 79 N. Y. 434. (//) Cuheu V. Continental, etc., Ins. Co., 41 N. Y. Super. Ct. 296; Grattan V, Metropolitan L. Ins. Co., 80 N. Y. 281. ; , (i) Hewitt V. Prime, 21 Wend. 79. ^ , 96 THE LAW AND MEDICAL MEN. f ' I- If ' ( 11^ atioii necessary for his treatment. Its purpose is to invite confidence and to prevent a breach thereof. Suppose a patient has a fever, or a fractured leg or skull, or is a raving maniac, and these ailments are obvious to all about him, may not the physician who is called to attend him testify to these matters ?" "Before information sought to be obtained from physicians, witnesses can be excluded. The court must know somewhat of the circumstances under which it was acquired, and must be able to see that it is within both the language and the policy of the law" (j). A report of the medical officer of an insurance company on the health of a party proposing to insure his life is not privileged from production ; nor is the report of a surgeon of a railway company, as to the injuries sustained by a passenger in an accident, unless such a report has been obtained with a view to impending litigation (/c). Representations made by a sick person of the nature and effects of the malady under which he is suffering are receivable as original evidence, whether made to a physician or to any other ; though, if made to a physician, they are entitled to greater weight than if made to a man incapable of forming a correct judgment respecting the accuracy of the statements, from unacquaintance with the symptoms of diseases (/). When the bodily or mental feelings of a party are to be proved, his exclamations or expressions indicating present pain or malady are competent evidence (m) ; and ( /) Ediiigton V. JEtiia Life Ins. Co., 77 N. Y. 564, but see Fdingtoii v. Minn Life Ivs. Co.. 67 N. Y. 185. (k) Lcc V. Hammei'ton, 10 L. T. ; N. S, 730 ; Mnhony v. Nat. Widow's Life Assurance Fund, L. R. 6 C. P. 252 ; Baker v. London &> S. W. Rail- way, L. K. 3 Q. B. Qi ; Cossey v, L. B. &> C, L. R. 5 C. P. 146 ; Skinner V. G. N. R,. L. R. 9 Ex. 298. (/) Aveson v. Lord Kinnaird, 6 East 188 ; Taylor on Evidence, sees. 580, 581, 7th ed. (in) Bacon v. Charlton, 7 Cush. 5S6 ; Chapcn v. Marlborough, 9 Gray 244 ; Barber v. Mcrriam, ir Allen 322. ■^<^ PROFESSIONAL EVIDENCE. 97 the complaints and statements of the injured party, if made at the very time of the occurrence, are admissible as res geshe, not only as to the bodily sufifering, but as to the circumstances of the occurrence ; and the time in question is not the time of injury, but the time when it is material to prove a condition of bodily or mental suffering, and that may be material for weeks, and perhaps months, after an injury has been inflicted. The statements are admissible even though made after the commencement of an action, though this may be a circumstance to detract from the weight of the evidence of a physician, so far as it was founded on the statements (n). But statements or declara- tions of a sick or injured person, referring to his state and condition at a time past, and not furnishing evidence of a present existing malady, are to be carefully excluded, whether made to an expert or a non-expert (o), and state- ments in writing by patients to a medical man, describing the symptoms of the illness upon which the physician has advised the patient, are also inadmissible in evidence (j)). It has been said in Illinois, that as a physician must necessarily, in forming his opinion, be, to some extent, guided by what the sick person may have told him in de- tailing his pains and sufferings, not only the opinion of the expert, founded in part UPon such data, is receivable in evi- dence, but that he may state what the patient said in des- cribing his bodily condition, if said under circumstances which free it from all suspicions of being spoken with refer- ence to future litigation and give it the character of res gestae iq). {«) Kennard v. Burton, 25 Me. 39 ; Gray v. McLaughlin, 26 la, 279 ; Brown v. A'. Y. C, 32 N. Y. 597; Caldwell v. Murphy, ii N. Y. 344; Barber v. Merriam, sup. ; Dcnlon v. State, i Swan 279 ; Matteson v. N. Y, C, 35 N. Y. 487. (o) Chapin v. Malboroiigh, sup. ; Lush v. McDaniel, 13 Ired. L. 485 ; Rogers v. Cain, 30 Tex. 284; Wilson v. Granby, 47 Conn. ___^ {p) Witt V. Witt, 3 Sw. & Trist. 143. .,-- ----c .^- (q) III. Cen. R. R. v. Sutton, 42 111. 438. >,., ' ■ ; V R.L.M.M. _ ...... :":;:; 8 i 98 THE LAW AND MEDICAL BIEN. I'n On the other hand, in Massachusetts, in an action for personal injuries, a surgeon who had attended plaintiff was held competent to testify as to plaintiff's condition from what he saw, but not from anything the patient told him (r). A physician testified that the plaintiff stated she had received a blow in the stomach. The Court said that it would clearly have been competent for the physician, after having testified to the plaintiff's condition and to the com- plaints and symptoms of pain and sufferings stated by her, to have given his opinion that they were such as might have been expected to follow the infliction of a severe blow. But it was not competent for the physician to testify to her statement that she had received a blow in her stomach (s). And in Tennessee, the statement made by a man when his wounds were being examined, as to who made them, or as to the instrument with which they were inflicted, was deemed inadmissible (t). Memoranda, although not legal instruments in the proper sense of the term, have been considered as an inferior class of records, and as such entitled to some standing in courts. Such minutes of past facts may be used by experts while under examination, but only to refresh their memory, and not to take its place. For this purpose they may use written entries in note books, or even copies of them, pro- vided always they can swear to the truth of the facts as there stated. Yet, if they can not from recollection speak to the fact any farther than as finding it stated in a written entry, their testimony will amount to nothing. It is not necessary that the writing should have been made by the expert himself, nor even that it should be an original writ- (r) Rowcll V. Lowell, ii Gray 420. (5) Roosa V. Boston Loan Co., 132 Mass. 439 ; Qnaifc v. C. & N. W. R. 48 Wis. 513. {t) Denton v. State, i Swan 279. PROFESSIONAL EVIDENCE 99 ing, provided, after inspecting it, he can testify to the facts from his own recollection («)• The English and American authorities agree that medi- cal, or other scientific books, are not competent evidence in courts of law ; they cannot be put in evidence, although the medical witnesses s^^ate that such books are works of authority in medicine. Tindal, C.J., thought that wit- nesses might be asked whether in the course of their reading they had found such-and-such a rule laid down ; they might be asked how far their opinion was founded on books, and might refer to such books ; they might be asked their judgment on the point, and the grounds of it, which may be in some degree founded on these books, as a part of their general knowledge, but the book itself could not be read. And as late as 1875, Mr. Justice Brett refused to allow Taylor's Medical Jurisprudence to be read to the jury, say- ing : " That is no evidence in a court of justice. It is a mere statement by a medical man of hearsay facts of cases at which he was, in all probability, not present. I cannot allow it to be read." And the refusal seems to be the rule in England. And Redfield, C.J., says, that when objected to, these books have not generally been allowed to be read in the United States, either to the Court or jury. And a a very recent writer says, " The result of the cases on this subject shews clearly that the very decided weight of authority is against the admissibility in evidence of stand- ard medical treatises." Such is the rule in England, Ontario, Indiana, Maine, Maryland, Massachusetts, Michi- gan, North Carolina, Ehode Island and Wisconsin, supported by dicta in California and New Hampshire, and opposed by decisions in Alabama and Iowa {v). * («) Greenleaf on Evid. sec. 436; Ordronaux sec. 124; Glenn, p. 284. (v) Collier v. Simpson, 5 C. & P. 73 ; Reg. v. Thomas, 13 Cox Cr. Cas. 77 ; Redfield on Wills, p. 145 ; People v. Hall, 48 Mich. 486 ; Rogers on Expert Evidence, sec. iSo ; Brown v. Sheppard, 13 U. C. R. 178, ]i 100 THE LAW AND MLDICAL MEN. In Iowa and Wisconsin such books have been allowed to be read, the Court in one case remarking, "The opinion of an author, as contained in his works, we regard as bet- ter evidence than the mere statement of those opinions by a witness, who testifies as to his recollection of them from former reading. Is not the latter secondary to the former ? On the whole, we think it the safest rule to admit stand- ard medical books as evidence of their opinions upon ques- tions of medical skill or practice involved in the treatment.' In Wisconsin, however, the court seems now to have over- ruled its earlier decisions, and to have sided with the majority («^')' In Illinois, a witness may, to test his knowledge, be cross-examined as to his reading of particular authors upon the subject, and as to whether reputable wi'iters do not entertain certain views upon the subject. Paragraphs from standard authors, treating of the disease in question, may be read to the witness, and he may be asked if he agrees therewith, as one of the means of testing his know- ledge ; but care should be taken by the court to confine such cross-examination within reasonable limits, and to see that the quotations read are fairly selected so as to present the author's views. Mr. Eogers questions the wisdom of this decision (x). The witness, however, cannot read from a scientific work in his examination in chief, though he be an expert and agree with the views expressed by the author (?/K Nor can a passage from a book be got before a jury as evi- dence in an indirect manner, when it cannot be read to them. So it was decided where a medical man was asked if he was acquainted with a certain book ; he replied, that he had heard of it, but had not read it. He was then asked (w) Bowman v. Woods, i la. 44; Luning v. State, i Chandler (Wise.) 264 ; Ripon V. Bittel, 30 Wise. 362 ; Stirling v. Thorp, 54 Wise. {x) Con. Mut. Life Ins. Co. v. Ellis, 89 111. 516 ; Expert Testimony, sec. 182. {y) Com. V. Sturtev, nt, 117 Mass. 123. PROFESSIONAL EMDENCE 101 whether it was considered good authorit}', and he said it was. He was then asked to read a certain paragraph ; this he did, and was re-called. Counsel then read from the book the same paragraph and asked if such a case as that stated was reported. Held to be error (z). And in Ontario it has been held improper to ask medical witnesses, on cross-examination, what books they consider best upon the subject in question, and then to read such books to the jury ; but they may be asked whether such books have influenced their opinion (a). Although, as a rule, scientific books cannot be read to a jury as evidence, they may be read to discredit the testimony of experts, who claim to be familiar with them and refer to them as authority. Where one borrows credit for his accuracy, by referring to books treating of the subject, and by implying that he echoes the standard authorities, the book may be resorted to, to di ^ rove the statement of the witness, and to enable the jury to see that the book does not contain what he says it does, and thus to disparage the witness, and hinder the jury from being imposed upon by a false light (h). It has been held again and again that scientific books cannot be read by counsel to the jury as a part of their argument. Shaw, C.J., of Massachusetts, says, " Facts or opinions cannot be laid before the jury, except by the testimony under oath of persons skilled in such matters." Again, " where books are thus offered (i. e., to be read in argument), they are, in effect, used as evidence, and the substantial objection is, that they are statements wanting the sanction of an oath ; and the statement thus proposed is made by one not present, and not liable to cross- examination. If the same author were cross-examined, and :i {z) Marshall V. Brown, 15 N. W. Rep. 5S,sl^,^- :-- --^---■-~M<^'^- (n) Brown v. Sheppard, 13 U. C. R. 178. {b) Pinncy v. Cohill, 12 N. W. Rep. S62 ; Ripon v. Bittell, 30 Wise. 362. tl 102 TUE HW AND MEDIC.\L JliiN. called to state the grounds of his opinions, he might, himself, alter or modify it, and it would be tested hy a comparison with the opinions of others. Medical authors, like writers in other departments of science, have their various and conflicting theories, and often defend and sustain them with ingenuity. But as the whole range of medical literature is not open to persons of common experience, a passage may be found in one book favorable to a particular opinion, when, perhaps, the same opinion may have been vigorously contested, and, perhaps, trium- phantly overthrown, by other medical authors, but authors whose works would not be likely to be known to counsel or client, or to Court or jury. Besides, medical science has its own nomenclature, its technical terms and words of art, and also common words used in a peculiar manner, distinct from the received meaning in the general use of the language. From these and other causes, persons not versed in medical literature, though having a good knowledge of the general use of the English language, would be in danger, without an interpreter, of misapprehending the i/iue mean- ing of the author. Whereas a medical witness could not only give the fact of his opinion, and the grounds on which it is forraed, with the sanction of his oath, but would also state and explain it in language intelligible to men oC com • mon experience. If it be said that no books shodd be read, except works of good and established authority, the difficulty at once arises as to the question, what constitutes " good authority ? " (c). In an English case, counsel, in addressing the jury, attempted to quote from a work on surgevy ; Alderson, B., woald not allow him, saying, "You surely cannot contend that you may give the book in evidence, and if not, what light have you to quote from it in your address, and do that indirectly which yon would not be permitted to do in (c) Ashworth V. Kittridge, 12 Cush. 193, \ PROFESSIONAL EVIDENCE. 103 the ordinary course ?" In Massachusetts, North Carolina, Michigan, California and New York, similar decisions have boen given {d) ; and in giving the dissenting opinion in State and Hoyt (e), Loomis, J., said, "Books may be crazy as well as men, and all sorts of theories relative to responsibility for crime are advocated in books. Courts do not take judicial notice of standard medical or scientific works, a.id the stand- ard works of to-day may not long continue such, owing to new discoveries and advancing knowledge." In this case the question was as to reading medical books on insanity on trials where the question of insanity arose; the book was Ray's *' Medical Jurisprudence of Insanity." In a a still later case (/), it was held to have been error for the attorney, on the argument, to read to the jury extracts from Brown's " Medical Jurisprudence of Insanity." The Court said, that it is peculiarly important that a defendant charged with a crime should be confronted by the expert witnesses against him, and that they should be cross-examined in his presence. But when v'^a opinions of a writer are permitted to go to the jury, the writer is not sworn or cross-examined. If held admissible the question (of insanity) may be tried, not by the testimony, but upon excerpts from works present- ing partial views of variant and perhaps contradictory theories {g). In Connecticut, however, in a murder case the Court (Loomis, J., and Park, C.J., out of the five Judges dissent- ing,) held, that standard medical works on insanity might be read to the jury by the counsel for the accused, when (d) Reg. V. Crouch, i Cox Cr. Cas. 94; Washburn v. Cuddihy, 8 Gray 430 ; Huffman v. Cf-'ck, 77 N. C. 54 ; Fraser v. Jennison, 42 Mich. 206, 214; Peopfe V. Wheeler, 5 Fac. Coast L, J. 5S1 ; Robinson v. N. Y. C, 24 A. L. J. 357. (e) 46 Conn. 330. ,..-.-,- ^ (/) People V. Wheeler, 9 Pac. C. L. Jour. 581. (g) See also Collier v. Simpson, 5 C. & P. 73; Ordway v. Haynes, 50 N. H. 159 ; People v. Anderson, 44 Cal. 65 ; Carter v. State, 2 Cart. 617 ; Gale V. Rector, 5 I3radw. 484; Harris v. Panama R. Co., 3 Bosw. 7. 'i'^.'' mmmM 104 THE LAW AND MEDICAL MEN. Ik: discussing tho question of his insanity. It was said that "in this jurisdiction (that of Connecticut) for a long series of years counsel have been permitted to read to the jury, as a part of their argument upon this part of their case, extracts from 3uch treatises as by the testimony of experts have been accepted by the profession as authority upon that subject, such treatises as have helped to form the opinion expressed by the expert. The practice by repetition has ha-::"Icned into a rule "(/i). In Indiana, it was held that if the extracts were merely argumentative and contained no opinions that could be regarded as properly matters of evidence, they might be admitted, subject to the instructions of the Court as to the law of the case and under the warning that they were not evidence. In Texap and in Delaware, similar decisions have been given (i). And in Ohio, where, at the trial of a cause, counsel was forbidden to read to the jury Youatt's work on Veterinary Surgery, the Court, on appeal, said, "It is not to be denied, but that a pertinent quotation or extract from a work on science or art, as well as from a classical, historical, or other publication, may, by way of argument or illustration, be not only admissible, but sometimes highly proper, and it would seem to make no difference whether it was repeated by counsel from recollec- tion or read from a book. It would be an abuse of this privilege, however, to make it the pretence of getting improper matter before the jury as evidence in the cause." As it did not appear that the proposed quotation was rele- vant or came within the appropriate and legitimate scope of the argument, or that the party was injured by its exclusion, the Court would not reverse on this ground (j). "Where the reading is allowed, it seems to be considered "a valuable privilege, yet so susceptible of abuse, that the (h) State V. Hoyt, 46 Conn, 330. ( i) Harvey v. State, 40 Tnd. 5x6 ; Wade v. De V/itt, 20 Texas 39S ; State V. West, I Houston Cr. Cas. (Del. 371. 0") J^^gg V. Drake, i Ohio St. 286. PROFESSIONAL EVIDENCE. 105 extent and manner of its exercise must be entrusted in a great measure to the sound discretion of the Court ;" — "not a practice ever sanctioned directly or indirectly by the Court, nor one which has generally been considered by the Judges as of binding force in law, but rather as subject to the dis cretion v>bich, it is true, has been usually exercised in favor of the accused in capital trials" (k). Where the exclusion rule obtains, counsel in addressing the jury has no right to quote the opinions of medical men as given in their words ; if they do, it is the duty of the Court to instruct the jury that such books are not in evidence but theories simply of medical men (/)• But there is no question that, under all circumstances, books of science may be read in argument to the Court. Medical men are often called to give evidence as to dj-ing declarations where there is a charge of homicide, and where the cause of the death of the declarant is the subject of the declaration. They should remember that the declaration will not be admissible unless the deceased was conscious of approaching death and made it under a sense of his impend- ing doom ; any hope of recovery, however slight, renders the declaration inadmissible ; and the question turns rather upon the expectation of death at the time of making the declaration than upon the interval between it and the death (m). An entry made by a medical man, in the course of his pro- fession, is admissible in evidence after his death, if it be against his interest ; and such an entry will be received as evidence of collateral and independent matter, etc. "When {k) Per Loomis, J., State v. Hoyt, sup, ; Wath- v. Df Witt, 20 Tex. 398, 400; Luning v. State, sup.; Experts and Expert Testimony by U. C. Moak, 24 A. L. J. 267. . {I) Yoc v. State, 40 lU. ^10. (m) Russell on Crimes, 4th ed. vol. iii. p. 250. I If i ' ;. « 106 THE LAW AND MEDICAL MEN. the question was as to the age of a child, the book Oi the accoucheur who attended the mother was produced ; it con- tained an entry as follows, " W. Fowden, Jun.'s, wife ; Filiiis circa hor. 3 post merid. nat. etc. W. Fowden, 1768, April 22, Filius natiis wife, il 6s. Id ; Pd. 25 Oct. 1768." The word "Paid" was against the pecuniary interest of the accou- cheur, so the entry was admitted to prove the date of the birth («). In England the rule is thus laid down as to excluding experts from the room during the examination of wit- nesses; "medical or other professional witnesses, who are summoned to giva scientific opinions upon the circumstances of the case as established by other testimony, will' be per mitted to remain in court until this particular class of evidence commences, but then, like ordinary witnesses, they will have to withdraw, and to come in one by one, so as to undergo a separate examination." A similar rule j)revails in Scotland and in the United States (o) . It would seem that the court has power to limit the number of experts in any case Q)). Taylor, in his well-known work on *' Medical Jurispru- dence," lays down many valuable suggestions for the gui- dance of medical witnesses; among other things, he says, " In reference to facts, a medical witness must bear in mind that he should not allow his testimony to be influ- enced by the consequences that may follow from his state- ment of them, or there probable effect on any case which is under trial. In reference to opinions, their possible influ- ence on the fate of a prisoner should inspire caution in (n) Higham v. Ridgway, lo East 109. (o) Taylor's Evid., vol. ii., sec. 1259 ; Alison's Criminal Law of Scot- land, 542 ; Wharton's Evid., vol. i. p. 492. (p) Sizcr V. Burt, 4 Denio, 426; Anthony v. Smith, 2 Bos. (N.Y.) 503, 508; Fraser v. yamcsun, 42 Mich. 206. 223. PROFESSIONAL EVIDENCE. IQj forming them ; but, when once formed, thev should be honestly and candidly stated, without reference to conse- quences. " The questions put on either side should receive direct answers from the medical witness, and his man- ner should not be perceptibly different whether he is replyiuL. to a question put by the counsel for the prosecution, or for «he defence ' " The replies should be concise, distinct and aiidible. and except where explanation may be necessary t>^^T should beconfined strictly to the terms of the question " Answers to questions should be neither ambiguous, unde- cided, nor evasive." - The replies should be made in simple language free from technicality." ''A medical witness may, without any imputation upon his bona fides, explain medical pomts to counsel, and correct him on medical subjects, when wrong in his views or statements, but he should avoid even the appearance of prompting counsel in the conduct of the case." fW :i mam m 108 THE LAW AND MEDICAL MEN. CHAPTER VIII. MEDICAL EXPERTS. Whenever the subject matter of a legal enqu: / is such that, from its partaking of the nature of a science, art or trade, inexperienced persons are unlikely to pm-e capable of forming a correct judgment upon it without assistance, then the opinions of witnesses possessing peculiar skill and knowledge in the matters in question are admissible in courts of justice. And it is only when the matter inquired of lies within the range of the peculiar skill and experience of the witnesses, and is one of which the ordinary knowledge and experience of mankind does not enable them to see what inference should be drawn from the facts, that the skilled witnesses may supply opinions as their guide (a). The rule admitting the opinions of experts in such cases is founded on necessity, for juries are not selected with any view to their knowledge of a particular science, art or trade, requir- ing a course of previous study, experience or preparation {h). The rule of law on which the giving in evidence the opinion of witnesses, who know nothing of the actual facts of the case, is founded, is not peculiar to medical testimony, but is as a general rule applicable to all cases where the question is one depending on skill and science in any par- ticular department. ... In general it is the ^;pinion of the jury which is to govern, and this is to be formed upon the (a) I Smith Lead. Cas., 6th Ed. 509 ; Kennedy v. People, 30 N. Y. 245. (b) Chicago, etc., v. McGiven, 78 111. 347 ; Hartford Pro. Ins. Co. v. Harmer, 20 Oh. St. i»57. •|>. MECICAT, EXPEETS. 109 proof of the facts laid before them. Bu L some questions lie beyond the scope of the observation and experience of men in general, yet are quite within the observation and experi- ence of those whose peculiar pursuits and profession have brought that class of facts frequently and habitualiy under their consideration. When, therefore, a question arises in a court of justice upon any such subject, and certain facts are proved by other witnesses, one skilled in such subject may be asked his opinion as to the character of such facts ; or he may be asked bis opinions on certain facts observed by himself. This is true with regard to any question of science, because persons conversant with such science have peculiar means, from a larger and more exact observation and long experience in such department of science, of drawing correct inferences from certain facts observed by themselves or testified to by other witnesses. The opinion of such witnesses is designed to aid the judg- ment of the jury in regard to the influence and effects of certain facts which lie out of the observation and experience of persons in general (c). These witnesses are called " experts." This term seems to imply both superior know- ledge and practical experience in the art or profession. But generally nothing more is required to entitle one to give testimony as an expert, than that he has been educated in the particular art or profession ; for persons are presumed to understand questions pertaining to their own profession or business (f/). 1 , ■ * ■ The practice of admitting the evidence of experts is an old one : in the Koman Law they are frequently alluded to, and in the earliest Common Law reports they are spoken of as of established usage. Says Saunders, J., " and first I grant that if matters arise in our law which (c) Commonwealth v. Rodgers, 7 Mete. 5, per Shaw, C j. (rf) I Greenl. Evid., sec. 440; Jones v. White, 11 Hump. 268. Cjm Vv' 110 THE LAW AND MEDICAL MEN. concern other sciences or faculties we commonly apply for the aid of thai; science or faculty which it concerns. In a case of mayhem the defendant prayed the court that the wound might be examined, on which a writ was issued to the sheriff to cause to come " medicos chirurgos de melioribiis Loudon, ad informandum Dominum regem et curiam de his ouce cts exparte Domini Regis injungcrentur (e). Some Judges and writers have very little respect for the evidence and opinions of experts. An Iowa Judge says, observation and experience " teach that the evidence of experts is of the very lowest order, and of the most unsat- isfactory kind." One from Maine, speaks of " the vain babblings and oppositions of science so called, which swell the record of the testimony of experts when the hopes of a party depend rather upon mystification than enlighten- ment." An Illinois Judge quotes a distinguished occupant of the bench as saying, "if there was any kind of testimony not only of no value, but even worse than that, it was in his judgment that of medical experts." Lord Campbell said, ** Hardly any weight is to be given to the evidence of ^hat are called scientific witnesses : they come with a bias on their minds to support the cause in which they are embarked" (/). Taylor says, "Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. . . . Being zealous partisans their belief becomes synonymous with faith as defined by the apostle, and it too often is but the substance of things hoped for, the evidenf'e of things not seen " {g). On the other hand. Best says, " It would not be easy to overrate the value of ■^he evidence given in many difficult and delicate enquiries, Qot only by medical men and physiologists, but by learned -- (e) Plowden, 125 ; Year Books, vol. v. ..^^,.:.:.- -^::.-,.:.^^^^^.^^':.ri^,—-..- (/) \Vhittakcrv.Pafker,^2 la. 586; State v. Watson, 65 Me. 74; Ruther- ford V. Morris, 77 111. 404 ; Tracy Peerage, 10 CI. & Fin. 191. is) Taylor on Evidence, sec. 50, Ed. 1S72. ■«^: MEDICAL EXPERTS. Ill find experienced persons in various branches of science, art and trade " (h). And many Judges have spoken of the essential aid to courts and juries rendered by the opinion of the experienced, skilful and scientific ■witness who has a competent knowledge of the facts involved. When one takes his place as an expert before a court, a legal paradox is instituted on his behalf, by which he is allowed to testify — not as to what he knows, but to what he believes or forms an opinion upon, based necessarily on probabilities of analogy as well as experience. Nothing is required (in the absence of any statutory provision to the contrary) to entitle any one to give evidence as a medical witness, than that he has been educated in the science of medicine ; and this he may be by study without practice, or by practice without stud}- ; it is not necessary that he should be a physician, or have studied for one, nor be a graduate, nor o.""^ licensed to practise, nor need he be or have been a practitioner (i). One may be competent to testify as an expert, although his special knowledge of the particular subject of enquiry has been derived from the reading and study of standard authorities, and not from experience or actual observation. But one cannot qualify himself as an expert in a particular case merely by devoting himself to the study of authorities for the pur- poses of that case, when such reading and study is not in the line of his special calling or profession and is entered upon to enable him to testify in the case. In Vermont, however, it has been held that mere education as a physi- cian, without some practice as such, is insufficient to qualify one as an expert ; and in Arkansas, a is said, that compe- tency must be shewn from study and experience. In New York, it has been held that one otherwise qualified, who is (h) Best on Evidence, sec. 574. *' (i) State V. 1^00^,53 N. H. 484; Masons v. Fuller, 45 Vt. 29; New Orleans, etc., Rw. v. Allbretton, 38 Miss. 247; Re Toonies, 54 Cal. 515. iy I*' iff!' ' t *,. 112 THE LAW ASD MEDICAL MEN. a physician and surgeon, may give evidence, although not in full practice at the time ; this fact merely goes to affect his credit (.;'). I It is not necessary that the physician should have made the particular disease involved in the enquiry a specialty ; medical men of practice and experience are experts, and their opinions are admissible in evidence upon questions that are strictly and legitimately embraced in their pro- fession and practice. If one has made the matter in ques- tion a specialty, doubtless his opinion will be of more value than if he has not ; and it has been said, that one who has devoted himself exclusively to one branch of his profession cannot give evidence as an expert on another (k). For example, one not an oculist may speak as to the cause of injuries to an eye ; one who has not made diseases of the mind a special study may give his opinion as to the exist- ence of insanity ; one not a practical chemist or analyst, but understanding the practical details of chemistry and the means of detecting poisons, may testify as to the tests in the chemical analysis of a stomach, and as to the tests usually applied to detect poison (l). The law will even allow a physician to speak as to the length of time a mule has been suffering from a disease (m). But one who has had no experience as to the effect upon health of illumi- nating gas cannot testify in relation thereto as an expert (n). Nor can one who has for thirty years been exclusively treating the insane be permitted to testify, as an expert, on {J) Fairchild v. Bascomb, 35 Vt. 410 ; Polk v. State, 36 Ark. 117; Roberts V, yohnsoii, 58 N. Y. 613. {k) Hathaway v. Nat. Life his. Co., 48 Vt. 335, 351 ; Fairchild v. Bas- comb, supra. (1) Castner v. Sliker, 33 N. J. (L.) 97; State v. Reddick, 7 Kan. 143; State V. Hcnkle, 6 la. 380 ; State v. Cook, 17 Kan. 391. (m) Norton v, Green, 64 N. C. 64. (n) Emerson v. Lowell Gas Light Co., 6 Allen, 146. MEDICAL EXPERTS. 113 m [ts the mental capacity of a person in the last stages of disease, who has not been previously insane (o). To render the opinion of a witness competent evidence, he must, in general, be in some way peculiarly qualified to speak on the subject, and have knowledge not possessed by the mass of persons of ordinary experience and intelli- gence {p). Upon this principle, a priest who had studied physiology and psychology, in order that he might pass upon the mental conditions of communicants in his church, and who had so to decide daily, was permitted to speak as to the mental state of a woman whom he had attended in her last illness (q). It is a question of fact to be decided at the trial, by t^e Court, whether a witness offered as an exp'.rt has the i'scessary qualification (/•)•• And the matter cannot be referred to the decision of the jury. The decision of the Judge at the trial will not be interfered with by the Court, except in a clear and strong case (s). Any one offered as an expert who cannot establish the fact of special knowledge or skill, in the particular depart- ment which he is called upon to illuminate, will be rejected. A Court before permitting an expert to testify may examine him, or hear evidence, to satisfy itself that the witness is really what he assumes to be {t). (o) Hcald V. Whig, 5 ]Me. 392. (/>) Harris v. Panama R. R. Co., 3 Bosw, (N. Y.), 77; Fairchild v. Bas- comb, 35 Vt. 398. (q) Re Toomes, 54 Cal. 575. (r) Greenleaf's Evidence, 12th Ed., I. p. 483; Livingstone's case, 14 Grat. 592. (s) Lorg V. First German Congregation, 63 Pa. St. 156; Hills v. Home Ins. Co., 129 Mass., 544, 551. (0 Lester v. Pittsford, 7 Vt. 161 ; Mendum v. Com. 6 Rand. 704 ; Tullis v.Kidd, 12 Ala. 648 ; Sinclair v. Rourk, 14 Ind. 540; Winans v. N. Y., etc.. R. R. Co., 21 How. (U. S.) 88 ; Boardman v. Woodman, 47 N. H. 121 ; Davis V. State, 35 Ind. 496. R.L.M.M. 9 i 114 THE LAW AND MEDICAL MEN. "We find no test laid down," says the Supreme Court of Indiana, " by wliicli we can determine with mathematical precision just how much exi)erience a witness must have had, how expert, in short, he must be, to render him competent to testify as an expert." But it is for the Court to decide, within the limits of a fair discretion, whether the experience of the proposed expert has been such as to make his opinions of any value ; mere opportunities for special observation will not be deemed sufficient (w). While the Court, or Judge, determines the competency of the witness to testify as an expert, the weight to be accorded to his testimony is for the jury to decide. The testimony of an expert is to be weighed and tested like any other kind of evidence, and is to receive just such credit as the jury may think it entitled to. It is intended to enlighten their minds, not control their judgment (v). The jury are not bound by the opinions of medical experts : they may weigh their opinions like any other evidence. They may act against the greater number of opinions and in favour of the fewer ; for the opinion of one expert may, on account of his greater knowledge and experience on the subject, or from his giving further details of the case, or more probable reasons for his opinions, be of greatei value to the jury than the opposite opinions of several (tv). Ordronaux holds that a physician, although confessedly possessing the ordinary experience of his profession, may quoad some particular problem in medical science not be an expert in the best and most critical sense of the term. Non omnes omnia possimiwf. Once received as an expert, (u) Forgery v. First Nat. Bank, 66 Ind. 123, 125; McEwen v. Bigelow, 40 Mich. 217; Kilborne v. Jennings, 38 Iowa, 533. (v) Mitchell v. State, 58 Ala 418; Forgery v. First Nat. Bank. 66 Ind. 123; Parnell v. Commonwealth, 86 Pa. St. 269; Carter v. Baker, i Sawy. ; S. C. 35 N. Y. 487. (j) II Allen, 322. (;■) R. V. Whitehead, 3 C. & K. 203 ; Rich v. Pierpont, 3 F. & F. 36 ; Twombly v. Leach, 11 Cush. 405. 118 THE LAW AND MEDICAL MEN. admissible (i). And so in a case of malpractice a medical man may be asked whether the practice pursued was good practice (j). He may be asked as to the nature and and properties of the medicines employed by another physician in the case in question ; also, as to the practice with regard to consultations ; also, whether, in his opinion, a patient's death was or was not the result of neglect or want of skill on the part of the attending physician (k). But he cannot be asked his opinion as to the general skill of the physician on trial; nor the general reputation of the school which the doctor in trouble attended ; nor can he say whether, from all the evidence in the case, the defen- dant was guilty of malpractice, for that is the question for the jury ; nor can he say whether a physician has honor- ably and faithfully discharged his duty to his professional brethren (l). It has been held that a medical witness may give his opinion upon new and hitherto unknown cases whenever he swears that he can form such an opinion, even though at the same time he should admit that precisely such a case had never before fallen under his observation, nor under his notice in the books. The man of science is- distinguished from the empiric in nothing more than in not relying on specifics, and also not waiting for the exact similitudes in things material and immaterial before form- ing a judgment as to their similarity (m). It must always be remembered that medical men, when called as skilled witnesses, may only say what, in their judgment, would be the result of certain facts submitted to their consideration, and may not give an opinion as to (k) Mertz V. Dctweeler, 8 W. & S. 376 ; Wright v. Hardy, 22 Wise. 368. (/) Leighton v. Sargent, 11 Fost. N. H. 120; Williams v. Poppleion, 3 Oregon, 139 ; Hoener v. Koch, 84 111. 408 ; Ramadge v. Ryan, 9 Bing, 333- (m) Staie v. Clark, 12 Ired. 151 ; Page v. Barker, 40 N. H. 477. MEDICAL EXPERTS. 119 J, ^1 ^ I ii ? the general merits of the case, nor on the very point whicli the jury has to determine, nor on things with which a jury may be supposed to be equally well acquainted (n). As a recent writer puts it, a medical man cannot testify as to matters not of skill ?n his profession, nor conclusions, nor inferences which it is the duty of the jury to draw for themselves. For instance, it was held that in a trial for murder the opinion? oi the surgeons as to the probable position of Aie deceased, when he received the blows which caused his death, are incompetent. The Judge said that he was not aware that surgeons were experts in the manner of giving blows of the description in question, or determin- ing how the head must be placed so as most conveniently to receive them (o). Whenever the subject matter of the enquiry is of such a character that it may be presumed to lie within the common experience of all men of common education, moving in ordinary walks of life, the rule is that the opinions of experts are inadmissible, as the jury are supposed — in all such matters — to be entirely competent to draw the necessary inferences from the facts spoken of by the witnesses (jj). Nor was the opinion of a medical witness admitted where the question, in an action for libel, was whether a physician in refusing to consult with the plaintiff had honorably and faithfully discharged his duty to the medical profession. The Judge said, the jury having all the facts before them were as capable of forming a judgment upon that point as the witness himself. Nor can an expert give an opinion of the opinion on another expert (q). A medical man is considered an expert on the subject of the («) Ramadge v. Ryan, 9 Bing. 335 ; R. v. iieatle, i M. & Rob. 75 ; Fen- wick V. Bell, I C. & Kir. 312; Gibson v. Williams. 4 Wend. 320 ; Morse v. State, 6 Conn. 9. (0) Kennedy v. People, 39 N. Y. 245. (/>) New England Glass Co. v. Lovell, 7 Cush. 319. (q) T.amadge v. Ryan, supra; Campbell v. Richards, 5 B. & Ad. 840, 120 THE LAW AND MEDICAL MEN. value of medical services (?•). But he is not so considered when the question is. one as to the amount of damages for a breach of contract not to practise physic in a certain town (s). The rule as to excluding experts from the court room during the examination of witnesses has been laid down, in England, thus : " Medical or other professional wit- nesses, who are summoned to give scientific opinions upon the circumstances of the case, as established by other testimony, will be permitted to remain in court until this particular class of evidence commences ; but then, like ordinary witnesses, they will have to withdraw, and tc o'>rr' in one by one, so as to undergo a separate examination." And in the United States the principle is similarly stated (t). (r) Reynolds v. Robinson, 64 N. Y. 595 ; Shafer v. Deans ad'mor, 29 la. 144. (i) Linn v. Sigsbee, 67 111. 75; see Bradbury v. Barden, 35 Conn. 580. (t) 2 Taylor's Evid., sec. 1259; t. Wharton's Evid., sec. 492. ; tl -r^ I EXPERTS IN INSANITY CASES. 121 CHAPTER IX. EXPERTS IN INSANITY CASES. The opinion evidence of medical men in questions of insanity is not, as a rule, looked upon with any very great degree of favor by the courts who have to decide upon the competency, relevancy and weight of the opinions uttered. Chapman, C.J., of Massachusetts, in charging a jury said, "While they afford great aid in determining facts, it often happens that experts can be found to testify to anything however absurd " (a). In another insanity case another Judge remarked, "Experience has shown that opposite opinions of persons professing to be experts re ay be obtained to any amount, and it often occurs that not only many days l>ut many weeks are consumed in cross-examinations to teat the skill and knowledge of such witnesses, and to test the coirectness of their opinions," (this was the case to a great degree in the well known Guiteau prosecution,) "thus wasting time and wearying the patience of both Court and jury, perplexing, instead of elucidating, the question involved in the issue " (b). As to the perplexing instead of elucidating, a writer of the highest authority gives the following, " In a case of alleged child murder a medical witness, being asked for a plain opinion of the cause of death, said, that it was owing to "atelectasis and a general engorgement of the pulmonary tissue." And in a trial for an assault a (rt) Bost. Med. and Sur. Journ., Feb. 25, 1869. (b) Grier, J., in Winanr v. N. Y. (?«• E. R. 21 How. (U. S.) 88. ■# 122 THE LAW AND MEDICAL MEN. M surgeon, in giving his evidence, informed the Oourt " that on examining the prosecutor, he found him p.uffering from a severe contusion of the integument under ihe left orbit, with great extravasation of blood and ecchymosis in the surrounding cellular tissue, which was in a tumefied state, and there was also considerable abrasion of the cuticle." The Judge said, "You mean, I suppose, that the man had a bad black eye." " Yes." *' Then why not say so at once" (c). EedlielJ, C.J., in his book on Wills, says, " Experience has shown ooth here and in England that medical experts differ quite as widely in their inferences and opinions as do other witnesses. This has become so uniform a result with the medical experts of late that they are beginning to be regarded much in the light of hired advocates, and their testimony as nothing more than a studied argument in favor of the side for which they have been called. So uniformly has this been proved in our experience that it would excite scarcely less surprise to find an expert called on one side testifying in any particular in favor of the other side, than to find the counsel upon either side arguing against their clients and in favor of their antagonists" (d). A Lord Chancellor once remarked that his experience taught him that there were very few cases of insanity in which any good came from the examination of medical men. Their evidence sometimes adorned a case, and gave rise to very agreeable and interesting scientific discussions, but after all they have little or no weight with the jury. And Mr. Justice Davis, of the Supreme Court of Maine, after stating that he thought juries far more trust-worthy than experts on the subject of insanity, said, "if there is any kind of testimony that is not only of no value but — (c) Taylor's Med. Jur. 6 Am. Ed. 53. .- — -r--- -—■-'— .yr- - .^ : ,: .-; 7-^- (d) Vol. i. p. 103. EXPERTS IN INSANITY CASES. 123 Hi, even worse than that, it is in my jiulgment that of medical experts. They may be able to state the diagnosis of the disease more learnedly, but upon the question whether it had, at a given time, reached such a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinion of his neighbors, if men of good common sense, would be worth more than that of all the experts in the country" (e). There is scarcely a single hypothesis as to responsibility (on the part of the insane), no matter how wild, which, among the large number of experts who have concerned themselves with this branch of study, has not its advocates. So says Wharton in his valuable treatise on Mental Unsoundness (/) ; or as Cicero elegantly put it long ago, "nihil tarn absurde did potest, quod non dicatur ah aliquo philosophorum^' ig). Considering these things, one is not surprised at Campbell, C.J., in the Bambridge case, saying to three medical men who had recorded their opinions in favor of the insanity of the testator: "You may go home to your patients, and I wish you may be more usefully employed there, than you have been here;" and to the jury he remarked, "We have had during the trial the evidence of three medical witnesses, and I think they might as well have stayed at home and attended to their patients." On the other hand, Shaw, C.J., said, "such opinions (as to sanity, etc.) when they come from persons of experience, and in whose correctness and sobriety of judgment just confidence can bo had, are of great weight, and deserve the respectful consideration of a jury. But the opinion of a medical man of small experience, or of one who has crude and visionary notions, or who has some favorite theory to {e) Redfield on Wills, vol. i. cap. 3, sec. 13. (/") Sec. 195. {g) De Divinatione, II. ^8. m ifM • \ .- . ( 124 THE LAW AND MEDICAL MEN. . ,i i' support is entitled to very little consideration. The value of such testimony will depend mainly upon the experience, fidelity and impartiality of the witness who gives it " (h). And Chief Justice Gibson speaks with just emphasis of the the deference due, in their own department, to the know- ledge obtained by men of a subject with which they have grappled all their lives (i). The Supreme Court of Texas declared, "The opinions of medical men (on questions of insanity) are received with great respect and consideration, and properly so." The Supreme Court of Pennsylvania says, "It is well settled that the knowledge and experience of medical experts is of great value in questions of insanity." Equally strong are the utterances of the Court of Appeals of West Virginia and the Supreme Court of North Caro- lina (j). Where the point in question is the sanity of a person, the opinion of a medical man on the subject is, of course, admissible when that opinion is drawn from personal observation. This is the rule both in England and the United States (k). But a medical man may also give his opinion on this subject, even though he has no knowledge of the person whose sanity is in question (l). It ha^ been suggested, that when a physician is asked his opinion on the facts stated by other witnesses, he should be first examined as to the particular symptoms of insanity ; and as to whether all or any, and which of the cu'cumstances spoken of by the witnesses upon the trial are to be regarded as (/i) Com. V. Rodgers, 7 Mete. 5. (i) Wharton on Mental Unsoundness, sec. 293. {j) Thomas v. State, 40 Texas, 65 ; Parmell v. Com., 86 Pa. St. 260 ; Jarrctt v. Jarrett, 11 W. Va. 627 ; Flynt v. Bodenhamer, 80 N. C. 205. {k) Rexv.Searle, i Mood. & Rob. 75; R. •/. Offord, 5 C. & P. 16S; McAllister v. State, 17 Ala. 434; Delafield v. Parish, 25 N. Y. 9; Com. v. Rodgcrs, 7 Mete. 5; Clark v. State, 12 Oh. 483; Davis v. State, 35 Ind. 496. (/) Pnryear v. Reese, 46 Tenn. 21; White v. Bailey, 10 Mich. 155; Dickenson v. Barber, 9 Mass. 225. EXPERTS IN INSANITY CASES. 125 such symptoms ; then inquire of him whether any and what combination of these circumstances would, in his opinion, amount to proof of insanity (m). It has been held to be improper to ask a medical witness whether the person, whose sanity was in question, possessed sufl&cient capacity to make a will, or to transact business, as these are matters of law, depending on the nature of the business (n). In England such witnesses can only speak as to the state of mind, not as to the responsibility of a prisoner ; this latter point is for the jury under the direction of the Judge (o). So, on the plea of insanity at the time of making a contract, the opinion of the medical man who gave the certificate on which the defendant was confined as insane at or about the time, is only evidence for the jury, who must judge of the grounds upon which it was formed (jj). In England, an expert cannot b" asked, after being present at the whole trial, whether the defendant was insane, or whether the act complained of was an insane act, because these are questions for the jury and the witness must not be placed in the jury's place ; but he may be asked whether such and such appearances, proved by other witnesses, are in his judgment symptoms of insanity (q). The particular facts proven by other witnesses may be taken and the expert may be asked "assuming these facts to be true, do they in your judgment indicate insanity on the part of the defendant at the time the alleged act was committed?" (r). (m) People v. McGann, 3 Parker Gr. Cas. 272, 298. (k) White V. Bailey, 10 Mich. 155 ; Fairfield v. Bascomb, 35 Vt. 398. (0) R. V. Richards, i F. & F. 87. (/>) Lovatt V. Tride, 3 F. & F. 9. (q) R. V. Higginson, i Car. & R. 129 ; R. v. Searlc, i Mood. & Rob. 75 ; Malton V. Nesbit, i C. & P. 72 ; R. v. Wright, Russ. & Ry. 456 ; see, also, Tingley v. Congill, 48 Mo. 297. (r) R. V. Frances, 4 Cox C. C, 57; R. v. Scarle, sup. 126 THE LAW AND MEDICAL MEN. i As a rule the Court should not allow an expert to give his opinion upon facts proved hy a witness unless he i'ms heard all the testimony of the witness, because the eniire testimony may be necessaiy in order to enable him to form an opinion in regard to the subject matter of inquiry (s). Where the facts are disputed, experts can only be ques- tioned as to their opinion of a party's sanity on a hypo- thetical case, or as to certain designated facts existing in the case supposing them to be true (t). The mode in which this hypothetical question is to be put has been much considered. In England, in the celebrated Macnaghteti case in answer to an inquiry of the House of Lords, whether " a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of the witnesses, can be asked his opinion as to the state of the prisoner's mind at the time of the commis- sion of the alleged crime ; or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to the law ; or whether he was labouring under any and what delusion at the time ?" The twelve judges replied, ** We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of these questions involves the determination of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to (s) Page V. State, 6i Ala. i8; Davis v. State, 38 Md. 41. (t) Vairchild v. Bascomb, 35 Vt. 398; State v. Windsor, 5 Harring. 512; U . S. V. McGIhc, I Curtis C. C. i ; McAUster v. State, 17 Ala. 434 ; Wood- bury V. Obcar, 7 Gray, 467 ; Hunt v. Lowell Gas Light Company, 8 Allan, 169. EXPERTS IN INSANITY CASES. 127 allow the question to be put in that f^eneral form, though the same cannot be insisted on as a matter of right («)• In Massachusetts, Chief Justice Shaw said, " The proper question to be put to the professional witness is this — If the symptoms and indications testified to by the other witnesses are proved and if the jury are satisfied of the truth of them, ^ whether in their opinion the party was insane, and what was the nature and character of that insanity ; what state of mind did they indicate ; and what they would expect would be the conduct of such person in any supposed circumstances?" (v). In another well known case, the Judge said to the jury, " It is not the province of the expert to draw inferences of facts from the evidence, but simply to declare his opinion on a known, or hypothetical state of facts, and therefore the counsel on each side have put to the physicians such states of fact as they deem warranted by the evidence, and have taken their opinions thereon. If you consider any of these states of facts put to the medical witnesses are proved, then the opinions thereon are admissible evidence, to be weighed by you, otherwise their opinions are not applicable to the case " (w). .>^ The opinions of both experts and non-experts should have weight according to their opportunities and qualifica- tions for examination of the state of mind of the person . whose sanity is in question. First of all will be the family, or the physician who has attended the patient through the disease which is supposed to have disabled his mind ; next are those who, without special learning on the subject, have * had the best opportunities for judging — the members of his family and those whose intimacy in the family, have given them opportunities of seeing the patient at all times and ^«) lo Clark & Fin. 200. (v) Com. V. Rodgcrs, 7 Mete. 5. \w) U. S. V. McGliie, i Cur. C; C. i. f I 1 I ,1 128 THE LAW AND MEDICAL MEN. noticing the alienation of his mind ; and last, come those who only occasionally and at intervals have seen him, and whose chances of studying his moods have been small {x). It has been held, in Massachusetts, that a physician who had not made insanity a special subject, and who, when consulted in such matters, always called in a specialist, is not competent to give an opinion on an hypothetical case put to him, unless he was the person's attending physician ; then his opinion is received, as it is his duty to make himself acquainted with the peculiarities, bodily and mental, of a person who is the subject of his care and advice (y). And where a physician had for more than thirty yearfj been exclusively treating the insane, he was not permitted to testify, as an expert, to the mental capacity of a person — not previously insane — who was in the last stages of disease (^^). One not an expert may give an opinion, founded on observation, as to whether a person is sane or insane, notwithstanding the general rule, that persons not medical men cannot give their opinions as to the existence, nature or extent of disease in any one. The exception was first introduced in regard to the subscribing witnesses to a will, who were permitted to speak as to the testator's state of mind ; it has now been extended to all cases where the wit- ness' acquaintance with the party whose sanity is in dispute, or his means of observation, are sufficient to enable him to express his opinion as to the mental condition. The Courts of Mcvrtsachussetts, Maine, New Hampshire and Texas, however, still adhere to the old rule and admit the evidence of non-experts only in cases of wills (a). ; ^ r {x) Burton v. Scott, 3 Rand. 399 ; 27 A. L. J. 148. {y} Com. V. Rich, 14 Gray, 335 ; Hastings v. Rider, 99 Mass. 625 ; Russell V. State, 53 Miss. 36. (z) Heald v. Wing, 5 Me. 392; Whetherbee v. Whetherhee, 38 Vt. 454. {a, 27 Alb. L. J. 126. DEFAMATION. CHAPTER X. ell DEFAMATION. No man may disparage the reputation of another. Every one has a right to have his good name maintained, unim- paired. Words which produce any perceptible injury to the reputation of another are called defamatory : and if they are false they are actionable. False and malicious defamatory words, if in printing, writing, pictures or signs, and published, constitute a libel ; if spoken, a slander. A caricature may be a libel ; so may a chalk-mark on a wall, a statue, hieroglyphics, a rebus, an anagram or an allegory, or even ironical praise. Defamatory matter, whether published in the form of libel or slander, is actionable when it imputes a criminal offence (or a contagious or infectious disorder) or affects the plaintiff injuriously in his lawful profession, trade or business, or m the discharge of a public office, or generally when it is false and malicious, and its publication causes damage to the plaintiff either in law or in fact. Defamatory matter, the publication of which tends to degrade or disparage the plaintiff, or which renders him ridiculous, or charges him with want of honesty, humanity or veracity, or is intended to impair his enjoyment of society, fortune or comfort, is actionable as libel, but not as slander, unless special damage be proved (a). m (a) Glenn's Laws of Med. Men, p. 212. B.L.M.M. 10 i 1! THE LAW AND MEDICAL MKN. The person defamed by a libel has not only a civil remedy to recover damages but he may also, in some cases, proceed criminally by way of information or indictment and have the defamer punished as an offender against the state. If he proceeds by information he must in general waive his right to bring a civil action ; but he may sue for damages after the offender has been convicted upon an indictment. An action for libel must be brought within six years ; and an action for slander within two years, unless the words spoken are actionable only by reason of special damage, in which case the action may be brought at any time within six years. Whenever a special kind of knowledge is essential to the proper conduct of a particular profession, denying that a man possesses such special knowledge will be actio' Me if he belo."»g8 to that particular profession, but not oti se. Thus to say of a physican, " Thou art a drunken fool and an ass. Thou wert never a scholar, nor even able to speak like a scholar," is actionable, because no man can be a good physician unless he be a scholar {b). Although one may With impunity say of a Justice of the Peace, "He is a fool, an ass and a beetle headed justice " (c). So to say, of a mid- wife, "Many have perished for her want of skill;" or, " She is an ignorant woman, and of small practice and very unfortunate in her way ; there are few she goes to but lie desperately ill, or die under her hands ;" is action- able (d). Or of an apothecary, " He is not an apothe- cary ; he has not passed any examination. Several have died that he had attended, and there have been inquests held upon them " (e). Although one may safely say of a Justice of the Peace, " He is a blood sucker, and sucketh blood." (b) Cawdry v. Highley, Cro. Car. 270 ; Godb. 441. {c) Bill V. Neal, i Sev. 52. ((/) Flower's Case, Cro. Car. 211; Whnrton v. Brook, Vent. 21. (f) Southee v. Denny, i Ex. 196. DEFAMATION. 131 It is actionable to say of a person in his professional character, " He is no doctor ; he bought his diploma for $50" (./'). Any words imputing to a practising medical nian, misconduct or incapacity in the discharge of his professional duties, are actionable per se. Thus, it is action- able, without proof of special damage, to accuse one of having caused the death of any patient through his ignorance or culpabie negligence, ".o to say of a physician, " He killed my child by giving it too much calomel," or, " He hath kilhd J. S. with physic, which physic was a pill ; " or, " He was th*^ death of J. P.; he has killed his patient with physic ; it is a world of blood he has to answer for in this town through his ignorance ; he did kill a woman and two children at Southampton ; he did kill J. P. at Petersfield ;" or, as an American did, " Dr. S. killed my children ; he gave them teaspoonful doses of calomel, and it killed them. They did not live long after they took it. They died right off the same day " {g). So it is to say of an apothecary, " He poisoned my uncle ; I will have him digged up again, and hang him," or, " He killed my child ; it was the saline injection that did it;" or, "I was told he had given my child too much mercury, and poisoned it ; otherwise, it would have got weH"(/i). , . , . ^ - ', So it is actionable to say of a surgeon and accoucheur, " He is a bad character ; none of the medical men here will meet him." As such words impart the \\^nt of a necessary qualification for a surgeon in the ordinary dis- c large of his professional duties ; or, " Dr. Tweedie has honorably and faithfully discharged bis duties to his medi- (/) Bergold v. Puckta, 2 Thomp. dc C. N. Y. 532. ^-— -^ '-^- ig) Johnson v. Robertson, 8 Port. R. 586 ; Poe v. Mondford, Crc. Eiiz. 620; Tutty \. Alewin, 11 Mod. 221 ; Secord v. Harris, 18 Barb. 425 ; see, also, Watson v. Vanderlash, Het. 69. (h) Davis v. Ockhatn, Sty. 235 ; Edsall v. Russell, 4 M. & G. 1090. I 132 THE LAW AND MEDICAL MEN. cal brethren in refusing to act or consult with Ramadge (a physician), and we hope every one else will do the same" (i). Or to call a practising medical man " a quack," " a quack- salver," " an empiric," or '* a mountebank," or to say of him, " Thou gavest physic which thou knewes*" to be con- trary to the disease," or " Thou art no good subject, for thou poisonedst A. F.'s wound, to get more money of him." Under the New York Statutes, a homoeopathic physician may maintain an action for being called a quack ( j). And it seems that an action will lie, without averment of special damages, for slander imputing to a physician, that he haa taken advantage of his character as r, physician to abuse the confidence reposed in hira, and commit acts of criminal conversation with a patient (k). In the case of libel, any words will be presumed defama- tory which expose liie plaintiff to hatred, contempt, ridicule- or obloquy, which tend to injure him in his professional trade, or cause him to be shunned or avoided by his neigh- bours. Thus, to advertise falsely that certain quack medicines, "consumption pills," were prepared by a phy- sician of eminence, is a libel upon such physician (/). Whenever a medical man brings forward some new method of treatment and advertises it largely as the best, or only cure for some particular disease, or for ail diseases at once, he may be said to invite public attention, and a newspaper writer is justified in warning the public against such adver- tisers, and in exposing the absurdity of their professions, provided he does so fairly and with reasonable judgment (m). (t) Southee v. Denny, i Ex. 196; Ramadg^e v. Ryan, 9 Bing. 333. 1. (y) Long^ V. Chubb, 5 C. & P. 55 ; Allen v. Eaton, i Roll. Abr. 54; Goddart V. Hascl/oot, 1 Viner's Abr. (S. A.) pi. 12; White v. Carroll, 42 N. Y. i6i. (k) Ayre v. Craven, 2 Ad. & E. 2. 333 (/) Clarke v. Freeman, n Beav. 112; Ramadge v. Wakley, cited 9 Bing. 3- ■■',,.. \^ ^._.. ...^:^.:.'- (m) Odgers on Libel and Slander, p. 50. "^ .'" DEFAMATION. 133 A medical man, who bad obtained a diploma and the degree of M.D., from an American College, advertised in England most extensively a new and infallible cure for consumption. The Pall Mall Gazette published a leading article on these advertisements, in which they called the advertiser a quack and an impostor, and compared him to scoundrels " who pass bad coin." This was considered as overstepping the limits of fair criticism, and a verdict was given for the plaintiff, with damages, one farthing (?i). So where the editor of the Lancet attacked the editor of a rival paper, The London Medical and Physical Journal, by rancorous aspersions on his private character, not fairly called for by what the plaintiff had done as an editor, the plaintiff recovered a verdict of £5 (o). On the other hand, it is not actionable to say of a surgeon, *' He did poison the wound of his patient," without some averment that this was improper treatment, for it might be proper for the cure of it. Nor to say of an apothecary, " He made up the medicine for my child wrong, through jealousy, because I would not allow him to use his own judgment" {p). Nor to charge a physician or surgeon with "malpractice," if it appear that the word was not used or understood in a technical sense ; and to charge a physician or surgeon with mere want of skill, or with ignorance or neglect, ia not actionable per se, though untrue, unless the charge be of gross want of skill, or the like, so as to imply general unfitness (q). Nor is it actionable to call a person who practises medi- cine or surgery, without legal qualification, a "quack or an (n/ Hunter v. Sharpe, 4 F. & F. 983 ; and see Morrison v. Harmer, 4 Scott, 524. (0) Macleod v. IVakley, 3 C. & P. 311. 1 „_^__- — - — :— — — ^— -- (/>) Stifi^oe's Case, Hetl. 175 ; Edsall v. Russell, 4 M. & G, logo. (q) Rodgers v. Cline, 56 Miss. 808; Camp v. Martin, 23 Conn. 86; Jones V. Diver, 22 Ind. 184. r I 134 THE LAW AND MEDICAL MEN. i! ■' I' ' U 1 impostor," for the law only protects lawful employment (r). Even though a medical man be duly registered in Great Britain, still, if he is practising in a colony which requires registration without complying with the colonial law, he may safely be called "a quack," "a charlatan," "a scoundrel not to be entrusted with the lives of people " (s). Words imputing immoral conduct, profligacy or adultery, even when spoken of one holding an office or carrying on a profession or business, are not actionable unless they "touch him " in that office, profession or business. Thus, if adultery is alleged of a clergyman, it will be actionable, because if the charge were true, it would be a ground for degradation or deprivation, as it would prove him unfit to hold his benefice, or to continue the active duties of his profession. But if the same words are spoken of a physi- cian, they will not be actionable without proof of special damage, as they do not necessarily afiect the plaintift' in relation to his trade or profession [t). Nor unless the words are spoken in connection with the professional duties of the plaintift" will an action lie for the words, " He is so steady drunk, he cannot get business any more; " or " He is a twopenny bleeder " (m). It is no libel to write of a physician that he is in the habit of meeting homceopathists in consultation {v). Where the plaintiff considers that the words spoken touch him in his profession or trade, he must always aver in the pleadings that he was carrying on the profession of a physician or surgeon, or the trade of a druggist, at the (r) Collins v. Carnegie, i A. & E. 695. - '' ' {s) Skirving v. Ross, 31 C. P. (Ont.) 423. "T (t) Ayrn V. Craven, 2 A. & E. 2 ; Dixon v. Smith, 5 H. & N. 450. — - (ii) Anon. I Ham. 83 ; Foster v. Small, 3 Whart. 138. ; {v) Clay V. Roberts, 9 Jur. (N. S.) 580). ^ D/'FAMATION. 135 time the words were spoken. Sometimes this is admitted by the slander itself, and if so, evidence is of course unnecessary in proof of tl.us averment. But in other cases, unless it is admitted on the pleadings^ evidence must be given at the trial of the special character in which the plaintiff sues. As a rule, it is sufficient for the plaintiff to prove that he was engaged in the profession or trade, without proving any appointment thereto, or producing a diploma or other formal qualification. For the maxim omnia presumuntiir rite esse acta applies. But if the very slander complained of imputes to the medical practitioner that he is a quack or an impostor, not legally qualified for practice ; or if the plaintiff aver that he is a physician and has duly taken his degree, then the plaintiff at the trial must be prepared to prove his qualification strictly by producing his diploma or certificate. In some cases the mere production of the diploma will not be sufficient proof of the plaintiff's having the degree, but it maybe necessary to prove that the seal affixed is the seal of a university having power to grant degr os ; or in tbe case of the production of a copy of the diploma, that it has been compared with the original (w). Whether or no the words wore spoken of the plaintiff in the way of his business is a question for the jury to deter- mine at the trial. There should always be an averment in the statement of claim, that the words were so spoken, and it should also be shewn in what manner the words were connected by the speaker with the profession {x). Medical practitioners are of course equally liable with other men to an action for defamation, in respect of any (w) Odgers on Slander, p. 69; Rutherfot ' v. Evans, 4 C. & P. 79 ; Collins V. Carnegie, i Ad. & E. 697 ; Aloises \ . I'hornton, 3 Esp. 4 ; Wakley V. Healey, 4 Ex. 53. _ ____ ^^—. , —— — ,-—— — (x) Van Tassel v. Capson, 1 Denio. 250; Kinney v. Nash, 3 Comst. 177; Ayre v. Craven, sup. 136 THE LAW AND MEDICAL MEN. '3n, false and malicious communication, whether oral or written, made by them to the damage of another, in law or in fact ; circumstances, however, frequently arise where, from the nature of their employment, it becomes their duty or interest to make some communication prejudicial to the character or conduct of another, and in such cases, where the occasion on which the communication was made rebuts the presump- tion of malice, (which the law infers from such a statement,) such communication is said to be privileged, and therefore, in order to sustain an action for defamation, the plaintiff must prove that the defendant was actuated by express or actual malice — that is, malice independent of the occasion on which the communication was made. 'L'he legal canon is, that a communication made bona fide, upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter, which (without this privilege) would be slanderous and actionable. This applies, more- over, though the duty be not a legal one, but only a moral or social duty of imperfect obligation, and also where the communication is made to a person not in fact having such interest or duty, but who might reasonably be, and is supposed by the party making the communication to have such interest or duty (y). Even where the evidence of duty is not present to the mind, but the speaker is impelled by a sense of propriety, on which he does not pause to reflect, and which he refers to no special motive, nevertheless, if his conduct in speaking the words be within the occasion of interest or of duty which is capable of protecting, the com- munication will be considered privileged {z). Words spoken by the medical officer of a college concerning ( v) Glenn's Laws of Med. Men, 230; Harrison v. Bush, 5 El. & B. 344. (z) Per Pigot. C.B., in Bell v. Parke, 10 Ir. C. L. Rep., N. S., 288. DEFAMATION. 137 the meat furnished to the institution ; and words used by the medical attendant of a poor-law union about the win'e supplied to the inmates, are privileged, in the absence of proof of actual malice (a). A statement made by a physi- cian that an unmarried woman is pregnant is not a privileged communication, unless made in good faith to one who is reasonably entitled to receive the information {b). c/£ r:;:^5"^^^;;s'''""^''' ^ ''• * ^- ^^^-^ ^-^^-^ - ^^^^^-'^^ ^3 ir. {b) Alpen v Morton. 21 Oh. St. 536. "IT: li. m' 138 THE LAW AND MEDICAL MEN. CHAPTER XL RELATIONS WITH PATIENTS. I It is a well settled doctrine that where one occupying a position which naturally gives him the confidence of anothei", or which in any way gives him an influence, or an undue advantage over the other, transactions between them require something more to give them validity than is necessary in other cases. The mere fact of the existence of such a rela- tionship as naturally creates influence over the mind will lead the courts to infer the probability of undue influence having been exerted. Confidence has been held to imply the opportunity for influence, and when established, dispenses witli any more direct proof of influence. In such cases the 071US is cast upon the ptrson occupying such a relationship to establish the perfect fairness and equity of the transac- tion. He must shew that the other acted after full and suffi- cient deliberation and with all the information that it was material for him to have, in order to guide his conduct, and that he had either independent and disinterested advice, or as ample protection as such advice could have given him (a). Rhodes v. Bates (b) lays it down that the donor must have had competent and independent advice. The relation between a medical man and his patient is one in which the probability of undue influence is inferred ; (a) Clarke v. Hawke, g Grant, 52 ; Denison v. Denison, 13 Gr. 596 ; Hoghton V. Hoghton, 15 i3eav. 299; Haguenin v. Baseley, 14 Ves. 300; Story, I Eq. Jur. sec. 314. But spe Andeureid's Appeal, 89 Pa. St. 114; McEwan v. Milne, 5 Ont. R. 100. (b) Law Rep. i Ch. 25a. ^w RELATIONS WITH PATIENTS. 13.) and so in dealings with their patients the acts of physicians are watched with great jealousy ; not because the Court blames and discountenances the influence flowing from 8U( h relation, but because it holds that this influence should be exerted for the benefit of the person subject to it, and not for the advantage of the person possessing it (c). The dis- continuance of the relationship is only material if the influence has ceased with the relation ; and the relation does not necessarily cease because the patient has not medicine actually administered to him at the time (d). Where a surgeon and apothecary obtained from a patient, eighty-five years old, an agreement to pay him ,i'25,000, in consideration of past medical services, duly charged and paid for, and the promise of future medical and surgical assist- ance until death without charge, and kept the matter concealed until after the death of the patient, the Court, on the prayer of the patient's executor, ordered the medical man to give up the agreement to be cancelled. So, when an octogenarian patient conveyed by deed of gift a property worth £1,000 to his physician, who was also his intimate friend, and the son of his benefactor, the Court set aside the d^ -^ for fraud. (In this ca=e the consideration named in tins deed was not the true one.) And even where a patient gave to his surgeon an annuity of i'lOO for the sur- geon's life, in consideration that he would live with him and give him the benefit of his professional assistance during his (the donor's) life, it being shown that the sur- geon had been told by an eminent physician, just before the deeds were drawn, that the patient could not recover or live long, and that the surgeon himself, about the same time, had said the patient could not live more than a month or so; the Court held the instruments could not be (c) Ho^hton V. Hoghton, sup. ; Dent v. Bennett, 4 Myl. &C. 276 ; Cadwall- ader v. West, 48 Mo. 483. {d) Clarke v. Hawke, sup. ; Dent v. Bennett, sup. 140 THE LAW AND MEDICAL MEN. maintained (e). A patient, aged, feeble, deaf and of very weak mind, bestowed all his estate on the attending physi- cian, who lived with him, and had controlling influence over him, for an extremely trifling compensation. The transac- tion was set aside, the Court saying : " Owing to the relation which the parties sustained towards each other, the deed was presumptively the result of undue influence, and there- fore 'prima facie void for that reason. It has been repeat- edly declared by learned 'chancellors that the mere relation of patient and medical at^viser was sufidcient to avoid the contracts of the former made with the latter during the continuance of such relation" (f). ' A security given by an old man for iJ262 10s. to a dentist, in consideration of his old teeth being kept in order and new ones being supplied during the remainder of his life, had to be given up (g). And if a man pays an exorbitant bill to a doctor, the Court will grant him relief ; and it will be no answer to his asking his money back to say that he intended to be liberal unless such intentions can be clearly shown (h). Even a pj,ie to a patient by the medical man under whose care ].i is will be set aside if at an exorbitant price, and the purchaser has had no independent advice (i). But where the evidence showed that the patient's ). (k) Mitchell V. Horn/ray, 8 Q.B.D. 587. (/) Aheare v Hogan, Dru. 322, . ; ■' (w) Doggettv. Lane, 12 Mo. 215. _j^:~ (n) Middleton v. Sherbonrne, 4 Y. & Coll. 358. '-' (o) Jones V. Godrich, 5 Moo. P. C. 16. (/)) Farlar v. Lane, 29 L. T. 2 ; Jones v. Godrich, 5 Moo. P. C. i6 ; Reece v. Pressey, 2 |ur. N. S. 380. i. r \ If 142 THE LAW AKI» MEDICAL MEN. w A physician, however, may fail to obtain the benefits which a grateful patient has wished him to have under a will, if — as was done in one case — after a long attendance on a patient, he thinks fit, when she is almost on her death- bed, to prepare and procure the execution of a will by which he becomes the principal object of her bounty, to the exclusion of her near relatives; and to do this without the intervention of any solicitor or other person competent to give her advice, and to guard her against undue influ- ence ; for in such a case the interests of the public require that his conduct should be regarded by Courts of Justice with the utmost jealousy (q). In another case, it was said that although there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not a favourable circumstance for one in such a confidential position, with respect to a patient labouring under a severe disease, to take a large benefit under such patient's will, more particularly, if it be executed in secrecy and the whole transaction assumes the character of a clandestine pro- ceeding, and in such a case the onus will lie very heavily upon the party benefited to maintain the validity of the will(r). Clairvoyant physicians may also get into trouble. An action was brought against one to set aside a marriage and a conveyance of property worth $25,000. The patient was old, feeble, deaf, childish and a firm spiritualist. The clairvoyant was a woman who pretended to be very modest and bashful and able to cure the deafness. After a course of treatment, mainly by manipulation, she told the old man that the spirits said that they must be married within two weeks, or something dreadful " would step in between them." (q) Greville v. Lylce, 7 Moo. P. C. 320 ; Durnell v. Corfcld, 3 I.. T. 323 ; I Robarts, 51 ; Major v. Knight, 4 N. C. 661. (r) Ashwcll V. Lomi, L. R. 2 P. & D., 477. See also Crispell v. Dubois, 4 Barb. 393. ^^If RELATIONS WITH PATIENTS. 148 o s. By miBrepresentations concerning her character and her friends she won the old man and his property. After the honeymoon the patient came to his senses, and prayed to get hack his liberty and possessions, because of the fraud used. The Court granted his prayer (»). To promise a cure is unprofessional, and to obtain money on the faith of such a promise is sometimes dangerous. Brown falsely represented himself to A., an ignorant negro, to be a practising physician, and that he had restored sight to the blind. He persuaded A. that his (A.'s) house was infected with poison, and that it was in the bed occupied by his granddaughter, that she was poisoned, and that he could remove the poison if he was paid for so doing. A. gave him $22 to remove it. The Court held that Brown had been guilty of obtaining money under false pretences (t). A physician should take all possible care to prevent the spread of smallpox or any other contagious disease, and use all such precautionary measures as may appear desirable. So, where the paper upon the walls of a room in which there had been smallpox patients had become so soiled and smeared with the smallpox virus as to make its removal necessary, a physician or other attendant may order the paper to be torn down ; and the landlord cannot success- fully maintain an action against the physician for doing this (w). Apparently a surgeon may retain the limbs he cuts off a patient, upon the ground that parts of the body when severed become dead, and at common law there is no property in a dead human body. The point was once con- tested in Washington (y). (s) Hides v. Hides, 65 How. Pr. Rep. 17 ; Middleton v. Sherburne, 4 . y. & Coll. 358. ,-..:. ;-,:r : (<) Brown v. State, 9 Baxter, 45. . < («) Seavey v. Preble, 64 Me. 120, ' (v) 3 Co. Inst. 203 ; 20 A. L. J. 320. % 144 THE LAW AND MEDICAL MEN. ik • A Hiirgoon who attends a duel, althouKli to save by his skill if possible the lives therein imperilled, will be held guilty of aiding and abetting the principal offender in the event of death ensuing (w). If a medical practitioner wilfully injures a patient he is liable to be indicted for an assault, and if death ensue from the injuries so inflicted he may be indicted for murder. And this is so even though the patient might have sub- mitted at the time from the supposition that the treatment was for his good. Having or attempting to have carnal connection with a female patient under pretence of treating her medically is an assault (.r). Making a female patient strip naked, under pretence that the defendant, a medical practitioner, cannot otherwise judge of her illness, if he himself takes off her clothes, contrary to her wishes, is an assault. In tliis ease the jury found that the defendant had stripped the girl wantonly, and not from any belief that it was necessary (y). Where a physician takes an unprofessional unmarried man with him to attend a case of confinement, and no real necessity exists for the latter's assistance or presence, both are liable for damages ; and it makes no difference that the patient, or her husband, supposed at the time that the intruder was a medical man, and therefore submitted without objection to his presence ; or that the intruder accompanied the physician reluctantly on a dark and stormy night to carry a lantern or umbrella, and some instruments, and that there was only one room in the house. The Court remarked : " Dr. De May therefore took an unprofessional young unmarried man with him, intro- duced and permitted him to remain in the house of the plaintiff, when it was apparent that he could hear at least, (w) Reg. V. Cuddy, i C. & K. 210 ; Reg. v. Coney, L. R. 8 Q. B. D. p. 569. (x) R. V. Case, 19 L. J. M. C. 174 ; R. v. Stanton, 1 Car. & Kir. 415. (y) Rex V. Rosinski, i Moo. C. C. 19. RELATIONS WITH PATIENTS. 145 if not see, all that was said and done, and, as the jury must have found u^der the instructions given, without either the plaintiff or her hushand having any knowledge or reason to helieve the true character of the third party. It would ho shocking to our sense of right, jr.ptice and propriety even to douht that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one, and no one had a right to intrude unless invited, or hecause of some real and pressing necessity which it is not pretended existed in this case. The plain- tiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right hy requiring others to observe it and to abstain from its violation. The fact that at the time she consented to the presence of Scattergood, supposing him to be a physician, does not preclude her from maintaining an action, and recovering substantial damages upon afterward ascertaining his true character. In obtaining admission at such a time and under such circumstances, without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterward sustained, from shame and mortification, upon discovering the true character of the defendants." The action was brought by the wife (^;). If physicians, who have certified to the insanity of a person, have not made the enquiry and examination which the statute requires, or if their evidence and certificate in any respect of form or substance are not sufficient to justify a commitment to an asylum, the authorities should not commit, and if they do it is their fault and not that of the physicians, provided the latter have stated facts and opinions truly and have acted with due professional care and skill {a). {z) De May v. Roberts, 46 Mich. 160 ; 41 Am. Rep. 154. (a) Pennell v. Cummings, 75 Me. B.L.M.M. 11 r [II I'' a w n J 1 I at ii 146 THE LAW AND MEDICAL MEN. If a medical man takes upon himself the responsibility of impiisoning a person on the ground of insanity, upon mere statements mrde to him by others, he will be liable to an action, and also for an assault, unless he can indeed show that the party imprisonad was insane at the time (h). He IS not liable for an assault if he has signed a certificate under the Lunacy Acts and has done nothing more towards causing the confinement of the alleged lunatic (c). A medical man or other person may justify an assault where it is committed for the purpose of putting a restraint upon a dangerous lunatic in such a state that it is likely he may do mischief to some one (d). In Ontario, except under order of the Lieutenant-Gover- nor, no one can be admitted into a lunatic asylum without the certificate of three medical men, each attested by the signatures of two subscribing witnesses. Their certificates must state a personal and separate examination, and that after due enquiry the patient was found insane ; and the physicians must also specify the facts upon which they formed their opinion of the insanity. In England, except in the case of paupers, two certificates are required (e). The practice of abortion is forbidden by the oath of Hippocrates. The act is recognized as a crime in almost every code of medical ethics : its known commission has always been followed by ignominious expulsion from medical fellowship und fraternity. At Common Law a child en ventre sa mere is not considered a person the killing of whom is murder ; bat if one, intending to procure abortion, causes a child to be born so soon that it cannot live, and ( !:^ Fletcher v. Fletcher, i E, & Z. 420 ; Anderson v. Burrows, 4 C & P. 210. (c) Hi A V. Semple, 3 F. < ^«"- oiai. 32 — .Cox C.C.228; (k) Bradford v. People, 20 Hun. (N. Y ) 309 v.^i5:;;.;i^7;5!^^:^3*^'^7^^ i^-.v.-S««.«.4Burr.2„6; Re.. {/«) 3 & 4 Vict. cap. 29. sec. 8; 30 & 31 Vict. cap. 84. sec. 32. (») 16 Vict. cap. 170, sec. 1. ill « ._ < 1 ill rk^ ill 148 THE LAW AND MEDICAL MEN. It has been held in the State of Alabama, that where a special prohibitory Act does not except the practising physician from its operation, he is liable if he administers intoxicating bitters to his patient, but not for using liquors necessary in compounding medicine manufactured and sold by him. The application of any other rule, it was said by the Court, would be fraught with difficulty, if not imprac- ticability. So, too, in Kansas (o). Any registered practitioner who has been convicted of felony shall forfeit his right to registration, and the Medical Council may cause his name to be erased from the register ; and if any one who has been convicted of felony presents himself for registration the registrar may refuse registra- tion. But one's name cannot legally be removed from the register without notice and an opportunity of being heard (p). A person who has met with personal injuries must exercise the same degree of care in the employment of a physician and surgeon, and in procuring and submitting to proper medical treatment, as a prudent and reasonable man would in any other matter ; for those persons liable for the original injury will not be responsible for the further damage arising from the improper selection of a phy- sician iq). • If a family doctor, or the surgeon of a company or society, on leaving home, recommends in case of need, some other physician, who is not, however, in any sense in his employment, it does not make him in any way liable for injuries arising from the latter's want of skill (?•). (o) Carson v. State, Ala. Sup. Ct. Dec. 1881 ; 25 A. L. J. 366 ; State v. Kansas, 29 Kans. 384 ; and see post Druggists. {/>) R. S. Ont. cap. 142, sec. 34 ; Reg. v. Coll. of P. &• S., 44 Out. Q. B. 146. (q) Boynton v. Somersworth, 58 N. H. 321. (r) Hitchcock v. Burgett, 38 Mich. 501. _.._„-^ .__ DISSECTION AND RESURRECTION. 149 % CHAPTER XII. DISSECTION AND EESUR.RECTION. A knowled<];e of the causes and nature of sundrv diseases which affect the human body, and of the best methods of treating and curing such diseases, and of heahng and re- pairing divers wounds and injuries to which the human frame is liable, cannot be acquired without the aid of anatomical examination. So saith the preamble to the British Anatomy Act of 1832. The chief hindrances to the pursuit of the study of anatomy have arisen from ignorance and superstition. A prejudice has prevailed in all nations against the violation of the humau body aft^r death. Even now, only philosophers like Jeremy Bentham are willing to have their bodies dissected by their friends. Simple as- sociation f thoughts causes the remains of a dead kinsman or friend to be treated with respect and tenderness ; in the same way, the horror of death attaching to anything con- aected with the dead, and the religious idea that the soul t itlives the body, and continues in a ghostly way to retain a connection with its old habitation of clay, have led to the respectful disposal of the corpse among most nations. The Ptolemy princes Philadelphus and Euergetes, who enabled their physicians to dissect the human body, and prevented the prej adices of ignorance and superstition from compromising the welfare of the human race, were far in advance of their times. Long after their day, the Koran denounced as unclean the person who touched a corpse, and : I! 1 150 THE LAW AND MEDICAL MEN. the rules of Islamism still forbid dissection ; the old Moslem doctors only found opportunities of studying the bones of the human body in the cemeteries. Not until the days of Henry VIII. did the law make any provision for the cultivation and practice of the art of dissection. In 1540, more perhaps to strike terror into malefactors, than from any enlightened notion of forwarding knowledge, the Legis- lature gave permission to the masters of the Mystery of Barbers and Surgeons of London to take annually four persons, put to death for felony, for anatomies, and to make incision of the same dead bodies, or otherwise to order the same, after their discretions, at their plcnsure, for their further insight and better knowledge, instruction, insight^ learning, and experience, in the science or faculty of surgery (a). Elizabeth, in 1565, made a similar grant to the College of Physicians, that they, observing all decent respect for human flesh, " might dissect the four felons." By 25 Geo. 11. cap. 37 (1752), the bodies of all murderers executed in Lon- don and Westminster were to be given to the surgeons to be dissected and anatomised. But the legal supply of human bodies for anatomical examination still continued insufficient fully to provide the means of knowledge ; and in order to furnish the necessary subjects, divers great and grievous crimes and murders were committed, the money paid, being the incentive. So, in 1832, the Anatomy Act{b) was passed. This Act proves clearly that Parliament regarded anatomy as a legal practice, and it provides for the licensing of those practising anatomy, allows any executor or other person, having lawful possession of any dead person (and not being an undertaker, etc.), to hand over the body for dissection (respect, however, being had to (a) 32 Hy. VIII., cap. 42. (b) 2 & 3 Wm. IV., cap. 75. DISSECTION AND RESURIIECTION. 151 the wishes of the deceased or his known relatives). Inspec- torships of schools of anatomy were likewise estahlished. In Canada, the bodies of convicts who die in a penitentiary, if unclaimed by the relatives, may be delivered to the pro- fessors of anatomy in any medical college, or to an inspector of anatomy (c). The first defender of the faith, Henry VIII., the illustrious Elizabeth of most famous memory, and the enlightened James, had several statutes passed in which the disinterring of the dead is mentioned, but they were chiefly enactments against witchcraft, conjuration, the use of dead men's bones, and all sorts of sorceries. The parliament of James solemnly enacted, " that if any person should consult, covenant with, entertain, employ, feed or reward any evil and wicked spirit, to or for any intent or purpose, or take up any dead man, woman, or child out of his, her, or their grave, or any other place where the dead body rested, or the skin, bone, or any other part of any dead person, to be employed, or used, in any manner of witchcraft, sorcery^ charm, or enchantment * * every such offender, his aiders, abettors, and counsellors, should suffer death as felons, and should lose the privilege and benefit of clergy and sanctu- ary" (d). This philosophical enactment graced the statute book until the ninth year of George II. While these statutes against sorcery were in force, and the Judges still imbued with the superstitious spirit of the age, the pre- sumption was very strong that bodies disinterred were removed for purposes of enchantment or witchcraft, and resurrection-men and students of anatomy, as their aiders and abettors, were in imminent jeopardy of suffering aa felons ; but as the belief in sorcery grew weaker the pros- pect of these men grew brighter, and they were relieved from the great danger that they ran. : (c) 32 & 33 Vict., cap. 29, sec. 100. (d) I Jac. I., cap. 12. 152 THE LAW AND MEDICAL MEN. i '. 1 ^' Under the laws of Constantine, a woman could without blame repudiate her husband, if he was guilty of violating the tombs of the dead ; and we are told that the Ostrogoths allowed divorce for this same reason. And among the Franks, one who took the clothing from a buried corpse was banished from society, and none could relieve his wants until the relations of the deceased consented (e). As long ago as the tenth year of James I., at the assizes in Leicester, a man was tried for stealing winding sheets. Sir Edward Coke tells the matter thus : " One William Hain had in the night digged up the graves of divers several men and of one woman, and took the \irinding sheets from the bodies and buried the bodies again ; and I advising hereupon, for the rareness of the case, consulted with the Judges at Sergeants' Inn on Fleet street, when we all resolved, that the property of the sheets was in the executors, administrators, or other owner of them, for the dead body is not capable of any property, and the property of the sheets must be in some- body, and according to this resolution he was indicted of felony in the next assizes ; but the jury found it but petit larceny, for which he was whipped, as he well deserved." These learned people thought that if a winding sheet had been gratuitously furnished by a friend the property re- mained in the donor. For, quoth they, the winding sheet must be the property of somebody ; a dead body, being but a lump of earth, hath no capacity ; also, it is no gift to the person, but bestowed on the body for the reverence toward it, to express the hope of the resurrection ; also, a man cannot relinquish the property he hath to his goods unless they be vested in another (/). Subsequently, lawyers have generally concurred in these opinions; the coffin, too, is the property of the personal representative of the deceased (g). (e) I Russ. on Crimes, 465. (/) 3 Inst, no ; 12 Co. 113 a. {g) 2 East P. C. 652. DISSECTION AND ItESURrvECTION. 153 A still more interesting question arises as to who owns the corpse. It has been generally held that there is no property in it. Blackstone remarks, that, although the heir has a property in the monuments or escutcheons of his an- cestor, he has none in his body or ashes. According to the law of England, after the death of a man, his executors have a right to the possession and custody of his body (although they have no property in it) until it is properly buried. A man cannot dispose of his body by will or any other instrument (/<). A contract for the sale of a corpse, even to doctors, will not be enforced ; it cannot be made an article of merchandise (i). The relatives have the right of interring the body, and when this right is once exercised they have no further interest in it than to protect it from injury (/). In Indiana, the Courts have diverged somewhat from the beaten track, and held that the surviving relatives are entitled to the corpse in the order of inheritance as property, and that they have a right to dispose of it as such, subject to whatever burial regulations are reasonable j,nd proper for the public health and advantage (k). The English Anatomy Act, as has been seen, gives the executor or other person having the lawful possession of the body of any deceased person power to permit it to be anatomically examined. In England, the earlier writers on criminal law say nothing of the taking of a body from the grave, except that it is not theft. East, however, calls it a great misdemeanor; and there have been several convictions for this as an offence at Common Law. Doubtless tho belief that it was an offence at Common Law was nearly connected (h) Williams v. Williams, L. R., 20 Ch. D. 659 ; Reg. v. Sharpe, Dea. and Bell, C. C. 160. (i) Am. Law T., July, 1871. (/) Guthrie V. Weaver, i Mo. App. 136; 4 Brady, 502; Wynkoop v. Wynkoop, 6 Wright, 293. {k) Bogert V, Indianapolis, 13 Ind. 138. I If ■ n I 154 THE LAW AND MEDICAL MEN. witli the idea of the bodies being used for the dark purposes of the necromancer, and it would appear that no distinct authority upon the abstract point has been found in ancient It gal records (/). It is still an indictable offence, punishable with fine and imprisonment, or both (m). And this even though the body has been taken in the interest of science, and for the purpose of dissection ; or even if the motives of the offender were pious and laudable. In Lijnn's case — (Lynn was indicted for entering a burying ground, taking a coffin up, and carrying away a corpse for the pur- poses of dissection) — it was urged that the offence was cogniz- able only by the ecclesiastical courts ; but the Judges of the King's Bench said that common decency required that a stop should be put to the practice ; that it was an offence cognizable in a criminal court as being highly indecent, and contra honos mores, at the bare idea alone of which nature revolted ; that the purpose of taking up the body for dissecti m did not make it less an indictable offence. They refused to stay proceedings, but inasmuch as Lynn might have committed the deed merely through ignorance, they only fined him five marks. Since then others have been more severely dealt with. And in a very recent case, Stephen, J., said, "The law to be collected from these authorities seems to me to be this : — The pr^tctice of anatomy is lawful, though it may involve an unusual means of disposing of dead bodies, and though it certainly shocks the feelings of many persons ; but to open a grave and disinter a dead body without authority is a misde- meanor, even if it is done for a laudable purpose." It is, also, an indictable offence in many of the States to disinter a corpse, unless the deceased in his life-time had (/) Willcock, cap. lo. (»«) 2 East P. Cr. 652 ; R. v. Gilles, Russ. & Ry. 366, n ; R. v. Lynn, 2 T. K. 733; Reg. V. Sharpe, i D. «& B, 160; Reg. v. Price, L. R, 12 Q. B. D. 247. ni DISSECTION AND RESURRKCTION. 155 directed such a thing, or his relatives consent to it ; and that the resurrecting is for the purpose of dissecting; does not improve matters (n). In New York, removing dead bodies " for the purpose of selling the same," or " from, mere wantonness," is punishable by both fine and imprison- ment (o). And in New Hampshire and Vermont such offences bring upon those convicted, fines, whipping, and imprisonment, as the Court may sec fit. In Massachusetts, unclaimed dead bodies, nnd those of persons killed in duels, or capitally executed, are assigned to the medical schools of the State. The New York Act of 1789 must be considered as the first American Avjatomy Law. The first section prohibits tlie removal of dea I bodies for dissection, and the second section permits the Courts, in passing capital sentence, to award the body to the surgeons for dissection. Enactments similar to that of the New York Act, sec. 1, have been passed by the following States : Alabama, Arkansas, California, Connecticut, Geor- gia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, Ohio, Oregon, Pennsylvania, Ehode Island, Tennessee, Texas, Vermont, Virginia, Wee t Virginia, and Wisconsin. The second section of the New I'ork Act has developed into the Acts of twenty-four States, which have thus legalized dissection, and most of them have made specific provision for the dissection of the bodies of certain deceased criminals, chiefly murderers. ; these States are Alabama, Arkansas, California, Colorado, Con- necticut, Georgia, Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennyslvania, Tennessee, Vermont, and Wisconsin. Some of these States («) Tate V. Sintc. 6 Black. (Ind.) iii ; Com. v. Loring, 8 Pick. (Mass.) 370; Com. V. Marshall, ti Pick. 350; Coin. v. Coolcy, 10 1 ick. 37. (0) 2 R. S. 088, sec. 13. " -^ 156 THE LAW AND MEDICAL MEN. ha^'^ made no other provision for anatomical study l)eyond that mentioned (j)). We have ah-eady referred to the (Can- adian Act on this subject. In addition, the Ontario Act provides that the bodies of persons found dead, publicly exposed, or who at time of death had been supported in and by some institution receiving government aid (except lunatics in provincial asylums), shall, unless the person so dying otherwise direct, or the hoiia Jide friends or relations claim it, be given to public medical schools in the locality, or to public teachers of ana- tomy or surgery, or private medical practitioners, hav- ing three or more pupils, for whose instruction such bodies are actually required. Such medical practitioners must give security for he decent interment of the bodies after they have served their purposes ; and then a written authority to open a dissecting room is given by the Inspector of Anatomy of the city, town, or place. The In- spector's duty is to keep a register of bodies given up for dissection ; a register of the qualiiied practitioners desiring bodies ; to make an impartial distribution of the bodies in rotation ; to visit the dissection rooms, f-.nd to report to the 13olice magistrate or chief municipal officer, any improper conduct on the part of students or teachers {q). A person may be found guilty of the offence of disinter- ring a corpse, even though he was not actually present at the body-lifting, if with the intention of giving aid and assistance he was near enough to afford it, if required (rj. Besides the danger he runs of being brought before a criminal tribunal, the body-lifter incurs the risk of civil proceedings being taken against him. It is true, as Black- stone says, the heir has no property in the body or ashes of (/>) 23 Albany L.J. 421. (q) R. S. O. cap. 143. (r) Tate v. State, 6 Black, m. DISSECTION AND RESURRECTION. 167 his ancestors ; nor can he bring any civil action against such as indecently, at least, if not impiously, violate and disturb their remains when dead and buried ; but that learned commentator goes on to remark : " The person, indeed, who has the freehold of the soil, may bring an action of trespass against such as dig and disturb it " (s). This has been clearly established in a case in Massa- chusetts, where a father sued for the removal of the remains of his child, and recovered a verdict for $837 in an action of trespass quare clausiini /regit. Mr. Justice Forster, in giving judgment, remarks that a dead body is not the subject of property, and after burial it becomes part of the ground to which it has been committed, earth to earth, dust to dust, ashes to ashes. The onlj' action that can be brought is trespass qiKire clausum. Any one, said the Judge, in actual possession of the land may maintain this against a wrong-doer. The gist of the action is the breaking and entering, but the circumstances which accompany and give character to the trespass may always be shown either in aggravation or mitigation. Acts of gross carelessness as well as those of wilful mischief often inflict a serious wound to the feelings, when the injury done to property is com- paratively trifling, and we know of no rule of law which requires the mental suffering of the party complaining, caused by the misconduct of the wrong-doer, to be disre- garded (f). Willcock, in his "Laws relating to the Medical Profession," in his tenth chapter, when considering the lawfulness or unlawfulness of taking bodies for the purpose of dissection, says : " The whole question must depend upon the proper answer to these inquiries. Is it a violation of property ? (s) 2 Com. ^g.' .Sr ,. ■■ ' :"-j.-C, ' ^ ;■.'';■ • ■ rt'J',.; ^•■'^'■. (t) Meagher v. Driscoll, 99 Mass. 281 ; Barnstable v. Thatcher, 3 A^etc. 243 ; Bracegirdlev. Orford, 2 M. & S. 77 ; Brewer v. Dero, 11 M. «& W. 625. t I 158 THE LAW AND MEDICAL MKK. Is it a personal injury to any individual ? Or is it an injury to tlio public '? Every lawyer who has mentioned the sub- ject has admitted that there is no violation of property in respect of the corpse itself, which is necessary to constitute the removal an offence ; and Blackstone has distinctly stated that the only property violated is the grass and soil of the land wherein the body was interred, in respect of which the person may bring his action of trespass, and the law has not provided any punishment as for an offence. It is equally clear that it is not an injury to any person ; for the shrewd lawyers of Coke's time determined that the body was no person but a lump of clay ; and the only injury which can give a right of action to — that is which amounts to a violation of any legal right of — a relative or master, is such as may be said to recoil upon him, by causing him expense, labor, or loss of valuable service. The unpleasantness which may arise from an attack upon prejudices, however intimately blended with good feeling and delicacy of sentiment, is ranked by the court with that class of wrongs which are technically designated danina absque injuria." "In Lynn's case, the judges assumed to answer the third question, that is to assert that it is an injury to the public. Society is not injured by the disinterment of the dead for the purposes of science, for it could hardly exist without such a sacrifice of fastidiousness ; society is not insulted by the secret abstraction of the corpse from the vermin which crowd to pollute it, and they who so curiously seek the remains of those they hold dear, behind the veil of science, would do well to pry for one moment into the secrets of the sepulchre. They alone are the violators of every sentiment of delicacy and benevolence who insult the disconsolate relatives with the tale of the robbery and the pursuit, and with the foul spectacle of dismemberment they may have at lengtli discovered." '.M DISSECTION AND llESUIUlECTION. 159 • » it te d I'C It would appear tliat in a proper case the Court, in tlio interests of justice, will compel the ^>x}uiming and examin- ation of a (lead h(y<]y which is under the control of a plaintiff, if there is stronj,' reason to believe that without such examination a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it. However, such an order should be made only upon a strong showing to that effect. " It would be a proceeding repugnant to the best feehngs of our nature, and likely to be in many cases so abhorrent to the sensi- bilities of the surviving relatives, that they would prefer an abandonment of the suit to a compliance with the order." Thus spake the court in a case where the order for exhum- ing was asked for and refused as not being justified under the circumstances. The action was on a policy of insur- ance, and the defence was, that the insured had falsely warranted that he had never received any serious personal injury, whereas his skull had been fractured in boyhood, and had been healed by trephining. To prove this, the company proposed to disinter his body, after the suit had been pending eighteen months, upon the sole testimony of his physician, that the deceased had said that he had been told of such an accident and operation. The counsel for the plaintiff called the proposal " revolting," and said that to break the signet of the grave, and take from its resting place the sacred property of relatives to gratify the corpor- ation's mercenary curiosity, would be worse than Shylock's demand (u). ■■■'"'• ' ' (m) Granger's Ins. Co. v. Brown, 57 Miss. zoS. 160 THE LAW AND MEDICAL MEN. CHAPTER XIII. 'SMi DENTISTS. The need of dentist's existed long before dentistry. The Preacher knew of the inconveniences which arise when the grinders are few. Marcellus, about "B. C. 380, gave two receipts for toothache. One is, "Say, 'argidam, margidam, sturgidam ; ' " the other is, "Spit in a frog's month and request him to make off with the complaint." These are given in Glenn's " Laws affecting Medical Men." In England, in the tenth and eleventh centuries, priests and monks were the dentists of the day. Afterwards, a decree of the Council of Tours having forbad clergymen undertaking or engaging in any bloody operation, all surgical practice fell into the hands of blacksmiths and barbers. The latter soon became the more important class, and in 1461 (as we have seen already), Edward IV. incorporated them as ** The Freeman of the Mystery or Faculty of Sur- gery." By degrees other persons assumed to practise pure surgery, and these two bodies, in 1560, were united by Act of Parliament, and became " The Masters or Governors of the Mystery and Commonalty of the Barbers and Surgeons of London." By the third Action of this Act (a), because of fear of the spr' id of contagious diseases, any one in the City of London using barbery or shaving, was forbidden to (a) 32 Henry VIII. cap. 42. I DENTISTS. 161 occupy any surgery, letting of blood, or any other thing belonging to surgery, drawing of teeth only excepted. In those days one wishing to find a drawer of teeth had to resort to one of those shops where was exhibited the band- aged pole as a sign or symbol that " all the King's liege people there passing by might know at all times whither to resort in time of necessity." Something moie than a sign is now required of dental surgeons. The Boyal College of Surgeons in England has now the power to appoint examiners for testing the fitness of persons to practise as dentists, and to grant certificates of such fitness. To become a Licentiate of Dental Surgery in England, it is necessary to be engaged for four years iii the acquirement of professional knowledge ; to attend at a recognized school one course of lectures, at least, in anatomy, physiology, surgery, medicine, chemistry, and materia medica, and a second course on th(> anatomy of the head and neck ; one course on metallurgy, and two on dental surgery and anatomy, dental physiology and me- chanics ; to have dissected for nine months ; to have taken a course of chemical manipulation ; to have attended a hospital for two or more sessions ; and to have spent three years in acquiring practical familiarity in mechanical dent- istry under a competent practitioner ; and then to pass the examiiiation required by the board. In Ontario, " The Eoyal College of Dental Surgeons" has power to appoint a Board of Directors, who have authority to fix the curriculum of studies to be pursued by students, to determine the period during which they must be employed under a practitioner, to appoint the examiners, and arrange the examinations, for those who desire to obtain a license to practise dental surgery in the province. The Board may also confer the title of "Master of Dental Surgery" upon any licentiate who passes certain examinations ani con- R.L.M.M. 12 w 162 THE LAW AND MEDICAL MEN. M n ' [Ml [rf" !j 'iii 1; |l ! I ! I I forms with certain regulations. The College is 6oraposed of all those entitled to practise in the Province ; and no one who is not a member of the College can practise dentistry for hire, gain or hope of reward, or pretend to hold, or take, or use an^ lame, title, addition or description, implying that he holds a license to practise, or that he is a member of the College, or shall falsely represent, or use any title representing that he is a graduate of any dental college, under a penalty of $20 and costs for every offence, to be recovered in a summary way before a magistrate, or in a Division Court by suit. Persons contravening the Act can- not recover for work done or materials provided. Of course, the Act does not interfere with legally qualified medical practitioners {h). Dentists are subject to the same rules, as to negligence, as are physicians or surgeons (c), and if by a culpable want of attention and care, or by the absence of a competent degree of skill and knowledge, a D.D.S. causes injury to a patient, he is liable to a civil action for damages, unless, indeed, such injury be the immediate result of intervening negligence on the part of the patient himself, or unless such patient has by his own carelessness directly conduced to the injury (d). The law is ever reasonable ; so it only requires of a dentist a reasonable degree of care and skill in his professional operations, and will not hold him answerable for injuries arising from his want of the highest attainments in his profession. The rule is, that the least amount of skill v'ith which a fair proportion of the practi- tioners of a given locality are endowed, is the criterion by which to judge of the professional man's ability or skill 'e). As far as the liability is concerned, no distinction is made (b) R. S. O. cap. 144. (c) Simonds v. Henry, 39 Me. 153. (d) Glenn's Laws, p, 251. (e) McClelland's Civil Malpractice, p. 19. H. DENTISTS ■1* 168 iiy urn lest mat |,cti- by '<^) nde Vejiwecii tt^nae who are ruguliir pvflf'titioners and those who aire not so; the latter are eijiuill}' IxtiiiKl with the former to have and to employ competent skill and attention. I I A patient must exercise ordinary care and prudence (/); so that, if one tells the dentist to pull out a l.ootli, hut does not f?ay which one is to go, and the wrong one is taken out, the sufferer has no legal ground of complaint, unless, indeed, it is quite apparent which is the offending member. A patient may have been a little careless and negligent ; stiil, if the dentist has been so very neglectful of liis duty that no ordinary care on the part of the patient would have prevented the mistake or injury complained of, the injured party will recover, i.e., recover damages for iho injury re- ceived (g). The fnct that one has taken chloroform will not affect hjs rights or remedies against the tooth-puller for any mistake or negligence. The maxim vigilantibus, non 8omnienii\>u8 jura Bubveniunt, has no reference to people put to sleep by ansesthetics. In New York, two dentists undertook to extract a tooth from a patient while the latter was under the influence of laughing gas. During the operation the forceps slipped, and part of the tooth went down the patient's throat, causing coughing and vomiting for four weeks, when — in a fit of coughing — the tooth came up, and relief followed. The patient sued for damages, and when the case came before it, the Court said, " The defendants (the dentists) knew that the plaintiff (the patient) while under the influence of the amssthetic, had no control of his faculties, that they were powerless to act, and that he was unable to exert the slightest effort to protect himself from any of the probable or possible consequences Oi the operation which they had undertaken to perform. He was in their {Jf) Bakin V. Brown. - E. D. Smith, 36. ig) Clarke v.Kerwin. 4 K. D. Smith, 21 : Parker v. Adams, 12 Mete. 41 j. n 'I >n 1 1 164 THE LAW AND MEDICAL MEN. charge and under their control to such an extent that they were required to exercise the highest professional skill and diligence to avoid every possible danger ; for the law imposes duties upon men according to the circumstances in which they are called to act. In this case, skill and diligence must be considered as indissolubly associated. The professional man, no matter how skilful, who leaves an essential link wanting, or a danger unguarded in the continuous chain of treatment, is guilty of negligence, and if the omission results in injury to the patient, the practitioner is answer- able. The quantum of evidence necessary to make out a primd facie case of negligence is very slight in some cases, while in others a more strict proof is required. Often the injury itself affords sufficient prima facie evidence of negli- gence. * * * There was evidence offered by the plaintiff showing, that while the defendant drew the tooth, the forceps slipped. This fact, combined with the unusual circumstance that the tooth went down instead of coming up, was sufficient to carry the case to the jury upon the question of negligence. The trial Judge held that while the affirmative was upon the plaintiff to prove negligence, the fact that the defendants, instead of taking the plaintiff's tooth out, let it go down his throat, was sufficient evidence to carry the question of negligence to the jury, to the enp that they might determine whether, in the light of all the circumstances, the defendants had exercised the skill and care which the exigencies of the case required. This ruling was correct" (/t). Boyle's case is an interesting one on the subject of the use of chloroform. He was a street-car driver; a vicious horse by a kick threw him from his platform, so that he hit his head against a tree-box. He was picked up insensible and carried into a surgery ; this ho was enabled to leave {h) Kdly V. Cotton. 26 Alb. L. J. 483. mm DENTISTS. 165 lie in a couple of hours, and the following day went to work again. In course of time he had a toothache, and went to a Dr. Winslow's to have it extracted, intending to take chloroform. The chloroform was administered, but did not operate as soon as usual, exciting rather than tran- quilizing B. Insensibility, however, having been finally obtained, the teeth were taken out, the doctor giving the anfEsthetic from time to time during the operation, as eyniptoms of returning consciousness appeared. Boyle walked home shortly afterwards, feeling, however, dizzy, and being uncertain in his gait ; these unpleasant symp- toms continued even after reaching his house. The next day, thickness of speech and numbness of one f^rm and side came on, with partial paralysis. From this he was still suffering, when a jury was called upon to say whether his state was due to the neglect of the dentist or not. The Judge told the jury that, even if they doubted the safety of the agent employed (chloroform), there was still a consider- ation of the highest reason which they ought not to disregard. He remarked, " All science is the result of a voyage of exploration, and the science of medicine can hardly be said to have yet reached the shore. Men must be guided therefore by what is probably true, and are not respozLsible for their ignorance of the absolute truth which is not known. If a medical practitioner resorts to the acknowledged proper sources of information — if he sits at the feet of masters of high reputation and does as they have taught him — he has done his duty, and should not be made answerable for the evils that may result from errors in the instruction which he has received. * * * He who acts according to the best known authority is a skilful practitioner, although that authority should lead him in some respects wrong. * * * if the plaintiff was from previous circumstances predisposed to paralysis, it might well happen that the extraction of his teeth, 166 THE LAW AND MEDICAL MEN. without the chloroform, or the use of the chloroform without the extraction, would bring on a paralytic attack. Even if this was the case, still it would not be just to make the defendant answerable for consequences which he could not foresee, which were not the ordinary or probable result of what he did. He was only bound to look to what was natural and probable, to what might reasonably be antici- pated. Unless such guard is thrown around the physician his judgment may be clouded, or his confidence shaken by the dread of responsibility, at those critical moments when it is all important that he should retain the free and undisturbed enjoyment of his faculties, in order to use them for the benefit of the patient " (i). In the olden time, front teeth were considered very valuable. Our ancestors appear to have ust them in fighting, and the hurting of a man so as to render him less able in fighting to defend himself or annoy his adver- sary, was considered a misdemeanor of the highest kind^ and spoken of by my Lord Coke as the greatest offence under felony. To cut off an ear or strike off a nose wa» nothing to the knocking out of a fore-tooth, for a nose or an ear is useless in a fight — doubtless they are in the way ij). According to that system of punishment intro- duced into England by the Engles, which compensated every injury by a money payment, a front tooth wa& valued highly, and one who deprived another of such a member had to pay six shillings, while breaking a rib only cost half as much, and shattering a thigh only twelve shillings (A;). The fact that a dentist extracts teeth for love and not for money does not relieve him of his liability for failure to perform his work properly (l) ; and if one is foolish enough (i) Boyle V. Window, 5 Phil. (Pa.) 136. {j) Russell on Crimes, vol. I. p. 720, (k) Taswell-Langmead, E>jglish Constit. History, p. 41. (/) Street v. Blackburn, i H. Bl. 159 ; Wilson v. Brett, 11 M. & W. 113. DENTISTS. 167 to allow an ignorant apprentice to practise on his teeth, he can still recover from the dentist for any injuries (m). It is a good answer to an action brought by a dentist to recover payment for his work and labor, that the defendant has been injured instead of benefited by the plaintiff's treat- ment, either because of his want of skill or his negligence. So, when Mr. Gilpin went to Mr. Wainwright to have a tooth extracted, and Wainwright gave him chloroform, and then pulled out the wrong tooth, and Gilpin declined to pay for the performance, alleging a want of consideration, the dentist sued for his account, but the Court gave judg- ment against him (n). If the dentist's bill has been in- creased owing to his own mistake or wrongdoing— as where being employed to pull out one tooth and insert a false one, he pulled out two, and so had to put in two ; he cannot recover for this additional amount of work. Lord Kenyon well put this when he said : " If a man is sent for to extract a thorn which might be pulled out with a pair of nippers, and through his misconduct it becomes necessary to ampu- tate the limb, shall it be said, that he may come into a court of justice to recover fee for the cure of the wound which he himself has caused ?" (o). To put the question is to give the answer. In fact, in such a case as the one put, it would appear that not only could no recovery be had for the additional services rendered necessary by the dentist's own want of proper care, but the man whose grinders were thus made few would be entitled to a further deduction from the bill for the bodily suffering and damage he had sustained (p). One cannot reasonably expect to have teeth as well fitted to the mouth by art as nature. Mrs. Henry got a set of artificial ones from Dr. Simonds ; when put into her (m) Hancke v. Hooper, 7 C. & P. 8i. '' (n) Glenn's Laws p. 209. (0) Peake's N. P. C. 83. 84. {p) Piper V. Menifee, la B. Mohr. 463. * - I!1 Mi . . li L ! ■ I ■ t 1 \: Mil 168 THE LAW AND MEDICAL MEN. mouth, she complained that they felt odd and pained her. The plate was somewhat filed, but she was still dissatisfied, and declined to pay the bill. It was then agreed that she should take them away and try them for a day or two; this was done, and again she returned them, declining to pay. The doctor then sued, and the evidence as to whether the teeth fitted was conflicting. One testified that they were a good piece of work ; another, that they were a fair average piece of work ; while a third said that they were nothing extra. The Judge instructed the jury that if Simonds had used all the knowledge and skill to which the art had at the time advanced, that would be all that could be required of him. The verdict was for the defendant. On an application for a new trial the court considered the instructions erroneous and granted a new trial, saying : " that surgeons are held responsible for injuries resulting from a want of ordinary care and skill. The highest degree of skill is not to be expected, nor can it reasonably be required, of all. The instruction given was * * * * undoubtedly correct, and no more would be required of him. But, upon legal principles, could so much be required of him ? We think not. If it coald, then every pro- fessional man would be bound to possess the highest attaiimient, and to exercise the greatest skill in his pro- fession. Such a requirement would be unreasonable " (2). It ie a dangerous thing for both parties for the dentist to try a new instrument or a new modus operandi for the first time — doing so the o. IMAGfc EVALUATION TEST TARGET (MT-3) '^^ M/ m '^S £/ ^ m fy/% ^ 1.0 11 l.l 1.25 128 12 It 3 1.4 2.5 2.2 20 1.8 1.6 P>i <^ /J ^^> r ^ Photographic Sciences Corporation 9S WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ' i\ '^ ^^ ^ I/a m w^\^ . V J, ^1 172 THE LAW AND MEDICAL MEN. ilP i hi 3 |i| who sued both pnrties. Th3 executors filed a bill in chancery, impeaching the document for fraud, and asking that it might be delivered up to them. The Cour*} thought 'chat it was quite impcssible for any reasonable being to draw any inference from the materials before it, but that it was a case of fraud — nay, a gross fraud, and the decree was made as asked (iv). Sir Launcelot Shadwell thought •|;hat the case had points of resemblance to that of Dent V. Bennett (x), in which a medical man bargained for a very large sum of money to attend a person of advanced years until death ; but in that case the doctor had to attend to the whole human body, net merely to a particular part of it. One dentist must not imitate too closely the sign or card of a fellow practitioner. One CoUon alleged that he had purchased from a Dr. G. Q. Colton the right to use the name " Colton Dental Association " in connection with the use of nitrous-oxide gas to alleviate pain in the extraction of teeth, and that he used the same in advertisements and prominently displayed it on signs ; that the defendant, who had been in his employment, left him, opened dental rooms in the same street, issued cards announcing that he was " formerly operator at the Colton Dental Eooms," and extracted teeth without pain by the use of nitrous-oxide gas, and put a sign to the same purport over his door, but the words " formerly operator at the," upon cards and sign, were in small and almost illegible letters, while the words " Colton Dental Rooms " were very conspicuous ; the signs were \ery similar in shape, size, &c., and were hung on the same side of the street, in the same manner, and might readily be mistaken the one for the other, especially by suffering patiei ts impatient for relief. An injunction against the defendant's cards and signs was granted (y). (w) Allen V. Davis, 4 DeG. & S, 133. (x) 4 My. & C. 269. {y} Colton V. Thomas, 2 Brews. 308. sTv DENTISTS. 173 And where Morgan and Schuyler, two dentists, dissolved partnership, S. bought M.'s interest in the fixtures and in the lease of the room, and continued business therein M removed his name from the sign, but S. replaced it, and put above, :n letters so small as to be nearly imperceptible his own name with the words " successor to." The agree- ment of dissolution did not prohibit M. from engaging in the busmess, so he opened an office therefor in another part of the city. He then applied to the Court to restrain his late partner from the use of his name as mentioned He was successful in hi. action. But the Court thought that S. v-70uld have kept with his rights if he had merely described himself as " late of" the firm (z). (.) Moro-an v. SchtyUr. 79 N. Y. 490 ; S. C. 35 Am. Rep. 543. i 174 TEE LAW AND MEDICAL MKN. CHAPTER XIV. If K^*n m^ Ww »>*>'-'■ iin'^lH m£ Ml DRUGGISTS. A druggist, the Supreme Court of Louisiana says, means " one who sells drugs without compounding or preparing them : and so is a more limited term than apothecary (a)." A commission merchant, dealing principally in alcohol, is not a druggist, within the meaning of the Massachusetts' Act, regulating the sale of alcohol by druggists (ft) ; and although whiskey may be sold by druggists in comparatively small quantities as medicine, and doubtless a great many people so take it, still it was held that fifty barrels of whiskey remaining in a bonded warehouse at the time of his death would not pass under the will of a wholesale and retail druggist bequeathing his stock of medical drugs, etc. The Court considered fifty barrels of whiskey wholly dis- proportionate to the ordinary stock of medicine and drugs kept on hand by the testator — too much sack for the bread (c). One may be an apothecary or druggist although he does not actually coaapound his medicines (d). In the early days in England, the grocers, or poticaries, who formed one of the trade guilds of London, united with their ordinary business the sale of such ointments, simples (a) State v. Holmes. 28 La. Ann. 765. {b) Mills V. Perkins, 120 Mass. 41. (c) KlocK V. Burger, 50 Md. 575. .,.— ^r^.- -^v« - (d) Haniline v. Commonwealth, 13 Bush. 350. %, ij DRUGGISTS. 175 and medicinal compounds as were then in use. In the days of Henry YIIL, the medical department of the grocers' trade being greatly increased, shops were established for the ex- clusive sale of drugs and medicinal and all kinds of chemcial preparations. We have a graphic description of one of these apothecaries about the days of " Good Queen Bess," in the words of the p-ince of EngHah dramatists : -I do remember an apothecary, And hereabouts he dwells, which late I nonced In tatter'd weeds, with overwhelming brows. Culling of simples : meagre were his looks. Sharp misery had worn him to the bones. And in his needy shop a tortoise hung, An alligator stuffd, and other skins Of ill-shaped fishes : and about his shelves A beggarly account of empty boxes, Green earthen pots, bladders and musty seeds. Remnants of pack thread and old cakes of roses Were thinly scattered to make up a show. koMEo AND Juliet, Act. V., sc. i. Until 1868, any person whatever might open what is called a chemist's shop in England, and deal in drugs and poisons. In that year, however, the Pharmacy Act was passed, which prohibits any person engaging in the business of, or assuming the title of. Chemist and Druggist, or dis- pensing chemicals or drugs, unless he be registered under that Act. And to be registered one must pass an examin- ation in Latin, English, arithmetic, prescriptions, practical dispensmg, pharmacy, materia medica, botany and chem- istry. Under the Ontario Act (e) there is a College of Pharmacy, managed by a Pharmaceutical Council who grant certifi- cates of competency to practise as pharmaceutical chemists, prescribe the subjects on which candidates are to be ex- (e) R. S. O. cap. 145. m v-f i' ■1' b M 170 THE LAW AND MEDICAL MEN. 1*1 hm i^' aminecl, and arrange for the registration of chemists. No one, save those registered or their employees, is authorized to compound prescriptions of legally authorized medical practitioners. The Act, however, does not apply to medical practitioners. But, save as aforesaid, no one can retail, dispense, or compound poisons, or sell certain articles named, or assume or use the title of " Chemist and Drug- gist," or " Chemist," or " Druggist," or " Pharmacist or Apothecary," or " Dispensing Chemist or Druggist," unless he has complied with the Act. The Code Napoleon recognizes two classes of vendors of drugs and medicines, apothecaries and druggists. The former, who are assumed to be pharmaceutically educated, are alone allowed to sell compounded medicine, the latter who are classed with grocers are only permitted to sell drugs of a simple character in bulk and at wholesale (/). In the United States, wheiever statutes do not otherwise direct, apothecaries and druggists are put upon the common law footing of provision vendors, and may sell in any quantities articles in which they deal. A druggist is held to a strict accountability in law for any mistake he may make in compounding medicine or selling his drugs. By the statute law of England it is declared to be the duty of every person using or exercising the art or mystery of an apothecary to prepare with exactness, and to dispense, suoh medicines as may be directed for the sick by any physician (g). And by the same Act, for the further pro- tection, security, and benefit of George the Third's subjects it was declared, that if any one using the art or mystery of an apothecary, should deliberately or negligently, unfaith- fully, fraudulently or unduly make, mix, prepare or sell any medicines, as directed by any prescription signed by any (/) Code of Med. Pol. 332, 333. ,--._-.-_.- ;.^-^— ^-^^ {g) 55 Geo. III., cap. 194. sec, 5. -; ;; i:i- ( DRUGGISTS. 177 licensed physician, such apothecary shall, on conviction before a Justice of the Peace, unless good cause be shown to the contrary, forfeit for the first offence £5, for second, ,£10, and for third he shall forfeit his certificate. But apart from any statute, whenever a druggist or apothecary (using the words in their general sense) sells a medicine, he impliedly warrants the good quality of the drugs sold ; and besides that, he warrants that it is the article that is required and that it is compounded in every prescription dispensed by him secundum artem. Like the provision dealer, the phar- maceutist is bound to know that the goods he sells aru sound, i.e., compete!it to perform the mission required of them, and being so presumed to know, he warrants their good qualities by the very act of selling them for such. The rule, " Let the buyer beware," does not apply. In some way Fleet and Simple got cantharides mixed with some snake root and Peruvian bark. Unfortunately Hollenbeck, requiring some of this latter mixture, bought this that these druggists had, took it as a medicine, and in consequence suffered great pain, r ud had his health per- manently impaired. He sued for damages, and recovered a verdict for $1,140. The defendants asked for a new trial, but the Court refused it saying, " Purchasers have to trust to a druggist. It is upon his skill and prudence they must rely. It is his duty to know the properties of his drugs, to be able to distinguish them from one another. It is his duty so to qualify himself, or to employ those who are so qualified, to attend to the business of compounding and vending medicines and drugs, as that one drug may not be sold for another ; and so that, when a prescription is pre- sented to be made up the proper medicine, and none other, be used in mixing and compounding it. The legal maxim should be reversed, instead of caveat emptor it should be caveat vt'ndor, i.e., let him be certain that he does not sell R.L.M.M. 13 ''I U iSifl 178 THE LAW AND MEDICAL MEN. m to a purchaser or send to a patient, one thing for another, as arsenic for calomel, cantharides for, or mixed with snake root and Peruvian bark, or even one innocent drug calcu- lated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things he cannot escape civil responsibility upon the alleged pretext that it was an accidental or an innocent mistake. We are asked by the defendants' attorneys in their argu- ment, with some emphasis, if druggists are in legal estima- tion, to be regarded as insurers. The answer is, we see no good reason v/hy a vendor of drugs, should in his business be entitled to a relaxation of the rule which applies to vend- ors of provisions, which is, that the vendor undertakes and insures that the article is wholesome {h). The general customer is not supposed to be skilled in the matter of drogs, but in the purchase he must rely upon the druggist to furnish the article ct.,lled for ; and in this par- ticular business the customer who has not the experience and learning necessary to a proper vending of drugs, will not be held to the rule that he must examine for himself, it would be but idle mockery for the customer to make the examination when it woi'li avail him nothing. On the contrary, the business is such that in the very nature of things, the druggist must be held to v/arrant that he will deliver the drug called for and purchased by the customer (i). It is the duty of the druggist to know whether his drugs are sound or not, and it is no answer to his want of know- ledge to say, that the buyer had opportunities for inspection, and could judge for himself of the quality of goods (j). If a druggist miscompounds a medicine, or intentionally deviates from the formula, he commits a tortious act, and (h) 13 B. Monr. 219, (t) yones V, George, 13 Rep. 738 ; Tex. Sup. Ct. (1882). - .-^^ .. . 0) Chitty on Contracts, p. 393. DRUGGISTS. 179 if any injury arises to another through his ignorance or neglect he is liable. Even if a physician writes a prescrip- tion wrongly it is expected that the druggist will know enough to detect the error, and whether he does so or not he still compounds it at his peril. For one man's negligence or omission of duty is no palliation of another's, and under the doctrine of joint liability the apothecary or druggist who compounds, knowingly or not, a noxious prescrip- tion, commits a joint tort with the physician who writes it (A;). And in an action against a druggist for injury through the negligence of his slerk in selling sulphate of zinc for Epsom salts, it is no defence to say that the subsequent medical treatment was negligent (0- A wholesale druggist is liable in the same way as a retail, when he supplies substances notoriously dangerous to health •or life, and he impliedly warrants the articles to be as represented by their conventional designation, and if they are not so, he is liable for all damages that may ensue from his misrepresentation (w). If a druggist affixes to a medicine, or drug, a label bear- ing his name and stating it to have been prepared by him, he makes the warrant only more notorious, and by so doing (inasmuch as it is an invitation to the public to confide in his representation), is ever after estopped from denying responsi- bility for any injury which may have arisen out of defects in its quplity, or errors in its composition. So long as the label is attached, it is an affirmation of the good quality of the article and its correct composition, to every one who relies upon it when buying. But as some articles deterio- rate in time, what is said in relation to the liability of the vendor applies only to the article at the time it leaves (k) Howe V. Youn^r, i6 Ind. 312 ; 2 Hilliard on Torts, p. 297, sec. A. (I) Brown v. Marshall, 47 Mich. 576. (ot) VanBrucken v. Fondar, 12 John. 468 ; Jona v. Murray, 3 Monr. 85 ; Marshall v. Peck, i Dana. 609. ' ' H ■|:U|„ 180 THE LAW AND MEDICAL MEN. his hands. He only warrants its good qualities then, but no longer, and his representation affirms that much^ and no more (n). The subject of labels was carefully considered in Thomas v. Wijichester (o), where Ruggles C.J. gave judgment. Mary Ann Thomas was ordered a dose of extract of dandelion, her husband bought what he believed was dandelion from Dr. Foord, druggist and physician ^ but it was extract of belladonna. The jar was labelled * ^ lb. dandelion, prepaied by A. Gilbert, No. 108 John street, N. Y.' Foord bought it as dandelion from James S. Aspinwall, druggist, who bought it from defendant, a druggist, 108 John street. Defendant manufactured some drugs and purchased others, but labelled all in the same way. Gilbert was an assistant who had originally owned the business. The extract in the jar had been purchased from another dealer. The two extracts are alike in colour, co.isistency, smell aiii taste. Gilbert's labels were paid for by defendant and used in his business with his knowledge and consent. A non-suit was moved for on the ground, that defendant being a remote vendor and there being no privity or connection between him and the plaintiff, the action could not be sustained. The Court said, " Gilbert, the defen- dant's agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labelled medicine. Every one who by his culpable negli- gence causes the death of another, although without intent to kill, is guilty of manslaughter (jj). This rule applies not only v/here the death of one is occasioned by the neglectful act of another, but where it is caused by the neglectful omission of a duty by that other (q). Although the defen- dant W. may not be answerable criminally for the neglect (n) Ordronaux, sees. 183-184. (0) 2 Selden, 397, (N. Y.) (/>) 2 R. S. sec. 662, 319. (q) 2 Car. & Kir. 368. — ■^^,-'.—-tri.- : •'Sis;. DRUaOISTS. 181 of his agent, there can be no doubt as to his HabiUty in a civil action, in which the action of the agent is to be regarded as the act of the principal. The defendant's neglect put human life in imminent danger. Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution ? Or that the exercise of that caution was a duty only to his immediate vendee, whose life was not endangered ? (He being a dealer and not a customer.) The defendant's duty arose out of the nature of his business, and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poipcn falsely labelled into the mprket, and the defen- dant is justly responsible for the probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant's contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison unlabelled into the hands of Aspinwall as an article of merchandise to be sold, and afterwards used, iis the extract of dandelion by some person then unknown. The defendant's contract of sale to Aspinwall does not excuse the wrong done the plaintiffs. It was part of the means by which the wrong was effected. The plaintiffs' injury and their remedy would have stood on the same principle if the defendant had given the belladonna to i)r. Foord without price, or if he had put it in his shop without his knowledge under circumstances that would have led to its sale on the faith of the labels." Ordronaux says (sec. 186) : It cannot be denied that had Mrs. Thomas died, Foord would, equally with Gilbert, have been guilty of manslaugher, since whether he intended it or no, he was doing an unlawful act in dispensing a poison for a salutary medicine. While then it may be proper enough to rely upon labels and warranties of others, 182 THE LAW AND MEDICAL MEN. M Is*' ( I i y \ in (lealinp; with ordinary substances, still when it comes to articles of a character dangerous to health or life, the law will presume knowledge of their quality in those profes- sionally dealing in them, and exact a degree of skill and care commensurate with the risks incurred. Here it i» caveat venditor instead of caveat emptor. In Kentucky, a druggist sold croton oil instead of linseed oil for a patient, who, in consequence of the mistake, died. His widow was held entitled to full damages against the seller (r). If a druggist negligently sell a deadly poison as and for a harmless medicine to A., who buys it to administer to B.,. and gives B. a dose of it as a medicine, from the effect of which he dies, a right of action against the druggist survives to B.'s representative, notwithstanding the want of privity of contract between B. and the druggist (s). And this is the rule, also, when the sale has been made by the apothecary's assistant (t). Joseph George, and Emma, his wife, sued Skivington, a druggist, alleging that he, in the course of his business,, professed to sell a chemical compound made of ingredients known only to him, and by him represented to be fit for a hairwash without causing injury to the person that used it, and to have been carefully compounded by him ; that Joseph thereupon bought of the defendant a bottle of this hairwash, to be used by Emma, as the defendant knew, and on the terms that it could be so safely used, and had been so compounded ; yet the defendant had so negligently and unskilfully conducted himself in preparing and selling the hairwash, that it was unfit to be used for washing the hair, whereby the plaintiff, Emma, who used it for that (r) Hansford v. Payne, ii Bush. 380. (s) Norton v. Scwall, 106 Mass. 143. . _ . . ." - •*- - (<) Ibid. DRUGGISTS. 188 purpose was injured. Tiie Court held that a good cause of action was shewn (u). A Massachusetts apothecary sold sulphide of antimony by mistake for black oxide of manganese. The two look alike, but differ in this, that the preparation of manganese may be safely mixed with chlorate of potassia for many useful purposes ; but if that antimony is mixed with that chlorate, an explosive compound is formed. The buyer, supposing he had manganese, proceeded to mix it with potassia, having bought the article for that purpose. But, it being antimony, the compound which he made exploded^ broke his head, damaged his hearing, and destroyed the furniture of his laboratory. Yet the Court held that the druggist was not chargeable with these damages, because he did not know that the article he sold was to bo mixed with potassia, and did not sell it for that purpose. Kept or used by itself, as he sold it, it would have been innocuous. He was not to blame for the mixing, ^,he real cause of the injury (v). In England (w), a chemist and druggist was indicted for manslaughter, but was acquitted. The deceased had been m the constant habit of getting aconite and occasionally henbane from Noakes; on this occasion he sent two bottles of his own, one marked, "Henbane. 30 drops at a time." The druggist by mistake put the aconite into the henbane bottle, the dose of thirty drops was taken, and the customer was no more. Erie, C.J., told the jury that although there might be evidence of negligence sufficient for a civil action, still that they could not convict unless there was such a degree of complete negligence as the law meant by the word "felonious," and that in this case he did not think there (m) George v. Skivington, L. R. 5 Exch. i. (v) Davidson v. Nicholls, 11 Allen, 514. ', " ~ {w) R. V. Noakes, 4 F. & F. 920. ^1 4 'S-Z, 184 THE LAW AND MEDICAL MEN. ^ms bufScient to warrant that. But Tessymond, a chemist's apprentice, was found guilty of manslaughter for causing the death of an infant by negligently giving to a customer who asked for paregoric to give to the infant (a child of nine weeks old), a bottle with a paregoric label, but containing laudanum, and recommending a dose of ten drops (x). One Jones recovered against a chemist and druggist of the name of Fay, £100 for damages, because he. Fay, f^ave him blue pills for the painters' co^ic, such, physic being improper (y). A man, on the advice of a fri<^nd, went to a drug store for ten cents w^orth of " black-draught," a comparatively harmless drug, of which he intended to take a small glassful as a dose for diarrhoea. There was evidence given by the clerk who sold the mixture, that at the shop he asked for "black-drops," the defendant, the proprietor, tfM him 'hat that was poison, that the dose was from ten to twelve drops, and advised him to take another mixture ; he refused, and the clerk (by the defen- dant, s direction), gave him two drachms of "black-drops" in a bottle, with a label bearing those two words writtei. upon it, but nothing to indicate the dose, or that it was poison. The man took the bottle home, drank almost all its conn ents, and died the next morning from the effects of so doing. In an action brought by the representative of the def^eased to recover damages for negligent killing by the defendant, it was held that the Courts should have sub- mitted to the jury the question as to whether the defendant was not guilty of negligence in failing to place upon the bottle a label, shewing ihai its contents were poisonous, and that it erred in non-suiting the plaintiff. Afterwards in giving ^he judgment of the Court of Appeal, Finch, J., said, *' on t 'ch a state of facts (as sworn to by the clerk) a verdict ... {x) I Lev-in C. C. 169. iy) t F- & F. 525- kM DRUGGISTS. 185 Under the Ontario Pharmacy Act no one can sell certain poisons named without having the word " Poison," and the name of the article, distinctly labelled upon the package; and if the sale is by retail, the name of the proprietor of the establishment where it is sold, and the address must also be on the label (a). uujjL ji.,e^B; '■■«^' against the defendant would not be justified. Although no label marked * poison ' was put upon the phial, and granting that by such omission the defendant was guilty of misdemeanor and liable to the penalty of the criminal law (under the statute of the State), still that fact does not make him answerable to the customer injured, or to his representative in case of bis death, foi either a negligent or wrongful act, when towards that customer he was guilty of neither, since he fairly and fully warned him of all and more than couid have been made known by the authorized label. * * * jf the warning was in truth given, if the deceased was cautioned that the medicine sold was a strong poison, and but ten or twelve drops must be taken, he had all the knowledge and all the warning that the label could have given, and could not disregard it and then charge the consequences of his own negligent reckless act upon the seller of the poison. But if no such warning was given, its omission was negligence, for the results of which the vendor was liable both at common law and by force of the statute." But the Court considered that the clerk being himself the one who had been negligent stood in a position to provoke suspicion, arouse doubt and justiiy watchful and rigid criticism, and that this joined with the conduct of the deceased, developed a question of fact rather than of law, and that the Court below was right in saying that the case should have been submitted to the jury {:%). II (z) Wohlfarht v. Beckert, 27 Hun, 74 : 92 N.Y. 490. {(() R. S. O., c. 145, sec. 27. W' m h ■M:;- ---- -' TO" r.' ■' fc ' ^p- , 186 THE LAW AND MEDICAL MEN. Any person selling any poison, in violation of the Act, is liable to a penalty of not more than $20 and costs for the first offence, and $50 and costs for every subspquent offence ; and one-half of the penalty goes to the prosecutor; and no one selling in violation of the Act can recover his charges. And one wilfully or knowingly selling any article under pretence that it is a particular drug or medicine, when it is not, is liable to the above penalties, besides any other to which he may be liable irrespective of the Act (b). In Georgia it was held, that where a druggist in good faith recommended the prescription of another person to the owner of a sick horse, who thereupon ordered him to put it up and paid for it, the owner had no cause of action because the medicine had injured his horse, as the stuff was properly prepared according to the prescription (c). In England chemists and druggists are liable to the heavy penalty of £500 if they sell to brewers or dealers in beer anything to be used as a substitute for malt ; they are also liable for adulterating, or selling any adulterated, medicine; and on a second offence of this kind, the name of the offender, his abode, and his crime may be published in the newspapers at his expense (d). An action can be maintained by a husband against a druggist to recover damages for selling to the plaintiff's wife, secretly, from day to day large quantities of laudanum to be used by her as a beverage, and which are so used by her to the druggist's knowledge, without the knowledge or consent of the husband, the druggist well knowing that the same was injuring and impairing her health, and concealing the fact of such sales and the use thereof from the husband ; (b) Sections, 28-31. — — ^,-_^..ir*v r«>-r*7-^-r-T--«^^=-'-*— (c) Ray V. Burbank, 6 Ga. 505. (d) 56 Geo. III. cap. 58, sec. 3 ; 31 & 32 Vict. cap. 121, sec. ?4 ; 23 & 24 Vict. cap. 84, sec. 30. DRUGGISTS. 187 in consequence of which use by her the wife became sick and emaciated, and her mind was affected, so that she was unable to perform her duties as such wife, and her affections became alienated from her husband, and he lost her society, and was compelled to expend divers sums of money in medical and other attendance upon her (e). In some of the American Courts it has been held that a statute forbidding the sale or keeping for sale without author- ity of spirituous or intoxicating liquors does not apply to druggists who keep such liquors only for the purpose of mixing them with other ingredients, according to prescriptions of physicians ; and also for the purpose of manufacturing such compounds as are commonly used by druggists to be sold as medicines for remedieu for sickness and disease (/). The question has often come up whether a compound sold by a druggist is to be considered an intoxicating liquor, the sale of which is illegal, or not. The rule laid down is, that so so long as liquors retain their characters as intoxicating liquors, capable of being used as beverages, notwithstanding that other ingredients — roots or tinctures — may have been mixed therewith, they fall under the ban of the law ; but when they are so compounded with other substances as to lose their distinctive characters of intoxicating liquuiC', and are no longer desirable for use as stimulating beverages, the}'' are medicine and their sale is not prohi- bited (g). In Indiana a bona fide sale of intoxicating liquor by a druggist for medicinal purposes is not a violation of the statute regulating the sale of such liquors, although the statute contains no exception authorizing the sale of such {e) Hoard v. Peck, 56 Barb. 202. (/) Common. V. Ramsdell, i^o Mass. 6E. (g) State V. Laffcr, 38 Iowa, 422 ; Common, v. Ramsdell, supra ; Common • V. Hallett, 103 Mass. 452; Common, v. Butterrick, 6 Cush. 247. ^ i IB - " 1 « 188 THE LAW AND MEDICAL MEN. i: liquors, without license, for medicinal, chemical or sacra- mental purposes. And that is the law in North Carolina, but not in Arkansas (/»)• In Iowa it was considered a breach of the law for a druggist to sell a quart of whiskey to a stranger upon his simple statement that he was accustomed to take it as a medicine and wanted it as puch (i). In Texas, where a druggist can only sell ardent spirits upon the prescription of physicians in sickness, a druggist who is himself a physician may sell to a sick patient without a prescription from anyone else (j). {h) Nixon v. State, 76 Ind. 524 ; State v. Wray, 72 N. C. 253 ; V/oods v. State, 36 Ark. 36 ; S. c. 38 Am. Rep. 22. (i) State V. Knowles, 57 Iowa, 669, {j) Boone V. State 10 Tex. Ct. App. 418. - PARTNERS, GOODWILL, ASSISTANTS. 189 CHAPTER XV. - PAETNEES, GOODWILL, ASSISTANTS. A partnership (a) between medical men is an association of persons, standing to one another in the relation of principals, for jointly carrying out the objects of their profession, with an agreement to share the profits. The general laws relating to partnerships apply to those of medical men or dentists. There can be no partnership as between themselves, if the relationship of master and servant exists, or where there is no joint interest. No particular form of words is needed to create a partnership nor need the agreement be in writing unless it is to last for more than a year from the date. If an agreement to form a partnership is broken an action will lie, if the terms of the agreement be clear and distinct ; but the perform- ance of such an agreement will not be compelled unless all the terms have been fixed and ascertained, and a definite time for its duration agreed on. If one has been induced to enter the partnership through the fraud or misrepresentation of the other, the party deceived may at his option avoid the contract. But he should act promptly on discovering the deception. Where a surgeon was induced tu enter into partnership with, and pay a large premium to another, in consequence of 'mis- (a) See Glenn's Laws, cap. viii. I 190 THE LAW AND MEDICAL MEN. representations as to the amount of income derived from the practice, a dissolution was decreed and a return of part of the premium (b) ; and where a practitioner took a partner and a premium, and agreed to continue practising for three years, concealing the fact that he was suffering from a disease which soon carried him off, his executor was ordered to return part of the premium (c). Partners are trustees and agents for one another, and must exercise the most perfect good faith towards one another. One cannot sue the other for his share of the profits until the accounts have heen stated and settled between them. One medical man cannot, as a rule, bind his partner by borrowing money, even to pay partnership liabilities, or by making or drawing promissory notes or bills of exchange ; but he may generally do so by simple contracts, within the scope of the business. In England, it appcF.rs that there is nothing illegal in the partnership of a qualified and an unqualified practi- tioner, and that it will be sufficient if only one member of the firm be registered (d). A partnership may be dissolved by mutual agreement, or by the effluxion of time. A wilful and permanent neglect of business is a ground for dissolution ; so is gross misconduct by a partner in reference to partnership mat- ters. Immoral conduct materially affecting the business will be a ground for dissolution ; also, insanity, or per- manent incapacity (c). On a dissolution the partners may separately carry on the business at any place, unless restrained by agreement. .h .,..;/ '^H (b) Jauncey v. Knowles, 29 L. J. Cha. 95. {c) Mackenna v. Parkes, 36 L. J. Cha. 366. i— ._. <~~/i^*-^-.-¥^- (rf) Turner v. Reynall, 14 C. B. N. S. 328. See, also, Reg. v. Teff't. 45 Ont. Q. B. 144. {e) Anon., cited 2 K. & J. 446. PARTNERS, GOODV/ILL, ASSISTANTS. 191 Sir John Leach considered that in a partnership, between professional persons, upon the death of one partner the goodwill of the business belonged to the survivor, and that he was not bound to account to the representatives of the deceased partner for it (/). A good-will attaches to a professional, as well as to any other kind of business, and it is and may be the subject of purchase and sale ; and although it is not computable, and tne sale of it is not enforceable by an action for specific performance if it has not been estimated, yet it does stand on the same footing as any other business, if the parties have fixed a determinate price upon it, or have provided any other way of fixing its value (g). The good-will of a medical man's business is an asset of his estate which his representatives can sell, and for which they must account if It 18 sold. But it is not clear that the representatives can be compelled to find a purchaser (h). Jessel, M. R, recently asked the question, " What is the meaning of selling a medical practice ? " And in answering his query he said, "It is the selling of the introduction of the patients of the doctor who sells to the doctor who buys he has nothing else to sell except the introduction. He can persuade his patients, probably, who have confidence in him to employ the gentleman he introduces as being a qualified man, and fit to undertake the cure of their mala- dies, but that is all he can do. Therefore, when you talk of the sale of a non-dispensing medical practice-of course when a man keeps what is called a doctor's shop, there is a different thmg entirely to sell-you are really talking of the sale of the introduction to the patients, and the length, the & life."" ""' ^'""'"^ ^ ^^^- 7^^ : ^"^'^^ ^- Boy^' M Beav. 598 ; 2 DeG. (g) Mclntyre v. Belcher, 10 Jur. N. S. 239. (h) Christie V. Glark, 16 (Ont.) C. P. 544; 27 Q. B. 21. tl 192 THE LAW AND MEDICAL MEN. character and duration of the introduction, the terms of the introducrion are everything. And there is something more, according to my experience, in cases of the sale of medical practices ; there is always a stipulation that the selling doctor shall retire from practice either altogether or within a given di8^;ance. It is so always, and there is also some- times a stipulation that he will not solicit the patients, or shall not solicit them for a given time. They are both very important stipulations as regards keeping together the prac- tice for the purchasing doctor " (i). The general rule of law is, that any contract in general restraint of trade or industry is illegal and void as contrary to public policy ; but such contracts are valid if they operate merely as a partial restraint, and are made for good con- sideration, and not unreasonable. Whether they are reasonable or not, is for the Court, not the jury, to say. A contract made with an assistant, or with a partner, that upon separating from the principal, or partner, he will not practise within a certain section of country, or for a certain time, is valid when made in consideration of instruc- tion to be given, or pecuniary or other benefits to be enjoyed in consequence of the partnership. The limits must oe reasonable, and when the contract is not to practise within so many miles of a certain place, the distance will be measured "as the crowflies," unless otherwise mentioned (J). Covenants, on the part of an assistant to a surgeon and apothecary, not to practise on his own account for fourteen years, in a certain town, or within ten miles of the town ; and not at any time to practise within five, seven, ten, twenty miles of certain places, have been all respectively (i) May v. Thomson, L. R. 20 Ch. D. 718. (j) Dingnan v. Walker, 33 L. T. 256. PARTNERS, GOODWILL, ASSISTANTS. 198 held good (A;). The comparative populousness of the dis- trict forbidden ought not to enter into consideration at all ; and an assistant to a dentist was held bound by a covenant not to practise in London, notwithstanding that city had a population of over a million (l). But a stipulation not to practise within one hundred miles of York, in consideration of receiving instruction in dentistry, was held void (m). A promise, whether verbal or written, made without good consideration by a medical man not to exercise or carry on his profession within certain limits is void. The stipula- tions in a contract not to practise are divisible, and if part of them be unreasonable, and therefore illegal and void, the agreement is not void altogether ; and the remaining stipu- lations, if valid, will not be affected by the illegality of the others (n). The relations of medical men to their apprentices, assist- ants and pupils, are, as a rule, regulated by the ordinary law of master and servant. No particular words are needed to create the relationship of master and apprentice, or master and assistant, the intention of the parties will be considered, nor need the agreement be in writing, unless it is not to be performed within a year from the making thereof (o). A master is liable on contracts entered into by his apprentice or assistant, when he has authorized him to enter into any such contract, either expressly, or by impli- cation. For instance, if an assistant usually orders drugs (k) Davis V. Mason, 5 T. R. ii8; Games v. Nesbitt, 7 H. & N. 778; Sainter v. Ferguson 7 C. B. 716 ; Hastings v. Whitley, 2 Ex. 611 ; Haynard V. Voting, 2 Chit. 407 ; MoClurg's Appeal, 58 P. St. 51 ; Parsons on Contracts, vol. ii. p. 748. (/) Mallan v. May, 11 M. & W. 653. (m) Horner v. Graves, 7 Bing. 735. (n) Mallan v. May, supra. Generally on this subject, see Glenn's Laws, cap. viii. (0) Glenn's Laws, cap. viii. "---r -— ,r— - ---^ -— y-— R.L.M.M. ■'■■'■■';;- ^'^ ';-'"■:■■"'• 14 194 ■■«■■■■ ;si' T^ * m THE LAW AND MED 'CAL MEN. p- 4*; r I rilr iff on credit, and the master usually pays, the master will be held liable to pay for any goods of a similar nature which the assistant may get for his own and not his master's uaeip). The master is also, as a rule, liable to a civil action for the wrongful acts of his assistant, unless they be beyond the ordinary scope of his employment ; the plaintiff, however, must prove that the injury was produced by want of proper skill, where the act complained of is said to have arisen through want of skill (q). But the master will not be criminally responsible for the acts of his assistant or apprentice, if the latter has caused the death of any one, unless, indeed, he has expressly commanded or taken part in the acts (r). In a case of criminal negligence, the apprentice himself is responsible ; if a party is guilty of negligence, and death results, the party guilty of that negligence is also guilty of manslaughter. An apprentice, or pupil, cannot be dismissed in as sum- mary a way as an ordinary servant for misconduct. In one case it was held that though a person has a right to dismiss a servant for misconduct, still he has no right to turn away an apprentice because he misbehaves ; and that the case of a young man, say of seventeen, who under a written agreement, is placed with a medical man as ** pupil and assistant," and with whom a premium is paid, is a case between that of apprenticeship and service ; and if such an one on some occasions comes home intoxicated, this alone will not justify the surgeon in dismissing him. But if the "pupil and assistant," by employing the shop boy to com- pound the medicines, occasions real danger to the surgeon's practice, this would justify the surgeon in dismissing him (s). {p) Nickson V. Brohan, lo Mod. 109. ' ; , (q) Hancke v. Hooper, 7 C. & P. 81. ; -^-_.-i^_j.-.^. (r) R. V. Bennett, 29 L. J. ; M. C. 27; R.y. Tessytnond, i Lewin C. C. 169. (s) Wise V. Wilson, i C. & K. 662. PARTNERS, GOODWILL, ASSISTANTS. 196 Pupils and ^ thers admitted to hear the lectures of medical men, whether such lectures are delivered ex-tevipore, or from memory, or from notes, although they may go to the extent, if they are able to do so, of taking down the whole by means of shorthand, can do so only for the purposes of their own information, and cannot publish the lectures for profit without the consent of the lecturer {t). Ch'^JL>'^377/'''^ ''• ^"''*''"''"' 3 ^' J'2°9: ^i'^ols V. Pitman. L. R. 26 INDEX. A. Abortion — Evidence of experts in cases of, ii6. Criminality of, 146, 147. Accident — Paymen. of medical men in cases of, 40, 41. Account — Must be in detail, 22. Advertising Quacks — 132, 133. Amputated Limbs — Ownership of, 143. Anatomy — A lawful study, 154, 157, 158. Hindrances to study of, 149, 152. In early days, 149, 150. Provision made for study of, in England, 150, 153. " *' in Canada, 151, 156. •' *' in United States, 155, 156. Anatomy Act of 1832—153. Anguineum — 2. Apothecaries — * In England in crly days, 11. * < v Incorporated in England, 12. How regulated, 12. Duties of, 12. Fees of, 15, 16. Artificial Teeth.— S«« Teeth. !t i I ™" 1 1 III IVf'iffl 198 INDEX. Assaults on Patients — Attempting carnal intercourse with, 144. Wantonly stripping patient, 144. Taking layman to midwifery case, 144. Liability for committing one as insane, 146. Assistants and Apprentices — Rules regulating, 193. Master liable for, civilly, 193, 194. " I'iOt liable criminally, 194, " may recover for services oi, 20. Misconduct of, 194. Attendance — Medical men neglecting, 72, 73. Withdrawing from, 73, 74. B. Barbers — As practitioners, 4, 5, 6. Baunscheidt System — Layman practising, 47. Liability for using, So. Bodies— Supply of, for dissecting, 150-156. Body-Snatching— S^« F'^surrection, r5?-i57. Books — See Scientific Books, 99-105. Botanic Physicians— 52, 54, 88. c. Carelessness— &>« Negligence. Of patient, 67-69, When physician criminally liable for, S5-88, 91. In treating internal diseases, 92. Character — Defamation of, when actionable, 131, 134. INDEX. Ck:jmist and Druggist— S. Hypothetical Case- How put, 126, 127. INDEX. 205 Ignorance — Liability for gross ignorance. 55-61. Criminal liability for gross, 55-88, gr, 92. Imputing, when actionable, 130. Immorality — When actionable to impute. 134. Improper Treatment — When a defence to action, 20-24, ^67. Charges for, 20, 22, 167. Infant — Medicines and medical aid, necessary for, 39. Infectious Disorders— Exposing persons suffering from, 147, Duty of phys'^-ans in cases of, 22, 143, 147. Insane Patient — Not liable for negligence, 69. Insanity Cases — ,.-/,.; ^.v:;^,v:< Evidence of experts, 121-128. Opinions concerning, experts in, 121-124. When expert evidence admissible, 124. How to examine witnesses, 124-125. Putting hypothetical cases, 126, 127. Evidence of non-experts, 128. Expertj can only give opinions, 129. Liability for committing in, 145-146. Requisites for committal, 146. Intoxicating Liquors— When unlawful to give, 148. Druggists selling, 187-188. Ireland — Early practitioners in, 6. '^^^ INDEX. h Label of Druggist- Is a warranty. 179-180. Lectures — Cannot be published by students attending them. 195. Libel — See Defamation. Malpractice— Sd;^ Criminal Malpractice. Defined, 55. Consequences of, 55. , Civil and criminal, 55, 56, 83. Some injury must be proved, 7C. Is a question for the jury, 76. Cases of, should be construed in favor of physician, 76, 77. Cases against physician rare, 77. Actionable to charge one with, 133. Manipulation — Practising, without license, 51. ' ■ Manslaughter— St'^ Criminal Malpractice. Physicians acting honestly and bond fide, 89, 90. Druggist making mistake, 180-184. Master and Servant— Stf