UC-NRLF 
 
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 llniiumiiimmuwi 
 
 OPHTHALMIC JURISPRUDENCE 
 
 T. H. S HASTIT3, M. D., LL. B. 
 
L 
 
 GIFT or 
 
 UPTOMETRY LiSRAR^ 
 
OPHTHALMIC 
 
 JURISPRUDENCE 
 
 A REPRINT FROM 
 
 The American Encyclopedia 
 of Ophthalmology 
 
 Where the Title is ''Legal Relations 
 of Ophthalmology" 
 
 BY 
 
 Thomas Hall Shastid, A. B., A.M., M. D., LL. B., F. A.C.S. 
 Superior, Wisconsin 
 
 FOR PRIVATE DISTRIBUTION ONLY 
 
 CHICAGO 
 
 CLEVELAND PRESS 
 1916 
 

 V. , Copyright 1916 by 
 
 /^ )/ THOMAS HALL SHASTID 
 All Rights Reserved 
 
/ 
 
 TO 
 HIS WIFE 
 
 Jf annie Cnglisit ^tagtib 
 
 BUT FOR WH0SE:PATIENT FORBEARANCE, 
 KIND ENCOURAGEMENT, AND CONTINU- 
 AL MINISTRATIONS THROUGH HIS MANY 
 YEARS OF ILLNESS, THE MOST OF HIS WORK 
 COULD NOT HAVE BEEN PERFORMED, 
 THE AUTHOR GRATEFULLY 
 DEDICATES THIS 
 VOLUME 
 
 31G255 
 
INTRODUCTION 
 
 The author of this volume is well qualified by study and experience 
 to discuss the legal relations of ophthalmology. He made an excellent 
 record as a student of law at the University of Michigan, where I was 
 one of his teachers, and where he received his bachelor's degree in law 
 in 1902. Before taking up the study of law he had been a practicing 
 physician for several years, having received his first degree in medicine 
 in 1888 and having continued his medical studies during the following 
 year at the University of Vienna, where he specialized in ophthalmology. 
 
 To those who had observed his enthusiastic diligence as a law student 
 it seemed a grave misfortune that he was obliged, because of an injury 
 to his throat, to abandon his project of practicing law. He continued, 
 however, the practice of medicine, and, fortunately, taste and ability for 
 literary work have enabled him to render valuable service to his two 
 professions through his writings on medico-legal subjects. 
 
 This essay is a reprint of an article which appears in Volume IX of 
 "The American Eyicyclopedia and Dictionary of Ophthalmology ." The 
 first part of this great work appeared in 1913, and the volumes thus far 
 issued (it is not quite completed) afford remarkable evidence of the 
 importance of the science of ophthalmology. The neglect with which, 
 before the writings of Doctor Shastid, the medical jurisprudence of this 
 important subject had been treated is sufficiently apparent from the fact 
 that such a standard work as that, for example, of Taylor, practically 
 ignores it, while even the monumental production of Witthaus and 
 Becker (latest edition) in its section entitled ''Vision and Audition in 
 their Medico-Legal Relations" is devoted (so far as the eye is concerned) 
 simply to sight-testing, simulated blindness, and ocular injuries. The 
 far greater thoroughness, especially on the legal side, with which Doctor 
 Shastid has developed his subject (for it may well be called his) is 
 obvious at a glance. 
 
 The following pages abound in valuable advice and suggestion for both 
 the physician and the lawyer. 
 
 The author's comparative view of ophthalmo-sanitary legislation in 
 the United States and four leading European countries ought to stimu- 
 
INTRODUCTION 
 
 late members of both professions to work for an improvement in Ameri- 
 can sanitary statutes. 
 
 The lawyer who has occasion to consider the medico-legal aspect of 
 injuries to the eye will be especially grateful for the chapter on ophthal- 
 mic expert testimony. 
 
 While the last quarter of the book is devoted to a discussion of 
 ophthalmo-surgical malpractice, there will be found in it much besides 
 a consideration of this special subject : it may be that the la'wyer who 
 has read this chapter will be more cautious than he otherwise would 
 have been in representing a client claiming damages from a physician 
 for malpractice. 
 
 In its original form as an article in the Encyclopedia this work is 
 almost inaccessible to lawyers, and its reproduction in this separate 
 Volume will be appreciated by those of the legal profession who are 
 fortunate enough to obtain a copy. 
 
 JAMES H. BREWSTER. 
 
 Denver, Colorado, 
 
 October, 1916. 
 
OPHTHALMIC JURISPRUDENCE 
 
 Inasmuch as the subject of ophthalmic jurisprudence is very compre- 
 hensive and also somewhat intricate, the following outline of the con- 
 tents of this article is offered in the hope that it may serve as a guide 
 through the ophthalmo-jurisprudential labyrinth. 
 
 I. Introduction: Court Systems and Basic Legal Principles in 
 America, England, France, Germany, and Italy. 
 II. Ophthalmic Expert Testimony. 
 
 A. Legal Considerations in America, England, France, Ger- 
 
 many, and Italy. 
 
 B. Medical and Surgical Considerations. 
 
 Commonest Injuries with which the Ophthalmic Expert 
 
 has to Deal. 
 Simulation of Ocular Injury or Disease. 
 False Attribution of Ocular Injury or Disease, 
 Exaggeration. 
 Dissimulation. 
 Visual Economics. 
 Questions of a General Nature Relating to the Power of 
 
 Vision. 
 Condition of the Eye after Death. 
 Ocular Signs of Sleep. 
 
 Ocular Indications of Poisoning, Burning, etc. 
 Ocular Signs of Identity. 
 
 III. OphthaliMO-Sanitary' Legislation in the Five Countries: 
 
 Ophthalmia Neonatorum, Optometry, School Inspection, Vac- 
 cination, etc.2 
 
 IV. Malpractice. 
 
 A. Legal Considerations in America, England, France, Ger- 
 
 many, and Italy. 
 
 B. Medical and Surgical Considerations. 
 
 1 So far as the Editor knows, Dr. Shastid 's chapter in Wood 's ' ' System of 
 Ophthalmic Operations" (Chicago, 1911), which appeared beneath the caption, 
 "The Forensic Relations of Ophthalmic Surgery," and which forms the basis of 
 the present article, was the earliest attempt in any language to render a systematic 
 account of the law relating to our special subject. The Editor does not, of course, 
 ignore the numerous, and now and then important, monographs which had dealt 
 with the various minor aspects of ophthalmic jurisprudence. The chapter in 
 question, considerably epitomized and brought to date, appeared in Ball's 
 "Modern Ophthalmology" (Phila., 1913) and was there entitled "The Legal 
 Relations of Ophthalmology." The present article also bears that title, but the 
 matter has been again revised as well as very much enlarged. — Ed. 
 
 2 The ophthalmo-sanitary heads are all considered in this article chiefly as a 
 means of preserving this (the major) article's continuity, and, therefore, in each 
 instance are given as a kind of abstract. For a fuller consideration, in each case, 
 see Conservation of vision; as well as Care of the eyes. 
 
 1 
 
OPHTHALMje JURISPRUDENCE 
 
 Introduction : Court systems and basic legal principles in America, 
 england, prance, germany, and italy. 
 
 In order to comprehend the laws relating to medical experts, the 
 laws on which the science of visual economics and the like depends, and 
 especially the laws relating to medical and surgical malpractice, either 
 in this or in any other land, it is first of all essential to comprehend 
 the system of courts in the countries whose laws are under considera- 
 tion, and also certain fundamental legal principles, without a knowledge 
 of which no individual laws whatever can be really understood. Nor is 
 this task so formidable as it might at first appear. Comparative juris- 
 prudence, though a realm of almost infinite extent,^ nevertheless ex- 
 hibits for its prominent characteristics certain very simple matters, 
 which can easily be stated and easily be understood. And only these 
 featural affairs, these salient characteristics, will here be attempted. 
 
 Court Systems and Basic Legal Principles in the United States. 
 
 To take our own country first, because it is the nearest and because 
 its judicial system, though the most difficult, is already partly known 
 to us. In the United States two entirely distinct judicial systems are 
 daily operating, as it were side by side — the federal and the state. 
 The federal courts exist by the authority of the federal constitution — 
 the constitution of the United States of America — and the state courts 
 by the authority of the constitutions of the various separate states — 
 Texas, New York, Illinois, etc. The federal courts interpret, apply, 
 and enforce the constitution of the United States, the statutes which 
 have been passed by Congress, and, under many circumstances, the 
 constitutions and statutes of the several states. They do not, however, 
 as a rule, enforce any former judicial decisions either of themselves or 
 of the state courts. There is, in other words, no federal "common 
 law. "2 State courts, on the other hand, interpret, apply, and 
 enforce their own constitutions, the statutes of their own legislatures. 
 
 1 So vast, in fact, is the field of comparative law, that only a little (to speak 
 relatively) has ever been done to develop it. 
 
 2 For example, in the ease of Wheaton v. Peters (8 Peters 591, 1831), the 
 Court declared: "It is clear there can be no common law of the United States. 
 The Federal Government is composed of states; each of which may have its local 
 usages, customs, and common law. There is no principle which pervades the Union 
 and has the authority of law; that is not embodied in the constitution or laws 
 of the Union. The common law could be made a part of our federal system, only 
 by legislative adoption." Even in matters of procedure there is no federal case 
 law. Thus Dwyer, "Law and Procedure of U. S. Courts," p. 320: "In law 
 cases, the Federal courts follow the procedure of the states; but in equity, the 
 old chancery procedure is followed except where Congress has modified or changed 
 the old rules." 
 
OPHTHALMIC JURISPRUDENCE 
 
 and the various judicial decisions which have been rendered in former 
 cases by themselves. 
 
 Now, exactly what courts are those which go to constitute the so- 
 called ''federal" system, and what, in the case of each, is its juris- 
 diction? The federal courts consist (excluding certain tribunals whose 
 existence is here irrelevant even for purposes of clearness, such as 
 the interstate commerce commission, the consular courts, etc.) first, 
 of the district courts,^ then of the circuit court of appeals, and, finally, 
 of the Supreme Court of the United States. 
 
 The federal district courts have original jurisdiction only, excepting 
 appellate jurisdiction (i. e., from the judgments and orders of United 
 States commissioners) under Chinese-exclusion laws and over the 
 Yellowstone National Park. Their authority extends (as well as to 
 many other matters here irrelevant) to "all cases of admiralty and 
 maritime jurisdiction," to "all crimes and offenses cognizable under 
 the authority of the United States," to "all cases arising under the 
 postal laws, ' ' and to ' ' all suits brought by any person to recover dam- 
 ages for any injury to his person ... or property on account of 
 any act done by him, under any law of the United States, for the pro- 
 tection or collection of any of the revenues thereof." In all of these 
 matters, as will be readily observed, the assistance of the medical expert 
 witness is frequently required for the untying of lego-medical knots. 
 Then again, the federal district courts have jurisdiction over "all 
 suits of a civil nature, at common law or in equity, brought by the 
 United States, or any other officer thereof authorized by law to sue, 
 or between citizens of the same State claiming lands under grants from 
 different states; or, where the matter in controversy exceeds, exclusive 
 of interest and costs, the sum or value of three thousand dollars, and 
 (a) arises under the Constitution or laws of the United States, or 
 treaties made, or which shall be made, under their authority, or (b) 
 is hetween citizens of different States, or (c) is between citizens of a 
 State and foreign States, citizens, or subjects." The specially relevant 
 passages have been italicized hj the present writer, and it is easy to 
 perceive from these passages that, in suits of a civil nature for per- 
 sonal injuries, where the matter in controversy exceeds, exclusive of 
 interests and costs, the sum or value of three thousand dollars, and 
 
 1 It may not be amiss to suggest that there are several federal district courts 
 (no district, by the way, transgressing a state boundary) in almost every state. 
 The United States circuit courts, which had been in existence for more than a 
 hundred and twenty years, were abolished by "The Judicial Code" of Mar. 3, 
 1911, and all of their jurisdiction, as well as their "pending labors," was trans- 
 ferred to the federal district courts, which, in addition, kept all the jurisdiction 
 which they had had before the passage of that Code. — See 226 U. S. 420. 
 
 3 
 
OPHTHALMIC JURISPRUDENCE 
 
 where such suit is between citizens of different States, or between 
 citizens of a State and foreign States, citizens and subjects, a phy- 
 sician may be required to appear either in his quality of expert witness 
 or in that of defendant in a malpractice suit. It is specially to be 
 noted that a physician cannot be sued for malpractice in a United 
 States court (contrary, of course, in a State court) unless the require- 
 ment of diverse citizenship between his plaintiff and himself shall 
 truly exist and appear in the pleadings, and also unless the amount 
 that is sued for shall, exclusive of interest and costs, exceed the sum 
 or value of three thousand dollars. 
 
 The circiiit court of appeals has appellate jurisdiction only. Phy- 
 sicians, therefore, have no occasion to appear before this court. 
 
 The jurisdiction of the Supreme Court of the United States is thus 
 expressed by the federal constitution : ^ " In all cases affecting ambassa- 
 dors, other public ministers and consuls, and those in which a state 
 shall be a party, the Supreme Court shall have original jurisdiction, 
 and in all other cases . . . appellate jurisdiction . . ." So 
 far as this court possesses original jurisdiction, it may, of course, re- 
 quire the attendance of expert (as well as of ordinary) witnesses. 
 
 Thus much for the federal system of courts; now for the systems, 
 or sets, of courts which exist in the separate states and which operate 
 by virtue of the authority conferred upon them by the various state con- 
 stitutions. These state systems differ a little in the different states, 
 but in the state of Illinois for example, they are, briefly: the coroners' 
 courts, the courts of justices of the peace, the county courts, the 
 circuit courts, the appellate courts, the city courts (simply auxiliary 
 circuit courts) and the Supreme Court.- 
 
 As defendant in a malpractice suit, the physician or surgeon (in- 
 cluding, of course, the ophthalmic surgeon) may be cited to appear in 
 the circuit court, or, indeed, if the amount sued for be small enough, 
 in the county court.^ If either of the parties appeals from the circuit 
 court (in which tribunal the suit is nearly always brought) he goes to 
 the appellate, and later, if the matter is taken still farther, to the 
 Supreme Court. 
 
 1 Art. Ill, Sec. 2, par. 2. 
 
 2 In New York and Kentucky the ' ' Supreme ' ' Court is not really supreme. 
 In each of these states, the highest court is the Court of Appeals, while the so- 
 called ' ' Supreme ' ' Court ranks next beneath. 
 
 I have not seen fit to set down in anything resembling a comprehensive manner 
 the various jurisdictions of the different state courts, though I made an approach 
 to this in the case of the federal system ; the reason being that nearly every citizen 
 has a fair idea of the jurisdictional field pertaining to the courts of his own state ; 
 though a hazy one indeed with respect to the competence of the courts of the 
 United States. 
 
 3 Only, however, in counties in which separate probate courts have been estab- 
 lished. 
 
OPHTHALMIC JURISPRUDENCE 
 
 As expert witness, the physician or surgeon (including, of course, 
 the ophthalmic surgeon) may be summoned to the coroner's court, the 
 court of a justice of the peace, to the county court, to the circuit court, 
 and, sometimes, to the Supreme Court, i. e., in cases where this tribunal 
 possesses original jurisdiction. He never appears, however, before the 
 Appellate Court, because the competency of this court is limited ex- 
 clusively to appeals. In the coroner's court his function is restricted 
 to assisting the coroner's jury in arriving at a verdict as to the probable 
 cause of death. ^ In the justice 's court, his office is frequently to decide 
 as to whether a certain injury is severe or only slight, or whether it is 
 likely to prove fatal or not ; for, on matters such as these, sometimes, 
 in criminal cases, depends the defendant's right to bail. In this court, 
 also, as well as in the county court, the medical or surgical expert 
 not infrequently gives evidence on various other matters. In the 
 circuit court, finally, his evidence is as wide as the broad field of 
 medicine. 
 
 It is to the circuit court (or a court of like jurisdiction called per- 
 haps by another name, as, e. g., "District Court" in Colorado) well 
 nigh always, that the ophthalmic surgeon is called as an expert witness. 
 
 An interesting matter presents itself at this point: What is the 
 line of demarcation separating the jurisdiction of the federal system of 
 courts, taken altogether, on the one hand, from that of the various 
 state systems, or sets, of courts, taken altogether, on the other? Ter- 
 ritorially, of course, the jurisdiction is nearly the same in each in- 
 stance — state courts, to be sure, being wholly devoid of authority over 
 the high seas, over the District of Columbia, etc. — but what about 
 subject-matter? Just what kinds of cases, in other words, are triable 
 in the federal system and what kinds in a state system ? Says the fed- 
 eral constitution : 2 ' ' The judicial power of the United States shall ex- 
 tend to all cases, in law and equity, arising under this constitution, the 
 laws of the United States, and treaties made, or which shall be made, 
 under their authority ; to all cases affecting ambassadors, other public 
 ministers or consuls; to all cases of admiralty and maritime jurisdic- 
 tion ; to controversies to which the United States shall be a party ; to 
 controversies between two or more states ; between a state and citizens 
 of another state, between citizens of different states, between citizens of 
 
 1 The office of coroner was abolished in Massachusetts in 1877, and that of 
 "medical examiner" created in its stead. In ease the medical examiners (who 
 must be registered physicians) decide that the death in question was due to violence, 
 they so report to the district attorney and to a justice of the district. Similar 
 changes have been made in Michigan, Rhode Island and Connecticut. See "The 
 Office of Coroner," by E. B. H. Gradwohl, M. D., St. Louis, in the Journal of the 
 American Medical Association, Mar. 12, 1910, Vol. LIV, No. 11, p. 842. 
 
 2 Sec. 2, Art. III. The section is given here in full, though partly irrelevant 
 otherwise to present purposes, for the sake of clearness. 
 
 5 
 
OPHTHALMIC JURISPRUDENCE 
 
 the same state claiming lands under grants of different states, and be- 
 tween a state, or the citizens thereof, and foreign states, citizens, or 
 subjects." This grant of jurisdiction by the separate states to the fed- 
 eral government leaves all other jurisdiction whatsoever in the hands 
 of the separate states. The practical results, however, are just a little 
 different from that. Says Dwyer : ^ "In fact, many cases within the 
 reach of the judicial power of the federal government are left wholly 
 to the state courts ; in other eases the courts of the United States have 
 exclusive jurisdiction ; while in others, the state courts are permitted to 
 exercise a jurisdiction concurrent with the federal courts." 
 
 It happens, though very rarely, that actual conflict takes place be- 
 tween the jurisdiction of the federal and that of the state courts. What 
 system, in such circumstances, has the actual cognizance of the particu- 
 lar case at bar ? Here, again, the federal constitution speaks : 2 " This 
 Constitution, and the laws of the United States which shall be made in 
 pursuance thereof, and all treaties made, or which shall be made, under 
 the authority of the United States, shall be the supreme law of the 
 land ; and the judges in every State shall be bound thereby, anything in 
 the constitution or laws of any State to the contrary notwithstanding. ' ' 
 Thus, therefore, in case of actual conflict, the federal law is supreme. 
 But there must he actual canflict. AVithin its own proper classes of 
 cases, the law of any state is as absolutely paramount as is that of the 
 United States within its proper classes of cases.^ 
 
 i"Law and Procedure of V. S. Courts," Ann Arbor, Mich., 1901, p. 63. 
 
 2 Art. VI, par. 2. 
 
 3 If anyone should think the legal preliminaries to this article unnecessarily 
 long, I would offer as my excuse the fact that works on legal medicine contain, 
 as a rule, extremely little information on the important subject of courts and 
 fundamental legal principles (these matters being continually assumed to be 
 understood) and that, as a consequence, such information is not, as a rule, very 
 accessible to doctors, while, as already stated, a little of such knowledge is abso- 
 lutely essential to even a fair comprehension of the individual statutes and rules 
 with regard to expert witnesses, economics, malpractice, etc. Just to illustrate in 
 connection with the matter to which this note is appended: Not long since, a 
 physician of excellent education and wide reading, having been threatened with a 
 suit for malpractice in an Illinois court, had found in a widely-circulated work on 
 legal medicine a case which had been decided by a federal court and which seemed 
 to him to militate against his interests. He declared excitedly that, though the 
 law in Illinois was greatly in his favor, yet that the federal law would, being 
 higher, set aside the law of Illinois, and thus destroy his prospects in the case. 
 He was absolutely amazed to learn that the federal decision had no authority 
 whatever in an Illinois court, so long as the latter tribunal was acting within its 
 jurisdiction and so long as it possessed on the point in question decisions of 
 its own. Had it had no decision of its own, then (as will appear hereafter) the 
 federal case would have taken on persuasive (not binding) authority, the same 
 precisely as would the decision of any court of last resort in any judicially influ- 
 ential state with regard to the same question. Even had the plaintiff been a 
 citizen of another state than tliat in which the doctor in question had his citizen- 
 ship, and had the amount involved exceeded the "sum or value" of three (at that 
 time, two) thousand dollars, and had the plaintiff, taking advantage of these 
 
 6 
 
OPHTHALMIC JURISPRUDENCE 
 
 So much for American courts, and, briefly, the power which each 
 of them possesses. There remains, however, a very important piece of 
 legal machinery to be considered in connection with the most of these 
 courts — namely, the jury. In the coroner's court, a jury — which can 
 never be dispensed with — consists of six men. In a court of a justice 
 of the peace there is generally no jury, but "either party may have the 
 cause tried by a jury if he shall so demand before the trial is entered 
 upon, and will first pay the fees of the jurors." ^ When, in a justice's 
 court, a trial is had by jury, the body consists (in Illinois, for exam- 
 ple) of "six, or any greater number not exceeding twelve, as either 
 party may desire. "^ A jury (not always had) in the county court, 
 consists of twelve men, unless the parties elect to reduce the number to 
 six. In the circuit court there are two kinds of juries — the grand jury 
 and the petit jury. The grand jury is a sort of inquisitorial, or pro- 
 visional, tribunal, consisting of not less than twelve men or more than 
 twenty-three, whose duty it is, in private session, to examine into vari- 
 ous matters of a criminal nature, either on their own motion or that of 
 a public prosecutor, and, in case they deem it proper so to do, to present 
 to the circuit court a formal, written accusation, or ' ' indictment. ' ' The 
 petit jury, in a circuit court, consists of twelve men. Its duty, like that 
 of a jury in any other court, is, generally speaking, to decide upon the 
 facts, while the function of the judge is, speaking generally again, to 
 determine points of law. In the circuit court, a trial is almost always 
 had by jury (except in chancery cases, and sometimes even then). The 
 decision of a jury is called a "verdict." The conclusion of the judge 
 (which, in a jury trial, is of course based upon the verdict) is known 
 as the "judgment." ^ In any petit jury, a unanimous vote is absolutely 
 necessary to constitute a verdict, both in civil and in criminal cases. 
 State constitutions may change this common law rule as to unanimity 
 and have done so in some states, e. g., Missouri and Oklahoma. In 
 a grand jury, a majority vote is sufficient if it amounts to twelve. 
 
 Trial by jury is a normal, and a very important, part of that great 
 
 facts, actually brought her suit in a federal court, then, even then, the action, 
 although in a federal court, would not have been subject to federal common law — 
 for, as above stated, there is no federal common law. The case would have been 
 decided, so far as possible, under the statutes of the state. Outside of thoso 
 statutes (and the interpretations of them made by the courts of last resort within 
 that state) neither the decisions of the state nor any federal decisions would have 
 had the slightest binding power upon the court — which would simply have decided 
 ' ' in accordance with the principles of general jurisprudence. ' ' One can read and 
 re-read individual laws without the slightest actual understanding of them, unless 
 he comprehends in advance a few fundamental matters, such as those which 
 are stated in this Introduction. 
 
 iHurd's "Revised Statutes" of Illinois, 1909, Chap. 79, Sec. 48. 
 
 2 Loc. cit. 
 
 3 For a detailed and scholarly study of judgments in general, see Kood 's 
 "Attachments, Garnishments, Judgments and Executions," (8 vo., Ann Arbor, 
 1901). 
 
 7 
 
OPHTHALMIC JURISPRUDENCE 
 
 division of the legal systems of civilized countries which is known as 
 the Common Law — i, e., the legal systems of England, and the various 
 lands — Australia, Canada, the United States, etc. — that have taken 
 their basic legal views from that country. It is not normally a con- 
 stituent of the other grand division, or class, of legal systems — i. e., 
 those derived from the civil (ancient Roman) law, and to which belong 
 the legal systems of practically all the countries of continental Eu- 
 rope. ^ However, as we shall later observe, the jury has, to some 
 extent, owing to the influence of the English legal system on the 
 Continental system, been introduced into the judicial machinery of 
 Germany, France, Italy, and even of some other continental lands. 
 
 The importance of this little body of often illiterate men, for the 
 parties, for the judges, and for expert witnesses, can hardly be exag- 
 gerated. In common law countries, for example, in which the jury trial 
 is so conspicuous a feature, it has given rise to an extensive and com- 
 plicated branch of the law, which is known as the Law of Evidence — a 
 body of rules relating to what may, and what may not, be presented to 
 the jury. This great branch of the law, it would seem, does not possess 
 an independent existence (or at all events any worth mentioning) in 
 the civil law countries. On the jury it is, almost always, that the medical 
 expert ^witness is required to shed his scientific light. To the jury it is, 
 moreover, that, when a doctor appears as defendant in a suit for 
 medical or surgical malpractice, his case is practically handed over for 
 its entire decision. Indeed in Illinois, and, I believe, in certain other of 
 the American States, the jury is made, for weal or for woe, sole arbiter 
 not only of the facts but of the law.^ 
 
 Great, therefore, is the jury in the various Common Law systems. 
 Of little importance, however, is that body of men in the systems which 
 have descended from the jurisprudence of ancient Rome.^ The duties 
 of a medical expert witness, accordingly, are somewhat different in 
 common law, from what they are in civil law, countries.* In the for- 
 
 1 One of the most remarkable facts of human history is this strange, thia 
 well-nigh inexplicable vitality of the ancient Roman law. That a system of 
 jurisprudence developed in a state of society in every way so different from that 
 of modern Europe, should persist through all the centuries and be found still 
 applicable, is an almost miraculous occurrence. But the Romans seem to have 
 constructed their jurisprudence as they built their roads — to last forever. 
 
 2 Under instructions from the judge, of course. 
 
 3 Juries were had, in ancient times, undoubtedly, both in Rome and in Greece. 
 But these (the so-called judices and the dicastce) were not the sources of the 
 modern petty jury, which, as declared by Jenks {A Short History of English 
 Law, p. 333) "was a mere after-thought, designed to fill the gap left by the 
 abolition of the ordeal." This "after-thought" occurred about A. D. 1300. 
 
 4 A fact too often lost sight of by those who propose reforms in the medical 
 expert systems of the United States — reforms suggested, in very many instances, 
 by the successful operation of medical expert corps to be found, here and there, 
 among civil law countries (France and Germany, for instance, not Italy). 
 
OPHTHALMIC JURISPRUDENCE 
 
 mer, for instance, the functionary in question addresses the jury, in the 
 latter, the judge. In a common law land, he directs his remarks (gen- 
 erally speaking) to a body of mentally untrained men, incapable of 
 complex reasoning, or, in other words, of winnowing testimony, for 
 themselves, and hence he is bound to submit to a multitude of rules 
 respecting what is, and what is not, "proper to go before the jury." 
 In a civil law land, on the other hand, he addresses the judge, or, it may 
 be, a benchful of judges, who are nearly always highly trained 
 logicians, and, for that reason, he is wholly unhampered by our truly 
 astounding "rules of evidence." 
 
 Now, what kinds of law do American courts — acting, to be sure, 
 very often in conjunction with their juries — interpret, apply, and en- 
 force? and, moreover, what are the rules, or principles, according to 
 which are made these interpretations, these applications, these enforce- 
 ments ? 
 
 We have already seen that, in the federal courts, the laws applied 
 are, chiefly : the federal constitution, the acts of Congress, and (under 
 many circumstances) the constitutions and statutes of the several states, 
 as well as "the general principles of jurisprudence;" that, in a state 
 court-system, they are : the constitution of the particular state in 
 question, the statutes passed by the legislature of that state, and, finally, 
 the decisions of these same courts in former cases.^ Now, in each 
 instance — either in the federal system or in any given state system — 
 the question, of course, arises: which of these kinds of law is of the 
 higher force and effect ? In other words, when a conflict arises betwixt 
 constitution, statutes, and case-law (otherwise known as the common 
 law, the judge-made law, and the unwritten 2 law) which kind of law 
 is held to supersede the other kinds? The invariable rule is that the 
 common, or case, law is the lowest form of law, and must give way, 
 in case of conflict, to statutory enactment, and that both statutory 
 enactment and case-law are controlled by the constitution. Of course, 
 multitudes of decisions accumulate, in the course of the application of 
 
 1 It should, of course, be understood that, in any jurisdiction, it is only the 
 decisions of "courts of last resort" which constitute law for subsequent cases. 
 The doctrine that the decisions of courts of last resort take on the force of law 
 for subsequent cases in courts of any grade, is known as the doctrine of stare 
 decisis (to stand, or abide, by decided cases). This doctrine prevails in England 
 and in all the various countries which have derived their legal system from that 
 land — Canada, the IT. S., etc. In civil law countries (i e., countries whose legal 
 principles were, as already stated, adopted chiefly from the ancient Eomans — as 
 France, Germany, Italy) the doctrine does not prevail. A judge may, if he choose, 
 in those countries, apply the law in one way today and in another way tomorrow. 
 This, at least, is the theory. As a matter of fact, however, a judge in a civil law 
 country is very much guided by former decisions. 
 
 - Because, originally, in ancient times in England, the decisions of courts wero 
 neither printed nor written, but merely preserved in men's memories. 
 
 9 
 
OPHTHALMIC JURISPRUDENCE 
 
 statutes and of constitution, and these decisions become, as it were, a 
 part — and a very important one — of the constitution or of the par- 
 ticular statute which is under consideration. They, too, are a part of 
 the law. 
 
 Again, certain rules exist for the application of case-law, or com- 
 mon law, at least some of which must be understood before the ''legal 
 relations" of anything whatever can be even slightly comprehended. 
 The most important of these rules are : 
 
 1. A case of "first impression" — i. e., a pioneer case or a case 
 which, for the first time in a court of last resort in the given jurisdic- 
 tion brings up directly for decision the matter in question, does not 
 possess so binding a force as law as do subsequent eases holding to the 
 same effect; and, in general, 
 
 2. An old case, if others things are equal, does not possess so high 
 an authority as one more recent. 
 
 3. Whatever is said in a case that is not strictly necessary to the 
 decision of that case, does not take on the force of law for subsequent 
 cases, but is only obiter dicta — i. e., "sayings by the way." 
 
 4. The decision of a court of last resort in any other state than 
 that in which a case arises, has no compulsory force as law, but ' ' per- 
 suasive authority" only — an authority which, moreover, is greater or 
 less according (among other matters) to the eminence of the court 
 of last resort which rendered the decision applied to. Thus, the de- 
 cisions of the Supreme Court, still more the Court of Appeals, of the 
 State of New York have always been possessed of much "persuasive 
 authority" in the courts of other states. The same is true of the 
 Supreme Court of New Hampshire, and of some other states. 
 
 5. A scanty, ill-reasoned opinion is of less force than a full and 
 cogent one. 
 
 Two great divisions of the law of any country, which are abso- 
 lutely necessary to be understood, may here most conveniently be dis- 
 cussed, though with special reference to American law — the criminal 
 law and the civil ^ law. 
 
 The criminal law is that division of the law which relates to crimes, 
 and a crime is any act or omission regarded by the legislative power 
 as being so injurious to the general public that the government itself 
 will punish the person or persons who are shown to be responsible 
 for such act or omission. Any proceeding which has for its object 
 
 1 The term, "civil law," it is well enough to notice, is employed here, 
 as elsewhere in legal writings, in two widely differing senses. In the first 
 acceptation it denotes the various legal systems descended from the corpus juris 
 civilis of ancient Eome — as those of Prance, Germany and Italy. In the other 
 sense, it signifies the non-criminal portion of the law of any country. 
 
 10 
 
OPHTHALMIC JURISPRUDENCE 
 
 the infliction of this punishment is called a criminal actimi, or, more 
 briefly, a prosecution. Crimes are of three grades, misdemeanors, fel- 
 onies, and capital crimes. A misdemeanor is any crime inferior to a fel- 
 ony. A felony is a crime punishable by imprisonment in the peniten- 
 tiary. A capital offense is any offense punishable by death.^ 
 
 The civil law is simply the non-criminal portion of the law. 
 
 In criminal actions, or prosecutions, physicians are not infrequently 
 summoned as expert witnesses, to assist in the unravelling of various 
 medical or surgical tangles, especially in connection with the offenses 
 specifically known as murder, rape, mayhem (mutilation), etc. In 
 actions of this sort, however, the ophthalmic surgeon is naturally 
 enough very seldom asked to lend to the jury the assistance of his 
 knowledge and skill. It is the general practitioner that is almost 
 always appealed to. In civil cases, however, especially in that variety 
 known as personal injury suits (including, of course, the sub-variety 
 known as malpractice actions) the ophthalmic surgeon is frequently 
 subpoenaed to explain to the jury the nature of various injuries to the 
 eye, or diseases of that organ, or of the probable extent and economic 
 value of the disability produced by such diseases and injuries. 
 
 In connection with this matter of personal injury actions, we have 
 to remark that these are brought invariably for the purpose of securing 
 what is technically known as "damages" — i. e., monetary compensation 
 for a damage — and that damages are of three very simple classes, or 
 varieties : nominal damages, compensatory or substantial damages, and 
 punitive, vindictive, or exemplary damages. 
 
 Nominal damages are awarded when there is a mere technical 
 violation of a right, but no actual damage. The amount of nominal 
 damages awarded in any given case is often very small — six cents, 
 sometimes one cent. Such a judgment, however, throws, as a rule, the 
 costs of the suit upon the defendant. On the other hand, in certain 
 jurisdictions a judgment, to "carry costs," must be for "substantial" 
 damages. 
 
 Substantial or compensatory damages are allowed when there is 
 not merely a technical violation of a right, but also an actual damage, 
 or injury. In the estimate of such damages, matters such as the fol- 
 lowing may be taken into consideration: (1) Necessary and reasonable 
 
 1 Various definitions of some of these terms prevail in various jurisdictions, 
 the consequence of which is confusion. The chief differences occur with regard 
 to the word misdemeanor. The definitions above given are the simplest, and, 
 possibly, as correct as any that could be stated for a general understanding. They 
 are, moreover, those recognized by the present-day law of England. Thus, Russell, 
 "Law of Crimes," 1910, p. 10: "The word misdemeanor is applied to all offenses 
 (whether at common law or by statute) which are below the degree of felony, 
 whether they are punishable on indictment or on summary conviction." 
 
 11 
 
OPHTHALMIC JURISPRUDENCE 
 
 expenses, as hospital fees, nurses' and doctors' bills; (2) loss of time; 
 (3) pain and suffering; (4) disfigurement; (5) reduction of the earn- 
 ing capacity. It not infrequently happens that this last-named item 
 constitutes by far the most important feature of the bill; hence the sig- 
 nificance which attaches to the subject of "Visual Economics" ^ — i, e., 
 the methods whereby can be correctly estimated the loss of earning 
 power directly 2 consequent on the various injuries and diseases of 
 the eye. 
 
 Punitive, exemplary, or vindictive damages may be recovered — 
 in certain jurisdictions only, and these not many — when the damage 
 was inflicted under aggravating circumstances. This kind of damages 
 exceeds the allowance which could be made for mere compensation, 
 adding, as it does, thereto, a larger or smaller sum by way of punish- 
 ment, or vengeance, in order, as it were, to make an example of the 
 defendant. 
 
 These various sorts of damages can thus be briefly illustrated: A 
 commits an assault and battery on B, but without inflicting on him 
 any material damage. B sues A, and is simply awarded a cent in rec- 
 ognition of his right to freedom from assault and battery. In some 
 jurisdictions, B, under these circumstances, would have to pay the 
 costs of the suit, as well as the one-cent damages ; while, in others, the, 
 costs would have to be borne by A. 
 
 Now, suppose that A has inflicted on B a very material injury; 
 has, for example, knocked out one of his eyes. B can recover sub- 
 stantial damages, the amount to be determined by adding together the 
 various estimated values of such items as pain and suffering, doctors' 
 bills, loss of earning capacity, etc., as heretofore stated. 
 
 But, once more, suppose that A put out the eye of B under espe- 
 cially exasperating circumstances; for instance, with the declaration 
 that he destroyed the sight of the eye merely in order to render B in- 
 capable of earning a living, or of marrying a certain person, or "simply 
 to see what the inside of it looked like." Here, in a few (a very few) 
 
 1 To be treated some distance infra. 
 
 2 It may not be amiss to state explicitly that any damage, in order to consti- 
 tute a ground for a suit for damages, must be a direct, not an indirect, result of 
 the wrongful act, or, as it is often exjjressed, the result of a proximate, not a 
 remote, cause. To express the matter still differently, the "damage must be the 
 legitimate sequence of the thing amiss. ' ' An excellent example of this principle is 
 furnished by the leading case of Scott v. Shepherd, in which it appeared that the 
 defendant had thrown into a crowd a lighted squib. One after another of those 
 in the crowd struck at the squib to keep it from impinging on their faces, until, 
 at last, "it had burnt out the plaintiff's eye." The defendant pleaded that the 
 damage was indirect, insomuch as it was really due to "the subsequent acts of 
 others." But the court held that the acts of the others were "instinctive and 
 innocent," and such as should have been foreseen by ordinary forecast; and that 
 the act of the plaintiff, therefore, was the direct cause of the damage. 
 
 12 
 
OPHTHALMIC JURISPRUDENCE 
 
 jurisdictions, the plaintiff would be entitled to damages in excess of 
 those which could be considered as legal compensation.^ 
 
 Excessive damages. This is still another term which we need to 
 understand. The amount of damages which a jury has a right to as- 
 sess is not unlimited, and, in case it assesses, or estimates, the amount 
 at an unreasonably high figure, the damages are said to be ' ' excessive. ' ' 
 There is indeed no fixed rule (excepting only after "death produced 
 by wrongful act, ' ' when the amount is usually fixed by statute either at 
 $5,000 or $10,000) ; but, in case the trial judge deems the amount ex- 
 cessive, he has power to reduce the amount or to set the verdict aside. 
 Higher courts, too, may declare the damages ' ' excessive. ' ' ^ 
 
 Thus much for the courts of the United States, including the 
 juries thereof, as well as also certain important legal principles and 
 definitions. Let us now consider these same matters, though much 
 more briefly, with regard to other lands. And first, as to the 
 
 Basic Legal Principles and Chief Courts of England.^ 
 
 In England the fundamental legal principles are much the same as 
 in America. Indeed, as suggested already, these principles were 
 really adopted by the United States in an early day from the mother 
 nation. In England, for instance, the doctrine of stare decisis or of 
 case-law, prevails exactly as it does with us, and case-law there is 
 subject to the same identical rules of interpretation as it is in America. 
 The jury system, too, in that country, plays a highly important part, 
 exactly as it does in this country. The English court-system, however, 
 is very different from ours. For one thing, there is lacking, in Eng- 
 land, the two-fold idea — federal and state — which makes the law of 
 America so difficult. There is only one system, or series, of courts in 
 England. Then, again, in England there is no written constitution; 
 and, furthermore, questions of constitutionality are decided in that 
 country by the legislative body — Parliament — at the time when a given 
 law is enacted. The courts have nothing whatever to do with such 
 questions. When, in England, a law is once passed, it is law. 
 
 1 A would, of course, be liable to a criminal prosecution for mayhem (mutila- 
 tion) in any jurisdiction, under the circumstances mentioned. We are speaking 
 here only of the civil action which may always be instituted by the plaintiff, or 
 his representatives (guardian, executor, or administrator) on the same set of facts 
 as the criminal action. 
 
 2 Thus, in Yurkonis v. Del. L. & W. E. Co. (1914) 213 Fed. 537, U. S. District 
 Court, E. D. N. Y. : "A verdict for the loss of both eyes by a miner 50 years 
 of age, whose maximum annual earnings were about $900, will be held excessive 
 unless he consents to remit all in excess of $36,000. ' ' See also a number of cases 
 in * ' Negligence and Compensation Cases, Ann., ' ' Vol. VI, p. 210. 
 
 3 The Welsh and the Irish courts may, to all intents and purposes, be regarded 
 as just like those of England. Not so, however, may the courts of Scotland. 
 
 13 
 
OPHTHALMIC JURISPRUDENCE 
 
 The system of English courts, much simplified^ to be sure, for 
 general presentation, is as follows : 
 
 Coroners' Courts. — The jurisdiction is a little wider than with us. 
 It extends to deaths and fires (where questions arise as to cause) and 
 treasure trove. 
 
 Courts of the Justices of the Peace. — The jurisdiction, as with us, 
 extends only to certain subordinate matters. 
 
 County Courts. — Jurisdiction extends to subject-matter whereof 
 the value involved does not exceed £100. 
 
 Courts of 8essio7i. — Criminal cases only. 
 
 Court of Criminal Appeal. — Criminal appeals only. 
 
 The High Court of Justice. — Consists of the Chancery Division, 
 the King's Bench Division, and the Probate, Divorce, and Admiralty 
 Division, 
 
 Court of Appeal. — Hears all appeals from the High Court of Jus- 
 tice. 
 
 The High Court of Justice and the Court of Appeal are, together, 
 called "The Supreme Court of Judicature." 
 
 The House of Lords. — Does not consist of all the members of the 
 House of Lords, but of "The Law Lords" only. Hears appeals from 
 the Court of Appeal, and has original jurisdiction in certain classes of 
 cases, not necessary here to be specified. 
 
 There is only one Supreme Court of Judicature. England, how- 
 ever, is divided into seven Supreme Court Circuits, and the various 
 judges of the Court apportion the work among themselves according 
 to certain rules, and also in obedience to the ever-changing demands 
 made upon this court by the various circuits. 
 
 Cases relating to the unprofessional conduct of physicians fall en- 
 tirely within the jurisdiction of the General Medical Council — an ex- 
 clusively medical body which removes the offender's name from the 
 Register, (i. e., disqualifies him from practice) in case the offense ia 
 proved. The decision of this tribunal is absolutely final. 
 
 Suits for medical or surgical malpractice are brought either in the 
 King's Bench or the County Court, according to the amount involved. 
 An appeal lies, first, to the Court of Appeal; then to the House of 
 Lords. 
 
 Medical expert testimony may be required in all these courts, ex- 
 cepting only the Court of Appeal, which, possessing appellate jurisdic- 
 tion only, does not take testimony, either common or expert. 
 
 4 Neither in the case of the English court-system nor in that of any other 
 court-system, is the attempt here made to furnish a scientific exposition of the 
 jurisdiction of the various tribunals named; the endeavor is merely to convey a 
 somewhat general idea of the court-organization of the various nations in question. 
 
 14 
 
OPHTHALMIC JURISPRUDENCE 
 
 Basic Legal Principles and Chief Courts of Fra/nce. 
 
 In France the doctrine of stare decisis does not prevail. A judge 
 may, if he choose, decide in one way to-day and in another way to-mor- 
 row, on exactly similar states of fact. Neither do ministerial edicts 
 have the force of law in France, contrary to the generally received 
 opinion on that point in this country. They are supposed only to inter- 
 pret the law, though instances of encroachment have undoubtedly oc- 
 curred. Constitution, codes and statutes — these are the three constit- 
 uents of French law. 
 
 In France, furthermore, the jury system is conspicuous by its 
 almost absence. In fact, no jury is ever employed in France, except in 
 criminal eases, and then only in the Assize Courts, tribunals which deal, 
 generally speaking, only with the very highest classes of crimes.^ A 
 jury in civil cases is unheard of. There are, in France, few technical 
 "Rules of Evidence," no perplexing problems with respect to rel- 
 evancy, materiality, or competency. The mile-long ''hypothetical ques- 
 tion" never disturbs the intellectual serenity of the medical expert, 
 who merely hands in his report, or discusses, in a gentlemanly fashion, 
 various matters, relevant to the issue of course, with a learned and 
 urbane judge.^ 
 
 The defendant, moreover, in a suit for medical malpractice (which 
 kind of suit, by the way, for reasons to appear hereafter, is extremely 
 rare in France ) ^ does not direct a mutilated defense to a body of men 
 who may, or may not, comprehend the nature of the scientific questions 
 involved. On the contrary, he addresses a connected exculpation to a 
 judge (or, it may be, to a benchful of judges) who are ably assisted by 
 official physicians, selected either by the parties or by the court but 
 from a list drawn up at stated intervals by the Court of Appeal in the 
 particular judicial district in which the case is heard. Surely it would 
 not be injudicial to say that they do "order" these things "better in 
 France. ' ' 
 
 The court-system of France is as follows: 
 
 1 Even the Assize Court jury could be adopted only during the Eevolution, 
 in 1790. 
 
 2 Neither is there in Trance a Grand Jury. The functions of this exclusively 
 Common Law body are performed in France by a special ofl&eer known as the 
 "Juge d 'Instruction, " a kind of Grand Inquisitor who is entitled to examine 
 "not only the witnesses, but the prisoner himself in absolute privacy." True, 
 there is a " Chamdre des mises en accusation," which works in connection with 
 the Court of Assizes, and which is something like our Grand Jury. Nevertheless, 
 its members are not laymen, but judges from the Courts of Appeal. The 
 resemblance, therefore, to our Grand Jury is very superficial. 
 
 3 Everywhere, indeed, in foreign countries, malpractice suits are far less com- 
 mon than among us. So far as I am able to judge, there have been more mal- 
 practice cases in the last hundred years in the United States alone than in all 
 continental Europe. 
 
 15 
 
OPHTHALMIC JURISPRUDENCE 
 
 Civil Courts. 
 
 a. Courts of Exceptional Jurisdiction (those whose jurisdiction is 
 delimited by statute). 
 
 1. Courts of the Justices of the Peace. — Jurisdiction up to 600 
 francs. 
 
 2. Commercial Courts. — Certain commercial cases only. 
 
 b. Courts of Ordinary Jurisdiction. 
 
 1. The Civil Tribunal of First Instance. — There is one of these 
 for each arrondissement, France, as is well known, being divided into 
 a number of ' ' departements, ' ' or states, each of these being subdivided 
 into three or four ' ' arrondissements. ' ' 
 
 This tribunal is of great importance in connection with the matter 
 of medical expert witnesses, for to it belongs the power, and on it de- 
 volves the duty, to construct each year a list of qualified physicians 
 from which the official corps of "medical experts before the courts" 
 may later be chosen. (See Court of Appeal, infra.) 
 
 2. The Courts of Appeal. — There is one of these for each of the 
 twenty-six appellate districts, each appellate district comprising a 
 number of "departements." 
 
 These courts are of great importance in connection with the matter 
 of ' ' medical experts before the courts, ' ' for this court is the body which 
 possesses the power to appoint, and on which devolves the duty to ap- 
 point, from a list proposed, as before stated, by the Civil Tribunal of 
 First Instance, the corps of medical experts. 
 
 3. The Court of Cassation. — One for all France. Sits in Paris. 
 A court of error only. It never retries the facts, a retrial, if ordered, 
 being referred back to a Court of Appeal other than that which heard 
 the case before. 
 
 Criminal Courts.^ 
 
 1. Tribunal of Simple Police. — Petit offenses only. Merely the crim- 
 inal side of the Justice of the Peace's Court. 
 
 2. Correctional Courts. — All offenses involving a penalty exceed- 
 ing five days' imprisonment and fifteen francs fine, except such as are 
 reserved for the courts of the third degree, which are the Assize Courts. 
 
 3. The Assize Courts. — The highest classes of crimes only. The 
 only court in France in which there is a jury. 
 
 Medical expert testimony is heard in every court in France. 
 
 A suit for malpractice against a physician would be begun in the 
 
 1 Nothing at all like our Coroners ' Courts exists in France, Germany, or Italy. 
 
 16 
 
OPHTHALMIO JURISPRUDENCE 
 
 Civil Court of First Instance, and the Court of Appeal of the same 
 district would have appellate jurisdiction. 
 
 Basic Legal Principles and Chief Courts of Germany. 
 
 In Germany, as in France, the doctrine of stare decisis (case-law) 
 does not, theoretically at least, prevail. In actual practice, however, 
 the decision of a court of last resort in the German Empire is given 
 great weight in subsequent similar eases, and is almost always adhered 
 to. Says Schuster : i " Theoretically the rule of English law, according 
 to which the judgment of any Court establishing any rule of law is con- 
 clusive for all subordinate and co-ordinate Courts, is not accepted in 
 Germany, and any young 'assessor' fresh from his final examination 
 may overrule the judgment of the Imperial Supreme Court, but in 
 practice the ruling that any Superior Court is of the greatest weight 
 and authority. . . ." The authority of legal text-books, too, in 
 German courts, is probably higher than in any other country. Con- 
 stitution, codes and statutes, however, are, in Germany, as in all other 
 Civil Law countries, of absolutely binding power. 
 
 The system of courts in Germany is somewhat peculiar. It is not 
 so simple, quite, as is the system of France (which, in fact, is almost 
 like the simple series of one of our single states) nor, on the other 
 hand, is it quite so complicated as the American state-and-federal plan. 
 It holds, in fact, a position midway between these two systems — the 
 extremely simple system of France and the extremel}^ complex system 
 of America. The highest court in Germany, to be explicit, is a federal 
 court (the Reichsgericht) and all the other courts are state courts 
 (courts of the Bundesstaaten) . The situation is much as if, in America, 
 the Supreme Courts of all the states were abolished, then all the federal 
 courts, except the Supreme Court, were done away with, and, finally, 
 the federal Supreme Court was placed at the head of all the forty- 
 eight state court-systems. Even then, however, we should be em- 
 barrassed by forty-eight different kinds of procedure employed in the 
 forty-eight different state court-systems, whereas, in Germany, although 
 the state courts are without exception supplied by the separate states 
 (Bundesstaaten) the legal procedure, throughout, is absolutely uni- 
 form, being federal. 
 
 The courts of Germany are as follows: 
 
 1 ' ' The Frinci'ples of German Civil Law, ' ' by Ernest J. Schuster, Oxford, 
 1907, p. 12. 
 
 17 
 
OPHTHALMIC JURISPRUDENCE 
 
 For Civil Cases. 
 
 Amtsgerichte. — Suits involving property rights not exceeding in 
 value the sum of 300 marks ($70.00), and certain other matters re- 
 quiring expedition, without regard to the amount of the claim. 
 
 Landgerichte. — Original jurisdiction in all other civil matters and 
 appellate jurisdiction from the Amtsgerichte. 
 
 Oberlandesgerichte. — Appellate jurisdiction from the Amtsge- 
 richte. 
 
 Reichsgericht. — The imperial court: the highest court in the Ger- 
 man empire. Sits in Leipzig. Appellate jurisdiction from the Ober- 
 landesgerichte. 
 
 For Crimitial Cases. 
 
 Schoffengerichte. — Simply the penal side of the Amtsgerichte. One 
 judge and two laymen (or Schoffen). Competent for all "Vebertre- 
 tungen" for the so-called ' ' Antragsvergehen" and for those ''Verge- 
 hen" punishable at the most with three months in jail or a fine of 
 600 marks ($140.00). 
 
 Landgerichte. — Penal Chamber thereof. For all other "Vergehen" 
 and also for "Verhrechen" which are punished at most with five years 
 in the house of correction, and for the "Verhrechen" of juvenile per- 
 sons. 
 
 Appellate jurisdiction over Schoffengerichte. 
 
 Schwurgerichte. — Three judges and twelve jurymen {Gesch- 
 worene). "Verbreche^i" which do not fall within the jurisdiction of 
 the Penal Chamber of the Landgericht or of the Reichsgericht, 
 
 Oberlandesgerichte. — ^Sit in appeal from judgments of the Penal 
 Chamber of the Landgericht which the chamber heard on appeal, and 
 in first instance cases from that chamber where the revision is grounded 
 exclusively upon some legal rule contained in the Landesgesetzen. 
 
 Reichsgericht. — Penal Chamber thereof. Appeals from Schwurge- 
 richte and from the Penal Chamber of the Landgerichte in cases in 
 which that chamber had original jurisdiction. 
 
 Original and final jurisdiction in treason and high treason against 
 Kaiser and Kingdom. 
 
 The court in which either a prosecution or a civil suit for malpractice 
 would be brought, would be the Landgericht — in the case of a prose- 
 cution, the penal chamber of the court, of course. The Landgericht 
 may, however, refer the ease for trial to the Schoffengericht, whenever 
 it is perfectly obvious that the case (if a prosecution) cannot result in 
 a judgment for more than six months' imprisonment or a fine of more 
 
 18 
 
OPHTHALMIC JURISPRUDENCE 
 
 than 1,500 marks; and it may even refer a civil suit for malpractice 
 to the Amtsgericht whenever the amount of damages demanded does 
 not exceed 600 marks. A matter which seems peculiar to Americans 
 is the extent to which both medical and surgical malpractice are, in 
 Germany, regarded as criminal matters. Thus, it happens again and 
 again, in that country, that the same professional negligence, or alleged 
 negligence, is both sued upon and prosecuted simultaneously. The 
 injured person, however, is not obliged to wait (as in some lands) 
 until the criminal action has been disposed of before he can bring his 
 suit for damages. Nor is he obliged to sue simply and solely because 
 a prosecution has been brought. The prosecuting attorney {Staatsan- 
 ivalt) is, on the contrary, under official obligations to prosecute when- 
 ever he learns of a case of probable malpractice — which, not infre- 
 quently, is when he first receives intelligence that a civil suit has been 
 begun. It is generally the case, however, that the injured person 
 allows, or causes, the criminal prosecution to precede his civil suit, 
 because, in the criminal action he has no costs to pay, however the 
 case is decided, and also because, if the criminal action is decided in 
 his (i. e., the State's) favor, then he is absolutely certain of a judg- 
 ment in his case for damages, while if, upon the other hand, the 
 defendant is discharged in the criminal action, such a judgment is no 
 bar at all to a later suit for damages. An appeal from the Landge- 
 richt would lie to the Oherlandesgcricht and, thence, to the Beichsge- 
 richt. The functions of a medical court-expert in Germany are pretty 
 well indicated by the jurisdictions of the different courts. The peculiar 
 hierarchy of medical officials in Germany will be explained later. 
 
 Ba»ic Legal Principles and Chief Courts of Italy. 
 
 The fundamental legal views of Italy are much the same as those 
 of France. Judicial decisions (giurispriidenza) have, as in France, no 
 force at all as law — except as "persuasive authority" — still, contrary 
 to the case of France, ministerial edicts do possess binding authority. 
 The system of courts in the two countries is very similar. Thus, in 
 Italy : 
 
 For Civil Cases. 
 
 Jiidici di Conciliatori. — Jurisdiction up to 100 francs. 
 Pretore. — Jurisdiction up to 1,500 francs. 
 
 Tribunale. — Original jurisdiction in all claims of over 1,500 francs, 
 and appellate jurisdiction in certain cases from the pretore. 
 Appello. — Court of Appeals. Hears appeals from the tribunale. 
 
 19 
 
OPHTHALMIC JURISPRUDENCE 
 
 Cassazione. — Highest court in Italy, Jurisdiction where error has 
 been committed on either side. 
 
 For CrimiiKil Cases. 
 
 Pretore. — Petty cases. 
 
 Trihunale. — The penal chamber thereof. 
 
 Corte d' Assise. — Where the crime is punishable by not less than 
 five years imprisonment. Tries by jury, the assize court being, as in 
 France, the only tribunal which acts in conjunction with a jury. No 
 appeal. 
 
 A civil suit for malpractice would be begun either in one of the 
 pretorian courts or in one of the tribunale, according to the amount of 
 the demand, A marked peculiarity, however, of the Italian law, is 
 that a judgment for damages cannot be secured against a physician 
 until a criminal prosecution has first been brought against him, and 
 successfully, on the same state of facts. 
 
 There is no corps of ''ofncial expert witnesses before the courts" 
 in Italy, The medical expert system is, in fact, almost the same in 
 Italy as it is in Common Law countries. 
 
 "We have now reviewed, in a very brief manner, the court-systems 
 and fundamental legal principles of the various lands proposed to be 
 considered in this section — America, England, France, Germany, and 
 Italy — systems and principles which, to some degree, must be kept in 
 mind, if the remaining (and more specific) portions of this article 
 are to be really comprehended. 
 
 II, 
 
 OPHTHAIiMIC EXPERT TESTIMONY. 
 
 A. — Legal considerations. 
 
 Legal considerations regarding ophthalmic expert testimony in the 
 United States. In America, as in every civilized country, witnesses 
 are, from the nature of the testimony which they give, divided into 
 two very sharply differentiated classes — ordinary witnesses and ex- 
 pert witnesses. The former class simply testify to facts, the latter — 
 the expert — to opinions that are founded upon facts, either actual or 
 assumed. Says Hutchins :^ ' ' Ordinarily it is the province of the jury 
 to consider the facts in the case, and, uninfluenced by the opinions of 
 witnesses, draw such inferences therefrom as their judgment may dic- 
 
 1 ' ' The Physician as an Expert, ' ' Michigan Law Eevieiv, Apr., 1904, Vol. II, 
 No. 7, p. 601. 
 
 20 
 
OPHTHALMIC JURISPRUDENCE 
 
 tate. But in cases involving questions outside of the ordinary range 
 of inquiry, in which correct conclusions can be drawn from the facts 
 only by means of scientific deductions, it is apparent that most jurors 
 would be unable to perform the functions that the law imposes upon 
 them, unless aided in their deliberations by the judgment and opinions 
 of witnesses skilled and experienced in the subject under investiga- 
 tion." From this it readily appears that the expert witness is really 
 an interpreter of the facts. He stands to the jury (or, in some in- 
 stances and lands, the judge) in much the same relation as a linguistic 
 interpreter does in the case of a witness who cannot speak the language 
 of the court in question, or of a witness who is deaf and dumb. He 
 tells the jury or the judge the real meaning and import of the facts 
 adduced by the ordinary witnesses — a meaning and an import which 
 the judge or the jury could not, presumably, extract from these facts 
 themselves, by reason of their lack of special education with regard 
 to the matter in question. 
 
 An expert witness may be a carpenter, a miner, a railroad man or 
 a chemist, a lawyer ^ or a dealer in silks ; in very many cases he 
 happens to be a druggist, a dentist, or a doctor; in every case, how- 
 ever, he is called upon to aid the jury or the judge to interpret ordi- 
 nary facts by means of the expert, unordinarj^ knowledge which he 
 possesses. Here, of course, we shall treat of these matters with espe- 
 cial reference to the needs of the doctor, and with more especial refer- 
 ence still to those of the ophthalmologist. 
 
 First of all, however, it is well enough to understand that certain 
 things are so generally known and accepted that they do not need to 
 be proved by any kind of evidence whatever. Such matters are said, 
 in legal parlance, to be "judicially noticed." Among such matters 
 are : The existence and titles of sovereign powers, their flags and 
 seals, the general customs of merchants, the movements of the astron- 
 omical bodies, legal weights and measures, matters of public history, 
 domestic law,^ etc. All these and various other matters need not be 
 proved. The court is presumed to know them. 
 
 Then, too, there is a kind of evidence which does not depend on 
 human testimony — namely that which arises from what is legally de- 
 scribed as ''autoptic proference, " i. e., the displaying of the thing 
 itself. Says Wigmore : ^ "If the question is whether a man is of 
 negro complexion, or whether a shoe is fastened by laces or by but- 
 
 1 See the next succeeding footnote. 
 
 - But not foreign law. Foreign law, as hinted supra, must be proved by expert 
 testimony given by those who are specially skilled in the subject. 
 3 Note to Greenleaf on Evidence, 16th ed., 1899, p. 27. 
 
 21 
 
OPHTHALMIC JURISPRUDENCE 
 
 tons, the testimony of one who has seen the man or the shoe, or the 
 circumstance that the man 's child is a negro or that a button has fallen 
 from a shoe, can at least not be more satisfactory than the inspection 
 of the man or the shoe in court." Thus a judge may take his watch 
 and note ''the length of a minute for the benefit of the jury," and a 
 doctor may demonstrate the effects of an injurious substance, and a 
 man whose eyes have been removed may, under appropriate circum- 
 stances, exhibit before the court his empty sockets. 
 
 Then, finally, there comes human testimony. This, as a matter of 
 course, plays the star part in almost every trial. 
 
 Now, to return to our beginning point, the witnesses who render 
 human testimony are of two great, widely differing varieties — the 
 ordinary and the expert, the latter of which will be considered here. 
 
 In treating of expert witnesses we divide our subject thus : Attend- 
 ance in court, how secured; competency ; exammation and cross-exam- 
 ination; privileged communications ; matters concerning which an ex- 
 pert witness may testify ; manner of testifying; fees. 
 
 The attendance in court of any witness is secured by the service of 
 a writ called subpoena ad testificandum. The service is accomplished 
 by showing the original and leaving a copy thereof, or else a ticket con- 
 taining the original in substance. In civil cases there must also be 
 made a payment, or at least a tender, of the amount required for 
 mileage as well as for one day's attendance at the court. In criminal 
 cases, however, the witness pays his own expenses, being afterwards 
 reimbursed by the court in accordance with various provisions of the 
 law. 
 
 In court, immediately after the swearing of the witness, there arises 
 the question of his competency. In fact, the competency of a witness 
 to testify as an expert must always first be shown before he is per- 
 mitted to testify in his expert capacity. (Of course, the same man may 
 be testifying both as ordinary and as expert.) 
 
 Now then, what is an expert, especially a medical expert? In other 
 words, what qualifications are necessary to constitute a man a medical 
 or surgical expert, or to render him ' ' competent ? ' ' This is a question 
 of very great importance to the ophthalmic surgeon, as the merest 
 matter of course. In the very first place Ave may remark that, in order 
 to testify as a medical or surgical expert even in a case of injury to 
 the eye, it is by no means necessary, from a legal point of view, that 
 the witness should be an oculist or even a specialist with anj^ sort or 
 kind of limitation whatever on his practice — as eye and ear only, or 
 only eye, ear, nose and throat. Nor is it necessary that he ever have 
 made a special study of the eye. Nor is it at all essential that he be 
 
 22 
 
OPHTHALMIC JURISPRUDENCE 
 
 a graduate of any particular school of medical practice. Nor, further, 
 that he he a graduate at all, or even a licensee on the ground of years 
 of practice. Nor that he be in the active practise of his profession, or 
 that he ever have practised at any time. None of these matters go at 
 all to the question of the admissibility of the evidence. Such things 
 (i. e., minority of qualification) may, indeed, be shown, on examination 
 either direct or cross, but such matters simply affect the weight which 
 the jury may see fit to attach to the testimony that is rendered : they 
 do not har the testimony. 
 
 Nevertheless, certain qualifications are really necessary to constitute 
 a man a medical or surgical expert. Now what are these qualifications ? 
 They are, in short, whatever will tend to confer upon the- witness un- 
 usual knowledge or skill relating to the matter in question. Thus, in 
 Lind V. Masonic Ass'n of Western N. Y.,i a nurse who had witnessed 
 a surgical operation was permitted to testify for what disease the 
 operation had been performed, on the ground that, for twenty-one 
 years he had been a nurse in a hospital and had seen much general and 
 surgical work. Thus, again, in Mason v. Fuller,^ it was held that a 
 woman who had had no training whatever in medicine, or indeed even 
 in the single branch of midwifery, but who had had long experience as 
 a nurse in child-birth cases, was competent to render expert testimony 
 as to whether the birth of a child was premature. Said the judge: 
 "The witness, by her experience and observation, appears to have 
 acquired knowledge of the subjects about which she was testifying 
 that persons generally do not have," In State v. Cook,^ it was held 
 that a chemist and toxieologist who was not a physician and surgeon, 
 and who had had no medical training whatever, was competent to 
 testify as an expert concerning the effect of strychnine upon the 
 human stomach and the system in general. In Everett v. The State,^ 
 it was held that a physician and surgeon who had been in active prac- 
 tice, but who, at the time of the trial, had been retired from profes- 
 sional work for some time, was sufficiently well qualified to testify as 
 an expert. In TuUis v. Kidd,^ it was held that a witness, to qualify 
 as expert, need never have been engaged in active practice. Said the 
 
 1 88 N. Y. Sup. Ct. E. 287, 30 N. Y. S,upp. 775. 
 
 2 45 rt. 29. 
 
 3 17 Kan. 392. 
 * 62 Ga. 65. 
 
 5 12 Ala. 648, 650. The opinion as to the competency of this particular wit- 
 ness would seem to be oMter dicta. Moreover, the case is not a "recent" one, 
 dating, as it does, to 1847. Nevertheless, it is quite within the spirit of legal 
 holdings regarding these matters generally, and would probably be taken as law 
 in almost any jurisdiction in the U. S., where the matter is not controlled by 
 Btatute. 
 
 23 
 
OPHTHALMIC JURISPRUDENCE 
 
 court : "If one asserts an ability to give correct opinions upon any 
 art or science, from an acquaintance with the subject, acquired by 
 observation and study, we cannot perceive on what ground he can be 
 rejected because he has not been in the actual practice of his profes- 
 sion." In the same case, as it happened, a similar question of com- 
 petency arose. The witness had attended a course of medical lectures, 
 been licensed by the state, and had practised medicine for one year. 
 Then he had abandoned medicine for the law, and had been engaged 
 in legal practice for sixteen consecutive years. He was held to be 
 competent as a medical expert, partly on the ground that he had never 
 quite ceased to read medicine. 
 
 Another extremely interesting instance arose in California.^ In this 
 case it was held that a Catholic priest might testify as an expert in 
 the matter of mental soundness or unsoundness. The opinion was 
 based to some extent on the ground that the education which this 
 clergyman had received in his school of theology, had been designed 
 in part to fit him to examine into and decide upon such matters. Said 
 the court : "It was a part of his collegiate education, and it was espe- 
 cially a matter of daily practice with him for ten years to familiarize 
 himself with the mental condition of persons upon whom he was called 
 to attend in his character as a priest ; and it does seem to us that, 
 from both education and experience, he was peculiarly qualified to 
 express an opinion, as an expert, on the question of mental diseases." 
 
 The culminating point of interest, however, regarding this matter 
 of medical expert competency, for the ophthalmologist at least, lies in 
 the fact that the law does not require the witness to have made a 
 specialty, either in practice or in study, of any of the matters con- 
 cerning which he is called upon to testify.^ Thus a man who has 
 never seen a case of glaucoma (sometimes, perhaps, who has never read 
 a report of a case — for such men actually exist) is permitted to testify, 
 merely from the sketchiest text-book knowledge of the subject, as to 
 whether or not a given set of symptoms should, or should not, have 
 been diagnosed as glaucoma, and as to whether an iridectomy therefor 
 
 1 Estate of Toomes, 54 Cal. 509. 
 
 2 Hathaway v. National Life Ins. Co., 48 Vt. 335, 351 ; State v. Eeddick, 7 Kan. 
 143; Hastings v. Eider, 99 Mass. 622; Horton v. Greene, 64 N. C. 64; Kelly v. 
 United States, 27 Fed. Bep. 616; s. c, 8 Cr. Law Mag. 174. In Castner v. Sliker, 
 33 N. J. L. 95, it is held that a physician may testify fully as to various ocular 
 injuries, though neither oculist nor surgeon. Thus, too, Wigmore, citing seven 
 cases, in a note to "Greenleaf on Evidence,'^ 16th ed., 1899, p. 54: "On mat- 
 ters in which special medical experience is necessary, the question may arise 
 whether a general practitioner will suffice, or whether a specialist in the particular 
 subject is necessary. The courts usually and properly repudiate the finical demand 
 for the latter class of witnesses." The same writer, loc. cit.: "As to sanity, it 
 is now universally conceded that a layman is competent to form an opinion. ' ' 
 
 24 
 
OPHTHALMIC JURISPRUDENCE 
 
 should or should not have been performed at all, and whether or not, in 
 case it was performed, it was performed correctly. Perhaps even a 
 nurse in an ophthalmic hospital would be permitted to give evidence 
 on such matters. The absurdity (medically speaking, of course) is 
 sufficiently manifest, but, in the eyes of the law, is entirely removed, 
 or, rather, ' ' remedied, ' ' by the fact that the opposing counsel is always 
 permitted to show, on cross-examination, just how slight the expert's 
 real expertness is. However, to one who understands even a very 
 little of human nature (and glaucoma) this privilege of cross-examina- 
 tion constitutes by no means a sufficient defense against misapprehen- 
 sion on the part of the jury. The really inexpert expert's testimony 
 may leave some sort of impression on the jury, whereas, as a matter 
 of course, it ought not to leave any. The testimony of such an "ex- 
 pert" should be inadmissible.^ 
 
 But this is not all. It is held that a specialist in diseases of the eye 
 may not testify regarding medical or surgical matters that do not lie 
 within his special field.^ Says Rogers, in his admirable work on 
 "Expert Testimony," p. 101: "But one who devotes himself exclu- 
 sivelj' to one branch of his profession, making a specialty of that, and 
 having no practical experience beyond it, is incompetent, as a general 
 rule, to express an opinion on a question that does not pertain to his 
 specialty." So a specialist that has never been engaged in general 
 practice, cannot testify regarding medical matters generally, whereas 
 a general practitioner, who has never been engaged in special practice, 
 or indeed in practice of any sort or variety, but who has only ' ' studied 
 medicine," may testify regarding matters medical, whether of a 
 general nature or a special. Nay, further, a man who has never even 
 studied medicine, but who has merely served as a nurse, or acted as a 
 minister or priest, may, under certain circumstances, exercise the 
 functions of the medical expert, either general or special. 
 
 No doubt the proper rule should be that expert testimony should 
 be really expert ; that, for instance, only internists in actual practice 
 at the time of testifying should be permitted to testify regarding 
 matters of internal medicine, practising surgeons regarding sur- 
 gery, dermatologists regarding dermatological matters, and, similarly, 
 in the case of oculists, aurists, and specialists of every kind. "Pantolo- 
 gists" do not exist, and courts should recognize the fact. Provision, 
 
 1 The following may be instructive : In a certain trial I heard a physician 
 on the witness stand repeatedly refer to a pterygium as a " strinthium. ' ' Another 
 "expert," preparing for another trial, spoke often of a "silk-fork" fracture of 
 the radius. These Mrs. Partingtons of the witness-stand might very appropriately 
 be abolished. 
 
 2 Fairchild v. Bascomb, 35 Vt. 410. 
 
 25 
 
OPHTHALMIC JURISPRUDENCE 
 
 of course, should be made for eases where the "best" evidence could 
 not be obtained, as where, owing to the distance from medical centers, 
 actual experts were not, practically at least, procurable, and where, 
 owing to the death or disappearance of some person, a witness who 
 had actually seen and examined that person would, though not an 
 actual expert, necessarily testify, if any sort or kind of testimony in 
 the matter were to be obtained at all. Some of these matters, of 
 course, could and should be placed within the discretion of the trial 
 court. The prevailing rule, however, should be in accordance with 
 that general principle of evidence, which "requires the best evidence 
 of which the case in its nature is susceptible. " ^ A general practitioner 
 cannot give the "best" evidence regarding injuries to, or diseases of, 
 special organs. 
 
 It is only fair to add that in the state of Wisconsin a little has been 
 done by statute^ in the way of barring certain inexpert experts. In 
 this state "no person practising physic or surgery, or both, shall have 
 the right ... to testify in a professional capacity as a physician 
 or surgeon in any case unless he, before the twentieth day of April, 
 1897, received a diploma from some incorporated medical society or 
 college, or shall since said date have received a license from the state 
 board of medical examiners." This, as will be seen, bars the nurses, 
 the students, the midwives, and the clergymen, but, unfortunately, 
 does not exclude the inexpert expert who happens to be the proud 
 possessor of a license or a diploma, and yet who cannot distinguish 
 glaucoma from iritis. 
 
 Immediately upon the establishment of the "expert's" competency, 
 follows, of course, the direct examination and then the cross-examinor- 
 Hon. By "direct examination" is meant the "examination by the 
 counsel for the party in whose behalf he was called." Under this 
 examination the witness may either (a) tell his story in narrative 
 form, or (b) respond to various (and generally numerous) questions. 
 When giving his testimony according to the latter method, the ques- 
 tions must not be "leading" — i. e., such as suggest the answer desired. 
 The ordinary witness, too, must confine himself strictly to facts, 
 excluding rigidly all opinions or inferences ; the expert, however, may, 
 within certain limitations of course, give testimony as to opinions; in 
 truth he is really an "opinion" witness. 
 
 The cross-examination is made by the opposing counsel, and its 
 purpose, of course, is to overthrow or weaken the testimony rendered 
 under the direct examination. In the cross-examination, leading ques- 
 
 1 Greenleaf on Evidence, 16th ed., 1899, p. 170. 
 
 2 Wisconsin Statutes, 1898, Vol. I, See. 1436. 
 
 26 
 
OPHTHALMIC JURISPRUDENCE 
 
 tions are permitted. The "latitude" (i. e., scope, or field, covered by 
 the questions) allowed in the cross-examination is different in the 
 different states. On the whole, the best rule would seem to be that a 
 witness is subject to cross-examination on everything that is relative 
 to the case. The rule most generally adopted, however, is that the 
 cross-examination must be limited strictly to matters concerning which 
 the witness testified under his direct examination. The whole matter 
 of latitude, however, lies largely within the discretion of the trial judge. 
 All the evidence, it may be noted, in passing, must be relevant and 
 competent. By relevant is meant "of sufficient probative value to be 
 admissible at all."^ By competent is intended, legally fit, regardless 
 of the question of relevancy. One of the subordinate rules coming 
 under the rule requiring "competency," is the so-called "best evi- 
 dence" rule, b}^ which is meant, as before stated, that a court will 
 require to be produced "the best evidence of which the case in its 
 nature is susceptible." Another subordinate rule, under the general 
 rule of competency (perhaps, too, falling under that of the "best 
 evidence") is that "hearsay evidence is not admissible." Thus, a 
 physician, for example, may not testify that another physician had 
 said to him that such and such an injury might very readily have 
 caused the plaintiff's traumatic cataract. He must give his own opin- 
 ion. If the opinion of the other physician be desired, then that other 
 physician must be brought into court, there to render such opinion. 
 
 Closely connected with the subject of direct and cross-examination, 
 is that of privileged communications. Even in the earliest times in 
 England (from which country we inherit, as before stated, most of 
 our fundamental legal principles) certain matters have been consid- 
 ered inviolably sacred, and have been most carefully protected from 
 disclosure in the courts. Such matters were called "privileged com- 
 munications," and were privileged at the common law — i. e., they did 
 not require a statute for the purpose of rendering them privileged. It 
 was ' ' case law, " or " judge law, " or " common, " or " unwritten ' ' law. 
 These privileged matters were, in general : State secrets, deliberations 
 in the jury room, communications between counsel and client, and 
 communications of a confidential nature between husband and wife. 
 Communications, however, made to clergymen and doctors, though 
 sacred in fact, were not held to be sacred, or "privileged," in law. 
 Hence these matters are unprivileged still, even in the United States, 
 except so far as has been provided otherwise by statute. Happily, in 
 most of the states of this country, statutes have been enacted which, 
 
 1 Greenleaf on Evidence, 16th ed., 1899, p. 36, 
 
 27 
 
OPHTHALMIC JURISPRUDENCE 
 
 with certain appropriate limitations, protect the physician from dis- 
 closing on the witness stand, without the patient 's consent, ' ' any com- 
 munication made to him by his patient with reference to any physical 
 or supposed physical disease, or any knowledge obtained by a per- 
 sonal examination of any such patient. "^ 
 
 As to the matters concerning which an expert witness, may testify, 
 we may say that these, in a word, considered together, are about as 
 wide as the whole broad field of medicine. Most commonly in question, 
 however, in courts of law, are the following medical topics : Whether 
 a given person is insane ; the cause of a certain death ; whether a 
 certain disease is incurable ; whether a certain disease is curable with- 
 out operation ; what might have been the cause of a given injury ; what 
 a reasonable bill would be for certain medical or surgical services; 
 whether a certain affection is or is not painful; the degree of reduc- 
 tion in earning power produced by a given disease ; the probability of 
 this reduction (or of some disfigurement) being permanent or tem- 
 porary. 
 
 As to the expert's manner of testifying, it is hardly necessary here 
 to enter upon the customary platitudes, such as that the expert should 
 always be honest; that he should neither speak too loud nor yet in a 
 whisper ; that he should always act the gentleman ; never put in tech- 
 nical terms what could be more simply stated; etc., etc. However, 
 one admonition may not be out of place : viz., an expert, and more 
 especially an expert expert, as an ophthalmic surgeon is always sup- 
 posed to be, should ever be exceedingly careful not to express an 
 opinion with too great particularity. This, I think, is a fault to which 
 the specialist is notably prone. He seems, in fact, to feel that he is 
 expected to be very precise and accurate, just because he is a specialist. 
 Nevertheless, he should not testify, for example : ' ' My opinion is that 
 this traumatic cataract was caused by a blow from a heavy cane, ' ' for, 
 in fact, no one could tell, merely from the injury, whether a given 
 cataract had been produced by a heavy cane or a ligtt one. To refer 
 to an actual instance : He should not allege that a certain detachment 
 of the retina had been produced by a snowball, squeezed very hard. 
 The same detachment might, in truth, have been produced by almost 
 any solid object impinging upon the eye with violence.^ 
 
 1 The language of the statute varies, to be sure, in the different states. The 
 matter above quoted is from the Kansas statute. 
 
 2 I saw, however, an interesting case of ocular injury (never the subject of 
 legal investigation) in which an expert witness could easily and truthfully have 
 testified with exceedingly great precision. The wound had been inflicted by a 
 butcher with his "steel," or knife-sharpener, on a customer with whom he had 
 had an altercation in his shop. The partly punctured, partly contused, character 
 of the wound in the cornea, together with the presence of raw beef fibres in the 
 
 28 
 
OPHTHALMIC JURISPRUDENCE 
 
 An expert witness, as before stated, may testify either to facts or to 
 opinions ; i. e. — either in his ordinary or in his expert capacity. When 
 testifying to opinions, his opinions may be based either on facts ob- 
 served and testified to by himself, or on facts observed and testified 
 to by others. In the latter contingency (and in that alone) the ques- 
 tions which are asked him must ever be fashioned in what is tech- 
 nically known as the hypothetical form. It therefore behooves the 
 medical expert to understand somewhat the nature of the hypothetical 
 question. 
 
 Now, what is "the hypothetical question?" The hypothetical ques- 
 tion is a question which is based upon the assumption that all, or part, 
 of certain facts already in evidence, or yet to be placed in evidence, is 
 true. It assumes, or hypothecates, the truth of certain fact-testimony, 
 in order that the opinion-witness, i. e., the expert, may have an oppor- 
 tunity to render an opinion thereon. The very reason for the exist- 
 ence of such a form of qviestion, is that it is not the function of the 
 expert, but of the jury, to determine whether or not such fact-testi- 
 mony is true. The jury may accept the fact-testimony together with 
 the opinion which is based upon it, or the fact-testimony without the 
 opinion, but, under no circumstances, of course, can it reject the fact- 
 testimony and accept the opinion. 
 
 Perhaps an illustration will serve to clarify the nature of this im- 
 portant kind of question. Doctor A, an oculist, is called to the 
 witness-stand. Having been sworn and qualified, he is asked, for in- 
 stance, "What did the defendant then do?" Ans. — "He struck the 
 plaintiff with a stick." Q. — "On what part of the body did the blow 
 fall?" Ans. — "1 do not know; I was not close enough to tell exactly." 
 All this, it will be observed, is merely ' ' ordinary, ' ' or fact, testimony — 
 such as any witness might conceivably be able to furnish. Suppose, 
 now, another physician. Doctor B, has testified that the plaintiff's un- 
 injured eye is only rudimentary and has never at any time had sight, 
 and, further, that very shortly after the assault he. Dr. B, dressed 
 the left eye (the eye which defendant is said to have injured, and 
 for damages to which the present suit is brought) and that, in the 
 injured e3^e, he found a sliver of wood 2y-2 inches long, y^ i^ich wide, 
 and % inch thick, impaling the eye "fore and aft," passing from the 
 center of the cornea to the back of the eye, there perforating the wall 
 of the eye and piercing the orbital fat, or cushion on which the eye is 
 supported. In this condition (still other evidence has shown) the 
 plaintiff walked along six blocks, making three turns, picking his way 
 
 anterior chamber and in the conjunctival ciil de sac, bespoke the nature of the 
 instrument with which the wound had been inflicted, to a high degree of certainty. 
 
 29 
 
OPHTHALMIC JURISPRUDENCE 
 
 over crowded crossings, and avoiding by himself numerous vehicles 
 and foot passengers, that then, still unassisted, he ascended the stairs 
 to Dr. B 's office and rang his bell. Now, counsel for defendant desires 
 to show by Dr. A that such acts could not have been performed by 
 anyone with his eyes in the condition above-mentioned. His question 
 will have to be hypothetical, because it is based on facts (and opinions 
 admitted on both sides — which are treated as facts) that had been 
 testified to by others. Q. — "Could a man with one eye blind from 
 birth and with the other impaled 'fore and aft' by a sliver of wood 
 21/2 inches long, ^2 inch wide, and i^ inch thick, passing from the 
 center of the cornea to the back of the eye, there perforating the wall 
 of the eye and piercing the orbital fat, or cushion on which the eye 
 rests — could a person in such a condition have walked, alone and un- 
 assisted, six blocks, making three turns, picking his way over crowded 
 crossings, etc., etc.?" Ans. — "In my opinion, he could not." 
 
 But suppose that Dr. A has been asked to examine the plaintiff, 
 and to report upon the findings. He discovers, let us say, in the 
 plaintiff's left eye a small circular scar on the cornea, 2 mm. in circum- 
 ference, well off the pupillary area, and, in addition, a sound lens, a 
 sound vitreous, a sound fundus — in short a totally sound eye in every 
 single particular, saving and excepting the corneal opacity only, that 
 being so situated as not to interfere with the sight. The doctor may 
 now be examined actually, instead of hypothetically; for the reason, 
 as above-stated, that he now is "personally acquainted with the ma- 
 terial facts in the case.''^ He may be asked, for instance: "What 
 did you find?" Ans. — "I found on the left side an eye perfectly 
 sound in every way, excepting a slight scar on the cornea." "Where 
 was this sear situated with reference to the pupil?" "To one side of 
 it. " " Does it interfere with the sight ? " " No. " "Is there anything 
 to show that the eye may not have perfect vision ? " " There is not. ' ' 
 
 It is well enough to note, before we leave the subject of the hypo- 
 thetical question, that the term "hyiDothetical" has reference to the 
 sense and not to the mere verbal form. What is really necessary is 
 that the question hypothecate, i. e., assume for the time being, instead 
 of deciding, the truth of more or less of the fact-testimony. A ques- 
 tion may, indeed, be cast in hypothetical form (see, for instance, Fair- 
 child V. Bascomb, 35 Vt. 415) and yet, after all, be of such a nature 
 as to require the expert, should he respond, to decide upon the truth 
 of the evidence. On the other hand, a question not at all hypothet- 
 ical, linguistically considered, may yet avoid the error referred to.^ 
 
 1 Eogers on Expert Testimony, 1891, p. 75, footnote 2. 
 2Gilwan v. Town of Strafford, 50 Vt. 726. 
 
 30 
 
OPHTHALMIC JURISPRUDENCE 
 
 The test is : Does the question require the expert to decide upon the 
 truth of any fact-testimony (besides that given by himself, of course) 
 and thus to take that function from the jury? 
 
 A subordinate, yet not wholly unimportant, matter is that of the 
 expert's fees. We have already seen that, in criminal cases, no fee 
 of any sort need ever be paid or tendered to render valid the service 
 of the subpoena, while, in civil cases, the mileage and per diem must 
 always be paid, or tendered, to the prospective witness (whether ex- 
 pert or ordinary) to render the servic of the subpoena effective. No 
 payment or tender, no service. Now, in the case of the ordinary wit- 
 ness, that is all the pay there is, even in civil cases. At least it is all 
 that there ever should be. In the case of the ordinary witness, any 
 further compensation is likely to get him into trouble, on the ground 
 of bribery, or even perjury. When, however, the witness is sum- 
 moned to give, not ordinary fact-testimony, but scientific opinions in- 
 volving the possession of learning and skill, then a much-mooted 
 question very naturally arises. Ought, or ought not, an opinion wit- 
 ness, an expert, to be obliged by the law to hold his store of knowledge 
 free for the use of all who take it into their heads to litigate? To 
 illustrate : Here is a civil suit against a railway company, brought in 
 the Alexander County, Illinois, circuit court — a case which requires 
 for its proper decision a certain amount of expert medical knowledge 
 and skill. An oculist, we will say, is subpoenaed from Chicago. He 
 is obliged, possibly, to come in person to Cairo, to lose perhaps sev- 
 eral days of his practice, and to undergo in addition various sorts of 
 inconveniences. He has, moreover, to "turn himself M^rong side out" 
 for the benefit of people whom he has never seen, who care nothing 
 for him or his interests, and who are striving, the one side to get money, 
 the other side to keep it ; and the question is. Shall he do all this for 
 nothing, or, at all events, what is practically nothing — i. e., his mileage 
 and a nominal per diem — not quite enough, perhaps, to pay his actual 
 expenses, to ignore the matter of his loss of practice in Chicago ? The 
 ablest writers answer the question thus: No, he ought not; the ex- 
 pert's learning and skill are his property, and the law has no more 
 right to compel him to render expert testimony against his will, or at 
 least without adequate compensation, than it has to compel him to 
 render professional services of any other sort. However, the writers 
 and the courts are very much at variance, and, unfortunately for the 
 expert, the courts are not at variance with each other on this question. 
 They hold, with very unusual unanimity, that the expert, medical or 
 lay, may be compelled to testify in his expert capacity without other 
 compensation than that of an ordinary witness. The court of last 
 
 31 
 
OPHTHALMIC JURISPRUDENCE 
 
 resort (Supreme Court) in Indiana has indeed held to the contrary, 
 but, even in that state, the decision has been annulled by a statute, 
 while, on the side of the general rule, are ranged the highest courts of 
 Alabama, Illinois, Arkansas, Colorado, Texas, Minnesota, and even of 
 still other states. It has been suggested that the rule, in its actual 
 application, works no injustice, since, in no case whatever, would 
 counsel be willing to take his chances with a medical witness angered 
 by the non-paj'ment, or the prospect of non-payment of extra com- 
 pensation. This suggestion, however, amounts simply to an insinua- 
 tion that medical experts will, as a rule, in case they receive no extra 
 compensation, be willing to perjure themselves — an insinuation which 
 physicians, naturally, resent most bitterly. Moreover, in many cases, 
 the party summoning the expert is a pauper, who, of course, cannot 
 pay the "extra compensation" in advance, and who, after receiving a 
 judgment for say ten or twenty thousand dollars, divides the amount 
 with his lawyer, and then, knowing that the law allows no extra com- 
 pensation to the doctor, says to the medical expert, "For you, noth- 
 ing. ' ' This may happen, too, after the doctor has made most arduous 
 preparation for the case — perhaps quite as arduous as that which has 
 been made by the lawyer himself. 
 
 However, the situation as a whole is not so bad as the judge-made 
 law would seem to make it. In several states statutes provide for the 
 payment of special fees to experts. Among these are: Iowa, Louis- 
 iana, North Carolina, Rhode Island, and Wyoming. 
 
 In any case, where an expert accepts, or is promised, extra compen- 
 sation, the retaining or receiving of this extra payment should never 
 be made contingent upon the success of the side in whose behalf the 
 physician is called upon to testify. Everything should be strictly 
 ethical and fair, for the reason, if not for any better one, that the 
 entire matter of the expert's compensation may be brought out fully 
 before the court in his cross-examination. 
 
 Legal consider at i&ns regarding ophthalniic expert testimony in 
 England. In England the law relating to expert witnesses is much 
 the same as in America. In fact, in neither of these lands is there 
 anything at all resembling an official corps of medical experts, such as, 
 later, we shall find exists in Germany and France.^ Furtheiniiore, as 
 we saw some distance supra, the common law (decisions of courts of 
 last resort) in America has a certain degree of persuasive authority 
 in the courts of England, just as the reverse holds true. 2 It is, then 
 (partly, no doubt, in consequence of this persuasive authority) a fact 
 
 1 But not Italy. 
 
 2 American cases are frequently cited in English text-books and vice versa. 
 
 32 
 
OPHTHALMIC JURISPRUDENCE 
 
 that the English law relating to expert testimony is almost identical 
 with the law on the same subject prevailing in America. The method 
 of securing attendance in court, the rulings with regard to competency, 
 the procedure relating to examinations and cross-examinations, etc., 
 etc. — these and various other affairs relating to expert — as well as 
 ordinary — witnesses, are managed in England almost the same as in 
 America. Especially worthy of notice is the retention in the mother 
 country of the old-time rule already adverted to in this article of 
 excluding the testimony of physicians from the list of matters re- 
 garded by the courts as "privileged." Thus The Encyclopedia of the 
 Laws of England: ^ "The statute law of many foreign countries en- 
 forces this obligation [of medical secrecy] by penalties, and regards 
 it as sacred even in the witness-box. English law, however, takes a 
 different view, and, if the judge sees fit, compels a medical witness 
 to reveal in open court the most confidential communications, and to 
 disregard the most solemn promises." In England, therefore, the law 
 on this point is exactly the same as it is in the different states of the 
 United States (for example, Illinois) where the matter has not been 
 changed by statute. 
 
 Legal considerations regarding ophthalmic expert testimony in 
 France. The medical expert system of France, though not entirely 
 transferrable to a Common Law countrj^ like ours, is nevertheless so 
 excellent and in so many particulars, and, moreover, spite of the recent 
 date of its adoption, has worked so admirablj^, that we take great 
 pleasure in presenting it here with just a suggestion of detail.^ 
 
 We shall deal with the subject under the heads of: (1) Appoint- 
 ment of medical experts. (2) Procedure of medical investigations in 
 civil matters. (3) Procedure of medical investigations in criminal 
 matters. (4) Medical expert reports. 
 
 Appointment of medical experts. — At the commencement of each 
 judicial year, and in the three months following the opening of the 
 court, the Court of Appeals, sitting in council, together with the aid 
 and consent of the procureur general, appoints from a list prepared 
 (as stated heretofore) by the civil tribunals of first instance a number 
 of physicians on whom the appeals court confers the title of "expert 
 before the courts." In the Court of Appeals of Paris, the appoint- 
 
 1 1900-1909, Vol. 9, p. 126. 
 
 2 I am informed by an eminent French authority that perhaps the only objee- 
 tiou which could properly be raised to the French expert system is that "experts 
 are not always appointed with a great deal of care. ' ' Thus, for example, general 
 practitioners are not infrequently assigned to duties that properly belong to the 
 field of specialism, and vice versa. Again: "It has happened that the court in 
 certain instances has appointed a specialist in one matter as expert in regard 
 to another specialty." 
 
 33 
 
OPHTHALMIC JURISPRUDENCE 
 
 ments in question are made by the first three chambers of that 
 tribunal. 
 
 The conditions of eligibility to appointment by any Court of Appeals 
 are : 1. — That the physician be of French nationality.^ 2. — That he 
 have his legal domicile either in the arrondissement of the tribunal, or, 
 at all events, within the territorial jurisdiction of the Court of Appeal 
 by which he is appointed. 3. — That he shall (a) have had at least five 
 years of the actual practice of his profession, or (b) be furnished with 
 a diploma from the University of Paris bearing the mention, "Legal 
 Medicine and Psychiatry," or one of the analogous diplomas con- 
 ferred by the other French universities. 
 
 Expert investigations and examinations may, in general, be con- 
 ducted only by physicians who bear this title of "Expert before the 
 Courts," and, as a natural consequence, such experts appear in every 
 class of cases and in every court, even the Court of Cassation. Ac- 
 cording to the Code of Criminal Procedure,^ however, other physi- 
 cians may be appointed in cases of "flagrant crime, inquiries ordered 
 by a Court of Appeal, or measures taken by the president of a Court 
 of Assizes by virtue of his discretionary power. ' ' Other cases in which 
 non-intitulated experts may be appointed are : When the experts 
 properly intitulated by the Court of Appeals are for good reason dis- 
 qualified to act in a particular case (as by consanguinity, affinity, 
 personal interest in the suit, etc.) when there is great urgency, and 
 also in other cases by reason of special circumstances. In every case, 
 however, of such anomalous appointment, the order of appointment 
 must be supported by a written statement of the reasons for which the 
 anomalous appointment is made. Further, even in the case of anoma- 
 lous appointments, the appointee must be a French physician. 
 
 The experts are appointed either by the court or by the parties, 
 sometimes by the parties and the court acting conjointly. 
 
 The foregoing rules relating to the qualifications and the appoint- 
 ment of medical experts, apply indifferently in civil and in criminal 
 matters. The procedure, however, according to which expert investi- 
 gations are conducted, differ somewhat in the two classes of cases. 
 
 Procedure of medical investigations in civil matters.^ — 1. — The ex- 
 pert, or experts, whether appointed by the courts or chosen by the 
 
 1 The law on this point is very explicit and positive : ' ' Les f onctions de 
 medeeins experts pres les tribunaux ne peuvent etre remplie que par des docteurs 
 en medecine fran^ais. ' ' — L 'article 14, Sec. 1 er de la loi du 30 Novembre 1892. 
 
 The German law is by no means so particular. 
 
 2 Code d 'instruction criminelle, articles 43, 44, 235, et 268. 
 
 3 These rules, somewhat abridged and otherwise modified, are taken from 
 Simon-Auteroche, "Manuel Pratique de Droit Medical," Paris, 1908, pp. 108-112, 
 
 34 
 
OPHTHALMIC JURISPRUDENCE 
 
 parties, are not obliged to accept either the appointment or the choice/ 
 but, the mission once accepted, its duties are obligatory and must be 
 completely performed. If they are not fulfilled completely, the expert 
 is obliged to defray all frustratory expenses, and also to pay (some- 
 times very heavy) damages. 
 
 2. — Expert witnesses, like common witnesses, may be challenged on 
 grounds of relationship, affinity, etc. 
 
 3. — Experts must take a certain oath, not necessary here to be 
 specified. 
 
 4. — Expert investigations must be conducted (when it is proper 
 so to do) in the presence of the interested parties or those who law- 
 fully represent them. For reasons of expediency, however, the pres- 
 ence of the parties may be dispensed with. But even then, the parties 
 should have a chance to be represented by a physician, or physicians, 
 of their choice. 
 
 5. — If several experts be chosen or appointed, they should construct 
 but one single report. In case there should arise a diversity of opin- 
 ions among the several experts, all the different opinions may be stated 
 in detail, but no particular opinion may be attributed to any particular 
 expert. All the different opinions must proceed from the board of 
 experts as a whole. 
 
 Procedure of medical investigation in criminal matters. — 1. — Medi- 
 cal experts, in criminal matters, are not invariably at liberty to reject 
 an appointment by the court. They may do so only in certain cases. 
 
 2. — An expert may be successfully challenged, in criminal mat- 
 ters, much more readily than in civil affairs. ' ' There must not be the 
 least suspicion of prejudice or partiality, even involuntary. ' ' 
 
 3. — It is not at all necessary that the operations of the experts be 
 conducted in the presence of the parties or of those who legally repre- 
 sent them. 
 
 4. — The report of the experts may, if expedient, be verbal. (It may 
 not, under any circumstances, be verbal in a civil suit.) 
 
 5. — Medical experts must invariably be placed under oath both be- 
 fore commencing their investigations and, once more, before they 
 testify in court. 
 
 Reports. — Expert reports, according to Simon-Auteroche,^ are com- 
 posed of four essential parts: 
 
 1 In Germany precisely the contrary condition prevails. In that country not 
 merely an official physician, but every physician, so long as he remains in public 
 practice, is obliged, on the suggestion of the proper authority, to act as expert 
 either in civil or in criminal matters — unless indeed he can furnish an acceptable 
 
 excuse. 
 
 2Loc. cit., p. 112. 
 
 35 
 
OPHTHALMIC JURISPRUDENCE 
 
 1. — Preamble (reciting the names of the experts, the order of the 
 court by virtue of which the investigation Avas made, etc.). 
 
 2. — Statement of the facts. 
 
 3. — Discussion. 
 
 4. — Conclusions. ^ 
 
 Legal considerations regarding ophthalmic expert testimony in 
 Germany. In Germany, too, as well as in France, there exists a corps 
 of official expert witnesses. In Germany, however, the system is, in a 
 manner of speaking, a "blend" of the French and the Common Law 
 systems ; that is to say, although there exists in Germany a corps of 
 official experts, yet these do not so uniformly appear before the courts — 
 i. e., to the almost total exclusion of non-official experts — as is the case 
 in France. In Germany the parties have a right to propose and even 
 to demand the summoning of non-official experts of their own naming, 
 and, indeed, in civil cases, they may bring their own physicians with 
 them, without so much as having made the slightest preliminary sug- 
 gestion to the court. 
 
 The power to regulate medical affairs resides, in Germany, in the 
 first instance, with the imperial authority, but these matters have, for 
 the most part, been delegated to the separate Bundesstaaten, so that, 
 in the different Confederated States, there obtain somewhat different 
 systems of medical experts. However, to take the organization of the 
 Prussian experts for an example: The head of the corps is the 
 "Minister der geistlichen Unterrichts- und Medizinal-Angelegen- 
 heiten." Under this official functionates an "Abteilung fiir die Med- 
 izinalangelegenheiten, " a branch of which is the "Wissensehaftliche 
 Deputation fiir das Medizinalwesen," the highest consulting class. 
 Each province has its " Provineial-Medizinal-Kollegium, " each county 
 its "Kreisarzte. " 
 
 The members of this official medical corps take on the duties of 
 expert witnesses only when called upon by the police or the State's 
 Attorney {Staatsanwalt) . 
 
 In addition to the system above mentioned, there are in some of 
 the larger cities of Prussia the so-called Gerichtsdrzte, or (law) Court 
 Physicians. 
 
 All the official physicians in all the confederated states are appointed 
 by the Minister for Medical Affairs {Medizinal Angelegenheiten) in 
 no ease being elected, or even proposed, by the public. The tenure is 
 
 1 We do not enter here into the question of privilege or non-privilege with 
 respect to medical testimony in France. The subject is extensive, and may be 
 found fully treated (if not absolutely up to date) in Brouardel's " Le secret 
 medical," Paris, 1893. 
 
 36 
 
OPHTHALMIC JURISPRUDENCE 
 
 for life, and all receive a yearly salary (Jahresgehalt) . Some of the 
 officials are allowed to engage in private practice. 
 
 An appeal lies from the report of a Kreisarzt or a Gerichtsarzt to 
 the Provinzial-Medizinalkollegium, and, still further, to the "Wissen- 
 schafUiche Deputation," this last-mentioned body being the highest 
 consulting class, or, as it were, supreme court, for medical expert 
 matters in Prussia. This, however, does not mean that the Kreisdrzte 
 (county physicians) and the Gerichtsdrzte (city court-physicians) 
 are limited to the giving of testimony in the inferior courts, such as 
 the Amtsgerichte, the Schoffengerichte, and the Landgerichte. They, 
 in fact, may testify as official expert physicians in the Oherlandes- 
 gerichte (which they do quite often) and even in the Reichs- 
 gericht itself (though, of course, not so frequently). The Provinzial- 
 Medicinalkollegkom may be appealed to in a Schivurgericht (in im- 
 portant criminal matters only) in an Oherlandesgericht, and in the 
 Reichsgericht; but never except when first the Kreisdrzte (or Ger- 
 ichtsdrzte) have already been heard in the same court. Similarly, 
 when the Provinzial-Medizinalkollegimn has been listened to (in any 
 of the same three higher courts) an appeal may be taken on the medi- 
 cal questions involved to the Wissenschaftliche Deputation. The par- 
 ties themselves may propose these medical appeals, but have no right 
 to demand them. The right of decision belongs to the court itself. 
 
 Numerous forms are furnished and directions given for the con- 
 struction of medical expert reports. Non-official experts are bound to 
 follow the forms in certain matters only, while the official experts 
 are obliged to make use of them in practically every sort and kind 
 of case.i 
 
 The experts of first instance for any individual case, (other than 
 the Kreisdrzte and Gerichtsdrzte, who, of course, act by virtue of their 
 office) are generally appointed by the court. The appointees, however, 
 can, for cause, be challenged by the accused, the complaining witness, 
 the prosecuting attorney, and, in civil cases, by the plaintiff or the 
 defendant. So, sometimes, may even the official physicians be chal- 
 lenged. In criminal cases the parties may propose, and even demand, 
 the calling of non-official experts by the courts, while, in civil suits, the 
 
 1 Eapmund and Dietrich recommend to non-official experts the following of 
 official forms in every case. "Arztliche BecMs- u. Gesetshunde," Leipzig, 1899, 
 p. 462. 
 
 By the way, those who desire to behold a combination of Teutonic scientific and 
 legislative thoroughness in one single documentary masterpiece, are referred to the 
 Prussian " Begulativ vom 14 Februar, 1875" (concerning the manner of perform- 
 ing obductions and constructing reports upon the findings) contained in the work 
 of Eapmund-Dietrich just mentioned, p. 475 ff. 
 
 37 
 
OPHTHALMIC JURISPRUDENCE 
 
 parties may, as already stated, bring their own experts with them, just 
 as is done in this country. 
 
 Contrary to the rule in France, it is quite permissible to allow a 
 foreign physician to testify as expert, even though he had never 
 qualified as physician under German law. The matter lies wholly 
 within the discretion of the trial court. 
 
 A report by a physician, or by physicians, of the first instance, is 
 called ein Gutachten. One, however, that is made by either of the 
 medical appeal bodies, is called ein Ohergutachten. 
 
 In connection with the subject of expert testimony, it is worth while 
 to note that, in Germany, professional secrecy is very rigidly enforced. 
 Thus the Penal Code (Strafgesetzhuch) , sec. 300: ". . . Physi- 
 cians, surgeons, midwives, pharmacists, and any assistants of any such 
 persons, shall, in case without authority they reveal private matters, 
 which have been entrusted to them in consequence of their callings, 
 be punished by a fine not to exceed 1,500 marks or by a jail imprison- 
 ment not to exceed three months. ' ' 
 
 However, in a court of law, professional secrets are, of course, 
 legally divulgeable up to a certain extent. To exactly what extent, 
 the law is very specific in many respects, though not all, laying down 
 various regulations regarding non-official and official experts and also 
 others as to official experts after these have ceased to occupy their 
 official positions.^ 
 
 In general, a witness is neither punishable criminally nor responsible 
 in a civil suit for damages on account of any testimony which he may 
 have given (veraciously, of course) on the request or demand of a court 
 of proper jurisdiction. 
 
 Legal considerations regarding ophthalmic expert testimony in Italy. 
 In Italy there is no corps of ' ' experts before the courts. ' ' Any physi- 
 cian practising in Italy may be cited to appear and serve as an expert.^ 
 
 It is, however, absolutely necessary that a man, in order to be com- 
 petent as an expert, should be a licensed physician. He is not, never- 
 theless, required to be in active practice at the time of acting in his 
 expert capacity. 
 
 1 Thus, for instance, the Code of Civil Procedure (Civil-prosessordnung) 
 Sec. 376: "Oeffentliche Beamte, auch wenn sie nicht mehr im Dienste sind^ 
 diirfen iiber TJmstande, auf welche sich ihre Pflicht sur Amtsverschwiegenheit 
 iesieht, als seugen nur mit GeneJimigung ihrer vorgesetzten Dienstbehorde oder 
 der ihnen zuletzt vorgesetzt geicesenen Dienstbehorde vernommen werden." 
 The Code of Criminal Procedure (Strafprozcssordnung) Sec. 53, holds precisely 
 the same language. 
 
 2 There is, to be sure, a corps of sanitary physicians grouped in a kind of 
 hierarchy, as in Germany; but this is an altogether different affair from a corps 
 "of experts before the courts." This sanitary corps will be treated under the 
 heading of Ophihalmo-Sanitary Legislation in Italy. 
 
 38 
 
OPHTHALMIC JURISPRUDENCE 
 
 In damage suits, based on injury to special organs, the expert wit- 
 ness need not be a specialist in diseases of the organs concerned ; nor is 
 there any law forbidding a specialist who practises only a specialty, to 
 render expert testimony outside his particular field. 
 
 A related matter is that an expert witness of one school of practice 
 is allowed to testify in a suit for malpractice against a physician of 
 another school.^ 
 
 In criminal cases the number of experts is, as a rule, two; in civil 
 eases, however, either three or one. In criminal cases the experts are 
 appointed by the court (though the appointees may for just cause be 
 challenged) ; in civil cases the parties agree upon their experts, or, in 
 case of their inability to agree, the experts are selected by the courts. 
 
 All experts selected by the courts are paid from the public treasury. 
 Those selected by the parties are compensated by the parties, except 
 where one or more of the parties are indigent — then the public treasury 
 is once more called into requisition. 
 
 We may add, finally, that, in criminal cases, the court has power 
 not only to compel the experts to attend and deliver testimony, but also 
 to prepare themselves therefor by laborious investigations.- 
 B. — Surgical Considerations liegarding Ophthalmic Expert Testimony. 
 
 The surgical side of the subject of expert testimony relates (so far 
 as concerns the purposes of this article) to the following matters: 
 The commonest injuries with which the ophthalmo-surgical expert 
 witness has to deal; simulation and the tests therefor; the false 
 attribution of injuries and diseases and the tests for that subtle form 
 of falsification ; exaggeration and the tests for that ; dissimulation and 
 cautions; visual economics; questions of a general nature relating to 
 the power of vision and the condition of the eye after death and during 
 sleep ; the ocular signs of poisoning, burning, etc. ; and, finally, the 
 ocular indications of identity. 
 
 The commonest injuries with which the ophthalmic expert has to 
 deal.^ Injuries of the sort in question are: Wounds and burns of 
 the ocular adnexa (the eyebrows, the eyelids, and the extra-bulbar 
 
 1 As before mentioned, only in the United States is it forbidden that an expert 
 of one school shall testify in a suit for malpractice against a physician of any 
 other school. Surely in this particular the law of the United States is very much 
 in advance of that of any other nation. 
 
 2 In the United States a physician can be required to attend a trial and to 
 give impromptu answers both in civil and in criminal cases. He cannot, however, 
 in either class of cases, be required, against his will, to make any sort or kind of 
 preparation for the giving of his testimony. 
 
 3 For a very complete discussion of ocular injuries in their strictly scientific 
 (as well as to some extent in their medico-legal) aspects, the reader is referred to 
 Harry V. Wiirdemann 's "Injuries of the Eye," also to the indispensable works 
 of A. Maitland Eamsay ; further, to the appropriate headings in this Encyclopedia. 
 
 39 
 
OPHTHALMIC JURISPRDDENCE 
 
 contents of the orbit) ; wounds and burns of the ocular conjunctiva, 
 the cornea, and the sclera; and, lastly, wounds of the deeper portions 
 of the eye. 
 
 Wounds of the eyebrow are generally very simple and altogether 
 harmless, directly and indirectly. There is swelling, perhaps, and 
 ecchymosis, and a little throbbing pain. Resolution, as a rule, ia 
 prompt. Sometimes, however, instead of resolution, there follow 
 periostitis, suppuration, and necrosis. Also, the outer wall of the 
 frontal sinus may be crushed in, with resulting chronic empyerna of 
 that cavity. The supra-orbital nerve may be injured in such manner 
 that the traumatism is followed, after a time, by persistent neuralgia. 
 This is generally when the nerve is incarcerated in an adherent 
 cicatrix. 
 
 It is now and then important to differentiate between contused 
 wounds of the eyebrow and incised wounds of the same part. Such 
 a distinction would, at first thought, seem sufficiently easy in almost 
 every instance ; yet, as a matter of practice, this is not at all the case, 
 for contused wounds of soft parts which are underlaid by prominent 
 bony ridges have a way of looking almost precisely as if they had been 
 occasioned by an instrument possessed of a cutting edge. Thus, I have 
 seen a case where a man had had his eyebrow split by a blow of a fist 
 almost as cleanly as if the injury had been produced by a knife ; yet I 
 myself had seen the blow delivered, and was certain that nothing but 
 the naked fist had been employed.^ 
 
 The distinction between the apparently incised, but really contused, 
 wound of an eyebrow, and an incised wound of the same part, is 
 made by four indications: First, the wound which is really contused 
 is more likely to possess an areola of ecchymosis. Second, under a 
 lens, the walls of a contused wound are seen to be not actually smooth, 
 but more or less ragged. Third, while an incised wound shows all 
 the tissues divided just as deeply down as the wound reaches, a con- 
 tused wound simulating an incised wound, shows some of the more 
 resisting tissues, or fibres, undivided, while others, deeper down in 
 the wound, are severed. Fourth, the really contused, though appar- 
 ently incised, wound is generally more extensive (longer) at the bot- 
 tom than at the surface, while the really incised wound is apt to 
 possess a so-called ' ' tail ' ' both at the beginning and the end — in other 
 words, to be of greater extent in the skin than in the deeper tissues. 
 This distinction is due to the fact that, in the really incised wound, the 
 
 1 1 have also seen an elbow split by a pair of brass knucks so cleanly that, 
 without the carefullest examination, one would almost be willing to swear that the 
 wound had been made by the sharpest of knives. 
 
 40 
 
OPHTHALMIC JURISPRUDENCE 
 
 inflicting instrument cuts from without inward, whereas, in the case 
 of a wound of the contused variety, the incising instrument — the bone 
 — cuts from within outward. 
 
 This distinction is often important, as, on the expert's ability to 
 make it, not infrequently, at the preliminary trial, hinges the question 
 whether a defendant is to be held for assault with intent to kill, or 
 only charged with simple assault and battery. Later, the distinction 
 and the expert's ability to make it, may mean to the accused the differ- 
 ence between the penitentiary and freedom. 
 
 The distinction above mentioned is similar to that (which is also 
 very important) obtaining between an incised wound about the body 
 almost anywhere and a wound produced artificially (artefact) by the 
 lifting and carrying of a body which has been severely burned, or 
 cooked. A burned body is found, perhaps in the ashes of what was 
 once a house. Certain solutions of continuity appear in divers places 
 about this body, suggesting the inquiry whether a murder has not been 
 committed and then the house set fire to, in order, by incinerating the 
 body, to cover the traces of the crime. On the other hand, the question 
 arises whether the fissures, or apparent incisions, may not have been 
 produced in the easily parted tissues by the lifting and carrying of the 
 body from the site of the burning. Now, when a deep fissure is pro- 
 duced in burned tissues by the lifting and carrying of the body, there 
 will often be fibers, high up in the fissure, which have not parted. Thus 
 is easily and certainly established the fact that no incised wound had 
 been inflicted before the body was burned; for, in case of a wound 
 by a cutting instrument, all the tissues would be divided down to the 
 very bottom of the incision. 
 
 Sometimes an injury to the eyebrow is complicated by suppuration 
 of the orbital connective tissue (orbital abscess) and even though this 
 abscess be properly evacuated, and the prospect of recovery is, for a 
 time, apparently good, total loss of sight may nevertheless follow later, 
 by reason of the cicatricial tissue formed in the suppurating cavity 
 slowly contracting around the retro-bulbar portion of the optic nerve. 
 
 Fracture, direct or indirect, of the optic foramen is a not very 
 infrequent accompaniment of severe contusions in the superciliary 
 region ; and, in such cases, a retro-bulbar neuritis (often of very slow 
 onset) may develop, with the production of blindness more or less 
 complete and absolutely hopeless. Secondary retro-bulbar neuritis may 
 also occur in consequence of various effusions or of the pressure from 
 callosities which, in their turn, have been produced by periostitis. 
 
 Fracture of the base of the skull, with meningitis and death can 
 also occur as a complication of contusions of the eyebrow. 
 
 41 
 
OPHTHALMIC JURISPRUDENCE 
 
 From all the above-mentioned considerations it appears that the 
 ophthalmo-surgical expert should be extremely cautious when setting 
 forth the ultimate prognosis of injuries to the eyebrow. 
 
 Burns of the eyebrow are generally not important. If other ocu- 
 lar structures are involved, the fact is sufficiently patent. It is often the 
 case, however, that cicatricial contraction follows in the wake of super- 
 ciliary burns, with consequent great disfigurement. 
 
 Wounds of the eyelids, without the involvement of deeper struc- 
 tures, are generally unimportant,^ and, owing to the carefully protected 
 situation of the eyes, are not common. The danger is that deeper 
 structures may be involved. Infection, also, may turn an apparently 
 trivial trauma of the eyelid into a matter of life and death, in conse- 
 quence of the resulting erysipelas, lock-jaw, etc. Further, a wound 
 which, on any other account, would be sufficiently trivial, may prove 
 serious indeed if the lacrimal canaliculus be involved, because, by 
 obstruction of this passage through the formation of cicatricial tissue, 
 epiphora (or running of the tears down onto the cheek, instead of 
 through the lacrimal passages into the nose) is produced, and much 
 consequent interference with vision, on account of the continual pres- 
 ence of tears on the front of the eyeball. Sometimes, too, a trauma- 
 tism of the eyelid gives rise, through closure of the ducts of some of 
 the Meibomian glands, to Meibomian cysts; but these are compara- 
 tively harmless and are very easily remedied. 
 
 Burns of the eyelids are much more serious than uninfected eye- 
 lid wounds, because, after burns, cicatricial contraction may so distort 
 the lids that they no longer fulfill the important offices for which they 
 were provided. Thus, after a mine explosion, in which the outer sur- 
 faces of the lids were deeply burned by the flaming gas, I have over 
 and over beheld almost incredible distortion of the lids, with ulcerating 
 eornea3 (due to the lagophthalmos) and blindness. Often plastic op- 
 erations can advantageously be performed in these cases; oftener, how- 
 ever, operation is refused, and the mining company is likely to be held 
 responsible for the blindness that follows in consequence of the refusal. 
 The various entropium and ectropium operations often find a place, of 
 course, after eyelid burns, as well as electrolysis for distorted eyelashes 
 (traumatic trichiasis). 
 
 Injuries to the extrdbnlbar contents of the orbit, without a com- 
 plicating injury of the eyeball itself, are quite rare, and yet they do 
 occur. Thus, I have taken from the orbital fat a peach-tree twig two 
 
 1 Pliny {Nat. Hist., Book XI, Chap. 57) declares that, when an eyelid has been 
 severed by a wound, it will not re-unite — a great mistake, of course. However, 
 I have heard the same remark made by an Illinois physician in good standing. 
 
 42 
 
OPHTHALMIC JURISPRUDENCE 
 
 inches long ; in another case, a sliver of glass ; and, in still another in- 
 stance, a short ball from a 22 caliber cartridge, without in any of these 
 cases the eyeball being injured. Various disturbances of the ocular 
 motility can be occasioned by injuries of the extrinsic muscles, these 
 amounting at times to complete solution in the continuity of one or 
 more of these contractile structures. Orbital abscess is not infrequent 
 as a result of extrabulbar orbital injuries, especially when these are 
 complicated by the presence of foreign bodies. The great danger, of 
 course, in such cases, is to the optic nerve, which, by reason of cica- 
 tricial contraction taking place around it, is prone to undergo atrophy. 
 Disturbances in the motility of the eye may also be occasioned by 
 cicatricial contraction in the neighborhood of the various muscles, or, at 
 an earlier stage, by sloughing of the muscular tissues themselves. Sup- 
 purative meningitis is also a possible consequence, or complication, of 
 orbital abscess. 
 
 Wounds, with or without remaining foreign hodies, and hums of 
 the conjunctiva, the sclera and the cornea are among the commonest 
 of injuries, and are not infrequently the ground of hard-fought litiga- 
 tion. An incandescent particle of iron will often inflict a wound, pro- 
 duce a burn and leave at the place of injury a foreign substance, all at 
 the same coup. JMany foreign bodies are expelled by the various pro- 
 visions of nature looking to this end, while others are removed (some- 
 times unfortunately so, by reason of the infection introduced) through 
 the instrumentality of fellow workmen. A fellow workman, in fact, 
 sometimes employs his tongue as the removing instrument ! Sometimes 
 an eye is struck by a foreign body, which then rebounds away from the 
 eye, leaving, however, a contusion of the cornea (with or without in- 
 fection) and then an ulcer follows. The workman, in such cases, can 
 hardly -be convinced that "there is nothing in his eye." He has 
 so often had a foreign body picked from his cornea, that he has come 
 to believe that a foreign body of some kind, must, as a matter of 
 course, be present whenever his eye is injured. Should the eye be lost, 
 or suffer a material diminution of its vision, the patient's animosity, as 
 well as his attempts at legal redress, are more likely to be directed to- 
 ward the surgeon than toward the employing company.^ Burns of the 
 conjunctiva, sclera, and cornea are usudlly complicated by similar con- 
 ditions of the lid. They are oftenest produced by steam or burning gas, 
 but now and then take their origin from the action of chemical agents 
 
 1 Much depends on the state of the doctor 's finances. Experience shows that 
 the number of suits for malpractice which any physician is likely to be subjected 
 to bears a direct proportion to his financial standing. "Where the honey is, there 
 will the flies be also, ' ' is true here as elsewhere. 
 
 43 
 
OPHTHALMIO JURISPRUDENCE 
 
 (the various caustic acids and alkalies) as well as from heated pitch, 
 water, wax, oil, and molten or solid metals, including such explosives as 
 fulminate of silver or mercury, used in percussion caps and boys' tor- 
 pedoes. They are nearly always of serious prognosis, being in many 
 instances followed promptly by perforation of the globe. Burns by 
 acids and alkalies (oftenest quick-lime) are likely to be not only deep 
 but also complicated by extensive adhesions between the lids and the 
 ball (ankyloblepharon, symblepharon, etc.). In many of the cases the 
 surgeon can afford but little assistance. It should be recalled, to be 
 sure, that partial symblepharon is easily cured by a simple operation. 
 I have seen some cases of ocular burns that promised to be of the 
 greatest severity, but which, nevertheless, gave very good results. 
 Such was a case in which a man had filled a large hole in a base-stone 
 with melted solder, and then, into this molten metal, had tried to set 
 the lower end of a cold iron pillar. He was stooping close down over 
 the stone, guiding the pillar with his hands into the solder-filled socket, 
 when, just as the iron touched the hot solder, the metal splashed up 
 and into his right eye. When he came to me, he seemed to be wearing 
 a metal mask over the right eyeball. This curved plate of metal I had 
 no difficulty in releasing from the conjunctival cul-de-sac, and then, be- 
 hold an eyeball perfectly unharmed, except for a trifling hyperemia ! 
 The workman informed me that he had been the subject of this identical 
 accident before, without receiving the slightest harm, and a few 
 months later, he came to my. office again with a similar mask of solder 
 before the same identical eye. Once more I removed the metal plate, 
 and once again, I found an uninjured eye.^ Red pepper, too (so often 
 thrown into the eyes on purpose) though it causes most atrocious pain, 
 is seldom followed by any serious permanent injury. 
 
 Such exceptional matters aside, however, the prognosis in burns 
 of the surface of the eye is always very grave, and a final opinion 
 should never be passed till the lapse of several months. Especially 
 after the action of quick-lime or fresh mortar, and the fulminates of 
 silver and mercury, should the prognosis be extremely guarded. 
 
 The iris is not infrequently involved in wounds of the eye, whether 
 the ocular coats have or have not been opened. In severe contusions 
 (produced, for instance, by a blow of the fist, or a hard snow-ball) the 
 iris is now and then detached at its circumference more or less com- 
 pletely. An incomplete detachment is known as irido dialysis; a com- 
 plete one, as irideremia, or traumatic aniridia. Detachment is much 
 
 1 Noyes. Diseases of the Eye, 1894, p. 288: "Burns by melted metal are often 
 less severe than those due to lime, because when the metal cools it is taken out as 
 a cup, and there is no continuously destructive chemical action. ' ' 
 
 44 
 
OPHTHALMIC JURISPRUDENCE 
 
 more likely to occur in the case of irides already adherent to the lens, or 
 the subject of inflammation at the time when the contusion was in- 
 flicted. Hence, the prospective expert witness should always enquire 
 carefully as to the existence of these predisposing causes. If the 
 crystalline lens has been dislocated backward (sometimes without such 
 dislocation) the iris may suffer inversion (retroversion, or retroflec- 
 tion) — a condition which often closely simulates iridodialysis and irid- 
 eremia. The distinction is easily made by the fact that, under the 
 ophthalmoscope, the ciliary processes will, in retroversion, be found 
 to lie concealed, but not in iridodialysis or irideremia. In the latter two 
 conditions, further, there is much more likelihood of considerable hy- 
 phemia being present on account of the necessarily ruptured iris tissues. 
 
 Rupture of the sphincter iridis without iridodialysis or irideremia, 
 is rare indeed, but has occurred a number of times. It is apt to be 
 accompanied by hyphemia, and is always attended by traumatic my- 
 driasis. 
 
 Traumatic mydriasis without rupture of the sphincter iridis, is 
 not uncommon, and is due to paralysis of the sphincter iridis. 
 
 All of these affections (except traumatic mj'driasis without rup- 
 ture, which now and then disappears spontaneously) are absolutely 
 incurable. 
 
 The loss of earning power consequent upon any of these iris in- 
 juries can only be determined in any particular case by actual investi- 
 gation. Sometimes, even after complete traumatic aniridia, the vision 
 is but ver}^ little disturbed; again there may be monocular diplopia, 
 dazzling, etc., those who work much in the dark — e. g., coal miners — 
 are least inconvenienced. If severe iritis or irido-eyclitis follows, the 
 sight may be entirely lost. 
 
 Liable to be mistaken for the results of trauma, are the following 
 natural anomalies of the iris: 
 
 Heterophthalmos, or difference in the coloring of the irides of 
 the two eyes. I have known such a condition to give rise to a mis- 
 taken diagnosis of traumatic iritis. 
 
 Corectopia, or ectopia pupillce, or malposition of the pupil. 
 
 Polycoria, or more than one pupil in the same eye. 
 
 Persistent pupillary memhrane, or fetal remains which present 
 themselves ordinarily as fine grayish or brownish threads stretching 
 from iris to lens, or spanning the pupillary gap completely. Such 
 threads are now and then mistaken for posterior synechias, but can 
 easily be distinguished from such pathological products by the fact 
 that, unlike posterior synechias, they do not spring from the pupillary 
 margin but from a point a little farther out than that, from some point, 
 
 45 
 
OPHTHALMIC JURISPRUDENCE 
 
 in fact, on the circulus iridis minor on the anterior surface of the iris. 
 Posterior synechia? spring either from the margin of the iris or from 
 its posterior surface. Another point of distinction is that under atro- 
 pin, these threads, or bands, prove to be very elastic ; the pupil, in spite 
 of such threads, dilating quite smoothly and round. 
 
 Congenital colohonia of the iris is very often mistaken either for 
 an artificial coloboma, or else for a retroflection, or retroversion, of the 
 iris, due, of course, to trauma. In a congenital coloboma, however, the 
 sphincter iridis continues into and round the gap unbrokenly, whereas 
 no sphincter appears in a coloboma due to traumatism or in the gap 
 produced by a folding backward of the iris. Further marks of dis- 
 tinction are : A congenital coloboma is almost always situated below 
 (though exceptions to this rule exist) ; and, moreover, a congenital 
 coloboma is often, perhaps usually, associated with coloboma in the 
 choroid, the ciliary body and the lens. 
 
 A special importance attaches to the differential diagnosis between 
 a congenital coloboma of the iris and an artificial coloboma, or a retro- 
 flection, from the fact that eyes afflicted with congenital coloboma are 
 very often partly, and sometimes completely, blind. Therefore, o 
 claimant might readily attempt to attribute to traumatism what was, 
 with him, a natural condition. 
 
 Foreign bodies in the anterior chamber and in the iris, usually enter 
 by way of a perforation in the cornea ; in very rare instances, they 
 enter sidewise {via the lens perhaps) or from the rear. Whether in the 
 iris or the anterior chamber, their presence may be tolerated indefinite- 
 ly, but, as a rule, they sooner or later set up a low grade inflammation 
 which gradually spreads to the ciliary body and the other intraocular 
 structures with resulting intraocular abscess, or, more frequently, ocu- 
 lar atrophy. The worst feature of such cases, however, is the tendency 
 toward the setting up of sympathetic ophthalmia. Without extraction 
 of the foreign body, prognosis is always grave. 
 
 The choroid and the ciliary body when injured, whether or not a 
 foreign substance is left within these structures, present perhaps the 
 most serious conditions with which the ophthalmic surgeon is called 
 upon to deal. Even a slight contusion upon the eye may cause a hem- 
 orrhage from the structures (especially in anemic persons, or those 
 who are suffering from arterio-sclerosis or high degrees of myopia) 
 and the extravasated blood may collect between the choroid and the 
 sclera, or else, which is much more serious, between the choroid and 
 the retina. Sometimes the hemorrhages are slight and promptly ab- 
 sorb. In such cases the vision does not suffer. Oftener, however, the 
 choroid is detached, or the retina, and then the eye is almost invariably 
 
 46 
 
OPHTHALMIC JURISPRUDENCE 
 
 lost — in the former event from irido-ehoroiditis, and in the latter, from 
 the tendency which any detachment, however slight, of the retina, dis- 
 plays, to become complete. 
 
 Ruptures of the choroid are generally situated between the optic 
 disk and the macula lutea. In the simpler cases, the vision, which im- 
 mediately after the injury is nearly always bad, rapidly improves, but 
 scotomata are nearly always left permanently, and a perfect result is 
 the very rare exception. In the graver cases, the sight is nearly always 
 permanently lost, owing to detachment of the retina, hemorrhage into 
 the vitreous and other complications. 
 
 Perforating wounds of the ciliary body, if they lie in a direction 
 parallel to that of the ciliary folds, are often of good prognosis; if, 
 however, they lie diagonally across the folds, or transversely, the eye is 
 generally lost by atrophy, and there is in such cases a marked tendency 
 toward sympathetic involvement as well. 
 
 In case a foreign substance is left in the ciliary body, the prog- 
 nosis is, of course, even graver. 
 
 The retina alone is hardly ever injured, for penetrating wounds 
 of this membrane of course involve some of the other structures neces- 
 sarily ; while even a rupture of the retina, produced by a contusion, is 
 likely to be accompanied by solutions of continuity in the choroid. Ret- 
 inal ruptures produced by contusions nearly always occur by contre- 
 coup. 
 
 The slightest of all the injuries of the structure in question is 
 known as commotio, or concussio, retinoe. The retinal changes which 
 are designated by this name have been mistaken for retinal detachment, 
 and, as they nearly always undergo perfect resolution and that very 
 quickly, they are hence important in a legal viewpoint. The distinction 
 between concussion and detachment is made by the following signs: 
 In concussion the retinal vessels are wholly undisturbed, showing no 
 parallactic movement or increased hypermetropia, the opposite state of 
 affairs presenting itself in retinal detachment. Further, in concussion, 
 the retinal plications, or folds, occurring in detachment, are absent. 
 Finally, a concussion (which is always recent) is never quite so white 
 or so opaque as a recent retinal detachment. 
 
 Other forms of retinitis than the relatively unimportant concussio, 
 are far more serious. Such, for instance, are the retinal changes at the 
 macula lutea, neither commotio or detachment, following contusions 
 of the globe and nearly alwaj^s serious and permanent. In fact the 
 visual disturbance, being macular, is well-nigh always incapacitating, 
 so far as the earning power of the injured eye is concerned. An im- 
 portant matter to remember is that the changes in question are of very 
 
 47 
 
OPHTHALMIC JURISPRUDENCE 
 
 slow development in the vast majority of cases, weeks being required in 
 some instances before the visual difficulty appears. In such cases, of 
 course, the question often arises, especially in court, why was it that, 
 if the eye was so severely injured as is claimed, the plaintiff did not 
 observe the fact until several weeks after the accident — until, indeed, 
 other persons perhaps had found it possible to recover for their in- 
 juries received at the same place and at the same time ? 
 
 Hemorrhage confined to the retina is generally of little import 
 permanently. There is often for a time, especially if the bleeding be 
 central, erythropsia and metamorphopsia. Whether central or not, a 
 hemorrhage is almost always accompanied by a scotoma. These ap- 
 pearances, however, provided the extravasated blood does not break its 
 way into other structures, are very evanescent. 
 
 Detachment of the retina, however, may occur in consequence of 
 large effusions of blood, though oftener by far it is produced primarily 
 by contusions or perforations of the globe. Occasionally the retinal 
 separation is consequent (at a late date) upon the contraction of cica- 
 tricial tissue, either in the vitreous or in the retina itself. Extensive 
 loss of vitreous is not infrequently responsible for its production. The 
 amount and kind of visual disturbance depend, of course, upon the 
 extent and situation of the retinal detachment. Contraction of the vis- 
 ual field and scotoniata correspond pretty closely to the portions of the 
 retina that are detached, and metamorphopsia (distorted vision) to- 
 gether with erythropsia (red vision) in the case of hemorrhages, is apt 
 to precede the formation of the blind areas, and to diminish pari passu 
 with the increasing blindness. 
 
 Prognosis is always bad, although traumatic detachment of the 
 retina is oftener followed by complete recovery than are the other 
 varieties. 
 
 The crystalline lens, as a result of traumatism, may undergo dis- 
 placement (luxation or subluxation) or be rendered opaque (traumatic 
 cataract) or become the seat of a foreign substance. Luxation, partial 
 or complete, may be the result of a penetrating or rupturing wound of 
 the eyeball, or merely of a contusion or compression of the eye. It is 
 said to have happened as a result of concussion sustained by the skull, 
 and even by the neck and the feet (as in falls from a height). Even in 
 partial dislocation there is loss of accommodation and sometimes 
 monocular diplopia. In backward dislocations, the iris becomes tremu- 
 lous (iridodonesis) by reason of loss of the normal support which is 
 afforded the iris by the lens. In case the lens is so displaced as to 
 lie with its margin across the pupillary area, one part of the eye may 
 be extremely hypermetropic and the other myopic. Complete disloca- 
 
 48 
 
OPHTHALMIC JURISPRUDENCE 
 
 tion into the vitreous means, refraetionally at least, aphakia (as after 
 a cataract extraction) hence an extreme degree of hypermetropia — un- 
 less, indeed, the eye was very myopic to begin with. In some cases of 
 partial dislocation, the diagnosis can only be made after atropinization 
 and then by means of the ophthalmoscope. Forward dislocations are 
 suflSciently obvious even to beginners in ophthalmology. 
 
 It should b€ remembered that displacement of the lens is now and 
 then congenital. Thus, P. H. Adams, of Oxford, England, reports 
 the case of a family with congenital displacement of the lenses, in which 
 the mother and seven out of nine children suffered from this condi- 
 tion,^ 
 
 Partial dislocations can sometimes be remedied, though never fully, 
 by means of spectacles. Even then, however, the great difference in 
 the refraction of the two eyes (anisometropia) renders impossible the 
 simultaneous employment of both organs, and hence the victim of 
 the accident is rendered monocular to all intents and purposes, except 
 that he possesses in the vision of the injured eye a moderate reserve of 
 sight to draw upon in case the fellow organ should go blind from any 
 cause at some time in the future. 
 
 Complete dislocation into the vitreous does not call for extraction, 
 or other form of operation, unless productive of irritation. Glasses 
 prove of benefit in this condition under the same conditions, as a rule, 
 as in partial dislocations. Complete dislocation forward — i. e., into the 
 aqueous, is so often followed by chronic glaucoma, lenticular opacity 
 (cataract) and adhesions to the iris and cornea that, in the great ma- 
 jority of cases, extraction of the lens is necessary. In any case of 
 dislocation of the lens, forward or backward, partial or complete, the 
 lesion is apt to be followed by lenticular turbidity (cataract). This 
 may render operation necessary at a later date. 
 
 Traumatic cataract without lenticular dislocation is often a conse- 
 quence of injuries to the eye, accompanied or unaccompanied by per- 
 foration or rupture of the ocular tunics. If entirely uncomplicated, 
 these cases can usually be conducted to a successful termination (the 
 younger the subject the greater the probability of success) so far as 
 respects the injured eye alone. However, the eye can never be em- 
 ployed to advantage simultaneously with the fellow organ, excepting 
 only in the extremely rare instances where the fellow eye was already 
 aphakic or extremely hypermetropic. 
 
 A foreign body in the erj^stalline lens means, as a rule, progres- 
 
 1 Eeport of June meeting of the Ophthalmological Society of the United King- 
 dom, Medical Press, June 25, 1909, abstracted in Ophthalmology for Nov., 1909, 
 Vol. VI, No. 1, p. 105. 
 
 49 
 
OPHTHALMIC JURISPRUDENCE 
 
 sive opacity of that structure. A wide pupil and oblique illumination 
 are often prerequisite to the discovery of the intruding substance. In 
 my experience, small foreign bodies in the lens, if not amenable to a 
 magnet, are better left alone, for, now and then, the expected cataract 
 never develops, and the patient retains an extremely useful organ, 
 whereas, if necessary, operative interference can be instituted at a later 
 date. Much depends, of course, upon the extent of the injury suffered 
 by the lens, and on the character (as regards probable asepsis, etc.) of 
 the offending substance. 
 
 Wounds of the vitreous humor are not as a rule important, except 
 so far as they imply an injury to other and more irritable struc- 
 tures — the retina, the choroid, etc. In other words, simple compres- 
 sion or contusion of the eye, seldom results (owing to the elasticity of 
 the vitreous) in serious injury to the vitreous humor, excepting 
 when a hemorrhage from the coats of the eye, breaks through the 
 limiting membrane (hyaline membrane) or when an exudate is poured 
 out into the vitreous from the ocular coats. In cases of hemorrhage 
 into the vitreous, the outlook, though not hopeless, is bad. I have seen 
 in young patients, after moderate hemorrhage, complete recovery in 
 every portion of the field; but, in the vast majority of cases, positive 
 scotomata, movable or immovable, remain, impairing the sight and 
 earning power according to their extent and to the parts of the visual 
 field to which they correspond. In cases of exudate, connective tissue 
 bands are formed in the vitreous, and these, contracting, cause detach- 
 ment of the retina and choroid, together with atrophy of the eyeball. 
 
 When the coats of the eye are perforated, hemorrhage and exudate 
 into the vitreous are far more likely to occur, together with retinal and 
 choroidal detachment, and, in addition, there may occur an intraocular 
 abscess. Prognosis depends on the site of the injury, the presence or 
 absence of infection, the quantity of exudate or blood poured out, the 
 amount of vitreous which has escaped from the eye, and, finally, on 
 the presence or absence of a foreign bod}^ 
 
 Foreign bodies in the vitreous may arrive in that humor after a 
 journey through almost any part of the enveloping membranes. Per- 
 haps most frequently they pass through cornea and lens; often, how- 
 ever, through sclera, choroid, and retina. They consist, for the most 
 part, of bits of metal and stone, but particles of coal, wood, and other 
 substances have often been found in the vitreous. 
 
 Diagnosis is often difficult. There may manifest themselves at once 
 by scotomata and peripheral contractions. Sometimes the path which 
 has been taken by the offending substances can be discerned, either by 
 the naked eye (lateral illumination should be employed) or by means 
 
 50 
 
OPHTHALMIC JURISPRUDENCE 
 
 of the ophthalmoscope ; this, again, may be impossible, owing to a great 
 variety of circumstances. Sometimes the ophthalmoscope reveals the 
 foreign body with much distinctness, often, however, the quantity and 
 situation of the hemorrhage forestalls even the haziest kind of view. 
 Air bubbles in the vitreous are highly suggestive, but not absolutely 
 pathognomonic, for they may occur even when the coats of the eye 
 have not been perforated. IMagnetic needles have been devised for the 
 purpose of detecting the presence of metals which, like steel and iron, 
 exert an influence upon magnetic substances. The giant magnet is, 
 with regard to such particles, both an excellent means of diagnosis and 
 a splendid instrument for removal. In very many cases, too, the X-ray 
 gives valuable information ; in fact this agent, in a very large number 
 of instances, is undeniably our most reliable means for the detection 
 of foreign substances in the eye. A decided advantage is that many 
 substances not susceptible to magnetism (and therefore not responsive 
 to the needle and the magnet) are very plainly revealed by it — for 
 instance, certain kinds of glass,i though unfortunately, not wood. 
 For the technique required Avhen magnetic needles or the X-ray is 
 employed for the purpose of detecting foreign bodies in the eye the 
 reader is referred to the appropriate portions of this Encyclopedia. 
 
 The foreign body should, when possible (especially if possible 
 without too great disturbance of the intraocular tissues) be extracted. 
 In no case, however, should the operator merely go "a-fishing" in the 
 eye. In the case of substances susceptible to the action of magnets, 
 such a removing instrument may be employed at times with very con- 
 spicuous success. In any case, however, even after the apparently 
 successful removal of the foreign substance, the prognosis should be 
 guarded, for, even in such cases, there may follow such cicatricial con- 
 traction that the eye, after a time, is absolutely worthless. If the for- 
 eign body is septic in character, the eye is nearly always lost, whether 
 the foreign body is or is not successfully extracted. 
 
 Suppose the foreign body is allowed to remain within the vitreous. 
 What, then, is the prognosis ? If the body be septic or oxidizable, the 
 eye is lost almost as a matter of course. Sometimes, on the other 
 hand, aseptic and non-oxidizable foreign bodies in the vitreous, are 
 tolerated indefinitely, with or without e.ncystment. As a rule, however, 
 even bodies of this class sooner or later occasion iritis, cyclitis, and a 
 plastic form of hyalitis, followed by contraction of the bands of exu- 
 date, and then sets in detachment of the retina, w4th, perhaps, a 
 
 1 Depending on the chemical composition of the glass. Tivnen (Ophth. Becord, 
 xxiv, 12, p. 640) says: "Generally speaking, the localization of glass in the eye 
 by the X-ray is very disappointing. ' ' 
 
 51 
 
OPHTHALMIC JURISPRUDENCE 
 
 shrinking of the eyeball. The general health may suffer, and, as a last 
 chapter in this melancholy history, there may follow sympathetic oph- 
 thalmia. 
 
 For the amount of damage done to the earning capacity by the 
 various forms of ocular injury, the reader is referred to a later sec- 
 tion of this division, entitled ^^ Visual Economics." 
 
 Simulation of ocular injury or disease. 
 
 By simulation we understand the feigning of an ocular injury or 
 disease which does not at all exist; by Ihe false attrihution of an injury 
 or disease, the assignment to an actually existent disease or injury of 
 an untrue cause ; by exaggeration, finally, the pretense that a certain 
 injury or disease which does actually exist (whether the cause assigned 
 be true or false) is of greater extent or severity than is really the case. 
 
 Closely related to these is dissimulation, or the pretense that an 
 actually existent disease or injury does not exist.^ 
 
 All these forms of falsification, excepting the last-named only, 
 either with regard to the eyes or to other organs, are very com- 
 mon — a fact that has been stated in almost every work on legal medi- 
 cine with such a fullness of detail that the subject has actually been 
 worn threadbare. However, to exemplify briefly with regard to the 
 eye and with respect to simulation only : School children attempt to 
 escape from their school room duties by pretending that their eyes are 
 painful.2 Soldiers and sailors seek to avoid military service by pre- 
 tending blindness, partial or complete, in one or both eyes. Pensioners 
 have been known to simulate. Hysterical people, in order to excite 
 either wonder or pity, often feign blindness. Finally, workmen in fac- 
 tories and mines, and passengers on, and employes of, railroad and 
 steamship lines, often endeavor, after an accident, to produce on the 
 mind of the examining expert the impression that their eyes are in- 
 jured, though not the slightest harm has really been produced. 
 
 Of all the diseases of the eye which are feigned absolutely, i. e., 
 simulated — where the lie is, as it were, "made out of whole cloth" — 
 the commonest are amblyopia and amaurosis. Next to these comes 
 kopiopia, or the rapid exhaustion of vision; and, finally, there come 
 concentric contraction of the visual field and scotomata. These four 
 
 1 Simulation, false attribution, exaggeration, and even dissimulation have all 
 been enormously increased in Europe, and to some extent in the United States, 
 since the passage of the various * ' Workmen 's Compensation Lavys. ' ' For a notice 
 of such laws, see, under the names of the different countries, the division of this 
 section entitled, * ' OpMhalmo-Sanitary Legislation. ' ' 
 
 2 The Germans have a word Sicliulkranlcheit, by which they designate any 
 feigned illness. 
 
 52 
 
OPHTHALMIC JURISPRUDENCE 
 
 troLibles, of course, when actually existing, can be exaggerated also, 
 but, owing to the precision with which the condition of the visual ap- 
 paratus can at the present time be determined, it is practically im- 
 possible to simulate any other affections of the eye than just these four. 
 Almost all other diseases must show some actual pathological changes, 
 in which event, of course, there is possible, in the way of falsification, 
 merely exaggeration or else the assignment to the pathological condi- 
 tion of an untrue cause. 
 
 Tests for the simulation of concentric contraction of the visual 
 field and scotomota. — This sort of simulation, though very rare in- 
 deed, has yet been known to be practised. The commonest form is that 
 in which it is pretended that there is mere concentric contraction of 
 the field. The contraction is generally feigned to be of high degree, as 
 otherwise the injury to the earning power would be too slight to con- 
 stitute a ground for heavy damages. The very existence of central sco- 
 tomata, ring-shaped scotomata, and hemianopic defects, is wholly 
 unknown except to experts. Possibly an expert might hope to simulate 
 defects like these with a moderate chance for success. Expert or 
 layman, however, the claimant should be examined on various days, or 
 at least occasions, and the sejjarate results should be written down and 
 carefully compared. By taking the size of the field as a whole, and also 
 the size of the various scotomata (if any are alleged to be present) at 
 various distances, almost any malingerer with regard to the matters 
 in question, can surely be exposed. It should be remembered, how- 
 ever, that in cases of hysteria (an affection that is often alleged to be 
 of traumatic origin, as after a railway accident) the contraction of 
 the field and the various other scotomata do not remain the same 
 throughout the test, even in genuine cases. 
 
 Tests for the simidation of kopiopia. — Kopiopia is almost always 
 due to errors of refraction, to paresis or paralysis of the ciliary mus- 
 cle, to various affections of the extrinsic muscles, or to neurasthenia or 
 hysteria. In all such cases, of course, the physical signs of the various 
 disorders mentioned will be present, and there can be but little chance 
 of error. Sometimes, however, rapid exhaustion of the eyes does really 
 occur as an isolated symptom, and then the question of malingering 
 or no malingering is very hard to answer. Repeated testing, from the 
 nature of the affection, is of very little use. Continued observation is 
 now and then serviceable; but, occasionally, actual detective work 
 should be resorted to by those in charge of the defense. Sometimes a 
 little investigation of this kind discloses wonderful matters. For in- 
 stance, it may show that the supposedly kopiopie person is spending 
 a considerable number of his hours in writing or reading. Again, a 
 
 53 
 
OPHTHALMIC JURISPRUDENCE 
 
 simulator may at times, for an attractive wage, consent to copy fine 
 print for many hours daily, or nightly, especially if the place of work- 
 ing is such that he believes he will not therein be subject to damaging 
 observation. 
 
 Tests for the simulation of amblyopia and amaurosis. — Where 
 amblyopia or amaurosis is feigned, the affection is almost always de- 
 clared to be unilateral; nevertheless, for the sake of convenience, we 
 shall treat first of the very rare instances where blindness is alleged 
 to exist in both eyes. We depend, in such cases, very largely on the 
 presence or absence of the pupillary light-reaction. If the pupil acts 
 quite well to light, the claimant is probably malingering. However, 
 a word of caution is necessary as to this, for, in a very few in- 
 stances of actual amaurosis (i. e., where the lesion is situated high up 
 in the optic tract) the pupillary light-refiex is retained unimpaired. On 
 the other hand, one should always bear in mind that cases exist in 
 which the pupil does not react to light, though light perception is pres- 
 ent. Then, too, some persons possess the power of contracting or di- 
 lating the pupil at will, while, finally, the presence of posterior synechias 
 accounts for the immobility of some pupils. 
 
 The way in which the pupillary light-reaction should be tested is 
 this: The claimant, by ordinary diffuse daylight, is caused to face di- 
 rectly a window, and to gaze at a distant object, the while he holds a 
 hand across the eye that is not under examination, in order to exclude 
 the light therefrom. The examiner then first notices the size of the 
 pupil in the eye that is being tested, and then excludes the light there- 
 from (by holding a hand across it) for as long as five or six seconds. 
 On removing his hand, the examiner will find, in case the light-reflex is 
 normal, that the pupil has considerably enlarged. The enlargement, or 
 dilatation, remains for about half a second, and then is followed by a 
 very decided contraction. This contraction is succeeded by a moderate 
 dilatation, and that by a still more moderate contraction, until at last 
 the pupil becomes stationary in a condition of more or less moderate 
 contraction, according to the intensity of the ilumination. By the 
 rapidity and the amplitude of these pupillary excursions the examiner 
 decides as to whether the light-reflex is normal or abnormal. 
 
 All the conditions of the test, however, as above laid down, should 
 be carefully complied with. Thus, if the examinee stands with his back, 
 instead of his face, toward the window, the illumination may not be 
 sufficient to affect the pupil visibly, even if the light-reflex be normal. 
 Again, if the eye that is not under examination be not excluded from 
 the light, the illumination that enters that eye will affect the pupil of 
 the fellow organ through the so-called "consensual" light-reflex. Still 
 
 54 
 
OPHTHALMIC JURISPRUDENCE 
 
 further, if the examinee's gaze be not directed at a distant object, then 
 the contraction of the pupil which results from, or at least accompanies, 
 convergence and accommodation, will suffice to confuse the examiner. 
 
 To exclude the possibility of error through posterior synechia, the 
 pupils of both eyes should be subjected simultaneously first to high and 
 then to low illumination. In proper cases (i. e., in young subjects and 
 where there is no suspicion of glaucoma) atropin may be resorted to, 
 and is generally conclusive. 
 
 Then, too, there are other tests. Dilatation of the pupils being 
 an almost constant result of amaurosis, the absence of this symptom is 
 exceedingly significant. True it is that dilatation can be produced arti- 
 ficially, e. g., by means of atropin or cocain ; but such a factitious my- 
 driasis can easily be detected by the fact that, in nearly all such 
 instances, the mydriasis is nearly or quite ad maximum. Complete 
 dilatation ad maximum would indicate the combined employment of 
 atropin and cocain.^ Shrewd malingerers often use a weak solution of 
 the drug, or defer the appearance for examination until the pupillary 
 dilatation has somewhat subsided. Schmidt -Rimpler's test for the 
 simulation of bilateral amaurosis is this : The examiner directs the 
 patient to look at his own hand. A malingerer, especially if ignorant, 
 Avill now and then look purposely elsewhither than at the hand, al- 
 though, as a matter of fact, a person who has been blind, whether for a 
 short time or for a long one, experiences no difficulty whatever in fixing 
 either of his hands with the visual axes. The Schmidt-Rimpler test has 
 been somewhat modified by Burghardt, who suggests that the claimant 
 be requested to put out the forefinger of one hand, and then touch that 
 finger with the forefinger of the other hand. People actually blind, ex- 
 perience no difficulty in doing this. Quite important as a test for 
 amaurosis (especially if declared to be of long standing) is the star- 
 ing, fixed, unmeaning, look of the eyes, which is very soon acquired by 
 those who are truly blind, and with which the experienced oculist can- 
 not help being familiar. Not quite so important, and yet of some sig- 
 nificance (because more likely to be overlooked even by a coached ma- 
 lingerer) is the short-stepping of the truly and totally blind, together 
 with the upward turning of the face, and a generally ' ' listening ' ' ex- 
 pression. Repeated tests made with test-cards ending in lines of dif- 
 ferent-sized type on the different days, or occasions, of testing (e. g., 
 Snellen 40 on one occasion, Snellen 20 or 10 on another) will now and 
 
 1 ' ' The mydriasis produced by the simultaneous action of atropin and cocain is 
 the most considerable that can possibly be attained." — Fuchs, Text Boole of 
 Ophthalmology, New York, 1893, p. 259. 
 
 55 
 
OPHTHALMIC JURISPRUDENCE 
 
 then suffice to expose the simulation of bilateral amblyopia, the ma- 
 lingerer believing that, on each occasion, he should, to be consistent, 
 leave off reading at exactly the same number of lines from the bottom 
 of the card. Further, it is always a ground for the greatest suspicion 
 •when the claimant, in reading aloud the test type, declares that he can 
 read no further, although, thus far, he has made no mistake in identify- 
 ing letters, A strictly honest reader will almost invariably miscall the 
 hardest letters (for instance B and S) in one line, before declaring his 
 total inability to read any of the letters of the next. Again, if he mis- 
 calls only certain letters in a line, and these are the easiest letters in 
 that line (for instance T and L), this is also ground for some suspicion. 
 However, it should be remembered that even ordinary patients, who, 
 for instance, are being tested for glasses, will now and then abruptly 
 stop and declare their inability to read further, though, up to that 
 moment, they had not miscalled a single letter. In the case of such 
 patients, however, repeated urging will invariy,bly bring about the 
 reading of still finer lines of type and the customary irregular and 
 gradual, instead of sudden and even, fading away of the power to read 
 on. It is also well enough to note that the intluence of astigmatism 
 should be excluded before the failure to read easy letters while harder 
 ones are recognized, should be regarded as suspicious. Not infrequently 
 (in the case of unskilled malingerers, who, of course, constitute the 
 largest class) the replies of the examinee, while he is being tested, are 
 manifestly absurd. For example, he may allege that a weak lens, or 
 even a flat glass, improves his vision greatly, or "magnifies" the letters 
 very much. A -j- 1.00 D. S. "seems to feel good" to the eye, while 
 a -}- -50 D. )S. causes extreme pain. Threatening movements toward the 
 claimant (accompanied by the greatest caution neither to make a noise 
 nor to set in motion a current of air — noises and air-currents often 
 alarming patients truly blind) will occasionally throw a claimant off 
 his guard ; and, in one instance, I detected a malingerer merely by 
 "making a face" before him — the suddenly altered expression of the 
 claimant 's countenance being quite sufficient evidence that he had seen. 
 A peephole through which the alleged amaurotic subject can be ob- 
 served from a neighboring apartment is often an instrument of scientific 
 precision, if not of dignity. Sometimes, from such a coign of vantage, 
 the claimant will be observed to take up books and papers, and examine 
 them critically. In very many instances, however, nothing suffices but 
 protracted observation, especially in cases of simulated amblyopia, in 
 which condition, of course, the presence or absence of mydriasis and 
 the presence or absence of the pupillary light-reflex are very much 
 
 56 
 
OPHTHALMIC JURISPRUDENCE 
 
 less to be depended on as tests for malingering than in eases of simu- 
 lated amaurosis.^ 
 
 Finally, it should always be borne in mind that the mere allegation 
 of amaurosis or amblyopia is in itself a suspicious circumstance (par- 
 ticularly if unaccompanied by evidence of renal alteration) for the 
 very simple fact that blindness, partial or complete, non-congenital, not 
 due to refractive errors, or corneal, aqueous, or lenticular obstructions, 
 and, furthermore, presenting no ophthalmoscopic changes whatever, 
 is exceedingly rare. Occurring in connection with a claim for dam- 
 ages, an allegation of blindness, without the presence of a single sup- 
 porting objective symptom, is a proper ground for suspicion of very 
 high degree. 
 
 The simulation of unilateral amaurosis and amblyopia is very 
 much easier to detect than is the bilateral variety of simulation, al- 
 though (as has been stated supra) it is much more commonly prac- 
 tised. The following methods of detection have been chosen by the 
 present writer as being of especial value in legal cases.^ 
 
 The method of Cuignet. — Direct the claimant to read, at the same 
 time to hold quite still both his head and the reading-matter. Insert 
 a pencil vertically between the eyes and the book. If the patient con- 
 tinues to read uninterruptedly, he is undoubtedly seeing with both eyes, 
 because, did he not see with one eye such letters as were quite invisible 
 to the other (on account of the pencil intervening between that other 
 eye and those letters) he could not read them. This test is by no 
 means infallible, being absolutely worthless, indeed, in the case of all 
 malingerers who have been thoroughly coached about it. Such maling- 
 erers can easily refuse to read all such words, oi' portions of words, as 
 are overlaid by that particular "ghost-pencil" (there are, of course, 
 two of these) which stands on the side of the sound eye. Further, the 
 examiner must, in any case, be absolutely certain that both the 
 claimant's head and the reading matter are kept absolutely unmoved. 
 Otherwise, a claimant may seem to be malingering when, in fact (by 
 moving his head or the book a trifle) he is really doing his best to read 
 across the page continuously. A page consisting only of letters un- 
 related in sense is preferred by some examiners, for the reason that 
 when such a page is employed, an innocent examinee will not be able 
 
 1 In fact, simulated bilateral moderate amblyopia is the hardest kind of 
 important ocular malingering to expose. 
 
 2 A rather large number of tests should be familiar to the expert, because 
 some tests may easily enough be rendered useless by reason of the claimant having 
 been very thoroughly coached concerning them. Also, the expert can better with- 
 stand a cross-examination when he has used a considerable number of methods. 
 
 57 
 
OPHTHALMIC JURISPRUDENCE 
 
 to appear guilty, merely by being able to guess that the words, or parts 
 of words, are, which, to him, are really covered by the pencil. 
 
 One of the best points about this test (legally considered) is that it 
 can be easily understood and even repeated to his own satisfaction by 
 the average juryman. 
 
 The method of Alfred Graefe. — Have the claimant hold the pro- 
 fessedly bad eye closed. Then set before the sound eye a prism in such 
 a position that the thick edge thereof extends horizontally across the 
 pupil. The claimant, of course, sees double — a fact he will readily 
 admit, because, so far, the professedly unseeing eye has not been called 
 in question. Then let the claimant uncover the ' ' unseeing ' ' eye, at the 
 same time that the examiner slightly moves the prism in such a way 
 that the sound eye cannot now possibly see double. If the patient still 
 sees double, he is seeing with the eye which he before declared to be 
 blind. The prism employed in this test must of course be strong 
 enough (say 10°) to insure that double vision will necessarily result 
 after the second eye has been uncovered — assuming, of course, that 
 the second eye is possessed of sight. 
 
 This test has an especial advantage in that, unknown to the claim- 
 ant, the visual acuity of each eye can be accurately determined. This is 
 accomplished by having the claimant read aloud first one, then the 
 other, of the twin images. It can also be understood by a fairly intelli- 
 gent juryman. 
 
 The test is also carried out in an even simpler form. The examinee 
 is permitted to look with both eyes. The physician places a 10° prism, 
 base up or down, before the sound eye, and, if the claimant admits to 
 seeing double, he is seeing with the alleged blind eye, as well as with 
 the sound one. The difficulty is, however, with this simplified form of 
 the test, that the claimant, because his alleged blind eye is manifestly 
 under examination, will not invariably confess to seeing double He is 
 much more likely to do so with the test in the regular form. 
 
 The crossed diplopia test. — This also is a test carried out by means 
 of a 10° prism. Place the prism, base out, before the alleged blind 
 eye. If that eye sees, it will make an excursion inward, involuntarily, 
 for the sake of single vision. Of course, if it does not see, it will not 
 perform this movement. This test is easily demonstrated to the 
 average intelligence. 
 
 Method of Vieusse. — On a plain stereoscopic card are fastened two 
 wafers of different colors — one rod, for instance, and the other blue — 
 at a distance in the case of each wafer, of I/2 centimeter from a vertical 
 line dividing the card into halves. When so small a distance — only 
 1 centimeter — separates the wafers, the wafer which is on the right 
 
 58 
 
OPHTHALMIC JURISPRUDENCE 
 
 side of the card appears, when the card is looked at through a stereo- 
 scope, to be on the left, and the wafer which is on the left half of the 
 card appears to be on the right. The card is placed in a stereoscope, 
 and the instrument handed to the claimant with the request that he 
 look at the card through the instrument and inform the examiner as 
 to what it is that he sees. If he admits that he sees both wafers, then, 
 of course, he is seeing with both eyes. If, on the other hand, he con- 
 fesses to seeing one wafer only, he is asked to state the color of that 
 wafer. He will almost certainly, if malingering, name the color of the 
 wafer which appears to be on the side of the sound eye. By so doing, 
 he of course, unmasks himself completely, for the wafer that appears 
 to be on the side of the sound eye is the one which is seen by the eye 
 that he alleges to be blind. 
 
 Perhaps a better way is to have a horizontal line on one of the 
 halves of the card, a vertical line on the other, these lines occupying 
 such positions that, when seen through the stereoscope by a pair of 
 sound eyes, they appear to form a cross. If, then, a person really blind 
 in one eye, looks through the instrument at this card, he will see either 
 the horizontal line only, or else the vertical line cn])\ If he admits to 
 seeing a cross, he is malingering, of course. Any juryman can under- 
 stand this test. 
 
 The method of Harlan. — Have the claimant cover with his hand 
 the alleged unseeing eye. Place before the sound eye a -\- 6.00 D. S. 
 glass. This eye is now artificially myopic, and can read (assuming 
 that the eye is emmetropic naturally) fine print at a distance of 6I/2 
 inches at the very farthest. Place a card of fine type very close to the 
 eyes, and have the claimant release the injured organ. Ask him to 
 read aloud, and then, as he does that, slowly remove the card from the 
 eyes, until a distance greater (to be perfectly sure, some inches greater) 
 than 6M2 inches, is intervening between the claimant and the card. If 
 the claimant still reads, he is doing this solely by means of the eye 
 which he had previously declared to be blind. 
 
 This test is also employed in a slightly different way. The claim- 
 ant, when the test is applied in this modified form, is not requested to 
 cover the alleged bad eye at all, but, at the very outset, there is placed 
 before both his eyes a trial frame containing a -f 6.00 D. S. lens for 
 the sound eye and a flat glass (or, what amounts to the same thing, a 
 -)- .25 D. S lens) for the other. The claimant is then requested to 
 read the distant types. Believing that he has about the same sort of 
 glass before each eye, the examinee very often proceeds to read, thus, 
 of course, demonstrating the fact that he is seeing with the eye which 
 he alleges to be blind. 
 
 59 
 
OPHTHALMIC JURISPRUDENCE 
 
 By the suppression of technicalities, this test can be made very clear 
 to the average jury. 
 
 Method of Jackson. — Place before the eye supposed to be blind a 
 + 4.00 D. S. lens and before the sound eye a -f- 2.00 D. S. The punc- 
 turn remotum of the first eye will now be 25 centimeters; of the other, 
 50 centimeters. Hand the claimant a card of fine type, and ask him to 
 read. If he selects as his reading distance 25 centimeters, instead of 
 50, he is malingering. A good, court-proof test. 
 
 Method of Snellen. — This method requires the possession of test- 
 types alternately red and green upon a black ground, and a pair of 
 spectacles in which one glass is green, the other red. Through the red 
 glass only the red letters, not the green, are visible; and correspond- 
 ingly, through the green glass, only the green letters and not the red 
 ones, can be discerned. If the claimant reads all the letters indiscrim- 
 inately, he is reading with both eyes. A test that is promptly and 
 universally intelligible and even demonstrable. 
 
 Method of Nettleship. — Instill one drop of a 2 per cent, solution 
 of atropin into the sound eye — preferably after cocainization. Then 
 bandage both eyes for one hour. Place in the claimant's hand a card of 
 fine type, remove the bandage, and request him to read aloud. If he 
 reads, he accomplishes that feat by means of the blind eye. This is 
 theoretically an excellent test, but, in practice, I have found it difficult 
 of employment, because the claimant not infrequently objects to having 
 "medicine" put into his sound eye. Hematropin I have also found 
 much preferable to atropin, because, the claimant being naturally some- 
 what hostile to the examiner, is apt to view with much alarm the week 
 of actual blindness in the sound eye resulting from the use of atropin. 
 There is also ever present, whether homatropin or atropin is used, the 
 remote possibility of relaxing in this, the soand, eye a long-existing 
 spasm of the ciliary muscle covering a high degree of hypermetropia, 
 and then of the spasm not returning when the otherwise transitory 
 effects of the atropin have passed away. In such a case, of course, the 
 hostile claimant can hardly be convinced that he has not been seriously 
 injured in the sound eye by the examiner, and a suit against the 
 examiner in which the defendant in the original suit (or claim) may or 
 may not be joined (according to whether he can or cannot be regarded 
 as a principal, under whom the examiner was acting as agent) may 
 follow. In any case, to use this test successfully, the examiner must 
 make sure (preferably after the claimant has admitted his ability — or 
 denied it — to read) that relaxation of the ciliary muscle in the sound 
 eye and consequent inability of that eye to read fine type has actually 
 occurred. 
 
 60 
 
OPHTHALMIC JURISPRUDENCE 
 
 None of the numerous tests for malingering which require the use 
 of complicated apparatus (such as Worth's) or a deep understand- 
 ing of optical principles, possesses half the value in a law court of a 
 simple and generally intelligible test, such as any one of those above 
 described. A juryman feels on surer ground, when he understands 
 precisely how the fraud in question was exposed. 
 
 In addition to these more particular methods, almost any one of 
 which will suffice in the vast majority of cases, the state of the pupil 
 as to light-reflex and dilatation should be carefully interrogated. And, 
 by the way, when testing the light-reflex in a case of alleged unilateral 
 amaurosis, we should never forget to examine the consensual light- 
 reaction, since this is a means of determining whether the non-response 
 to light in the pupil of the alleged bad eye is, or is not, due merely to 
 posterior synechife. The way in which to test the consensual light-re- 
 flex is this : The pupil of the eye to be tested is alternately exposed to 
 and excluded from the light, while the effect of so doing is watched in 
 the second eye. If the second eye (being itself healthy) does not re- 
 spond to the alternate screenings and exposures of its fellow, then the 
 absence of the light-reflex from that fellow eye is not due to posterior 
 synechite. It is to be observed that, in unilateral simulation, as well as 
 in bilateral, the malingerer not infrequently resorts to the factitious 
 mydriasis producible by means of atropin or coeain. In this connec- 
 tion it should be remembered that, when only one eye has been atro- 
 pinized, the pupil of the other eye is narrower than normal, because of 
 the consensual light-reflex being excited unduly by means of the unac- 
 customed quantity of light which enters the atropinized eye. Some- 
 times the pupil of the second eye is found abnormally enlarged, because 
 of some of the atropin solution (or at times even some of the tears 
 from the atropinized eye) having been inadvertently introduced into 
 the admittedly sound eye. The admittedly sound eye may also present 
 a dilatation due to the fact that so much of the atropin solution has 
 been used in the prof^^ssedly amaurotic eye that the general effects of 
 the drug (which include, of course, a dilatation of the pupils of both 
 eyes) have been evoked. In unilateral malingering, however, as well as 
 in bilateral, it may, in case the claimant be a man of shrewdness and 
 understanding, become absolutely necessary to resort either to espial 
 or to protracted observation — the claimant, after a few weeks, or while 
 away on a visit, neglecting to keep the pupil of his "blind" eye dilated. 
 Threatening motions (care being taken, as before, to guard against the 
 production of noise and air currents) and also the making of faces can 
 be employed in unilateral malingering, as well as in bilateral, by first 
 placing a bandage over the sound eye, or directing the claimant to hold 
 
 61 
 
OPHTHALMIC JURISPRUDENCE 
 
 a hand across it. One of the best of the threatening motions consists 
 in making as if to poke a finger into the eye. 
 
 The false aitribution of ocular injuries or diseases. 
 
 Tlie false attribution of ocular injuries or diseases (by which we 
 mean, as before stated, the assignment of an untrue cause to a real 
 injury or disease) is, like simulation, very common. On the other 
 hand, unlike simulation, it is often accompanied by exaggeration. (Ex- 
 aggeration can also exist without false attribution.) In fact, false at- 
 tribution is much more common than simulation, for the reason that 
 this particular form of falsification can be applied to a vastly wider 
 range of injuries than can the latter description of malingering. Simple 
 simulation indeed, is, as a rule, from its very nature restricted to 
 kopiopia, to concentric contraction of the visual fields and scotomata, 
 and to amblyopia and amaurosis, while fraudulent attribution can 
 find full play and opportunity in well-nigh every conceivable form of 
 ocular incapacity, and, moreover, almost always has objective symp- 
 toms to give it plausibility. 
 
 To take a few examples. A man is afflicted from childhood with 
 strabismus. After a railway wreck, he alleges that certain injuries re- 
 ceived by him at the time of the accident are responsible for the cross- 
 ing of the eyes. A woman has congenital eolobomata of the irides. 
 After falling through a defective sidewalk she declares that since the 
 injury, she has had no sight whatever, and slie offers the eolobomata 
 as objective evidence that her eyes were actually injured on the oc- 
 casion of the fall. A man afflicted with detachment of the retina due 
 to extreme myopia, seeks, some day, to ascribe his diseased condition 
 to the undue force with which he was ejected from a room in which, 
 against the protests of the proper occupants, he was endeavoring to sell 
 goods. A man on whom a charlatan was "operating" for the removal 
 of a "cancer" from the eyelid, received upon the pupillary area of the 
 cornea a drop of some sort of acid. A dense leueoma formed, with the 
 total abolition of qualitative sight, and, some six years later, the 
 victim sought to prove that the corneal opacity had been developed 
 in consequence of an injury received in a mine. Such are a few of the 
 almost infinite forms and varieties which fraudulent attribution as- 
 sumes in connection with injuries to, or diseases of, the eye. 
 
 In discussing these various forms and varieties we divide our sub- 
 ject into : 
 
 1. Injuries affecting the eyelids and eyebrows. 2. Injuries affecting 
 the conjunctiva and cornea. 3. Injuries affecting the iris. 4. Injuries 
 affecting the lens. 5. Injuries affecting still deeper portions of the eye. 
 
 62 
 
OPHTHALMIC JURISPRUDENCE 
 
 1. Injuries affcciing the lids and eyebrows. — With respect to the 
 false assignment of causes in the case of injuries to these parts, it 
 is always necessary, of course, lO consider the nature of the wound 
 or wounds in relation to the cause assigned. It will often occur that 
 the cause assigned could not possibly account for the appearances pro- 
 duced. On the other hand, the examiner must be cautious not to de- 
 clare as impossible a cause which, after all, is really the true one. 
 Thus, as stated already, under the heading of ' ' The commonest injuries 
 with which the ophthalmo-surgical expert has to deal," I mentioned 
 the very deceptive appearance which is often produced by contused 
 wounds of the eyebrow, these wounds not very infrequently seeming 
 to have been produced by a knife, axe, or other cutting instrument, 
 though produced in fact by the fist. I also indicated the great 
 importance attaching to a correct distinction between contused wounds 
 and incised wounds in this portion of the body, persons often being 
 accused of assault with a deadly weapon, or intent to kill, when, as a 
 matter of fact, they are wholly innocent of such a high-grade crime.^ 
 The distinction is easily made, as may be recalled, by means of the 
 following signs : 1. — A contused wound is the far more likely to 
 present an areola of ecchymosis. 2. — Under a lens, the walls of a con- 
 tused wound are seen to be not actually smooth, but more or less 
 ragged. 3. — While an incised wound shows all the tissues divided just 
 as deeply down as the wound reaches, a contused wound mimicking 
 an incised wound, shows some of the fibers of the more resisting tissues 
 undivided, while others, deeper down in the wound, are severed. 4. — 
 The really contused, though apparently incised, wound is generally 
 more extensive (longer) at the bottom than at the surface, while the 
 really incised wound is apt to possess a so-called "tail" both at the 
 beginning and at the end — in other words to be of greater extent in the 
 skin than in the deeper tissues. This distinction is due to the fact 
 that, in the really incised wound, the inflicting instrument cuts from 
 without inward, whereas, in the case of a wound of the contused 
 variety, the incising instrument — the bone — cuts from within outward. 
 
 It is always worth remembering that not infrequently a claimant is 
 honestly mistaken as to the nature of the weapon with which his 
 wound was produced. Thus, he may, reasonably enough, have seen a 
 flash from a ring or a cuff-button, worn by the assaulter, and, later, 
 observing the apparently incised nature of the wound, have come to 
 
 1 It is owing to the great importance of this distinction that the matter is 
 given some treatment under the present head as well as under that of ' ' The com- 
 monest injuries with which the ophthalmo-surgical expert has to deal." 
 
 63 
 
OPHTHALMIC JURISPRUDENCE 
 
 the conclusion (more or less unconsciously perhaps) that what he has 
 seen was the flash of a knife. He will then, almost to a certainty, 
 declare (and of course with the utmost honesty) that he saw a knife in 
 the hand of his assailant, or even, in case he happened to be possessed 
 of a rather active imagination, that he saw the assaulter "draw" a 
 knife. 
 
 As an instance of the opposite state of affairs, i. e., when it appears 
 from the look of the wound that a knife could hardly have been em- 
 ployed, although, as a matter of fact, a knife was the actually inflicting 
 instrument, I refer to the rather rare instances where a single sweep 
 of a knife across the eyelid has occasioned a zigzag wound, presenting 
 a torn — the so-called "lacerated" — appearance. This phenomenon is 
 due to the fact that the knife, before it cuts, stretches out the very ex- 
 tensible skin before it and then parts the tissues. When the skin goes 
 back into place, the appearance is that of a V or a Z, as if a hook or 
 some such object had engaged in the skin of the lid and then torn it 
 in two or more directions, or perhaps had engaged more than once in 
 the skin. In the case of wounds like these, the question sometimes 
 takes the form, not as to whether a knife was the actually inflicting 
 instrument, but as to whether a knife which is admitted to have been 
 employed for one single stroke, was not really used again and again, 
 the answer to this question having an important bearing on the legal 
 inquiry as to whether (in case the user of the knife was acting in self- 
 defense) the self -defender did not, by the emploj^ment of "excessive 
 force," become in his turn (from the legal viewpoint) the aggressor. 
 
 "Wounds of the eyelid are sometimes produced voluntarily, with the 
 intent to ascribe the injury to an accident or an assault ("putative," 
 or "self-inflicted," wounds) and then are almost always superficial in 
 character, the lips of the wound, however, being kept apart sometimes, 
 during the process of healing, in order that a large and showy cicatrix 
 may result. Almost invariably, in such instances, the factitious wound 
 has been resorted to in order to give objective evidence to a claim of 
 traumatic amblyopia or amaurosis. The superficial character of the 
 scar, together with the various tests for simulated amblyopia and 
 amaurosis, as above set down. Mall almost invariably reveal the fraudu- 
 lent character of the claim. 
 
 Ecchymosis, being a very common accompaniment of contused 
 wounds of the eye, affords at times important evidence in connection 
 with fraudulent claims. One should ever bear in mind that an ecchy- 
 mosis of these parts is at first violet, blue-black, or livid red in color : 
 in a day or two, green, then yellow, then lemon-yellow, finally whitish- 
 yellow and normal. One should also remember that, in ecchymosis of 
 
 64 
 
OPHTHALMIC JURISPRUDENCE 
 
 the ui^per lid, the darkest portion of the discoloration is always, after 
 the lapse of a few hours, at the lower lid-margin,^ the changes in color 
 above noted showing earliest at the upper boundary of the discolored 
 area. It is, of course, impossible to determine the precise age of an 
 ecchymosis from its color ; yet, in many instances, the hue of the part 
 affords irrefragable evidence of a fraudulent claim. Thus, for example, 
 if a claimant with an ecchymosis in the livid, or blue-black, stage, 
 especially if the darkest part (in the upper lid) had not yet settled 
 down to the lower lid margin, should allege that this discoloration had 
 been produced a v\^eek or thereabouts before, we should know to a 
 certainty that he was "mistaken." 
 
 Emphysema, with crepitation, of the lids and orbit can be produced 
 by injecting air into the loose areolar tissue of these parts, and a 
 simple tumefaction without crepitation, lasting for several days, can 
 be produced (as every ophthalmo-surgical expert knows) by the hypo- 
 dermic injection of solutions of cocain and other substances — and, in 
 some instances, even of plain water. 
 
 Ulcers in the skin of the eyelids can easily be manufactured by 
 means of the various irritants, corrosives, and vesicants. The most 
 commonly employed are : chewed tobacco, bruised garlic, nitric acid, 
 corrosive sublimate, and quicklime. I have even been informed that a 
 miner who was lightly burned in a mine explosion actually burned the 
 lids of both eyes, as well as other portions of his face, by means of a 
 candle flame, applied by his own hand, in order to increase the extent 
 and severity of the ulcers that followed, and thus the amount of 
 probable compensation to be received by him.^ 
 
 The injuries and discolorations produced by the different sorts of 
 acids and alkalies are worth recalling in connection with the fraudulent 
 or mistaken attribution of injuries. Thus, sulphuric acid turns the 
 skin brown; nitric acid, yellow; while hydrochloric acid either does 
 
 1 A phenomenon due to the fact that the extravasated blood ' ' settles ' ' down 
 through the loose interspaces of the palpebral areolar tissue till it reaches the 
 lower lid margin. About the body generally, the darkest portion of an ecchymosis 
 corresponds pretty closely to "the point of greatest violence" — i. e., of greatest 
 crushing, or contusing, force — a state of affairs which continues as long as tho 
 ecchymosis remains visible. 
 
 The extravasated blood not infrequently seeps beneath the skin covering the 
 dorsum of the nose, and so on into the loose areolar interspaces of the lids of the 
 opposite eye (the falsely denominated "sympathetic" ecchymosis). The skin of 
 the nose being very thick and opaque, the ecchymosis is, in that part, invisible, 
 and hence it appears that an independent ecchymosis of the opposite eye has taken 
 place, perhaps as the result of a fracture. This phenomenon of an apparently 
 independent ecchymosis in the opposite eye, is so common, after an enucleation of 
 the eyeball, as to be familiar to all ophthalmic surgeons. 
 
 2 It may not be uninteresting to note that the artificial production of ulcers is 
 probably "the earliest, as it "has been the most extensively excited disease." 
 Gavin, Feigned Diseases, London, 1843, p. 332. 
 
 65 
 
OPHTHALMIC JURISPRUDENCE 
 
 not stain it at all or turns it very faintly yellowish or yellowish- 
 brownish. Acids (especially "vitriol," or sulphuric acid) were in 
 former days frequently (they are even yet occasionally) "thrown" 
 by women into the faces of their rivals, Avith the almost invariable 
 results that the skin of the eyelids and eyebrows was cauterized, and a 
 suit for damages or criminal prosecution (not infrequently both) 
 was now and then the result. Acids, too, as already stated, are used 
 for the artificial production of ulcers and cicatrices, on which condi- 
 tions a claim for damages can be based. Alkalies discolor the skin at 
 first white ; later, red or dark-brown. 
 
 To distinguish the so-called "burns" produced by such eseharotics 
 from burns produced by heated substances — a distinction sometimes 
 necessary — the following points are useful : 
 
 (a) If the injury be recent, a chemical test can be made, and the 
 presence of sulphuric, hydrochloric, or nitric acid, or other eseharotic 
 liquid on the skin can easily be determined. If any of the eseharotic 
 has been spilled upon the clothing, or other surrounding objects, the 
 chemical test is still more applicable. 
 
 (b) Scorching of hairs in the neighborhood of the injury, points 
 to a heated substance of some sort as the almost certain origin thereof, 
 for eseharotics do not affect the hairs of the nearby parts. 
 
 (c) Blisters, which are almost always present after injuries pro- 
 duced by heated bodies, are never produced by the action of eseharotics. 
 
 (d) After the action of an eseharotic there is never capillary con- 
 gestion (erythema) of the skin surrounding the injured area. This 
 phenomenon occurs invariably after burns by heated substances, if of 
 more than the first or second degree, unless the injuries are followed 
 so promptly by the death of the injured person that this symptom of 
 reaction does not have time to appear. 
 
 (e) Burns by heated solids can generally be distinguished from 
 burns by heated liquids, as well as from the results of eseharotics, 
 whether liquid or solid, by the fact that the eschar which is produced 
 by an eseharotic, or by a heated liquid, is soft and moist and yellowish, 
 instead of hard and dry and dark, as after an injury produced by a 
 heated solid. 
 
 A very important subject in connection with the fraudulent attribu- 
 tion of injuries, is that of scars in the skin of the lids, especially with 
 relation to their age, for, sometimes, the false attributor alleges of an 
 ancient cicatrix that it is recent, or, on the other hand, of a recent 
 cicatrix, that it is old. Such people also not infrequently cause 
 cicatrices to be artificially removed (so far at least as this is possible) 
 
 66 
 
OPHTHALMIC JURISPRUDENCE 
 
 and, on the other hand, declare that scars which formerly existed have 
 spontaneously disappeared. 
 
 At the very beginning it should be thoroughly understood that, in 
 the skin of the eyelids as in other portions of the body, very super- 
 ficial burns or wounds, involving only the epidermis or the superficial 
 part of the derma, produce no scar at all or else a scar that promptly 
 disappears completely. We may also say — for the sake of complete- 
 ness, since the matter is otherwise unimportant — that a punctured 
 wound produced by an instrument of the nature of an extremely fine 
 needle and consisting merely in the separation of the anatomical ele- 
 ments of the skin and underlying tissues without the production of a 
 bloody tract, produces absolutely no cicatrix whatever of any sort or 
 kind. In the case of a punctured w^ound accompanied by the pro- 
 duction of a bloody tract (however slight the hemorrhage may be) 
 there results invariably a scar. This sear, at first, is merely a reddish 
 point. Later, it becomes of a dark brownish color, and increases a 
 trifle in area (as any one has seen in the ease of the punctate scars 
 produced by sutures in the skin of the lid). Still later, the scar begins 
 to bleach, and, at the same time, to contract, till, finally, the color is a 
 pearly-white and the area very small indeed. May such a scar dis- 
 appear entirely? In my opinion it may, practically at least, whatever 
 it may do theoretically. Linear wounds and wounds of square extent, 
 result in cicatrices, invariably. Generally speaking, too, such scars 
 are indelible unless tampered with. However, scars in the skin of the 
 eyelids disappear oftener and more completely than in ahnost any 
 other portion of tJie body. Operations, furthermore, may be resorted 
 to which change the appearance of all such scars, or even (when the 
 cicatrices are not too extensive or too deep) remove them to such a 
 degree that, at least for all practical purposes, the condition of the 
 skin is exactly the same as though the scar had never come into exist- 
 ence. If the scar is too deep, the skin can never be restored quite to 
 its former condition of free extensibility (permitting, in fact, of far 
 withdrawal from the underlying parts) and, if too extensive, the skin 
 will, after the operation, be shortened and tight-looking, devoid, in 
 fact, of the folds and wrinkles displayed by the skin of the correspond- 
 ing lid of the other eye. Sometimes, however, by an operation on this 
 other eye, a symmetrical and therefore very deceptive condition indeed 
 can be produced. Extremely accurate examination is necessarj' in all 
 such cases, and a magnifying glass is often helpful. 
 
 Just at what age of the wound the different color-changes occur in 
 a sear cannot be determined precisely (however devoutly such a con- 
 summation might be wished) even for a particular case. In generjd, 
 
 67 
 
OPHTHALMIC JURISPRUDENCE 
 
 however, cicatrization is complete (i. e., the scar has completely 
 formed) in about four days after a simple, linear, and non-infected 
 incised wound, whose lips have been appropriately approximated 
 Wounds of superficial area heal more slowly than incised wounds 
 and wounds in aged persons or diseased subjects much more leisurely 
 than in young and healthy. The pink, or reddish, young cicatrix turns 
 to the older brownish variety in about eight weeks, or perhaps a little 
 more. In from two to three months additional, the cicatrix has 
 bleached and taken on the well-known appearance of an ancient ci- 
 catrix — an appearance which, under normal circumstances, is just 
 about permanent. 
 
 All cicatrices, however, whatever their original shape, in the eyelids 
 as elsewhere about the body, tend to become more and more linear in 
 form. Then, too, ancient cicatrices, in the skin of the eyelids as in 
 the body generally, get a trifle smaller in area and a little thicker, as 
 they increase in age, excepting in children only, in whom they actually 
 enlarge in area as well as in thickness. When, however, children reach 
 adult life, their ancient cicatrices begin to contract. 
 
 Scars are much more apparent in brunettes than in blonds, and 
 they are also said to stand out much more plainly in negroes than in 
 Caucasians, by reason of the fact (as alleged) that a cicatrix never 
 acquires a rete mucosum even in the negro and hence is forever devoid 
 of coloring matter even in the African race. In my personal experi- 
 ence, however, the statement has not held good. I have seen in negroes 
 numerous sears that were very deeply pigmented, and, in the eyelids, 
 many that required the most careful observation for their detection. 
 
 Sears otherwise imperceptible may often be brought out plainly (in 
 the white race) by smart friction of the lids, a procedure which red- 
 dens the skin and makes the white scar plainer by the contrast. A 
 lens is always useful. 
 
 Burns produced by explosions of gun-powder sometimes have to 
 be distinguished from those produced by fire-damp explosions, which 
 occur so frequently in mines. The necessity is all the greater from 
 the fact that, in each of these kinds of burns, the hairs of nearby 
 (possibly also distant) parts are invariably scorched: hence no means 
 of distinction is afforded by the presence or absence of scorched hairs. 
 However, the distinction is very easily made by the difference in the 
 tattoo marks in the skin which each of these forms of explosion pro- 
 duces. The distinction is made in three ways : 1. — The coal tattoo is 
 blacker, and less violet, in color, than the dotting made by gun-powder. 
 2. — The coal-dust spots vary greatly in size, while the dots from gun- 
 powder are almost absolutely uniform, 3. — Particles of gun-powder, 
 
 68 
 
OPHTHALMIC JURISPRUDENCE 
 
 or of coal, can be picked out of the skin, and their nature determined 
 chemically. 
 
 2. — Injuries of the conjunctiva and cornea. — In traumatic conjunc- 
 tivitis the question is nearly always as to whether or not the inflamma- 
 tion of the conjunctiva is traumatic or non-traumatic in origin. How, 
 then, can a distinction be established between a traumatic conjunc- 
 tivitis and one not traumatic? If the conjunctival inflammation be 
 alleged to have been produced by a powder or a fire-damp explosion, 
 there will nearly always exist in the conjunctiva (also, perhaps, in 
 the skin of the lids) the same, or a very similar, bluish or blackish 
 tattoo which is produced in the skin by such explosions. There will 
 also exist the indications of a burn, namely, shortening, thickening, 
 wrinkling or puckering, and opacification of the conjunctiva, as well 
 as adhesions (symblepharon) between the eyeball and the lids. Burns 
 by acids and alkalies leave also conjunctival cicatrices, together with, 
 almost invariably, the characteristic stains upon the skin. Any con- 
 siderable quantity of nitric or sulphuric acid in the eye causes deep 
 sloughing, which means, of course, perforation of the eyeball. 
 
 Conjunctivitis, alleged to be due to trauma, is occasionally manu- 
 factured by the intentional introduction into the conjunctival cul de 
 sac, of tobacco juice, particles of sand, bits of lime, drops of lemon 
 juice, and solutions of bluestone or corrosive sublimate. Foreign 
 bodies of considerable size and irritating properties have been discov- 
 ered, neatly bestowed within the folds of the upper conjunctival com- 
 missure, to the presence of which was due a spurious conjunctivitis; 
 it is therefore desirable, in all suspicious cases of traumatic conjunc- 
 tivitis, to examine carefully the recesses of these folds. 
 
 Traumatic pterygium occasionally occurs as a result of injury to 
 the conjunctiva and cornea, and, now and then, a claimant for damages 
 alleges that a pterygium of the ordinary spontaneous^ variety was pro- 
 duced by an accident for which he seeks to hold some company or 
 individual responsible. The distinguishing points, however, between 
 these two varieties of pterygia render impossible the acquiescence by 
 any honest expert in such a mistaken, or fraudulent, explanation of 
 the origin of the growth. The central point of distinction lies in the 
 fact that a pterygium of traumatic origin (customarily so designated) 
 does not possess a pterygia! canal, or epithelium-lined passage which 
 lies between the growth and the eye at the sclero-corneal junction. 
 
 1 All the so-called non-traumatic, or spontaneous, pterygia, however, probably 
 originate in slight, repeated traumata. See on this head an article by the present 
 writer, entitled "Pterygium," in the Ophthalmic Record, Vol. 14, No. 10, Oct., 
 1905, p. 465. 
 
 69 
 
OPHTHALMIC JURISPRUDENCE 
 
 Further, a pterygium of traumatic origin is often adherent more or 
 less extensively to the eyelid, thus giving very plain evidence as to the 
 nature of the origin of the growth. Still further, a traumatic ptery- 
 gium is less transparent, thicker, and also less freely movable on the 
 sclera. Then again, a false or traumatic pterygium is seldom situated 
 (as is that of the ordinary variety) symmetrically astride the horizon- 
 tal meridian of the eyeball — in fact not only is it often more above or 
 more below this line, but it is not infrequently situated wholly above 
 or wholly below the cornea. Finally, a traumatic pterygium is never 
 progressive, while the ordinary, or true, pterygium may or may 
 not be so. 
 
 3. Injuries of the iris. — The salient points to be remembered in 
 connection with the fraudulent or mistaken attribution of injuries to 
 the iris relate to the fact that many anomalies of the iris, which seem to 
 the inexperienced observer to be traumatic, are really congenital. 
 These matters were considered somewhat fully in a former division of 
 this article, but here it may be well to remind ourselves of the fol- 
 lowing extremely important characteristics of certain congenital 
 anomalies. 
 
 a. The threads of a persistent pupillary membrane (often mistaken 
 for posterior synechine) do not arise (as do the synechise) from the 
 margin of the iris or its posterior surface, but from a point on the 
 anterior surface of the iris, a trifle removed from the pupillary 
 margin. Also, under atropin, these threads prove very elastic. 
 
 b. Congenital coloboma of the iris can be distinguished from trau- 
 matic coloboma and from retroversion and retroflexion by the fact that, 
 in a congenital coloboma, the sphincter iridis continues into and around 
 the gap unbrokeniy. Further, it is almost (though not quite) always 
 situated below, and is frequently associated with coloboma of the 
 choroid, corpus ciliare, and lens. 
 
 c. Heterophthalmos, corectopia, and polycoria, are liable to be mis- 
 taken by the ignorant for the results of traumatism, but a person 
 accustomed to examining injured eyes could hardly be imposed upon 
 to that extent by such plainly congenital anomalies. 
 
 4. Injuries of the lens. — A claimant now and then attributes to an 
 accident or an assault a condition of the crystalline lens which is really 
 congenital or the result of some spontaneous disease. ^ Thus, a con- 
 genital, or a senile, or a diabetic cataract may falsely be attributed to 
 
 1 It would seem, according to Woodward, that traumatic cataracts had been 
 known to be "self-inflicted," or "putative." Thus that writer in Witthaus and 
 Becker's Medical Jurisprudence, Forensic Medicine, and Toxicology, 1896, Vol. Ill, 
 p. 28: "Cataract has been intentionally produced by thrusting a needle or a 
 knife-blade through the cornea into the crystalline lens." 
 
 70 
 
OPHTHALMIC JURISPRUDENCE 
 
 a cause for which some corporation or individual could be held respon- 
 sible in damages. A traumatic cataract, however, is generally pro- 
 duced by the action of a penetrating instrument (this, sometimes, is a 
 foreign body which remains) and, in such a case, the tract whereby 
 the inflicting instrument made its way through the ocular tissues to 
 its point of contact with the lens, is easily enough determined. In 
 such a case there can be no doubt as to the origin of the cataract. 
 Even if the instrument were very small, for instance a delicate needle, 
 no doubt could exist if lenticular matters were being extruded into 
 the aqueous through a rent in the capsule. Sometimes, however, a 
 mere contusion, or concussion, of the eye suffices to originate a cataract, 
 and then the distinction between such a lenticular turbidity and a 
 congenital or senile cataract may become a harder matter. Even in 
 such a case, however, the distinction is generally sufficiently obvious 
 on account of Lhe extremely regular and symmetrical appearance of 
 congenital and senile opacities, while the lens turbidity produced by 
 traumatism of any sort is nearly always irregular. Then, in addition, 
 in congenital cataract, the eye as a whole is apt to be very badly 
 developed. The claimant's history will almost always, unless he be an 
 infant, conclusively settle the matter. 
 
 Luxation and subluxation of the lens may be congenital or the result 
 of disease, as well as produced by trauma. AVhen occurring as the 
 result of disease, the pathological condition consists of softening and 
 wasting away of the zonula, which, in its turn, is occasioned by high- 
 grade myopia and choroiditis. Then, too, a spontaneous variety of 
 dislocation occurs in hypermature cataracts as a result of overstretch- 
 ing of the zonula. The various concomitant conditions, of course, 
 point out the nature of these spontaneous dislocations, while, where 
 the lens is congenitally out of place, the dislocation is almost always 
 upward, the lens is small in size, the eyeball as a whole is apt to be 
 poorly developed, and, finally, there exists a life-long history of in- 
 ferior vision. 
 
 5. Injuries affecting still deeper portions of the eye. — Injuries of 
 the vitreous, the sclera, the choroid, the retina and the optic nerve, are 
 also now and then attributed to supposititious causes, but, in these 
 cases, the ophthalmic expert has little that is special to guide him; he 
 can merely employ his knowledge of ocular pathology in general. 
 
 Exaggeration of ocular injuries and diseases. Tests for exaggera- 
 tion. — Exaggeration of the effects upon the sight of various actually 
 existing injuries and diseases (whether or not such injuries and dis- 
 eases are attributed to untrue causes) can generally be detected by 
 noting the nature and situation of the various pathological lesions, 
 
 71 
 
OPHTHALMIO JURISPRUDENCE 
 
 and also by means of the tests for simulation (laid down some distance 
 supra) since the tests for simulation are useful in exaggeration. Of 
 especial importance among these tests is that of Alfred Graefe, be- 
 cause thereby the examiner may, unknown to the subject of the 
 test, determine accurately the visual acuity of each eye. It should be 
 remembered that an actually existing amblyopia may be so exaggerated 
 as to seem an amaurosis, and also that even an actual amaurosis may 
 be exaggerated by the contention that it has been in existence for a 
 longer time than is really the case. In the latter state of affairs, if the 
 amaurosis be alleged to be of very long standing, the examiner will, 
 of course, be careful to note whether, as yet, the eyes have taken on 
 the "staring, fixed, unmeaning" look of eyes that are truly blind, as 
 well as whether the applicant himself has acquired the short steps, the 
 upturned countenance, and the generally "listening" expression. 
 
 Dissimulation of ocular defects and diseases. This form of falsifica- 
 tion is not very common in America. In Europe, however, especially 
 since the passage of the various "Workmen's Compensation Laws" 
 (which render employers liable for injuries to their workmen, irre- 
 spective of all such technical matters as assumption of risk, contribu- 
 tory negligence, etc., etc.) the number of dissimulators has increased 
 enormously. This consequence arises from the fact that, when an 
 employer is obliged, in effect, to insure his workmen, he desires to 
 know to a certainty before he grants employment to any given man, 
 that the applicant is possessed of sufficient visual power to keep from 
 being hurt. He stands, in a word, where subject to such laws, in much 
 the same position as an accident insurance company or a life insur- 
 ance company. For this reason, it is said, the Workmen's Compensa- 
 tion Laws, beneficent as they are in many respects, have entailed much 
 hardship on workmen already defective. Defective workmen, in fact, 
 find great difficulty in securing employment where such laws as those 
 in question exist. And even in America, dissimulation is practised 
 now and then, not only by those attempting improperly to effect acci- 
 dent or life insurance, but also by persons endeavoring to secure 
 employment with railway or steamship lines, to be admitted to the 
 army or the navy, and even to contract advantageous marriages. 
 
 Our chief solicitude should be, when testing the eyes of those who 
 may be dissimulators, not to rest content with a mere determination 
 of the central visual acuity. Thus, a person's central vision may very 
 well be in each eye 20/15, or above normal, and yet his peripheral 
 vision be very poor indeed. Again, with excellent central sight, he 
 might be harboring a foreign body in the vitreous, or be suffering 
 from chorio-retinitis, peripheral lenticular opacity, or eccentric ulcer 
 of the cornea. Further, he might be afflicted with mydriasis, with or 
 
 72 
 
OPHTHALMIC JURISPRUDENCE 
 
 without paralysis of the accommodation, or, if tabetic, with Argyll 
 Robertson pupils.^ 
 
 Visiml economics? An expert witness is often required to furnish 
 the jury certain facts and principles in accordance with which that 
 body may be able to determine the amount of damages which ought to 
 be awarded, or, as the law expresses the matter, "to assess the dam- 
 ages. ' ' We have already seen that, in assessing damages in a personal 
 injury case, a jury may allow for matters such as: (1) necessary and 
 reasonable expenses — hospital fees, for example, and nurses' and 
 doctors' bills; (2) loss of time; (3) pain and suffering; (4) disfigure- 
 ment; (5) reduction of the earning capacity. This latter is often, 
 perhaps generally, the most important item in the list. Now it so 
 happens that, with respect to injuries of the body generally, either the 
 actual reduction in the earning capacity must merely be guessed at in 
 the most haphazard fashion, or, really, cannot be estimated at all. In 
 the case of the eye^ however, the matter is different. When an eye is 
 injured, an experienced oculist can (as a rule to which there are 
 scarcely any exceptions) determine the quantum of injury (i. e., the 
 reduction of earning capacity) with well-nigh mathematical accuracy. 
 Nevertheless, owing to the fact that a proper formula had not yet 
 been worked out, the accurate estimation of the loss of earning power 
 was, even in a case of ocular injury, by no means possible until very 
 recent years. Now, however, thanks to the labors of Zehender,' 
 Groenouw,^ Heddgeus,^ Jatzow, Josten, Hansel, and, most of all, to 
 Magnus,^ of Breslau, and Wiirdemann,^ of Seattle, the subject of 
 "Visual economics" has been developed into a useful and, every- 
 thing considered, extremely accurate science.* 
 
 1 Finally, he might be afflicted with an excellent memory, in support of which 
 paradox I cite the case of a gentleman who, a number of years ago, desired that I 
 permit him to copy the four smallest lines, together with the largest, of each of my 
 Snellen cards. He intended, he said, ' ' to take an examination for a railroad, ' ' and, 
 being "short" four lines, or thereabouts, to commit the top line and the bottom 
 four to memory. Thus fortified, he could read the bottom four lines of any card, 
 out of his memory, whenever he saw the top one. The company-doctor and I, he 
 said, had just the same identical cards. 
 
 2 For an entirely different view of this subject, see, in this Encyclopedia, 
 "Visual economics," a very thorough article by Dr. E. E. Holt. 
 
 3 These men have proposed formulas ; the others mentioned have proposed no 
 formulas, but have rendered yeoman service in connection with "Visual econom- 
 ics ' ' nevertheless. 
 
 4 The classical work on the subject is ' * Visual Economics, ' ' by Magnus and 
 Wiirdemann, Seattle, Wash., 1902. So exhaustive and so accurate, in fact, is this 
 little book of 115 pages, that but little apparently remained for subsequent writers 
 on the topic of "Visual Economics" to do, but to amplify or to abridge that 
 epoch-making book. Dr. E. E. Holt, however, has added to the subject much that 
 is novel and interesting. The reader who desires to study the subject thoroughly, 
 is, therefore, referred to the book in question as well as to the major article of 
 Dr. Holt: all that is here attempted is an abstract of the Magnus-Wiirdemann 
 volume. Moreover, whenever possible within the limits of this article, I permit 
 the authors of that treatise to speak in their own words. 
 
 73 
 
OPHTHALMIC JURISPRUDENCE 
 
 Passing by the formulas of Zehender, Groenouw, and Heddaeus, 
 which have been supplanted entirely by that of Magnus and Wiirde- 
 mann, I will state the latter formula at once, and then proceed to 
 an explanation of the means whereby that formula is ophthalmo- 
 logically and mathematically deduced. 
 
 The formula itself. — The complete formula, then, for the ocular 
 earning ability, is as follows: 
 
 -^^ — - VP VM. 
 
 Now, while this formula, at first sight, appears a little complicated, 
 it is reallj^ rather simple, as will readily appear from the forthcomJng 
 explication. Moreover, as Magnus and Wiirdemann state,^ "If we 
 try to simplify the complicated relations they could only be forced, 
 and an arbitrary speculation substituted for its [the formula's] own 
 composite character." Then, too, this formula is not by any means 
 supposed to be presentable to a jury, but only its results; as, for in- 
 stance, that the earning power of the plaintiff in the particular case 
 at bar has been reduced, in consequence of the injury of which he 
 complains, by 42 per cent. Exactly what amount this percentage of 
 reduction would be equivalent to, expressed in dollars and cents, would 
 be for the jury to compute, and, indeed, they ought to be equal to so 
 very simple an arithmetical task. 
 
 The method whereby the formula is ohtained. — The formula in ques- 
 tion is based upon the supposition (which surely is not refutable) that 
 "injuries affecting the vision have a direct detrimental effect upon the 
 earning capacity." From this very simple proposition there follows 
 another, which is almost equally self-evident, namely, that "the earn- 
 ing ability ... is practically synonymous with the visual earning 
 ability." True it is that, in certain occupations, "such as banking" 
 and "some mercantile pursuits and professions where knowledge may 
 be assimilated through the eyes of others . . . some specially well 
 placed and talented individuals may continue to be economic factors;" 
 but these are great exceptions, and, in the vast majority of 
 cases, the blind are "incapable of earning anything" and are "a 
 charge upon their families and upon the community. ' ' 
 
 Now, it would seem, at first, to follow, from the second of these 
 propositions, that the "visual earning ability" was exactly synonymous 
 with "the visual working ability," i. e., that any reduction in the visual 
 acuity, or other functional ability of the eyes, would necessarily result 
 
 Magnus and Wiirdemann, Visual Economics, p. 53. 
 
 74 
 
OPHTHALMIC JURISPRUDENCE 
 
 in a loss of the ability to follow a gainful occupation. This, how- 
 ever, is not at all the case, as will appear hereafter. Various ocular 
 incapacities can, in fact, exist, without the slightest loss of earning 
 power being occasioned thereby. However, more of this hereafter. 
 
 The factors ivhich constitute the earning ability. — In a normal per- 
 son the complete earning ability "is a composite quantity resulting 
 from three factors : 
 
 " (1) The unimpaired functional power of the bodily organs. 
 
 "(2) The technical knowledge which is necessary for the carrying 
 on of the vocation. 
 
 " (3) The ability of the individual to compete in the labor market." 
 
 The most important of these three factors is the normal functioning 
 power (devoid of sight, a person is, as a rule, altogether dependent 
 upon the bounty of others) ; a very close second in the matter of 
 importance, at least in very many occupations, is the preparatory edu- 
 cation, or technical knowledge; while, far in the rear, we find the 
 ability to compete. 
 
 In making out the formula which is to express the equivalents and 
 make up of the normal earning power, we designate that power itself 
 by E. Then we express the three elements of which that composite 
 quantity is made up, as follows: the functional ability, by F; the 
 technical knowledge, by V; and the ability to compete, by K. The 
 formula for the full normal earning ability is, then, this : 
 
 E =r F VVK 
 
 K, it is of course necessary to notice, is taken as a root, not as a full, 
 value. The reason for this is stated by Magnus and Wiirdemann 
 thus : "In this formula we put the two quantities, F and V, in their 
 full value and accept K as a root value. There would be nothing 
 changed in the total value of the formula itself because as the root 
 of 1 is always 1, and we regard F, V, and K as 1, it is immaterial for 
 the formula itself if we take one of the three quantities as a root or 
 not, but this proposition immediately changes when the part intro- 
 duced as a root grows smaller than 1, as happens in each ocular injury, 
 because the root of each genuine fraction is always greater than the 
 fraction itself. Thus the influence of K, after being introduced 
 
 K 
 as a root value, if it has fallen off by an injury to — cannot be 
 
 K 2K Z 
 
 any more — but must be greater, for instance, — Therefore, the 
 
 Z Z 
 
 damage to the total value of the formula will be smaller if we take K 
 
 75 
 
OPHTHALMIC JURISPRUDENCE 
 
 as a root value. By the total elimination of K the earning ability- 
 will not be diminished, but it will be by a smaller damage, according 
 to the influence the damage of K shall exercise upon the value of the 
 total formula. We will have to choose the exponent of the root as 
 smaller or greater, according to its rating. The value of a root of a 
 genuine fraction is much greater if its exponent is small. Therefore, 
 if we vi^ish to lower it considerably, we take a small, if we wish to 
 affect it less, a greater exponent for K. AVhile the ability to com- 
 pete, K, is comparatively very little impaired through minor ocular in- 
 juries, it is very much so through the loss of one eye; we suit these 
 conditions by choosing a greater exponent of the root in slight in- 
 juries, but a smaller exponent for serious ones. We will adopt for 
 the slight injuries K as the 10th root and for serious ones according 
 to the demands of the profession, the 7th root or the 5th root. . . . 
 An exact calculation of such a changeable quantity so dependent 
 upon the individual cannot be made. The calculation of the com- 
 peting ability cannot be waived entirely, . . . but should include 
 all factors that are relative; as we will show further on, the peculiar- 
 ities of the individual case may always be considered. 
 
 "When we express the earning ability through the three factors, 
 F, V and K, we present E, not as a sum, but as the product of these 
 
 quantities, as multiplied thusly : E = F V V^, in which the exponent 
 x changes with the degree of the functional damage. E must always 
 be regarded as a product and not as a sum, to meet all possibilities 
 occurring in practice. If we add F, V and K, the formula would give 
 wrong practical results, as we see in the following example: Sup- 
 posing both eyes were lost in an accident, the quantity F of our 
 formula would be o. If we had connected F, V and K with the +, 
 
 and added, even if K would have become o, V -f- ^/K, which is the 
 remainder of the earning ability, would have been left. This would 
 be entirely wrong, because a laborer who has lost his functional abil- 
 ity, especially the sense of sight, should be regarded in an optical way 
 as entirely unable to earn. Taking the same example and using our 
 formula with F:=o, E imm-ediately becomes o, because each product 
 is always o if one of the factors is o. If we would leave V out of 
 our formula, E of course =o, and actual practice confirms this, be- 
 cause even the most simple hand work requires a certain am.ount of 
 preparatory education. Finally, if we drop the third factor, the 10th 
 root of K, the normal earning ability according to our formula be- 
 comes 0, which is likewise shown by practical experience, because, 
 even though an individual is in good health and by reason of pre- 
 paratory education has the skill to work, if his work is not needed, 
 
 76 
 
OPHTHALMIC JURISPRUDENCE 
 
 his economic value is nil. He may possess the power of working, as 
 the factors F and V are present, but he only has earning ability when 
 he can dispose of the work in the economic market. Therefore, if 
 
 X ■ X 
 
 from our formula (E == F V \/K) we take away the factor \^K (the 
 ability of the individual to dispose of his work), the remainder, Avhich 
 is the formula for the working ability (A), would be A = F V. 
 
 "The 'working ability' is not synonymous with 'earning ability,' 
 although some authors would have it so, for instance, Becker (5, 
 p. 9) : The words 'working ability' and 'earning ability may be re- 
 garded identical in meaning, because in each worker the latter de- 
 pends upon the former.' Even if this be so, the two conceptions are 
 not the same, and such a rendition obscures the conception of the 
 earning ability, our definition of which should be clearly understood. 
 
 "The calculation of injury to the earning ability proposed by us 
 
 starts from the formula for the full earning ability: E = F V V^." 
 The formula may be simplified by the absolute omission of the 
 factor V. Important as is this factor (the preparatory or technical 
 education) it will never itself be damaged directly by any ocular in- 
 jury. "Certainly the visual function may be diminished to such an ex- 
 tent that the realization of the technical knowledge becomes limited, 
 but this injury to the earning ability in such a case does not rest upon 
 a diminution of the knowledge and the capacity, but limitation of 
 their use. We calculate the extent of such limitation, according to 
 our method, directly by the factor F, i. e., from the performance of 
 the visual act, which is the essential factor in the full earning ability, 
 damage to which is synonymous with damage to the total. Calculat- 
 ing F we have already used V. For simplicity's sake it would be bet- 
 ter to omit V entirely. The working formula for the earning ability 
 
 then would be: E rr F VK." 
 
 As, however, we look at this simplified equation, the thought is 
 borne upon us that, before we can apply this formula for the estima- 
 tion of visual economic damage, we shall have to consider the various 
 elements of which F (the functionating ability of the eye) is com- 
 posed — for F is, undoubtedly, a composite, and not a simple, quan- 
 tity. F, in fact, is composed of : 
 
 1. The central acuity. 
 
 2. The visual field. 
 
 3. Light and color senses. 
 
 4. The adaptive faculty. 
 
 5. Muscular movements. 
 
 6. The cerebral processes. 
 
 77 
 
OPHTHALMIC JURISPRUDENCE 
 
 Again, however, we may simplify: undoubtedly not all of these 
 factors are necessary to be considered. The cerebral processes, for 
 example, may be left out, because in cases of injury to the brain suflQ- 
 ciently severe to affect the cerebral ocular centers, the damage is by no 
 means limited to these centers and the neurologist, instead of the 
 oculist, is called in. The sense for light and color, furthermore, and 
 that of adaption, are not to be considered separately, because an in- 
 jury limited to these functions is unknown. Such an injury is always 
 an implication in, or complication of, an injury to the visual acuity 
 or else to the visual field. When, therefore, we allow for damage to 
 the visual acuity or the visual field, we include the implicated injuries 
 to the light and color sense and to the power of adaption. Thus the 
 six constituents of F reduce themselves, in practice, to only three. 
 These three constituents stand to one another in the relation of fac- 
 tors of a product ; for, in the following of an occupation^ not a single 
 one of these factors could be left out. Devoid of any single one of 
 them, the possessor of the damaged eyes would have an earning power 
 of practically nothing whatever. The elements, therefore, should be 
 regarded as factors; not as the elements of a sum; in other words, as 
 X 1 X 1, and not as o -|- 1 -|- 1. 
 
 Perhaps the assertion that the leaving out, or rather the destruction 
 of any of the three important elements of F, would result in what is 
 practically complete annihilation of the earning power, should receive 
 a modicum of consideration. Let us first regard the element of cen- 
 tral acuity, which, for brevity, we may represent by the letter C. 
 Now, a person who has, in both eyes, lost C — i. e., is suffering from 
 a large central scotoma — sees absolutely nothing whatever at which 
 he directly looks. He can only see a given object by looking some- 
 Avhat away from it, and, under such circumstances, an artisan is 
 totally unable to work. Perhaps a person afflicted with a large central 
 scotoma might be able to earn a trifle as a messenger. Practically, 
 however, he is totally blind. If, again, a person, though retaining C, 
 has yet been deprived of all peripheric vision — which we shall repre- 
 sent by P — he also could not work at any trade, "as is readily seen in 
 cases of double-sided hemianopsia." Still further, if a working man 
 were to suffer complete paralysis of all the extrinsic muscles of both 
 of his eyes — in other words should lose what we shall represent by 
 M — he, also, would be totally disabled. The only visual act which 
 he could execute would be to "stare into vacancy," and see double. 
 He would also have no power to estimate distances or the size of ob- 
 jects. Even though he should close or cover one eye, and thus pre- 
 
 78 
 
OPHTHALMIC JURISPRUDENCE 
 
 vent the disconcertiug diplopia, the other eye would be immovable 
 and therefore useless in an economic sense. 
 
 Returning to our formula, before we substitute for F its factors, 
 and P and ]M, we must consider certain very significant matters which 
 are connected with these factors. In the first place, as to the relative 
 importance of these factors, C (the central visual acuity) is the most 
 important of all. Whatever reduces C below the lowest limits de- 
 manded by the kind of trade, or calling, in question, of course pro- 
 duces for that work a total disability. P (peripheric vision) clearly 
 comes next to C in importance, while, finally, there comes M. "With 
 regard to this factor M, furthermore, we have to consider the very 
 important fact that the effect of a paresis or paralysis of a single, or 
 of several, ocular muscles, is very different indeed, according as we 
 have to do with monocular or with binocular vision. Monocular 
 vision is, in fact, but little affected even by the complete paralysis of 
 a single extrinsic muscle. Such an affection merely diminishes the 
 motility of the eyeball. In binocular vision, however, the element of 
 diplopia enters in — a fact "of the greatest importance, as it excludes, 
 temporarily, at least, retention of working binocular vision." In the 
 construction of a formula, therefore, we treat the factor M in a dif- 
 ferent manner, according as we have in view binocular, or monocular, 
 vision. "In the formula for binocular vision we take the muscular 
 movements of each eye as the product of different factors, each of 
 which corresponds to the activity of a particular muscle. Now, if we 
 mark the muscles of one eye with (m^m^m^m'^m^m^) and those of the 
 other (m'^m'^m'Sm'^m'Sm'^) etc., we would represent the whole mus- 
 cular activity as (mimamsm^m^mg) (m^im^m'sm'^n^m^). In this 
 conception the whole product would be o, hy losing one single mus- 
 cular motion, and therefore the binocular act would be negative. In 
 monocular vision the muscular activity should be conceived as the sum 
 of the single performances, because, by losing one of them only, an 
 ocular detriment has been created and not total earning disability, thus 
 
 Still further, M and P should both be added to the formula as 
 root, not full, values, precisely as was done in the case of K (after- 
 wards omitted) and for exactly the same reason — i. e., the damage to 
 the total value of the formula will be smaller (which accords with 
 the less importance of M and P as compared with C). 
 
 In the words of Magnus and Wiirdemann again: ". . . the 
 value of the root of a proper fraction increases with the amount of its 
 exponent, thus, if we introduce M with a greater exponent of the 
 root than P, in the case of damage to M, it will exercise less influence 
 
 79 
 
OPHTHALMIC JURISPRUDENCE 
 
 upon the total value of the formula. We believe that we may place 
 the relative value of the visual field and the muscular movements by- 
 choosing as exponent of the root in the former 2, and in the latter 4. 
 Of course, these are arbitrarily chosen, as it is an undisputed fact 
 that the central visual acuity, peripheric vision and the muscular 
 movements have different meanings in the act of vision, the propor- 
 tional valuation of which cannot be put into figures from observation 
 nor from measurement, it is certainly allowable for the mathematician 
 or the physician to estimate the amounts of these exponents differ- 
 ently, but the formula itself will not be changed." 
 The formula, then, for binocular vision is as follows : 
 
 S2 = CVPV (mim2m3m4m5m6) (m^m'om'gm'^m'gm'g) 
 
 In this formula, C is the central visual acuity in the better eye. 
 The formula for monocular vision, however, is this : 
 
 S, = C V % P V 2/3 (m^ + m, + m3 + m, + m, + mj. 
 
 The fraction %, standing before P, denotes the fact that the monocu- 
 lar field of vision is % as extensive as the binocular. The value of 
 the muscular function is % less in monocular than in binocular vision ; 
 hence it is estimated at % the binocular value. 
 
 Economic limitations of C. — The economic limitations of the cen- 
 tral visual acuity are not identical with the scientific limitations of 
 the same faculty. This, at first, may sound a trifle startling, yet, on 
 due consideration, we find that the statement is true. Take for in- 
 stance the downward limitation. Science calls a person blind only 
 when the acuity has entirely disappeared. Economically, however, 
 an individual is blind when the acuity has become so low that the earn- 
 ing power is nil. Take, again, the upward limitation. Scientifically, 
 the acuity equals a hundred per cent, only in case the acuity is ap- 
 proximately 20/20. Economically, however, the acuity may equal a 
 hundred per cent. (i. e., permit of plenary earning capacity) although 
 it is only 20/30, 20/40, or even 20/50 or less. Much depends upon 
 the nature of the occupation, of course, some occupations requiring a 
 high, others only a low, degree of central visual acuity in order to 
 the possession of plenary earning power. However, there is hardly 
 any occupation which demands for its full and adequate exercise the 
 possession of scientifically perfect central visual acuity. Generally 
 speaking, we may say that an acuity of 1/20 is the extreme downward 
 limit of useful acuity in any occupation, and 20/30 the extreme upward 
 requirement. Further, the maximum and minimum limits do not have 
 
 80 
 
OPHTHALMIC JURISPRUDENCE 
 
 to exist in both eyes. If one eye possesses a minimum, the other may 
 possess less (even, in fact, as little as absolute zero) and still the acuity 
 of the eyes as a visual whole is up to the minimum requirement. Like- 
 wise, if one of the eyes possesses a maximum acuity, the other may 
 possess less (even, in fact, as little as absolute zero) and still the 
 acuity of the eyes a« a visual whole is up to the maximum require- 
 ment. Magnus and Wiirdemann divide the different occupations into 
 two groups — those requiring high, and those requiring low, degrees 
 of visual acuity, and specify a rather large number of trades and pro- 
 fessions belonging to each group. To each of the groups they assign 
 a maximum and a minimum C. Much as we deplore the inability, we 
 cannot reproduce such matters in this article, on account of lack of 
 space. 
 
 The economic limitations of P. — As in the case of C, so also in 
 the case of P, the scientific and the economic standards are not at all the 
 same. In the vast majority of callings, monocular limitations of the 
 field do not impair the earning power. Magnus and Wiirdemann, 
 following Schroeter, divide the binocular field into three zones of 30° 
 each. The first zone reaches from the outermost periphery to 60° ; 
 the second, from 60 to 30°, the third from 30° to the fixation-point. 
 These three zones are not of equal value in certain respects, yet, as 
 what zone 3, for instance, lacks in functional ability, it makes up for 
 by its greater extent, these three zones of P are accorded equal value. 
 By this conception, then, the entire binocular field of vision (exclusive, 
 of course, of what we have represented heretofore by C) consists of 
 three factors of equal value. Thus a loss of one eye entails a loss of 
 Yq the binocular field (no more than that, because of the overlapping 
 of the single fields in the binocular) and a homonymous hemianopsia 
 entails a loss of % = i/o. 
 
 Economic limitations of M. — The economic loss (in a person 
 possessed of binocular vision) arising from the impairment of a single 
 ocular muscle is very great indeed, because, diplopia appearing in con- 
 sequence of the injury, one eye must necessarily be excluded from 
 the visual act, in order that useful vision may be exercised at all. The 
 loss, therefore, economically, is exactly the same as that which results 
 from the destruction of one eye. In case, however, the subject was 
 possessed before the accident of monocular vision only, then a smaller 
 degree of economic loss should be imputed to the impairment of a 
 muscle in the seeing eye. In fact, in such a case, the economic loss is 
 approximately Yq. However, the six extrinsic muscles do not all pos- 
 sess exactly the same value, at least under any and all circumstances. 
 Thus, for a miner or a compositor, the rectus superior is especially 
 
 81 
 
OPHTHALMIC JURISPRUDENCE 
 
 important ; for a sailor, the rectus externus ; for a bookkeeper, a jeweler, 
 an oculist, etc., the rectus internus. For people generally, the rectus 
 internus possesses the most value.^ 
 
 Special consideration of the ability to compete (K). — ^When a 
 person's eyes are injured, the damage which has been done to him is 
 frequently two-fold : first, there is the actual impairment of the working 
 ability of the eyes; second, there is a diminution in the injured per- 
 son's chances of getting or of keeping a job. "Practical experience," 
 for example, "shows that a one-eyed person not only has more difficulty 
 in finding employment,^ but that in some factories his visual disorder 
 makes it difficidt for him to retain his employment. . . . The in- 
 jured person, therefore, has a right to claim not alone a compensation 
 for the impairment of his capacity for work, but also the difficulty 
 which he encounters in making the most of this capacity." Thus 
 Magnus and Wiirdemann. The courts, moreover, have begun to sustain 
 this view. Thus the highest tribunal in England, the House of Lords, 
 has, very recently, sustained it. "A workman who had lost the sight 
 of one eye from an accident was subsequently able to obtain work be- 
 cause the defect in his sight had not been observed. As the result, 
 however, of a second accident the blind eye had to be removed and he 
 was thus prevented by the obviousness of the defect from obtaining 
 work. By a majority of two to one the Court [of Appeals] held that 
 the words 'incapacity for work' in the Workmen's Compensation Act 
 must be interpreted strictly, and that the man was not entitled to com- 
 pensation from his employer for the second accident, because his in- 
 capacity for performing work was the same after it as before, in- 
 capacity for obtaining work only being the result of the second acci- 
 dent." ^ The case was taken to the House of Lords, and there the judg- 
 ment was reversed. ". . . the Lord Chancellor said that in his 
 opinion, in the ordinary and popular meaning of the words, there was 
 incapacity for work when a man had a defect which rendered his work 
 unsalable, in any market reasonably accessible to him, and that in like 
 manner there was partial incapacity when his work was rendered less 
 salable. The opposite view would leave a workman uncompensated for 
 what might be a real and direct consequence of an injury. The case 
 was accordingly remitted to the arbitrator for the assessment of com- 
 
 1 It is only now and then that injuries of the ciliary muscle affect the earning 
 power. By the use of convex lenses, the impairment can, in the vast majority of 
 occupations, be compensated. On this head see Encydopedie Francaise d'ophtal- 
 mologie, Paris, 1910, Vol. IX, p. 713. 
 
 2 We may remind ourselves in this connection that the inability to estimate 
 distances and the size of objects, which occurs at once after the loss of an eye, 
 endures but a very sliort time — certainly in adults not more than six or eight 
 months and in children two or three weeks. 
 
 s See "Journal of the American Medical Association," June 29, 1912. 
 
 82 
 
OPHTHALMIC JURISPRUDENCE 
 
 pensation." Now, this ability to compete (K) is composed of two ele- 
 ments: 1, the applicant's visual powers; 2, the judgment which the 
 prospective employer will probably form concerning these powers. 
 As to the first of these elements, we express it, in the formula for K, 
 under normal circumstances, exactly as we expressed the normal act 
 
 of vision (i. e., C V PV M), "but in the case of accidents the impaired 
 value of the act of vision should be put in as the lowest value in the 
 root. ... we have given the reasons for accepting the ability to 
 compete as the lowest value and we have likewise shown that the ability 
 to compete is of less value in the formula for the earning ability E 
 than the other factors, i. e., it has a smaller influence upon the value 
 of E than the others. We have, therefore, adopted the ability to com- 
 pete, K, as a root value. For, if K be reduced by an impairing of the 
 
 K 
 
 act of vision, it becomes a proper fraction, for instance, — . Now the 
 
 z 
 root of a proper fraction is always greater than the fraction itself; 
 the value of K after the impairment if it is taken as a root value cannot 
 
 K 2k 
 
 any more be — , but it must be greater, for instance, — . By taking K 
 
 z z 
 
 as a root, its value, in the case of a visual impairment, is greater than 
 it would have been if K without root would have been taken into the 
 calculation. And as the amount of the earning ability is directly fixed 
 by the amount of the ability to compete, K exercises less influence upon 
 the earning ability than the other factors, as soon as we insert K as 
 root in the formula for the earning ability. The full formula being: 
 
 V K=^S, V P V m." 
 
 As to the second of the elements which go to make up K, i. e., the 
 part depending on the judgment of the employer, that part is expressed 
 by the exponent of the root which is chosen for K. "If we think that 
 the esthetic differences between simple blindness of the scientific stand- 
 ard without injury to the looks of the eye and the loss of the eyeball, 
 or, for instance, the formation of a bad-looking eye, as leucoma or 
 staphyloma are greater, we may give expression to our opinion by 
 choosing a great root exponent for the ability to compete in the case of 
 simple blindness without deformity. By leaving the selection of the 
 root exponent to the judgment of the calculator, sufficient room is 
 given to the individual conception of each case; thus our formula 
 adapts itself to the peculiarities of the individual case and to the judg- 
 
 83 
 
OPHTHALMIC JURISPRUDENCE 
 
 me7it of the phyfiicmn, avoiding thereby a rigid form and doing justice 
 to both parties." In view of the fact that we are often "in the peculiar 
 position of estimating an ocular impairment of the ability to compete 
 when there is no real defect of working vision," (for instance, in the 
 case of a man with a bad-looking leucomatous eye, whose acuity is, say 
 .25, while the fellow eye is absolutely normal) "we express the diminu- 
 tion of the ability to compete in all cases by the arithmetical propor- 
 tion of the visual acuity of both eyes. ' ' In the case of the leucomatous 
 individual just supposed, the numerical expression for the ability to 
 compete would be : 
 
 ■;i 
 
 1 + 0.25 
 
 "2 — ^/ P V (mimom3mim.^ra,j) (m'lm^m'gm'^m'.m'e) " 
 
 Because of lack of space, we cannot here enter into the numerous 
 and ingenious applications of this formula which are furnished by Mag- 
 nus and Wiirdemann, though these are extremely interesting and in- 
 structive. We can only say, in bidding farewell to the formula in 
 question, that, though such an extremely elaborate hieroglyphic is by 
 no means presentable to a jury, or, indeed, to corporation management, 
 except in isolated instances, yet that the ophthalmo-surgical expert who 
 has mastered the subject of "visual economies" and particularly the 
 comprehensively scientific formula which we have been discussing, 
 namely : 
 
 Ci + C, _4 — 
 
 s — -" V P V M. 
 
 E = C (max.) V P V M 
 
 will find himself indubitably better able to wrestle with the question as 
 to what degree of economic loss has been sustained by a given person 
 in consequence of some particular injury. 
 
 Questions of a general nature relating to the power of vision. 
 
 Questions under this head are chiefly these: (1) As to the possi- 
 bility of recognizing persons ^ and objects under various sorts of cir- 
 
 1 In this connection, the following, extracted from The Law and The Doctor, 
 Vol. II, p. 39, may prove interesting : " * * * the physician, testifying as to 
 the possibility or impossibility of a certain act or thing, should remember that his 
 evidence may be rebutted by testimony of a witness that he has performed the act 
 or accomplished the thing which the expert has testified to be impossible. A case 
 illustrating the pertinence of this suggestion was related to the author some 
 years ago by a lawyer who was present at the trial. Two men had broken into 
 the house of an old couple at night and entered the sl3eping-room. The old 
 people were awakened by the noise. The old lady, rising up, took her glasses from 
 the head-board of the bed, and, by their aid, claimed to have recognized the men 
 
 84 
 
OPHTHALMIC JURISPRUDENCE 
 
 cumstances by ordinary daylight; (2) by a gleam of lightning; (3) by 
 the flash of a pistol; (4) by moonlight; (5) by starlight. 
 
 1. By ordinary daylight. The perception and also the recogni- 
 tion of persons and things by means of the sense of sight depends on 
 the size of the object, its brilliancy, its distance from the observer, the 
 clarity of the atmosphere, the observer 's familiarity with the person or 
 object to be perceived, his position with respect to the sun (i. e., 
 whether gazing squarely or partly toward, or directly away from the 
 sun) the intensity of the illumination which is shed upon the object, 
 and, finally, the acuity of vision on the part of the observer. The ordi- 
 nary test for the acuity of vision is this : The subject is placed at a dis- 
 tance, generally, of 20 feet (6 metres) from a card, chart, or board, on 
 which are printed lines of isolated letters (i. e., letters unrelated in 
 sense) of varying sizes, all the letters of a given size being printed, as 
 a rule, in one and the same line, and a certain proportionate relation- 
 ship subsisting between each letter and every other letter on the card. 
 This proportionate relationship is based, according at least to the 
 method most generally employed, upon the principle that the minimum 
 visual angle is precisely one minute. Each letter, in whatever line, is 
 constructed of blocks, or units, each of which subtends, at the distance 
 indicated by the number of the line in which the letter occurs, an angle 
 of exactly one minute. A whole letter subtends, laterally as well as 
 vertically, an angle of 5', being composed laterally and vertically, of 
 five of the constituent blocks, or units. Now, the line numbered 20 
 should, as already hinted, be read by the average normal, unassisted 
 eye at a distance of 20 feet — i. e., the distance at which the test is ordi- 
 narily conducted. The line numbered 15, is supposed to be read by 
 the same kind of eye at 15 feet; that numbered 10, at 10 feet. The 
 line that bears the number 30 should be read at 30 feet, and so on from 
 line to line of larger and larger type till the line numbered 200 (which 
 is generally the largest used) is reached — a line which should, of 
 course, be read throughout by the average normal, unassisted eye at 200 
 feet. If the subject reads at a distance of 20 feet the line numbered 20, 
 
 just as they shot and killed the husband. Upon trial of the accused, the defense 
 introduced an oculist who testified that he had examined the eyes of the old lady 
 and the glasses in question, and that it was a physical impossibility for her to 
 recognize a person by the aid of those glasses at the distance at which it was 
 testified the murderers were, as the lenses of the eyes and the glasses could not 
 focus at that point. Counsel for the prosecution, in rebuttal, identified the 
 glasses in question, asked the old lady to take the witness stand, and caused several 
 men, including the accused, to stand in front of her at the distance testified; 
 thereupon he handed her the glasses and asked her to 'pick out the men who shot 
 your husband.' After adjusting the glasses, she peered into the faces of the 
 several men until she came to the accused, when she promptly identified them as 
 the men who had committed the crime. ' ' 
 
 85 
 
OPHTHALMIC JURISPRUDENCE 
 
 we express the vision of that eye thus: Vision (or simply V) — 20/20 
 (20/20, of course = unity, or normal). If the subject can read with 
 the given eye at 20 feet nothing smaller than the line numbered 30, 
 his vision = 20/30, or % the normal. If the line numbered 15, then 
 20/15, or 33^ per cent, better than even the average, normal, unas- 
 sisted eye — a power of vision which is now and then found. Thus, the 
 distance at which the subject reads is always the numerator of the frac- 
 tion which expresses his visual power, and the number of the line that is 
 read is the denominator. If the sight is normal this fraction =: unity 
 (20/20) ; if less than normal, the fraction is a proper fraction, and, if 
 more than normal, an improper one. The vision of the two eyes to- 
 gether, assuming that the sight of each is fairly good, and that it is 
 much the same in each, as in the other eye, is often a little better (a 
 fraction of a line, in fact) than that of the better eye alone. 
 
 Inability to read Snellen's line numbered 20 at a distance of 20 
 feet (i. e., subnormal acuity) may arise from errors of refraction 
 (which, in almost every instance, are correctable by glasses) by ob- 
 struction to the passage of the light through the eye to retina and optic 
 nerve (as by any opacity in the cornea, the aqueous humor, the lens — 
 cataract — or the vitreous body) by pathological conditions of the retina 
 or optic nerve, the optic chiasm, the optic tract, or, finally, the cerebral 
 portion of the visual apparatus. 
 
 Assuming, now, that the eye has normal acuity of vision (naturally, 
 or after correction by means of lenses in case subnormal acuity is due 
 to an error of refraction) how far can such an eye (an eye, that is, 
 with 20/20 acuity) perceive a man of ordinary height, out of doors, by 
 ordinary solar illumination? According to various experiments, such 
 an eye perceives an ordinary man, in ordinary attire, on level ground, 
 (assuming the observer himself to be a man of ordinary height, and 
 with the sun not in his eyes) at a distance of 31/2 miles. Brilliant at- 
 tire, exceptional clarity of atmosphere, very abundant sunshine, and 
 unusual stature in either the observer or the observed, may, combined, 
 increase the distance by as much as perhaps a quarter of a mile. On the 
 other hand, dense fog, diminished illumination, rough ground, and 
 diminutive stature in either the observer or the observed, reduce the 
 distance greatly ; in fact, a fog alone may reduce it to a very few feet. 
 
 Different, indeed, is the power to recognize from the ability merely 
 to discern. Here, also, two new elements come in : First, presence or 
 absence of personal peculiarities in the observed ; second, the knowledge 
 or the lack of knowledge concerning these, on the part of the observer. 
 Persons with marked peculiarities can be recognized, in broad daylight, 
 by those who know them well, at 110 yards (100 metres). A person 
 
 86 
 
OPHTHALMIC JURISPRUDENCE 
 
 of marked peculiarities can be recognized by one who knows him only 
 slightly, at 70 to 80 yards. A person devoid of peculiarities can be rec- 
 ognized by a person well acquainted with him, at about 70 or 80 yards. 
 Finally, a person devoid of marked peculiarities can be identified by 
 those who are only slightly acquainted with him, only at the rather 
 surprisingly short distance of 25 to 35 yards. 
 
 As to the smallest objects visible to the unassisted eye, it may be 
 observed that lines (not, of course, in the geometrical sense) are more 
 perceivable than are squares, circles, triangles and the like, presenting 
 the same identical extent of surface to the eye. The smallest black 
 square on a white ground, or white square on a black ground, that can 
 be seen by the normal human eye, under ordinary (indoor and indirect) 
 solar illumination, is about the 1/500 of an inch. Brilliant particles, 
 such as grains of gold-dust, can be perceived by the eye even when 
 presenting so little area as 1/1,125 of an inch. "Lines," as stated, are 
 more perceptibk than figures more compact. Thus, opaque threads, 
 held between the naked eye and a window can, b}^ ordinary, indirect 
 solar illumination, be discerned though onlj^ 1/4,000 inch in diameter. 
 
 2. By lightning. The question has arisen, especially in criminal 
 trials, as to the possibility of recognizing a person when the only illumi- 
 nation consists of a gleam of lightning. It arose, for example, in the 
 thread-bare, if also classic, instance of the lady who, returning home 
 from India, declared that she saw distinctly, and could afterward 
 identify, a man who was "robbing her trunk in the cabin of a vessel, 
 on a dark night. ' ' Tidy ^ declares ' ' that a flash of lightning is in many 
 cases, but by no means in all, amply sufficient for purposes of identifi- 
 cation. ' ' Further, that he ' ' was able on one occasion to detect a black 
 hair-pin on the ground by a flash of lightning, and to pick it up when 
 the next flash came. ' ' 
 
 3. By the flash of firearms. The possibility of recognition by 
 means of the flash of a firearm has also formed the ground of questions 
 asked at a number of criminal trials. On this head there is little satis- 
 factory information, thus far, to be obtained. Cauvet, however, cited 
 by Allen McLane Hamilton, ^ sets forth the following conclusions as 
 having been drawn from experiments conducted by him: "(1) That 
 the person firing a pistol may be recognized if the observer is placed 
 very near him — say five paces — and at the side of the line of fire; (2) 
 that he may be recognized when the discharge has been in a close place 
 of small dimensions, and the observer is in a stooping posture or squat- 
 
 1 Tidy. Legal Medicine, New York, 1882, Vol. I, p. 213. 
 
 2 Hamilton (ed.) A System of Legal Medicine, New York, 1900, Vol. I, p. 191. 
 (Hamilton gives no further citation than merely the name of Cauvet.) 
 
 87 
 
OPHTHALMIC JURISPRUDENCE 
 
 ting^ (3) that the chance of distinguishing the person firing is affected 
 by the quality of the powder employed, the best English powder en- 
 abling the observer, when near or by the side of the person firing, both 
 to see and identify him." 
 
 4. By moonlight. A person with marked peculiarities, illuminated 
 by the best of moonlight, can be identified by an intimate acquaintance 
 no farther than 16 to 18 yards. 
 
 5. By starlight. Under the clearest starlight, however, no farther 
 than 3 to 4 yards. 
 
 Flashes of light ("stars" or "sparks") from blows on the head 
 cause no illumination of external objects; they are "subjective" 
 merely. No recognition of persons or things in the external world is, 
 therefore, possible by means of them. The matter would hardly seem 
 to be worth mentioning, but the question has been actually asked of 
 expert witnesses. 
 
 The condition of the eye after death. 
 
 The special significance of the ocular signs of death arises from the 
 fact that, in lego-medical investigations, it is now and then desirable to 
 determine as nearly as possible the fact of death and, occasionally, the 
 very time of death. ^ In ordinary circumstances, the presence of death 
 is easy enough to make out. Even if a corpse is covered with a sheet, 
 there is something in the posture, or else in the motionless rigidity of 
 the limbs, that tells us almost unmistakably that death is b^low. Some- 
 times, however, the diagnosis of death is difficult ; then it is that we 
 need the assistance of art. 
 
 The signs of death relate to three periods: 1, The stage of transi- 
 tion ; 2, the cadaveric state ; 3, the stage of putrefactive processes. 
 These terms do not seem to require elucidation. 
 
 The signs in the stage of transition (to some extent also in the 
 cadaveric state) have reference to four sets of organs: 1, The circula- 
 tory system ; 2, the respiratory system ; 3, the voluntary muscular sys- 
 tem; 4, the eyes. 
 
 Only the signs relating to the eyes, of course, concern us here, and 
 further, even these chiefly in the stage of transition. 
 
 1. The adnexa. The skin of the lids is pale, of course, as death 
 approaches, or actually sets in, excepting in certain diseases, but this 
 palpebral pallor is of very little value as a sign of death. What about 
 
 1 As a single instance of the necessity which now and then arises for estab- 
 lishing with the utmost accuracy the very moment when death takes place, we may 
 mention the case where the descent of property down one line or another, depends 
 upon the answer to the question of whether A died first or B. 
 
OPHTHALMIC JURISPRUDENCE 
 
 the open or closed condition of the lids? Much discussion has been 
 wasted on this question. The matter as a whole, however, may be 
 summed up thus: In cases of "natural" death (i. 6., gradual dissolu- 
 tion as a result of disease) the lids are as a rule, just about half open, 
 both during the stage of transition and also in the cadaveric state. 
 Hence, in fact, the well-known necessity of "closing the eyes of the 
 dead." In cases of drowning, on the other hand, the lids are apt to be 
 puffed (edematous) and more or less tightly closed, while, after sud- 
 den death from gun-shot wounds, the lids stand widely apart. To all 
 these rules, however, there are numerous exceptions. 
 
 A deep groove, in the cadaveric state, appears between the upper 
 lids and the eyebrows, but this appearance, too, is not to be regarded 
 as a positive sign of death ; for it sometimes shows itself when death 
 has clearly not occurred, and, on the other hand, is often absent even 
 when the body as a whole has well advanced into the stage of putre- 
 faction. 
 
 2. The globes. The eyeballs, always in the cadaveric state and 
 almost always in the stage of transition, retract, and this sudden or 
 gradual drawing backward of the eyeballs into their sockets, imparts 
 to the death agony one of its most nearly characteristic features. Never- 
 theless, as a certain sign of death, the retraction of the globes is not at 
 all to be trusted. The phenomenon, in fact, occurs in people who, 
 though very sick, recover, and, on the other hand, in a certain propor- 
 tion that die, the appearance is either not noticed at all, or else is 
 very slight. In the stage of transition the retraction is due to spasm 
 of the extrinsic muscles; in the cadaveric state, to rigor mortis of the 
 same parts. When deferred till the cadaveric state it is one of the 
 earliest symptoms of that condition, for rigor mortis almost invariably 
 sets in first either in the heart muscle or in the extrinsic muscles of the 
 eye. 
 
 The direction which is given to the globes by the passage from 
 life into death is such that the optic axes are rendered parallel or even 
 a little divergent. This is the ' ' staring into vacancy ' ' of the novelists. 
 This sign, too, is not reliable as an indication of dissolution, because it 
 often occurs in serious illness without death, while, on the other hand, 
 an actual convergence of the visual axes has been observed, though 
 rarely, after undoubted dissolution. 
 
 3. The conjunctiva and cornea. These structures become insensi- 
 ble very early in the stage of transition, but, because the same thing 
 happens so often in serious diseases, the sign is absolutely worthless. 
 The cornea, it is barely worth mentioning, retains its sensibility longer 
 than does the conjunctiva. 
 
 89 
 
OPHTHALMIC JURISPRUDENCE 
 
 The thin gelatinous film which forms upon the cornea as a person 
 dies, is one of the more impressive phenomena of dissolution, furnish- 
 ing indeed, as it does, the most important element of "the finely ruined 
 eyes of death," When this film is seen to form, a person is almost 
 surely dying. And yet, after all, not quite surely, for, as a fact, the 
 same identical phenomenon has been witnessed in the living — for in- 
 stance, in the course of serious cases of typhoid, of meningitis, and 
 various cerebral affections — who afterward recovered. However, in 
 the living, it is almost always accompanied by the tell-tale symptoms 
 of active inflammation, whereas, in the dying and the dead, the ex- 
 sanguinated vessels of the sclera and conjunctiva give an opposite 
 account. 
 
 The film in question is very delicate and fragile, and easily wiped 
 away. It seems to consist of lymph and other fluids, which exude 
 through the ocular tissues. 
 
 Wrinkling of the cornea has also been set up as a characteristic sign 
 of death. It seems to be dependent on the same transudation of intra- 
 ocular fluids that results in the formation of the corneal film. As a 
 result of this transudation, the intraocular tension diminishes, and so 
 the cornea wrinkles. The wrinkling seldom becomes detectable till the 
 corneal film has pretty plainly formed, hence the sign in question is a 
 characteristic of the cadaveric state rather than the stage of transition. 
 Its value as a sign of death is therefore subordinate. 
 
 4. The sclera. The lethal discoloration of the sclera has been al- 
 leged (like all the other ocular manifestations of dissolution) to be an 
 absolutely certain sign of death. This sign, however, considered alone, 
 is worth but little more than any of the other signs, perhaps not quite 
 so much as some of them. It possesses the advantage (which is also 
 in some respects a disadvantage) of appearing very early. In fact, in 
 cholera patients it appears as early as eight hours prior to death. It 
 consists of a blackish discoloration, which first appears in the outer 
 scleral triangle, i, e., the space which lies between the outer margin of 
 the cornea and the two lid margins as far as the outer canthus. Next 
 it appears in the inner scleral triangle. Finally, it forms in the por- 
 tion of the sclera that is covered by the upper, and then in that which 
 is covered by the lower lid. It appears more rapidly and more certainly 
 in a warm than in a cold room, and is very often seen in those who die 
 of phthisis pulmonalis and typhoid fever. It is said to consist partly of 
 subconjunctival eechymosis and partly of choroidal pigment. Its na- 
 ture, in fact, has never been exactly determined. 
 
 5. The iris. When a person dies, does his pupil contract or dilate ? 
 The question would seem to be a simple one, and one very easy to 
 
 90 
 
OPHTHALMIC JURISPRUDENCE 
 
 answer. Nevertheless, a great deal of bitter controversy has been 
 waged about this easy-seeming inquiry. We cannot here afford to re- 
 vive a discussion which has never appeared to be profitable, and which, 
 besides, has given excellent proofs of its own dissolution. However, it 
 seems to be pretty well settled that, at the very moment of death, the 
 pupil, in the vast majority of cases, dilates. This dilatation, however, 
 continues for a few hours only ; with the setting in of rigor mortis, the 
 pupil contracts. For one hour after death the pupil responds to eserin 
 and atropin ; but not for any longer time. It responds to galvanism, in 
 many eases, for as long as five hours. 
 
 6. The fundus. If, at the time of death, or a little while there- 
 after, the gelatinous film upon the cornea be removed by first moisten- 
 ing it and then wiping it away, the ophthalmoscope can be employed to 
 some advantage. By means of this instrument it has been determined 
 that, at the moment of death, sudden and very striking alterations take 
 place in various portions of the fundus. The papilla becomes anemic, 
 as it were in a flash, and the reddish color of the remainder of the field 
 turns from the normal red or pink almost as suddenly to a sickly yel- 
 low. The arteries disappear entirely, and the veins become much 
 smaller, and rather irregular and broken. In all this, however, there 
 is nothing absolutely declaratory of death ; similar conditions have been 
 observed in syncope and lethargy. 
 
 Is there, then, no ocular symptom at all that will serve as an in- 
 disputable sign of death? There is absolutely none. However, when 
 taken as a whole, the ocular signs of death are well-nigh incontestable, 
 especially when supported by tests of general character, such, for in- 
 stance, as failure of the heart and lungs to respond to stethoscopic ex- 
 amination, and failure of a finger to become cyanotic after a ligature 
 has been tightly placed around it. Still more certain, of course, are 
 such signs as general rigor mortis, cooling and suggillation (post- 
 mortem lividity) while, as an absolutely undeniable indication of death, 
 comes putrefaction.^ 
 
 Post-mortem optograms. — Among the laity there obtains a be- 
 lief that the retinas of those who have perished by assassination retain 
 for some time a photographic image of such persons as last appeared 
 before the eyes of these murdered people. A large number of motion- 
 picture plots have, in fact, been built upon this conception. In this 
 idea, however, there is only the merest shadow of an atom of truth. 
 Veruois (in 1870) having made some photographs of a murdered man's 
 
 1 Perhaps it may be as well to remind ourselves that the earliest sign of decay 
 is a spot of green on the belly, generally in the neighborhood of the umbilicus. 
 Of the internal organs, the liver is, as a rule, the first to decay, the uterus the last. 
 
 91 
 
OPHTHALMIC JURISPRUDENCE 
 
 retina, thought that his pictures exhibited the figures of a man and a 
 dog in the very attitude and posture of attack. These photographs he 
 displayed with some pride to the Society of Legal Medicine in France, 
 and, in fact, to many other physicians in other places; but, unfor- 
 tunately, he never quite succeeded in getting any other medical person 
 to believe that the pictures represented a man and a dog. In fact the 
 pictures, if such they were, were altogether too vague and indefinite 
 to be of any practical service in the detection of evil-doers. 
 
 Kiihne, of Heidelberg, later placed gratings in front of rabbits, 
 then killed the rabbits very suddenly and, without any delay whatever, 
 proceeded to make a photograph of the retinas of these animals. Very 
 distinct pictures of the gratings were in some cases secured. How- 
 ever, the killing of the animals had to be practically instantaneous, and 
 the making of the photographs well-nigh as rapid. A man who, by 
 methods such as these, could make successful pictures of murdered 
 people 's retinas would have to be upon the scene in ample time to catch 
 the murderer by a very much simpler plan. 
 
 The ocular signs of sleep. 
 
 Sleep is sometimes simulated, but the fraud is easily found out. 
 The eyeballs in genuine sleep, for one thing, are nearly always abso- 
 lutely motionless, whereas, when the sleep is only feigned, the globes 
 are seen to move about a little beneath the closed lids. If an upper lid 
 be lifted, the fact will be observed, in genuine sleep, that the pupils are 
 very small, while, as the subject wakens, the pupils dilate extremely 
 wide, even in the presence of strong light. 
 
 Ocular indications of poisonimg, burning, etc. 
 
 The effects of the commoner poisons on the eye may be very 
 briefly stated as follows : 
 
 Alcohol. — Conjunctival injection and swelling, both in acute and 
 in chronic poisoning. In chronic poisoning, there is present, in addi- 
 tion, a paresis of the orbicularis palpebrarum, combined Avith anesthe- 
 sia of the cornea, so that involuntary winking is almost entirely 
 abolished; hence, "the fixed, unwinking stare" of the hard drinker, 
 when sober as well as when drunk. 
 
 Arsenate of copper. — This chemical is employed in the manufac- 
 ture of artificial flowers, confectionery and in fancy baking. The 
 ocular symptoms produced by this substance in those who work there- 
 with habitually, are conjunctivitis and swelling of the lids. 
 
 Belladomva and atropin. — Swelling of the lids, excessive lustre of 
 
 92 
 
OPHTHALMIC JURISPRUDENCE 
 
 the eomeae, mydriasis, and paralysis of the accommodation. Esoph- 
 thalmia has been observed, as a result, no doubt, of paresis or paralysis 
 of the recti, together with a similar condition of the orbicularis, per- 
 mitting the lids to be widely separated by the forward-pushing globe. 
 
 Chloral hydrate. — The prolonged employment of this drug produces 
 conjunctivitis and severe itching of the lids, inside and out. 
 
 Chloroform and ether. — During the stage of excitement, pupillary 
 dilatation. Thereafter, progressive pupillary contraction. In the 
 "surgical state" the pupils are immobile, as well as contracted. 
 
 Curare. — Exophthalmia, conjunctivitis, and excessive lacrimation. 
 
 Digitalis. — Exophthalmia, together with fixity of the visual axes 
 and conjunctival injection. 
 
 Illuminating gas.^ — Diminution of visual acuity, with contraction 
 of the visual field; dilatation of the retinal veins and contraction of 
 the arteries. Persistent bilateral hemianopsia after recovery, has been 
 recorded. There is sometimes paralysis of the various ocular muscles, 
 extrinsic and intrinsic, accompanied or unaccompanied by exophthal- 
 mia. When the recti are paralysed, there is always exophthalmia. 
 
 Naphthol-B. — When used for a considerable length of time, even 
 externally, this drug not infrequently produces cataract and various 
 alterations in the choroid and retina. 
 
 Nicotin. — Exophthalmia and corneal brilliancy. 
 
 Opium and its alkaloids. — ]\Iyosis and spasm of the accommoda- 
 tion, together with dimness of the cornea — producing the so-called 
 "fishy" look. 
 
 Prussic acid. — Exophthalmia and diplopia. After death, the eyes 
 are fixed, prominent and wide open, and are possessed, furthermore, of 
 a singularly life-like expression. 
 
 Quinine. — This drug sometimes, in excessive doses, produces a pe- 
 culiar fundus condition known as "quinine amaurosis." There is ex- 
 treme contraction of the retinal arteries, and the papilla is very white. 
 Recovery not infrequently occurs, but there is often a permanent peri- 
 pheral contraction of the visual field. 
 
 Strychnin. — Prominence of the eyes and fixity of the visual axes, 
 especially during the convulsions. 
 
 Thyroid gland. — Optic neuritis, followed by optic atrophy. 
 
 Burning — After extraocular burns, the following ocular symptoms 
 
 1 ' ' Nearly one-half of the accidental poisonings in New York City in 1888-92 
 were by illuminating gas, and the same agent was used by suicides more frequently 
 than any other except paris green and ' rat poison. ' ' ' — E. A. Witthaus in Witthaus 
 and Becker's "Medical Jurisprudence, Forensic Medicine, and Toxicoloay," New 
 York, 1896, Vol. IV, p. 848. 
 
 93 
 
OPHTHALMIC JURISPRUDENCE 
 
 have been noted: retinitis, chorio-retinitis, retinal hemorrhages, neu- 
 ritis and optic atrophy. 
 
 Hanging. — Puffing and blueness of the eyelids, exophthalmia, 
 and conjunctival injection. Punctate eechymoses of the conjunctiva 
 have been observed, but not at all so frequently as after strangulation 
 and suffocation. 
 
 Strangulation and suffocation. — Before death: The eyes are livid 
 and prominent and there are often hemorrhages from the conjunctivae. 
 Subjectively, the vision is lost soon after the beginning of the process. 
 After death: Exophthalmos, redness of the conjunctivae, and minute 
 conjunctival eechymoses. The punctulation of the conjunctiva is said 
 to be well-nigh characteristic. 
 
 The ocular signs of identity. 
 
 Kather often, sometimes even in the dead, the eyes and their ad- 
 nexa afford most valuable indications of identity. These indications 
 may be classified as (1) anatomical, (2) pathological, (3) professional. 
 
 1. The anatomical signs. — These relate to the brows and lashes, 
 the lids, the irides, and the sclerotics. 
 
 The hrows are seldom characteristic of the individual, but they 
 often afford some slight indications of identity. Thus, as to the mat- 
 ter of color and texture, it is well known that the structures in ques- 
 tion vary from blond to black and from silky-fine to exceedingly harsh 
 and coarse. Years do not so often or so early alter the color of the 
 brows as they do the hair of the head. Af; to form, in some individuals 
 the brows are straight, in others arched; when arched, they take, in 
 some, a downward inclination at the outer ends, in others, an upward. 
 In some persons tliey unite at the root of the nose to form one single 
 band. 
 
 Changes in the color of the hair often occur naturally. Children's 
 hair gets darker with increasing age, while the hair of adults gets 
 lighter. 
 
 The eyebrows and lashes, as well as the head-hair, are now and 
 then colored artificially by those who desire to conceal their identity. 
 Oftenest employed for the purpose are the salts of lead, silver and 
 bismuth, in solution. The changes in color are due to the combination 
 of these metals with the natural sulphur in the hair, forming the dark 
 metallic sulphides. Lampblack, rubbed up with some fatty suostance, 
 is now and then used as a hair-dye. 
 
 The fact of artificial coloration of the hair is, as a rule, very 
 easily detected. If lampblack has been used, washing the hair with 
 ether will readil}^ expose both the fraud and the natural color of the 
 
 94 
 
OPHTHALMIC JURISPRUDENCE 
 
 hair, since, when the ether dissolves the fatty substance which acts 
 as a menstruum for the dye, the dye is no longer adherent to the hair, 
 but comes away in the ether, leaving the hair in much its natural con- 
 dition. 
 
 To detect the presence of a metallic dye, wash the hair in slightly 
 acidulated water; then test the water chemically for the presence of 
 the metals above-mentioned — lead, silver, and bismuth. 
 
 The microscope is often useful for the detection of artificial color- 
 ation of the hair. If fatty pigments have been employed, the micro- 
 scope reveals the presence of the fatty particles plainly. Sometimes, 
 too, this instrument shows places on the individual hair which the 
 dye has failed to affect. 
 
 The lashes are naturally pigmented either exactly like the browa 
 and the head-hair, or just a little lighter. They are dyed artificially in 
 the same way as the brows and the head-hair, and the fraud is, of 
 course, detected in precisely the same manner. 
 
 The lids afford a variety of signs. Thus, age is often indicated, 
 approximately, by the wrinkling of the lids, especially at the outer can« 
 thi (''crow's feet") and by the puffing of the lower lid especially 
 C money-bags"). The skin of the lids also thickens with age and be- 
 comes in color brownish or yellowish. 
 
 The iris is in infants nearly always of a light blue. In later child- 
 hood, however, it assumes thi3 particular color which it is to retain 
 throughout the whole life, excepting in senility, when the color 
 again becomes perhaps a trifle lighter. 
 
 Congenital anomalies of the irides, the chief of which are colobo- 
 mata, heterophthalmos (difference in hue of the irides in the same 
 person) have been considered in a former portion of this article. Suf- 
 fice it here to remind ourselves that such distinguishing peculiarities 
 are possessed of the utmost value as a means of establishing identity. 
 
 The sclera is in some persons yellow, in others bluish-white, in still 
 others clear white. These differences are often racial ; thus, the Jews 
 are noted for the perfect albugineity of their scleras. Some persons 
 possess, congenitally, spots of pigment in their sclerse, and these, of 
 course, possess much value as a means of identification. 
 
 2. The patJiological signs. — It would be improper to attempt to 
 mention all the pathological conditions in the various ocular structures 
 which, on occasion, could become of greater or less service in the es- 
 tablishment of identity. The chief pathologic signs, however, are the 
 following : -Scars of all sorts in the skin of the lids and brows ; ^ se- 
 
 1 Including, of course, the tattoos produced by explosions of fire-damp and of 
 gun-powder. On the methods whereby these important kinds of tattoos may be 
 
 95 
 
OPHTHALMIC JURISPRUDENCE 
 
 baeeous cysts; slit canalieuli; cicatricial conjunctivae, resulting from 
 trachoma ; Pinguecula ; pterygium ; cataract ,• the characteristic scars 
 produced by the various bulbar operations ; and, finally, the numerous 
 pathological appearances of the fundus. 
 
 We ought to add that lashes and brows — as well as the hair of the 
 head — have not turned white from grief or fear in a single night,^ 
 and, further, that hair is often much darker on its return after loss 
 during typhoid fever and other infectious diseases. 
 
 3. Professional signs. — The chief of these relate to the various 
 sorts of dust produced in the work of different occupations, and which 
 cling to lashes and brows, sometimes in spite of repeated washings. 
 Thus, for instance, coal-miners, chimney-sweeps, firemen, engineers, 
 and coal-heavers exhibit a dusting and staining of the brows and lashes 
 by coal or soot ; locksmiths show on the same parts a dust composed of 
 copper filings; blacksmiths have reddened sclerae and numerous minute 
 scars on cornea? and lids; millers and bakers carry flour in the same 
 situation, while marble-cutters and stone-breakers exhibit, as is well 
 known, on brows and lashes, a plentiful quantity of siliceous dust. 
 There are many other occupations which leave a characteristic powder 
 on the hairs about the eye, even the names of which it is not necessary 
 to mention. We should not forget, however, in this connection, the 
 tanned and thickened skin and yellowed and thickened conjunctivae 
 of outdoor workers, as well as the special liability of such persons to 
 Pinguecula and pterygium. 
 
 III. 
 
 OPHT H ALMO-S ANIT ARY LEGISLATION. 
 
 Ophthalmo-sanitary laws in the United States, 
 
 The laws enacted for the prevention of injuries to, and diseases 
 of the eye, are, in any country, "few and far between." Nevertheless, 
 
 distinguished, see that division of this article, entitled ' ' The commoner injuries 
 ■with which the ophthalmo-surgical expert has to deal." 
 
 The tattooing produced by explosions of fire-damp occurs not only in the skin 
 of the lids, but also on the conjunctiva of the palpebral, as well as the bulbar 
 portion. Thus, I had, at the time of writing this paragraph, under treatment, a 
 coal-miner, on the inner surface of whose right lower eyelid were plainly visible 
 several characteristic marks (ancient) produced by fire-damp explosions. There 
 was not a single spot of the sort in any other part of the eye, or of the fellow eye, 
 or even on the face or head. It would be quite possible to assert, with a high 
 degree of certainty, merely on the strength of these tiny marks, that the subject 
 was a coal-miner. 
 
 1 Hair has now and then appeared to turn white in a very brief space of time. 
 Thus, in a case that was known to the present writer, a lady, on the loss of her 
 daughter, decided to give up the "vanity" of dyeing her hair. When next she 
 
 9G 
 
OPHTHALMIC JURISPRUDENCE 
 
 such laws exist, and are most conveniently divisible, as regards America 
 at least, in these two main classes : 
 
 1. Laws devoted solely to the prevention of injuries to, and diseases 
 of, the eyes. 
 
 2. LaM'S which, though embracing other matters, nevertheless eon- 
 tribute partly or indirectly toward the prevention of such injuries and 
 diseases. 
 
 Neither of these kinds of laws can here be treated in extenso. 
 
 (1.) Among the most important of the first named enactments are 
 those relating to the prevention of blindness from ophthalmia neona- 
 torum. These are of Cleopatra-like variety — long, short, foolish, wise, 
 and every one imperfect. The first jurisdiction in which a law of the 
 character in question was passed was Maine (in 1891 — precisely ten 
 years after the announcement by Crede of his marvelous discovery ^ ) . 
 New^ York followed in 1892 (April 18) and, on the next succeeding 
 day (April 19) Rhode Island became a portion of the goodly com- 
 pany. In 1893 Minnesota, and, in 1894, Ohio and Maryland, fell in 
 line. Eighteen ninety-five was a veritable annus mirabiUs, no fewer than 
 six states passing ophthalmia neonatorum laws within that twelve- 
 month — a record which was only equalled in 1911. Today there is 
 hardly a state in the Union which does not show some law, either good 
 or bad, Avorkable or unworkable, on its statute books or session laws 
 with respect to the disease in question. But the quality of these laws? 
 That is a different matter. There is, however, scarcely a single law 
 which does not show forth some valuable provision. On the other 
 hand, there is scarcely a statute which does not show some serious 
 hiatus or fundamental misconception of the very situation which it 
 is the object of the law to improve. Some statutes place the entire 
 matter in the hands of the State Board of Health. Others are founded 
 Avholly upon the very mistaken supposition that blindness from the 
 disease in question is forever and eternally due to a fault on the part of 
 an ignorant midwife. Others require, and properly, that physician or 
 midwife, whichever has been in attendance at the birth, shall report all 
 cases of "inflammation of the eyes" to a public official — for example, 
 "the parish health officer," the drawer of the bill having apparently 
 believed that, the case once "reported," the eyes would get well of 
 themselves. The most important provision of all is, in fact, almost uni- 
 versally omitted — i. e., the provision that whoever presides at a birth — 
 
 presented herself among her friends her hair was the color it really had been for 
 many years — i. e., snow white. However, the lady in question at once (though inno- 
 cently) acquired the reputation of having become white-headed through grief in 
 a single night. 
 
 1 See, in this Encyclopedia, Crede, Karl Siegmund Franz. 
 
 97 
 
OPHTHALMIC JURISPRUDENCE 
 
 whether midwife or physician — shall use the Crede drops, and thus 
 render unnecessary the making of any sort or kind of report or the 
 institution of a/tiy other sort or kind of treatment. 
 
 For a thorough discussion of the laws relating to ophthalmia neona- 
 torum, as well as for a model law, the reader is referred to an article 
 by Dr. Frank Allport in this Encyclopedia, entitled Ophthalmia 
 neonatorum.! See, also, Blindness, Prevention of, Conservation of 
 vision and other pertinent headings in this Encyclopedia. 
 
 Leaving the subject of ophthalmia neonatorum, about which very 
 much more could be said, here is a very useful Connecticut statute, 
 which, so far as I know, has never been copied into the laws of any 
 other state.- "Every person, firm or corporation using stained, paint- 
 ed, or corrugated glass in factory windows, where the same is injurious 
 to the eyes of the workmen therein, shall remove the same upon the 
 order of the factory inspector." 
 
 The various laws requiring the use of Mowers, hoods, etc., in 
 connection with polishing machines, etc., have in view almost ex- 
 clusively the protection of the eyes. Nearly all the states possess such 
 laws at present, and, of these, the following from New Jersey may very 
 well stand as typical:^ "Sec. 14. All corporations, firms or persons 
 conducting a manufacturing business . . . where emery wheels or 
 emery belts of any description are used, either solid emery, leather, 
 leather covered, felt, canvas, linen, paper, cotton, or wheels or belts 
 rolled or coated with emery or corundum or cotton wheels used as 
 buffs, shall provide the same with blowers or similar apparatus, which 
 shall be placed over, beside or under wheels or belts in such a manner 
 as to protect the person or persons using the same from the particles 
 of the dust produced and caused thereby, and to carry away the dust 
 arising from or thrown off by such wheels or belts while in operation, 
 directly to the outside of the building, or to some receptacle placed so 
 as to receive and confine such dust ... 
 
 "Sec. 15. . . . Each and every such wheel shall be fitted with a 
 sheet or cast-iron hood or hopper of such form and so applied to such 
 wheel or wheels that the dust or refuse therefrom will fall from such 
 wheels or will be thrown into such hood or hopper by centrifugal 
 force and be carried off by a current of air into a suction pipe attached 
 to some hood or hopper. ' ' See, also. Blindness, Prevention of. 
 
 Thus much for the legal enactments in the United States tending 
 
 1 Also to an article by the same writer in Ophthalmology, for January, 1916. 
 
 2 General Statutes, 1902, sec. 4518. 
 
 3 Acts of 1904, chap. 64, sees. 14 and 15. (Several of the immediately suc- 
 ceeding sections are also interesting in the present connection.) 
 
 98 
 
OPHTHALMIC JURISPRUDENCE 
 
 toward the prevention of ocular injuries and diseases; and, truly, by 
 any one who investigates this class of our legislation at all thoroughly, 
 it is readily peri^eived that in this country there exists a very great 
 need of further determinate oplithalmo-sanitary legislation. For in- 
 stance, the sale of explosives for use on the Fourth of July and other 
 holidaijs should be much more carefully restricted, or, still better, 
 should be prohibited entirely. At present, nearly all such matters are 
 left to local ordinance, whereas each state should enact a statute on the 
 subject, and every state prosecutor should see that the law is strictly 
 enforced within his territorial jurisdiction. A civil statute, making the 
 seller of explosives to persons under age answerable in damages for all 
 injuries resulting from such sale, would exert, beyond question, an 
 extremely deterrent effect. Such a law, for one thing, would not de- 
 pend for its enforcement on the vigilance of public prosecutors. 
 
 Still another matter vainly demanding legislative attention is the 
 fitting of glasses hy incompetent persons. It is not perhaps an exag- 
 geration to say that nine-tenths of all the glasses fitted, or misfitted, in 
 this country are obtained from the hands of grossly ignorant men, per- 
 sons who are not physicians in any sense whatever and who have never 
 received even the slightest medical training. Each of these incom- 
 petent persons almost invariably makes himself known throughout the 
 community as "eye-doctor," "eye-specialist," "ophthalmologist," and 
 the like, by which misnomers he succeeds in leading the public to sup- 
 pose that he is a physician paying especial attention to diseases of the 
 eye. Unfortunately, legislators, forgetting that the only possible justi- 
 fication for the narrowness of specialism is the broadest possible pre- 
 liminary training in the different general medical branches (from 
 which no specialty can properly be dissevex'ed, except in the field of 
 actual practice) are generally, in fact almost universally, disposed to 
 regard the treatment of eye-troubles by those who are only spectacle- 
 fitters as merely a further and praiseworthy development of the modem 
 idea of specialism. The consequence is that legislation, instead of 
 tending to oust these people from ophthalmic practice, tends yearly 
 more and more firmly to establish them therein. A number of states 
 now have legislation, the object of which is to fence about and safe- 
 guard these unqualified practitioners. On the other hand, the medical 
 profession (inclusive of ophthalmologists) seems to have gone sound 
 asleep upon this subject. Many family practitioners, in fact, actually 
 refer their "spectacle work" to the most outrageous quacks, and do 
 so as a matter of routine. ^ 
 
 1 In an excellent paper by Dr. James A. Spalding, of Portland, Maine, read 
 at the meeting of the Maine Medical Association, July 1, 1913, entitled "The 
 
 99 
 
OPHTHALMIC JURISPRUDENCE 
 
 Then another affair demanding attention, but very unlikely to get 
 it, is the continual sale in enormous quantities of eye-drops, eye-salves, 
 eye-batteries, and. the like, not only by respectable pharmacists, but also 
 by "wheeling strangers of here and everywhere." ^ In towns of con- 
 siderable size the institution should be insisted upon of strictly pre- 
 scription drug-stores, i. e., those which do not deal in fraudulent medi- 
 cines. Then all the physicians in the town should send their prescrip- 
 tions to such stores. 
 
 Another deficiency in American ophthalmo-sanitary legislation lies 
 
 Eye: Its Connection with Diseases and Injuries of the Body," occurs the follow- 
 ing very relevant passage: "Hundreds of books and thousands of papers have 
 been written in the past, and will continue to be written so long as life endures 
 upon this world, on the interdependence of the eye, and diseases and injuries of 
 the body. For all that, the legislature of Maine saw fit four years ago to set its 
 denial upon this well-known truth, and to assert that there was no connection 
 between the organ of sight and the human body. It will forever remain a source 
 of regret that such an ignorant law should have been passed, but politics, money, 
 a powerful and persistent lobby overpowered our small band of protesting 
 physicians. So far, under this law, nothing has been gained for the i^eople, the 
 medical profession has lost ground, and ignorant, uneducated men are allowed to 
 practise one branch of pure, absolute medicine as they see fit. The certificates 
 imder which they carry on this practice flaunt in the face of the public the false 
 assertion of 'examinations of fitness,' that have never been passed, and in the 
 four years of the presence of this useless law upon our statute books, not a single 
 educated man has been added to the ranks of the exempt and often unfit. ' ' In the 
 experience of the present writer a lawyer member of the legislature can often be 
 reached (during the pendency of an "optometry-"' bill) by the following argu- 
 ment: What would you think if I were to offer in this legislature, seriously, a bill 
 proposing that persons who have never secured a license to practice law, should be 
 permitted to practice real estate law, or personal injury law, or probate law, or 
 patent law, or any other legal specialty, only after six weeks or two or three 
 months of study, of these branches alone and the passing of a so-called ' ' examina- 
 tion ' ' before a board, not one member of which was a laAvyer or had ever secured a 
 license to practice law? The answer always is, in effect: I would think you did not 
 understand that no one can practice properly a legal specialty who has not 
 received an all-round legal training. Then I answer: This same principle is true 
 in medicine — with, however, a very important difference, namely, that he who 
 loses me my patent or my farm, loses me what, comparatively speaking, is "trash," 
 while he who loses me my vision or my life has made me ' ' poor indeed. ' ' 
 
 1 The subject of the graduate optician (who not infrequently fits glasses for 
 nephritic retinitis, ocular syphilis, etc., until the time when a cure could be 
 effected has forever gone by) the prescribing pharmacist, and the wheeling 
 stranger will not be considered hereafter in connection with the laws of other 
 countries. Suffice it to say that, in every civilized land on earth, so far at least 
 as the writer has been able to ascertain, the wail for reform in these matters 
 goes up to heaven continually and vainly. Fopulus vult decipi. Thus, for a single 
 example, take poor France, as voiced by Chevallereau in the Encyclopedie frangaise 
 d'ophtalmologie, Vol. IX, p. 777: "Notre domaine, que d'aucuns trouvent et avec 
 raisou deja bien etroit, est constamment envahi par un grand nombre de 
 braeonniers qui exercent sur nos terres de veritables brigandages. Les pommades 
 et les eaux pour les yeux sent vendus par un grand nombre de pharmaciens, qui, 
 ici comme toujours, se trouvent aux premiers rangs de nos concurrents; les sceurs 
 de I'hopital de Saint-Germain-en Laye vendent une eau qui guerit la cataracte; 
 un restaurant situe pres de la Bastille donne a qui en desire I'eau des Quatre- 
 Sergents qui guerit tout. Ces exemples sont pris entre plusieurs mille. 
 
 "L'humeur de nos confreres s'est surtout elevee depuis quelques annees centre 
 les opticiens qui ne se bornent pas a ex6cuter nos ordonnances, mais prescrivent 
 d'eux-memes et fournissent des verres pour tons les genres de refraction * * *." 
 
 100 
 
OPHTHALMIC JURISPRUDENt^S 
 
 in the fact that in only seventeen states of all our forty-eight, have 
 statutes been enacted, looking toward the establishment of medical 
 inspection of public school children.^ The states in question are : 
 Connecticut (1899, with reference to the children's eyes alone), Massa- 
 chusetts (1906, with reference to both sight and hearing), Colorado 
 (1909, covering the eye, ear, nose and throat), Maine, Pennsylvania, 
 Indiana, Utah, A'^ermont, North Dakota, West Virginia, New Hamp- 
 shire, New Jersey, New York, Maryland, Wyoming, Delaware, Rhode 
 Island. Of all the defects found in school children in this and in 
 European countries, those of vision are by far the most numerous; 
 hence the importance from the ophthalmic viewpoint of inspection in 
 the public schools. Just as in the case of the laws relating to oph- 
 thalmia neonatorum, the school inspection laws are of Cleopatra-like 
 variety — practical and impractical; serious and humorous, serio-comic 
 and absolutely farcical. Tests for poor vision and poor hearing are, 
 in some of the states, made by the teacher, yet, nevertheless, much good 
 has been accomplished. Nowhere in the United States, so far as I 
 know, are provisions made for the institution of separate classes for 
 children with defective sight — like the Nehenldassen of the Germans — 
 or separate schools for children suffering from trachoma ^ — such as 
 exist in Italy. ^ 
 
 Every state should, as a matter of course, provide for medical in- 
 spection of its public schools, both by general practitioners and by 
 specialists. The provisions should be absolutely mandatory and state 
 wide in their application. Then, too, although much should, as a mat- 
 ter of expediency and perhaps necessity, be left to the conscience and 
 
 1 To be sure, a little has been done, here and there, by virtue of local powers. 
 Thns, school nurses have throughout the country been installed in the public schools 
 of some of our larger cities — always, by the way, with excellent results. See on 
 this head The Value of the Nurse in the Public School, by Thomas A. Woodruff, 
 M. D., Chicago, in the Bulletin of the American Academy of Medicine, Vol. X, 
 No. 5, Oct., 1909. A case in Minnesota holds that school boards can enforce medical 
 inspection by virtue of their general powers — i. e., regardless of the existence or 
 non-existence of a statute. The reason given was that "no system of education, 
 although designed solely to develop mentality, would be complete which ignored 
 bodily health." (State er rel. Stoltenberg vs. Brown, City Comptroller, 128 
 N. W. E. 294.) 
 
 2 For an example of what can be done where proper intelligence and determi- 
 nation exist, the reader is referred to an article hj F. W. Carruth, entitled 
 A Municipal Crusade Against Trachoma, No. Am. Eev., 177: 766-74. This 
 crusade was nobly led by Dr. Richard Derby and Dr. Ernst J. Lederle. 
 
 3 An excellent article on The Medical Inspection of Public School Children is 
 that by Dr. G. W. Rice, of Champaign, 111., in the Illinois Medical Journal, for 
 March, 1910, p. 328. Another is that by Dr. Frank Allport in Ophthalmology, for 
 July, 1915, entitled State Legislation Concerning the Examination of School 
 Children's Eyes, Ears, Noses and Throats. Good books on the subject are: 
 Kelynack, Medical Examination of Schools and Scholars (London, 1910) ; Steven, 
 Medical Supervision in Schools (London, 1910) ; Cornell, Health and Medical 
 Inspection of School Children (Phila., 1912). 
 
 101 
 
OPHTHALMIC JURISPRUDENCE 
 
 discretion of teachers and inspectors, yet very much might well enough 
 be made a matter of certainty by hard and fast rules. Thus. Javal's 
 dictum that buildings surrounding a schoolhouse should not stand 
 closer to the school than twice their altitude, might very well be insisted 
 on in every case. Again, such matters as temperature and ventilation 
 might be the subject of fixed rules. Inspectors should be required, 
 under appropriate penalties, to see that cards are issued to parents, di- 
 recting the latter 's attention to any defects of a physical nature oc- 
 curring in their children. Monthly inspections should be required ^ and 
 the occurrence of contagious diseases should be a signal, always, for 
 the removal of the afflicted scholar, or scholars, until such time as his 
 or their reappearance could be made without danger to other persons. 
 School books should be printed in type neither above nor below certain 
 standards of size, and on paper absolutely opaque and of a dull finish. 
 Larger sized type should be required for the younger children and for 
 the bodies of the pages than for older students and foot-notes.^ In 
 towns of a thousand or more inhabitants there should be separate 
 schools, or classes, for children with defective vision — less, say, than 
 1/5. Indigent children needing glasses should have these furnished at 
 the public expense." As to school furniture, the front edge of the seat 
 should be required to extend not less than 2 nor more than 4 inches 
 forward of the back edge of the desk ; the seat should be at an approxi- 
 mate distance from the desk of % the pupil's height; the top surface 
 of the desk should be inclined in the direction of the pupil at an angle 
 of 15° to 20° ; and certain other regulations relative to school furni- 
 ture, not possible to be mentioned here, should be made the subject of 
 statutory enactment. Finally, in towns or cities with populations ex- 
 ceeding ten thousand, school nurses should be employed, and should 
 be vested with appropriate and adequate authority.^ 
 
 (2.) Laws which only indirectly, or partly, have for their object the 
 prevention of eye diseases and injuries.^ 
 
 1 Our active little neighbor across the Pacific got round to this many years ago. 
 
 2 The ophthalmic section of the American Medical Association should, in fact, 
 draft a circular to be sent to every publisher of books of any sort or kind within 
 this country, suggesting (with reasons) that the use of glossy papers in books be 
 discontinued, saving and excepting solely when the presence of half-tones renders 
 the employment of glossy paper indispensable. Suggestions should also be made 
 with regard to "leading" and to the size of type, both for body-work and for 
 footnotes. Publishers are exceedingly careless with regard to these matters, 
 particularly with regard to the unnecessary use of glossy papers. 
 
 3 By which I do not mean at the expense of some individual oculist. 
 
 4 For a full discussion of the general subject, as well as a model law, see, in this 
 Encyclopedia, Medical Inspection of School Children, also Conservation of 
 Vision. 
 
 5 Unfortunately, the employer 's liability law which has been enacted in Ger- 
 many (das Unfallversicherungsgesetz) and, with certain modifications, in various 
 
 102 
 
OPHTHALMIC JURISPRUDENCE 
 
 Of these the most important by far are those relating to vaccina- 
 tion, since variola is extremely prolific of blindness, even in mild cases 
 of the disease. It would be superfluous to mention the various re- 
 quirements in the several states ^ relating to the vaccination of school 
 children, but it is well worth knowing that, in Connecticut, Maine, 
 and Virginia, laws are in force which require the vaccination of work- 
 men under certain (generally too limited) circumstances. 
 
 Maine has the most explicit law on the subject, but restricts its appli- 
 cation to paper mills. Thus: ^ "Sec. 83. No owner, agent or super- 
 intendent of any paper mill where domestic or foreign rags are used 
 in the manufacture of paper shall hire or admit any person to work 
 in or about said mill who has not been successfully vaccinated or re- 
 vaccinated within two years, or to the satisfaction of the local board 
 of health. 
 
 "Sec. 84. No person shall work in or about any paper mill where 
 rags are used, who has not been successfully vaccinated or revaccinated 
 within two years, or to the satisfaction of the local board of health." 
 
 The fine for violation of either of these provisions is restricted to a 
 maximum of fifty dollars. Moreover, there is no minimum limit what- 
 ever, and the fines are almost always too light. It is easy enough to 
 see why the employes in and about paper mills should be the especial 
 objects of vaccinial legislation, but, certainly, the law should be ex- 
 tended so as to apply to many other classes of workmen. 
 
 Connecticut's law upon the subject is also limited in its application 
 to paper-mill employes. Further, it is altogether too short and un- 
 explicit."^ 
 
 Virginia limits the application of her vaccination statute * to "Any 
 
 other lands (England, France, et al.) has never been copied, except as to a few 
 of its features, into the laws of the United States or of those of any of the 
 separate States. This law (Unfallversichcrungsgesetz) which makes the employer 
 liable at all events, (i e., irrespective of such questions as contributory negligence, 
 fault of fellow- workmen, assumption of risk, etc.), for accidents to his employes, 
 has had a most excellent effect in the way of preventing injuries to workmen; 
 for, when employers know themselves to be responsible for such injuries at all 
 events they take the utmost pains to prevent the occurrence of accidents. On the 
 other hand, in some of the United States (a nation of extremes) the Workmen's 
 Compensation Act has been a source of oppression to employers. 
 
 For an excellent and somewhat copious discussion of this subject, the reader 
 is referred to the series of articles by Dr. W. H. Allport, of Chicago, in the 
 Illinois Medical Journal, for Oct., Nov. and Dec, 1909, entitled Studies in Con- 
 temporary Workmen's Compensation. 
 
 1 Once again, however, nothing at all seems able to ' ' stale ' ' their ' ' infinite 
 variety." A uniform and comprehensive law is badly needed. The right of the 
 various state legislatures to enact compulsory vaccination laws, was upheld in 
 Jacobson vs. Massachusetts (197 U. S., 11). 
 
 "i Revised Statutes, 1903, Chap. 18. 
 
 3 General Statutes, 1902, Sec. 4693. 
 
 4 Code, 1904, Sec. 1743e. 
 
 103 
 
OPHTHALMIC JURISPRUDENCE 
 
 person, firm or corporation employing large bodies of laborers in the 
 state of Virginia constructing works of public improvement. . . ." 
 
 The laws of the United States and also of the separate states com- 
 prise, nevertheless, a rather large number of provisions, the object of 
 which is, at least in part, to prevent the occurrence of injuries to, and 
 diseases of, the eye. Thus, in some states, the shuttles which shoot to 
 and fro in weaving mills must be guarded from flying out of the looms 
 — which, by the way, they sometimes do at all events, often with disas- 
 trous consequences to the eyes of those who are working near. Thresh- 
 ing machines, also, are generally required to be so protected that no 
 "joint, knuckle, or jack" thereof, "is dangerously exposed." Persons 
 charging any "hole with nitroglycerin, powder, or other explosive" are 
 usually forbidden to "use any steel or iron tamping bar " Profes- 
 sional shot-firers are quite uniformly required to shoot down the coal 
 in mines "employing" for instance "twenty or more miners to work 
 in the same. ' ' The various regulations requiring an adequate supply 
 of outer air in mines, both for breathing purposes and also for the 
 prevention of explosions due to the accumulation of fire-damp, those, 
 also, providing for a sufficient number of adequate escape shafts, for 
 improved safety catches, for ' ' experienced, competent, and sober men ' ' 
 to have "charge of hoisting apparatus and engines" — all these and 
 many similar regulations have a tendency to prevent the occurrence 
 of injuries to the eyes as well as to other portions of the body. Then 
 there are numerous regulations relating to railways, steamboats, steam- 
 ships, the construction of buildings, etc., which cannot here even be 
 mentioned by title, partly because of lack of space, partly because 
 of the high degree of technicality of many of the matters involved. 
 The necessary laws relating to the manufacture of wood alcohol (a 
 substance productive of often incurable blindness) are yet to be 
 enacted. (See, upon this head. Wood alcohol; Columbian spirits; 
 Alcohol, Methyl; Methyl alcohol and Toxic amblyopia, in this 
 Encyclopedia.) 
 
 Before we leave this subject we ought to remind ourselves that all 
 the various laws which tend to shorten the hours of labor, and which 
 limit or prevent the improper employment of women and children i^ 
 industrial occupations are all — so far as enforced — of a very high 
 degree of value not only in the prevention of diseases and accidents 
 generally, but also of those which, either directly or indirectly, have 
 reference to the eye.^ 
 
 1 A nondescript matter of some importance to ophthalmologists may here, 
 though slightly irrelevant, be mentioned, because it belongs still less within the 
 
 104 
 
OPHTHALMIC JURISPRUDENCE 
 
 Passing to the ophtlialmo-sanitary regulations prevailing in other 
 countries than oar crwn we first consider the 
 
 Ophthalmo-sauitary laivs of England. 
 
 First of all, there exists in England, as already suggested in a foot- 
 note to this article, a Workmen's Compensation Act (1906) by which 
 is placed upon all employers a tremendous pecuniary responsibility for 
 the safety of their men. One effect, among mauy,^ of this act, has 
 been to diminish in a most remarkable degree the number of accidents 
 to laboring men in England. The act provides for compensation not 
 onlj^ after industrial accidents, but also in case of the development of 
 certain specified industrial diseases, for example miner's nystagmus 
 and bottle-maker's cataract. In addition to this splendid piece of 
 legislation, there exists a "Factories and Workshops Act" (1901) 
 which has also proved beneficial. It prescribes, among other matters, 
 that every factory must be clean, have a certain amount of air-space 
 for employees, provide adequate ventilation, be of proper temperature, 
 and possess adequate and appropriate sanitary accommodation. There 
 are special regulations relating to all persons working in poisonous 
 substances or in conditions dangerous by reason of steam, machinery, 
 fumes, etc. 
 
 With regard to vaccination, there is ample provision for this in 
 
 scope of any of the other main divisions of this article. I refer to the drawing 
 of wills for the blind. The fact of the testator's blindness should plainly be 
 noted in what is called the attestation clause — i. e., a brief passage which stands 
 at the close of the will, and which is signed by the witnesses. A proper attesta- 
 tion clause for the will of a blind person, good in any state, is the following: 
 
 "The foregoing instrument, consisting of sheet. ., was, on this 
 
 day of , nineteen hundred and , first read over to the tes- 
 tator in our presence, he (or she) being blind, and was then, upon the said date, 
 and forthwith, signed, sealed, published and declared by the said testator to be 
 his (or her) said last will and testament, in the presence of each of us, the 
 undersigned, who thereupon, at his (or her) request, and in his (or her) presence, 
 and in the presence of each other, have hereunto subscribed our names as the 
 attesting witnesses thereof, the day and year last above written. 
 
 Many attorneys fail to insert the words above italicized. These words, how- 
 ever, are very important to be remembered in the case of a will made by a blind 
 person, for the law does not ordinarily require that a will shall have been read 
 to the testator in the presence of those who are to sign the document as witnesses. 
 Yet, without the words above suggested, or words of similar import, the question 
 of fraud may be raised. 
 
 1 Dr. A. Maitland Eamsey, of Glasgow : ' ' The design of the f ramers of the 
 Act was, undoubtedly, to minimize the need for legal procedure; but their purpose 
 in this respect has not been achieved, for no statute of recent times has been 
 more provocative of litigation." — "Eye Injuries: With Special Beference to the 
 WorTcmen's Compensation Act, 1906," p. 4; reprint from The Hospital, Nov. 13, 
 20, 1909. This article, by the way, is a valuable contribution to the literature of 
 ' ' Visual economics. ' ' 
 
 105 
 
OPHTHALMIC JURISPRUDENCE 
 
 general, but any child can be withheld from what has been called ' ' the 
 terrible torture of vaccination" if its parent, or any responsible person 
 standing in loco parentis, avows before a magistrate that he disbelieves 
 in the efficacy of the process. No machinery is provided for revac- 
 cination {per contra in Germany and especially in Italy). 
 
 England was the first of all the nations to provide for medical in- 
 spection in the public schools (1872) ; nevertheless in her system of 
 inspection, even at the present day, there is much to be desired. 
 
 The medical inspection of school children is, in England, placed in 
 the hands of the Sanitary Department of the local Government Board, 
 the Board of Education having delegated the work to them. The "ma- 
 chinery" is said to be very defective. There are no requirements at all 
 for admission, but the eyes of all children in "State" schools are tested 
 after entrance. No arrangement has ever been made for treating or re- 
 testing. 
 
 Some special arrangements have been made for school children who 
 see poorly, but nothing of an adequate nature. It is likely, however, 
 that better arrangements will be made soon. 
 
 "With respect to ophthalmia neonatorum we may say that the use of 
 Crede-drops is not at all compulsory on the part of either medical 
 man or midwife. In case the mother was delivered by a midwife, and 
 any inflammation or discharge appears, the midwife is obliged to report 
 the fact at once to "any qualified medical man," the choice of the 
 particular man being left to her. In England, then, it seems, as in 
 this country, a case of blindness from ophthalmia neonatorum is ever 
 the fault of a midwife. It is somewhat singular that, in the course 
 of my entire practice, which embraced a considerable number of eases 
 of the absolutely unnecessary disease in question, there was not one 
 single case which was not, indisputably, the fault of a regularly grad- 
 uated physician. 
 
 Ophthalmo-sanitary laws in France. 
 
 In France, as in England, there exists an excellent Workmen's 
 Compensation Act (that of Feb. 9, 1898), which has been amended 
 and revised until as late as March 31, 1905. 
 
 As this law now stands, it provides for indemnity after industrial 
 accidents {accidents clu travail) no matter to whom the occurrence of 
 such accident is due, excepting only when demonstrably the result 
 from the inexcusable negligence of the injured person himself. This 
 law applies to all industries operating in any way by means of ma- 
 chinery, excepting only such machinery as is run by man- or auimal- 
 
 106 
 
OPHTHALMIC JURISPRUDENCE 
 
 power. Further, the work of the injured employe must be interrupted 
 for more than four days. 
 
 Twenty-four hundred francs is the maximum earning capacity 
 which is used as a basis for full computation ; all overplus is computed 
 at one-fourth. For partial or temporary disability the workman re- 
 ceives one-half the reduction in his wages; for total and permanent 
 disability, a pension equal to two-thirds the amount of his earnings. 
 Pensions are revisable, after three years, the degree of disability being, 
 of course, in many cases subject to change. 
 
 In case of the workman's death, 100 francs is paid as funeral ex- 
 penses. Then, in addition, a pension of 20 per cent, of the wages of 
 the deceased is allowed to the widow, and, to the orphans, 40 per cent, 
 for the loss of one parent and 60 per cent, for both. Dependent rela- 
 tives, if there be no surviving child or widow, may receive a pension 
 equal to 30 per cent, the wages of the deceased. 
 
 Objection has often been made that the law in question has rendered 
 difficult the securing of employment by married persons, especially if 
 these have children. A further objection is sometimes otfered that it 
 provides no compensation for disfigurements which do not interfere 
 with the earning capacity. In general, however, the law has been sat- 
 isfactory (like similar laws in other lands) not merely to employes but 
 also to employers. 
 
 In addition to the Workmen's Compensation Act — which has proved 
 so beneficent in the way of preventing injuries of almost every kind — 
 there exist in France numerous laws, or regulations, for the preven- 
 tion of accidents and diseases. These provide for adequate heating, 
 lighting and ventilation in factories, etc., for cleanliness, for proper 
 water-closet facilities and protection from the action of numerous 
 poisons (lead, methyl alcohol, etc.) and from steam, heated metals, 
 electricity and various sorts of machinery. All these matters are 
 under the control of the Ministry of Labor. 
 
 Vaccination is compulsory for all persons, civil and military, and 
 revaccination for the military. 
 
 All contagious diseases must, in a manner of speaking, be reported. 
 "Facultatively" reportable^ are the conjunctivitis purulenta of adults 
 and ophthalmia granulosa. Among the diseases for which are required 
 both reporting and disinfection, is ophthalmia neonatorum.^ 
 
 There is, in France, an excellent system of medical inspection in 
 the public schools. The medical inspector does not, indeed, himself 
 take charge of the treatment of the ailing children, but he is obliged to 
 
 1 Decree of Feb. 10, 1903. 
 
 2 Law of Feb. 15, 1902, art. 4. 
 
 107 
 
OPHTHALMIC JURISPRUDENCE 
 
 report to parents the physical defects of such of their offspring as are 
 attending the public schools; and the parents take the child to some 
 physician of their choice. However, (and this is a point worthy of 
 extensive imitation) the parents are obliged to see that the child is 
 treated, and by some registered physician. The child cannot return to 
 school without the permission (after careful examination) of the medi- 
 cal inspector. 
 
 There are no separate schools or classes for trachomatous pupils, 
 the reason, as stated by an eminent French authority,^ being that 
 trachoma in France is not a sufficiently common disease to render such 
 arrangements necessary. The rule is to permit to remain in the schools 
 all trachomatous pupils exhibiting little or no conjunctival secretion, 
 and to remove all those in whom these secretions are particularly 
 abundant. 
 
 The prescription of glasses for school children is looked after, when 
 necessary, and, in some cities, children who see poorly are grouped in 
 special classes. Special schools for children with defective sight are 
 not established, because, it is said, of the distance which children of 
 this sort would then be obliged to go in order to get to school. 
 
 The hygiene of the lower schools is controlled by local boards, that 
 of the high schools by the Ministry of Public Instruction. 
 
 Midwives are obliged to report at once any discharge or inflamma- 
 tion from the eyes of an infant. The report is made, in Paris and 
 Lyons, to the prefecture of police; elsewhere, to the "maire." The use 
 of Crede-drops is compulosry in all cases, irrespective of discharge or 
 inflammation. 
 
 Finally, "le livret a famille" hands to all newly married couples a 
 printed card, or circular, containing instructions with regard to the 
 above-mentioned and various other matters. 
 
 Ophthalmo -sanitary legislation in Oermany. 
 
 In Germany, as one might readily suppose, the subject of ophthalmo- 
 sanitary legislation has, in common with sanitary legislation of a gen- 
 eral character, received a good deal of attention. It would be impos- 
 sible to elucidate completely here even the more salient matters of this 
 kind of legal enactments in Germany, but a few of the more peculiar 
 (and, at the same time, I think, sensible and scientific) features may 
 simply be pointed out, practically unaccompanied by comment. 
 
 The Prussian sanitary corps is organized as follows: Each county 
 
 1 Chevallereau, in EncyJopedie franqais d'oplitalmologie. Paris, 1910, Vol. IX, 
 p. 545. 
 
 108 
 
OPHTHALMIC JURISPRUDENCE 
 
 (Kreis) has its Kreisarzt,i or official physician, for the county. Next 
 each province has its "Provinzial-Medizinal-Collegium,'^ or Provincial 
 Medical College. Over this is the " Wissenschaftlichc Deputation," the 
 highest consulting body of the corps. This last-named body, however, 
 is a branch of the ''Abteilung filr die Medizinalangelegenheiten" — it- 
 self a branch of the ministry '^der geistlichen Unterrichts-und Medic- 
 inal- AngelegenUeiten." In addition to all these there exists in certain 
 cities " GericMsarzte," or "Physicians before the Courts," who are 
 often called upon as experts by the State's Attorney. 
 
 Taken altogether, the medical corps is, in Prussia, a many-ranked 
 hierarchy. Its work, however, I understand, is very thoroughly car- 
 ried out. 
 
 Vaccination, to begin with one of the most important matters, is 
 absolutely compulsory in the first year of life, and re-vaccination in 
 the twelfth. 
 
 Trachoma, diphtheria, small-pox (the little there is to be found of 
 this last-mentioned disease) must be reported to the police on official 
 cards throughout Germany. There is also a Prussian law^ which, 
 during epidemics, renders obligatory the treatment of certain diseases, 
 among which trachoma is here especially noteworthy. 
 
 The use of Crede-drops is nowhere compulsory, but a peculiar fea- 
 ture of the law relating to ophthalmia neonatorum (characteristically 
 German, too, though a similar practice now prevails in France) is that 
 in many of the cities, notably Berlin, printed instructions concerning 
 the matters in question are handed over to newly married couples.^ 
 In some of the cities the printed card is not handed over until the first 
 birth is reported — when, of course, it could do no good in the way of 
 prophylaxis, unless indeed as to the eyes of later-born children. 
 
 The medical inspection of the public schools is very different in 
 different localities. All the larger and many of the smaller towns 
 employ "school-doctors" not only for the public, but also for some 
 of the private schools — gymnasiums, etc. In Berlin there are 56 
 school-doctors, each controlling about 5,000 children.^ All children 
 are tested when they enter, and at intervals, later. Whenever the 
 
 1 The classic work on the functions of the Kreisarzt is Sehloekow, "Ber 
 Kreisarst." In general, these functions are to supervise all public sanitary 
 institutions, asylums, etc., also the registers of physicians, pharmacists, mid- 
 wives, etc. Their court-work is restricted to certain police-evidence. 
 
 2 That of Aug. 28, 1905. 
 
 3 One can hardly conceive of such highly sensible, albeit blush-producing, 
 measures being adopted in the land of the free and home of the brave and often 
 unnecessarily blind. 
 
 4 1 am credibly informed that each of these ' ' school-doctors ' ' in Berlin is 
 paid, for looking after his 5,000 youngsters, only 2,000M. annually — less than 
 500 dollars! 
 
 109 
 
OPHTHALMIC JURISPRUDENCE 
 
 necessity exists, the children are sent to public or private dispensaries. 
 "When the parents are poor, the children's glasses are paid for by; 
 the city. 
 
 Children with defective vision are put into extra classes— the so- 
 called "Nehenklassen." The results of this arrangement are exceed- 
 ingly satisfactory. However, the vision must be less than 1/10, which 
 is a slight drawback. Other children are, as with us, turned over to 
 the blind-schools. The treatment of the children is compulsory on the 
 parents. A doctor treating a case of trachoma must, as above-men- 
 tioned with regard to trachoma in general, report the case to the 
 police on an official card.^ The police re-report the matter to the 
 Kreisarzt, and this latter functionary sees that the patient takes his 
 treatment and that the doctor's various instructions are actually car- 
 ried out. 
 
 Indirectly tending toward the prevention of injuries to, and dis- 
 eases of, the eye, is the excellent Unfallvcrsicherungsgesetz, which, as 
 already mentioned, has been so widely copied in the legislation of other 
 lands. It would be impossible here, owing to limits of space, even to 
 sketch in outline this very thorough and far-reaching law; we may, 
 however, direct attention to a few, only, of the most characteristic 
 features. 
 
 The law provides, then, in effect, for the insurance of all, or nearly 
 all, workmen by their employers. The system consists of two divisions 
 — the federal, and the state. The federal division is organized as a de- 
 partment of the Bureau of the Interior. The state divisions are organ- 
 ized as bureaus of insurance in each of the Bundesstaaten. The state 
 bureaus control the industries within the state, and the federal bureau 
 those of a national, or interstate, character. Every bureau — the fed- 
 eral bureau, as well as the different state bureaus — "collects statistics, 
 makes rules, and constructs reports, and serves as a court of final ap- 
 peal." Subordinate to the various bureaus are the "Courts for Indus- 
 trial Claims," the personnel of which consists of one government 
 official (President) and two representatives each, from the employers 
 and the workmen. These courts appoint medical examiners who make 
 reports and who also testify before the court, if there be necessity 
 therefor. The parties themselves may choose the expert, if they so 
 desire. There is no jury. 
 
 The fund from which the claims are paid is held by trustees, and 
 is composed chiefly of assessments paid into the fund at stated inter- 
 vals by the various employers of the nation, grouped into definite units. 
 
 1 Teutonically thorough is the requirement that complications, origin, nativity, 
 and many other matters must be stated on the card. 
 
 110 
 
OPHTHALMIC JURISPRUDENCE 
 
 The various awards, pensions, expenses, etc., are paid through the Post- 
 Office Savings Bank, and there is no such thing as a judgment being 
 worthless by reason of insolvency on the part of any individual em- 
 ployer. 
 
 There also exists, by virtue of this same law, insurance against sick- 
 ness, old age, invalidism and the first thirteen weeks of disability re- 
 sulting from accident. The benefits, however, of this ' ' Sickness Insur- 
 ance Fund ' ' are available only to manual laborers earning not to exceed 
 2,000 marks yearly. 
 
 In addition to this Workmen's Compensation Law — which has had 
 the effect of causing employers to take the utmost possible precautions 
 against accidents— there exist the regulations of the various unions 
 (Berufsgenossensehaften), which regulations are nailed upon the walls 
 of factories, mines, etc. Infraction of these rules is fined heavily — as 
 high indeed as to 1,000 marks. 
 
 Ophthalmo-sanitary legislation in Italy. 
 
 In Italy the legislation for the prevention of ophthalmic, and other, 
 injuries or diseases, is not so thoroughgoing, quite, as it is in Germany. 
 Yet, in many respects, it is better than similar legislation in the United 
 States. 
 
 The sanitary organization is very good indeed — complete and yet 
 not cumbersome. The actual supervision of the public health is dele- 
 gated to Communal Physicians (Official Sanitarians) while, over these, 
 are the Physicians of the Province, who, in turn, are subordinate to 
 the General Bureau of Health, which forms a part of the Ministry of 
 the Interior. There exist also Provincial Sanitary Councils and a 
 Superior Council of Health. 
 
 Vaccination is obligatory for all children in the first six months of 
 life. It must be repeated whenever the sanitary authority deems a 
 repetition necessary. Admission to schools, factories, and various 
 classes of institutions is absolutely barred, except to persons who have 
 been properly vaccinated.^ 
 
 All persons taking up their domicile in the Commune of Milan (and 
 the same regulation exists in certain other communes) must submit at 
 once to vaccination unless indeed he has been successfully vaccinated 
 within six years. 
 
 Among other diseases which have to be reported are the following, 
 important from an ophthalmic viewpoint: Trachoma, diphtheria, 
 
 1 Eegolamento sulla vaccinazione 29 marzo 1892 ed art. 130 della legge 
 sanitoria 1 agosto 1907. 
 
 Ill 
 
OPHTHALMIC JURISPRUDENCE 
 
 small-pox, typhoid fever, and syphilis when that disease has been 
 communicated by "mercenary intercourse." There are no formal 
 official cards, however, providing for a large amount of detailed in- 
 formation, such as are used in Germany. The sanitarian is simply 
 required to report "the necessary indications." Trachoma, further- 
 more, does not have to be reported. It is only fair to add, though, 
 that the sanitary authority can, when he believes it to be necessary, 
 render the reporting of this disease obligatory. And that has now and 
 then been done, when a severe and wide-spread epidemic of trachoma 
 had appeared. 
 
 In the regulations concerning rosiculture, trachoma is regarded 
 as a reportable disease.^ The patient is always isolated. In this 
 kind of cultivation, I am informed, there is a great foregathering of 
 workmen from very many places. 
 
 Midwives are not obliged by law to report "any redness or in- 
 flammation of the eyes," but, as a rule, they do actually report these 
 matters (in accordance with certain instructions issued to all who 
 practise midwifery) to physicians, and then the physicians are obliged 
 to make a report of the case. Midwives are also instructed to wash 
 the lids and inward parts of the eyes of all newly-born children with 
 boric acid lotion, and then, if, in spite of these precautions, an in- 
 flammation develops, to report the matter, as above stated, to some 
 qualified physician. 
 
 No printed cards relative to ophthalmia neonatorum are handed over 
 to newly-married couples, as is done in France and Germany. 
 
 No certificates relative to the sight are required for admission to the 
 schools. All the communes, however, have their schools inspected 
 medically at least once per month, thus, in the matter of frequency, 
 setting a splendid example to nearly all civilized lands. If contagious 
 diseases are discovered, all the afflicted pupils are removed until such 
 time as the reappearance of such pupils can be made in the schools 
 with perfect safety to other students. The matter is chiefly left to 
 local supervision, but the governmental sanitary authority also has 
 the power to carry out the inspection himself. 
 
 In some of the communes oculists, as well as general practitioners, 
 are employed to inspect. In general, however, the law pays little at- 
 tention to matters of sight, but lays most stress on the subject of con- 
 tagion. Very much is left, in every jurisdiction, to the discretion of 
 the teacher and the visiting physician. 
 
 There are no separate classes for children with defective sight. Sep- 
 
 1 Art. 13 del Eeg. 29 marzo 1908. 
 
 112 
 
OPHTHALMIC JURISPRUDENCE 
 
 arate schools (or classes) however, exist in the larger communes for 
 children afflicted with trachoma. 
 
 The excellent German Unfallversicherung, already adverted to in 
 this article a number of times, has stood as a model for similar legis- 
 lation in Italy, as in so many other countries. This insurance law has 
 special application in Italy to industries in which machinery is used, 
 and in which the number of workmen employed exceeds five. Crews 
 of ships are also insured. Agricultural laborers are not insured, 
 excepting those occupied in the use of machinery. The law, I under- 
 stand, "works w^ell and is severely applied." It has also "prevented 
 hosts of accidents." 
 
 In addition to this very beneficent compulsory insurance law, there 
 exist in Italy numerous regulations for the prevention of mischances 
 in various sorts of industries. A discussion of these would lead us far 
 afield. Suffice it to say that, in Italy, almost every form of injury by 
 machinery, explosive substances, poisons, etc., etc., has been brought 
 within the prevision of the law. 
 
 IV. 
 
 MALPRACTICE. 
 
 Surgery means snags, and he that does much surgery will sooner 
 or later discover himself entangled in snags of a legal kind. To this 
 rule the surgery of the eye is by no means an exception ; it is, in fact, 
 rather an exaggerated instance of the working of that rule. The 
 largest proportion of malpractice suits, to be sure, grows out of frac- 
 tures and dislocations,^ while obstetrics as a fruitful field for damage 
 suits comes clearly next in order, but then, as class three, and close 
 to the two preceding categories, comes the surgery of the eye. 
 
 The reasons for this high degree of liability in the case of ophthal- 
 mic surgery are exceedingly numerous. Suffice it to state three : 
 (a) The delicacy and great importance of the organ on which such 
 surgery is done, (b) The rather large amount of surgery which is 
 necessary in connection with the treatment of diseases of the eye. 
 (c) The special responsibility imposed by the law (at least in the 
 United States and England) upon any one who professes to be a 
 specialist. 
 
 1 This, at least, is true in the United States. In Germany, I understand, 
 malpractice suits arise most often from obstetrical procedures. See, for example, 
 Gottschalk, " GericlitUche Medicin," p. 271: "Von den Anklagen wegen Kun- 
 stf ehler nehmen aber an Zahl die erste Stelle ein diejenigen gegen Geburtshelf er. ' ' 
 The statement accords with the generally received opinion that deformity of the 
 female pelvis is commoner by far in Germany than in the United States. 
 
 113 
 
OPHTHALMIC JURISPRUDENCE 
 
 In the discussion of the subject of ophthalmo-surgical malpractice, 
 precedence will be given — as was done in the case of the ophthalmic 
 expert witness — to 
 
 A. — Legal cotisideraUcms regarding malpractice. 
 
 Legal considerations regarding malpractice in the United States. 
 In the United States — as indeed in almost, but not quite, every 
 civilized country — this one basic proposition underlies the entire law 
 of malpractice, namely, that a physician is never legally required to 
 respond to a call for professional assistance, if (a) he is not a govern- 
 mental officer and thereby under official obligations, or if (b) he has 
 not already established relations with the case. This is precisely to 
 the contrary of the popular impression, but is nevertheless the law. 
 Says Wharton : ^ "No question can exist as to the legal right of a 
 physician, unless he be an officer of the government charged with spe- 
 cific duties, which he thereby violates, to decline to take charge of a 
 particular case." A recent Indiana case^ well illustrates precisely 
 how free a physician is to refuse to take charge of a case. Here 
 the phj^sician, who had been the patient's family practitioner, refused, 
 admittedly without reason, to respond to the call of a man who was 
 intensely sick, although he (the doctor) had confessedly been ten- 
 dered the fees for his services in advance, and although he knew that 
 no other physician could possibly be procured in time to be of service 
 to the patient, and that, if he (the physician in question) did not re- 
 spond, the patient would probably die in consequence. The sick man 
 did actually die, and, as alleged, in consequence of the physician's non- 
 response to his call. There could hardly have been a stronger case 
 against the physician, were the law other than it really is. But said 
 the court: "The act is a preventative, not a compulsive, measure. In 
 obtaining the state's license (permission) to practice medicine, the 
 state does not require, and the licensee does not engage, that he will 
 practice at all or on other terms than he may choose to accept. Coun- 
 sel 's analogies, drawn from the obligations to the public on the part 
 of innkeepers, common carriers, and the like, are beside the mark." 
 
 "When, however, a physician once takes charge of a case, certain 
 responsibilities attach to his work immediately and by implication. 
 No express agreement to be responsible for this or that is at all neces- 
 sary in order to render him responsible.' On the other hand, with one 
 exception, he cannot evade his professional liabilities by any sort of 
 
 1 On Negligence, Sec. 731. 
 
 2 Hurley Admr. vs. Eddingfield, 156 Ind., 416. 
 
 114 
 
OPHTHALMIC JURISPRUDENCE 
 
 contract whatever, however express and however explicit. Contracts 
 made in advance of treatment or operation, with a patient, or with a 
 patient's parent or guardian, that the physician is not to be sued for 
 malpractice, are universally held to be "opposed to public policy" and 
 therefore void.^ The one exception is where a physician declares to 
 the patient his inability to treat the case properly (as, for instance, 
 in many instances, where a specialist is recommended) and yet the 
 patient insists that the physician proceed to do the best he can. In 
 such circumstances the patient is estopped from complaining after- 
 ward that the case has not been treated properly — provided, of course, 
 the physician has really done the best he could. 
 
 On the other hand, although, as we have seen, the physician can- 
 not, generally speaking, diminish, either in number or extent, the lia- 
 bilities which the law imposes on him, he can very easily (and often 
 to his sorrow) very greatly enlarge them. And he can also lessen his 
 rights, as well as increase his liabilities. A very common instance of 
 lessening his rights results from the ' ' no cure no pay ' ' agreement. In 
 this instance, if the patient is not cured he does not have to pay ; the 
 physician has lost his right of action against him for the fees. An 
 instance where the physician voluntarily enlarges his liabilities results 
 from the "guaranty to cure." This highly important arrangement is 
 a very different affair from the ' ' no cure no pay ' ' agreement, though, 
 as a rule, physicians confound the two together. When a physician 
 guarantees to cure, he must cure, or "pay the difference." That is 
 a very different consequence, as will at once be noted, from merely 
 losing one 's fees. To illustrate : If a physician operates for cataract, 
 and guarantees to restore to the operated eye its vision, then, if the 
 sight be not restored, the measure of the damages is precisely what 
 the sight of that eye would have been worth. A jury may assess this 
 value at thousands of dollars. - 
 
 Now, what are these responsibilities that attach to a physician imme- 
 diately upon his acceptance of a case, and by implication irrespective 
 of any express contract ? They are : 
 
 1. Properly to continue his attendance. 
 
 2. To possess a reasonable degree of learning and skill. 
 
 1 Nor does treating a case gratuitously at all dimioish the physician 's liability 
 for malpractice. 
 
 2 It is a general rule of contract that, when a party has, for a consideration, 
 agreed to deliver a certain article — whether iron rails or eye-sight — and has 
 failed to deliver it, he must pay to the injured party the value of the article in its 
 stead. Eeturning the compensation may, in the case of some contracts, be pre- 
 cisely equivalent to payment of the value of the article, but (as in the case of 
 failure to restore to a cataractous eye its sight) it may fall short of so doing 
 by several thousand dollars. 
 
 115 
 
OPHTHALMIC JURISPRUDENCE 
 
 3. To use that reasonable degree of learning and skill. 
 
 4. In cases of doubt, to use his best judgment. 
 
 Of each of these duties, we will treat in the order indicated, and, 
 later, of certain miscellaneous affairs of importance in connection 
 with malpractice. 
 
 1. As to the physician's duty properly to continue attendance, we 
 may say, briefly, that, in no instance, may he discontinue his treatment, 
 unless (a) the patient discharges him, (b) the patient consents to the 
 discontinuance, (c) the physician gives timely notice so that the 
 patient may employ another doctor in due season, (d) when the 
 patient is no longer in need of the physician's services. 
 
 2. The physician's second duty, when he has once taken charge of a 
 case, is to possess a reasonable degree of learning and skill. Of course 
 a physician is not responsible merely for failure to cure. He is re- 
 sponsible only for the failure to possess (or to use) a reasonable degree 
 of learning and skill. The question unavoidably arises, What consti- 
 tutes a reasonable degree of skill and learning? In the United States, 
 there exist on this important head three very different rules : 
 
 a. The physician is bound to exercise that degree of care and skill 
 which prevails in the particular locality in which the given case arises.^ 
 This rule is not much followed. 
 
 b. The physician is bound to exercise that degree of care and skill 
 possessed by physicians in such localities generally.^ In this case, the 
 court said, speaking with regard to the first of the rules on this sub- 
 ject, namely, the ' ' particular locality ' ' rule : ' ' There might be but few 
 practising in the particular locality, all of whom might be quacks, ig- 
 norant pretenders to knowledge not possessed by them, and it would 
 not do to say, that, because one possessed and exercised as much skill 
 as the others, he could not be chargeable with the want of reasonable 
 skill." According to this second, or "similar localities" rule, the 
 physician practising in a large city is bound to possess a higher degree 
 of skill and knowledge than physicians who practise in the smaller 
 cities and those in the smaller cities than those who practise in the 
 villages and the country. The second rule is the prevalent rule, by 
 far. 
 
 A most excellent, as well as recent, case upon this second, or general, 
 rule, is that of Shelton v. Hacelip (51 So. Rep. 937, May 7, 1910, Ala.). 
 In this case, a child, 11 months of age, Velma Hacelip, "had been 
 affected with chicken-pox and nausea, and the right eye (the one 
 destroyed) was inflamed, ulcerated in the external corner, had scabs 
 
 1 Hathorn v. Richmond, 48 Vt. 557. 
 
 2 Gramm v. Boener, 56 Ind. 497. McDonald v. Harris, 131 Ala. 359. 
 
 116 
 
OPHTHALMIC JURISPRUDENCE 
 
 ou it, and was infected with pus and 'septic poison.' " The further 
 facts (all undisputed) were: "That defendant was called profes- 
 sionally to see her, mainly, it appears, for the eruption and nausea. 
 That he examined the right eye, and stated that he would give a 
 prescription for its treatment, and at the same time instructed the 
 parents to keep the organ clean with the frequent application of warm 
 boiled water. That what was received as this prescription was used 
 by dropping three or four drops, from a teaspoon, into the eye after 
 lifting the eyelid. That this application was made in the afternoon 
 about two o'clock. That the child at once gave evidence of being in 
 great pain in that eye, and, ^^ath its hands, rubbed off the scabs, and 
 introduced the poisoning pus into the eye. That the sight of the eye 
 was destroyed when examined on the succeeding morning, the de- 
 struction being accomplished by the thickening of the tissues over the 
 sight of the eye. ' ' 
 
 The court first quoted the rule as given in McDonald v. Harris (131 
 Ala. 359) as follows: "The reasonable and ordinary care, skill, and 
 diligence which the law requires of physicians and surgeons is such 
 as physicians and surgeons in the same general neighborhood, in 
 the same general line of practice, ordinarily have and exercise in a 
 like case." The opinion of the court was then as follows: "The 
 evident theory of the plaintiff (appellee) was on the trial that the 
 liquid introduced into the eye contained carbolic acid, and that the 
 destruction of the sight resulted from that. It is obvious that, if the 
 loss of sight was due to disease, the defendant did not breach his duty, 
 unless in the treatment thereof he failed to measure up to the standard 
 stated before; and it is equallj^ as obvious that the plaintiff's theory 
 excludes any other means or omission leading to that breach of duty 
 in the premises except that rested on the use of carbolic acid (a matter 
 disputed in the proof) in the prescription written by the defendant 
 in the treatment of the eye. Dr. Hughes and defendant both testified 
 that the prescription written by defendant was prepared by Hughes, 
 and not by defendant, and that in it there was no ingredient of 
 carbolic acid. Dr. ^Murray testified that the eye nor lid nor face 
 gave any evidence of having been burned with carbolic acid, and that 
 in his opinion the loss of sight was due to the disease. There are some 
 tendencies in the evidence to the effect that the preparation contained 
 carbolic acid, the chief of which were afforded by the testimony of 
 two witnesses that the contents of the bottle bore an odor of carbolic 
 acid, and that the sediment in the bottom of the bottle was similar to 
 that made by an excess over a solution of carbolic acid. 
 
 ' ' The burden of proof in cases of this character is on the plaintiff to 
 
 117 
 
OPHTHALMIC JURISPRUDENCE 
 
 show that the defendant's care, skill, or diligence in the given case 
 was not that required, as stated, of physicians and surgeons; and it 
 should be added that there is no presumption of negligence or want 
 of skill arising from the failure to cure. (30 Cyc. p. 1584, and 
 authorities in notes.) It is evident from this record that the con- 
 trolling issue was whether the preparation applied to the eye was that 
 prescribed by the defendant. As indicated, there was some evidence 
 tending to show that the preparation was that prescribed by the de- 
 fendant, and that it contained carbolic acid. It consisted of the 
 testimony of Mrs. Daniel that the defendant brought the bottle to 
 the house where the child was, and that out of this bottle the liquid 
 was put into the eye. It must be conceded that there was a conflict 
 in respect of the issue stated. In the light of all of the evidence, 
 however, the opinion is entertained that the weight of the evidence 
 and the probabilities of the truth of that tending to fix liability upon 
 the defendant are so strongly against the verdict as to carry conviction 
 that it is wrong and unjust. 
 
 ''In the first place, the long period of time elapsing between the 
 injury and the institution of the action, in connection with the un- 
 disputed fact that defendant was subsequently often called profes- 
 sionally to treat members of ]\Irs. Daniel's family, are circumstances 
 impossible to be ignored in determining the weight to be given Mrs. 
 Daniel's, the next friend's, testimony. In the second place, Dr. Sulli- 
 van's testimony may be taken at the limit of its probative value, and 
 yet, when boiled down, it amounts to nothing more than that the 
 injury "might" — a term, as employed, no stronger than possibly — 
 have been produced by carbolic acid, or "might" (i. e., possibly) have 
 resulted from a virulent form of conjunctivitis, a disease of the mem- 
 brane of the eyeball. There was for the plaintiff no evidence that the 
 eyeball or its membranes were burned by a caustic; carbolic acid 
 being of that class of chemicals. On the contrary, the proof is con- 
 clusive that carbolic acid, when applied to the human anatomy — its 
 component membranes — deadens, and the inevitable effect is to produce 
 a sloughing of the cauterized part. There is a total absence of proof 
 that any sloughing occurred. As we view the evidence here, it is im- 
 possible to cauterize a membrane with carbolic acid, and affect only 
 to change its color. It is incredible on this evidence that the iris could 
 be altered in color from brown to white by the application of carbolic 
 acid, and at the same time avoid sloughing of the cauterized mem- 
 brane. Directly opposed to the plaintiff's theory of fact there is the 
 testimony of Hughes and defendant and that of Dr. Murray, and the 
 original prescription defendant contends was supplied by him. The 
 
 118 
 
OPHTHALMIC JURISPRUDENCE 
 
 two first mentioned say that there was no carbolic acid in the prepara- 
 tion, and that the prescription was filled by Hughes, and not by the 
 defendant. The original prescription is before us. Carbolic acid is 
 not one of its named elements. Dr. Murray saw the eye the next day, 
 and he is positive that there was no evidence of cauterization about 
 the eye or face. So far as appears, he is Avithout interest in the 
 premises. He was called by Mrs. Daniel. Support for the plaintiff's 
 insistence must come from the odor and the sediment. Two witnesses 
 say there was an odor of carbolic acid, and one that there was a cloudy 
 sediment in the bottle. The inevitable effect of carbolic acid on mem- 
 branes and the positive statement of Dr. Murray that there was no 
 cauterization, and that there was no sloughing and the testimony of 
 Hughes and defendant, all in connection with the long lapse of time 
 between the injury and the commencement of the action and the 
 continuance of defendant in the professional service of the house- 
 hold, compel the conclusion that carbolic acid did not destroy the 
 child's sight. 
 
 "The court should have granted the new trial. Its refusal was 
 error, and on that account the judgment must be reversed." 
 
 c. Some of the lower courts have attempted to establish a yet higher 
 standard of professional knowledge and skill, a standard which has 
 been expressed in the following language: "Such skill and diligence 
 as are ordinarily exercised by thoroughly educated physicians and 
 surgeons." No court of last resort, however, in the United States, 
 has yet sustained this rule.^ However, the tendency is, with the con- 
 tinued improvement in medical education, for the courts to approxi- 
 mate more and more closely to this very high standard of medical 
 and surgical requirements. 
 
 Now, all these three rules (the second, as before stated, being the 
 prevailing one) apply to general practitioners only. A question of 
 especial interest of course arises here : What is the standard of 
 requirement in the case of specialists, ophthalmic surgeons, for in- 
 stance ? 
 
 It is undoubtedly a fact that a specialist (and, in this connection, a 
 specialist is any one who holds himself out, in effect, to be such) is 
 bound to a higher degree of skill than is a general practitioner. The 
 rule is that a person assuming to be a specialist must really possess 
 and actually use the ordinary learning and skill possessed and used 
 
 1 Unless we except the Supreme Court of Pennsylvania in McCandless v. McWha 
 (22 Pa. St. 26). In this case Woodward, J., defined "reasonable skill and 
 diligence" to be "such as thoroughly educated surgeons ordinarily employ." 
 It is a question, however, whether this definition is not merely obiter. Further, 
 the case is by no means recent; its date is 1853. 
 
 119 
 
OPHTHALMIC JURISPRUDENCE 
 
 by others who practise the same specialty or specialties in similar 
 localities. Even in the case of a specialist, however, practising in a 
 city of the very largest class, the degree of skill required is by no 
 means such as would enable him to effect a cure in every case that 
 comes before him. There is, in other words, on the part of the spe- 
 cialist no implied warranty to cure any more than there is in the 
 case of the general practitioner. A warranty to cure can arise only 
 from an express contract — a contract which, however, as everybody 
 knows, even with all its possible disastrous legal consequences, certain 
 physicians are nevertheless unwise enough to enter into. The law does 
 not attach legal consequences, either to general practitioner or to 
 specialist, merely for failure to cure. It is to malpractice — the failure 
 either to possess, or to use, the proper degree of knowledge and skill 
 (which varies according to locality, specialism, etc.) that the law 
 attaches such consequences. The leg or the arm, or the ear or the eye, 
 must have been improperly treated or in some way neglected, in order 
 to constitute malpractice.^ 
 
 The effect of this principle is very far reaching. In Stern v. 
 Lanng,2 for instance, Dr. Lanng, an oculist, had removed a chalazion 
 from the left lower eyelid. He had made on the conjunctival surface 
 of the lid a crucial incision down into the cyst, and, after removing 
 the gelatinous contents of the growth, had used a tiny scoop for the 
 removal of the sac. Finally, he had cauterized the cavity by means 
 of a stick of nitrate of silver ' ' about an inch in length ' ' and ' ' about the 
 shape of a lead pencil." The eye itself became much inflamed, and 
 solutions of atropin and boric acid were employed to combat the in- 
 flammation and for disinfecting. The lid became adherent to the 
 cornea, and the cornea became opaque. In consequence of the corneal 
 opacity the eye was entirely blind. At the trial three expert oculists 
 pronounced the treatment proper. Said the judge in the higher court : 
 "The inflammation of the cornea, and consequent opaqueness, is as- 
 cribed by the appellant to the cauterization of which he complains, 
 but this is not sustained by the testimon3^ There are, we are in- 
 formed, a number of causes for it, and that it is impossible to look at 
 the eye and tell whether it has been burnt or not . . . The result of 
 the treatment is not all that is necessary to recover. It must be made 
 evident that there was negligence or want of skill. There was in- 
 tense pain felt by plaintiff after the incision. It does not necessarily 
 
 1 And, need we add, damage of some sort must actually have followed from 
 such unskilfulness or negligence, in order to entitle the patient to recover. Other- 
 wise, it is injuria absque damno, wrong without damage, and this is not actionable. 
 
 2 106 La. 736. 
 
 120 
 
0PHTHAL3VIIC JURISPRUDENCE 
 
 follow, as we infer, that it was owing to the negligence or unskillful- 
 ness of the physician." The judgment which the defendant had ob- 
 tained below was therefore affirmed. 
 
 Another leading eye case on this point is that of Pettigrew v. Lewis 
 et al.^ The plaintiff, a school teacher, alleged that an operation had 
 been performed on her left eye by the defendants (partners) for 
 strabismus, and that the operation had been performed so negligently 
 and unskillfully "that her eye became sore and weak, rendering her 
 unable to complete her education or to perform ordinary household 
 work. ' ' She further alleged that she ' ' suffered and still suffers great 
 physical pain in consequence of the unskillful operation and treat- 
 ment, which has continued to increase since the time of the operation. ' ' 
 The lower court, however, sustained a demurrer to the evidence, ' ' hold- 
 ing that it was insufficient to establish a liability against the defend- 
 ants . . . and gave judgment accordingly." The plaintiff took 
 the case to the Supreme Court, there urging "that the testimony of- 
 fered b}' her was sufficient to take the cause to the jury." But said 
 Justice Johnston: "We agree with the district court that it [the evi- 
 dence] did not show the operation to have been unskillfully and negli- 
 gently performed, nor yet that the present condition of her eyes was 
 the result of the operation that was performed. No proof was offered 
 of the instruments used or the manner in which the operation was per- 
 formed. No medical or scientific evidence was offered showing the 
 cause of the present condition of the plaintiff's eyes, nor that the 
 defendants were negligent or careless in the performance of the opera- 
 tion. In fact no witnesses having special skill or knowledge with 
 reference to the treatment of the eyes were introduced in behalf of 
 the plaintiff. The burden rested on the plaintiff to show a want of 
 due care, skill, and diligence in the operation, and that the defective 
 condition now existing is the result of such want of care, skill, and 
 diligence." 
 
 Now the degree of learning and skill which the specialist does really 
 need to possess and actually to employ in order to escape the legal con- 
 sequences which the law imposes upon a specialist guilty of malpractice, 
 is, as already stated, such a degree as is ordinarily possessed and ac- 
 tually used by specialists (not general practitioners) practising the 
 same specialty, or specialties, in similar localities. 
 
 A couple of illustrations may possibly here be useful. In Feeny v. 
 Spalding^ the defendant was a distinguished oculist who practised in 
 Portland, IMe. While on a trip to Machias he stopped over for a short 
 
 1 48 Kan. 78. 
 
 2 89 Me. 111. See also Rann v. Twitehell, Ft, 1909; 71 At. 1045; 20 L. R. A. 
 N. S. 1030. 
 
 121 
 
OPHTHALMIC JURISPRUDENCE 
 
 time at Cherryfield. Here a girl, seven years of age, cross-eyed since 
 she was a year and a half old, was brought to him for examination and 
 treatment. After a conference with the parents, defendant performed 
 a surgical operation on one of the plaintiff's eyes. The plaintiff 
 alleged that, prior to the operation, the sight of the eye on which the 
 operation had been preformed, was at least fairly good, but that, after 
 the operation, it was entirely wanting. She further alleged that this 
 result was produced by defendant's ignorance, want of skill, and 
 carelessness in the performance of the operation. The plaintiff, in the 
 trial court, had received a verdict. Said the court: "It was encum- 
 bent on her [the plaintiff] to prove that the injury complained of 
 was caused either by the defendant's want of that degree of skill and 
 knowledge which is ordinarily possessed by physicians who devote spe- 
 cial attention and study to the treatment of the eye, or by his failure 
 to exercise his best judgment in the application of his skill to the 
 particular case, or by his failure to use ordinary care in the perform- 
 ance of the operation, and in giving such instructions as should have 
 been given by a surgeon who was only to perform the operation, and 
 who was temporarily in the locality where the patient lived . . . 
 At the trial, the plaintiff relied almost entirely upon the result which 
 it is claimed followed the operation . . . while the expert testi- 
 mony on the part of the defense was to the effect that an examination 
 of the eye showed conclusively that the defective vision had existed 
 from birth and that it was as good at the time of the trial as it ever had 
 been . . . Even if there was sufficient evidence to authorize the 
 jury to find for the plaintiff upon this question, such a finding was 
 not sufficient to warrant a verdict for the plaintiff, when there was no 
 evidence of any want of the requisite skill, knowledge, or care upon 
 the part of the defendant. ' ' 
 
 Still another case is that of Baker v. Hancock.^ Here the defendant 
 was a specialist in the treatment of cancer. Plaintiff alleged that de- 
 fendant had placed upon his nose a substance by "which the end of 
 his nose was eaten off." The verdict below was for the defendant, 
 but the higher court reversed the judgment and remanded the case 
 for a new trial, saying: "Scientific investigation and research have 
 been extended and prosecuted so persistently and learnedly that the 
 person affected by many forms of disease is of necessity compelled to 
 seek the aid of a specialist, in order to secure the results thereof. The 
 local doctor, in many instances, himself suggests and selects the spe- 
 cialist whose learning and industry have given him a knowledge in 
 
 1 29 Ind. App. 456. 
 
 122 
 
OPHTHALMIC JURISPRUDENCE 
 
 the particular liue which the general practitioner, in rural communities 
 especially, has neither time nor opportunity to acquire, (Small v. 
 Howard, 128 Mass. 131.) Being employed because of his peculiar 
 learning and skill in the specialty practised by him, it follows that his 
 duty to the patient cannot be measured by the average skill of general 
 practitioners. If he possessed no greater skill in the line of his spe- 
 cialty than the average physician, there would be no reason for his 
 employment; possessing such additional skill, it becomes his duty to 
 give his patient the benefit of it. The appellee, if he held himself out 
 as a specialist in the treatment of cancer, was bound to bring to the 
 discharge of his duty to patients employing liiui as such specialist 
 that degree of skill and knowledge which is ordinarily possessed by 
 physicians who devote special attention and study to the disease, its 
 diagnosis and treatment, having regard to the present state of scientific 
 knowledge. This is the degree of skill which, by holding himself out 
 as a specialist, he represented himself to have ; and it does not lie with 
 him to assert, after securing employment and compensation on that 
 basis, that his representation was not true." 
 
 In any case, however, whether the defendant is city or country 
 general practitioner or city or country specialist, the degree of skill 
 and learning required has reference always to "the present state of 
 medical and surgical knowledge." This legal proposition is illustrated 
 clearly in Peck v. Hutchinson.^ The plaintiff, as alleged, had had 
 "infection of conjunctivitis and blennorrhea," together with a perfor- 
 ating ulcer of the cornea and prolapse of the iris. Defendant had 
 operated on the eye, and, as alleged, had used "too large a knife," 
 etc., etc. A matter which bulked very largely at the trial was that, in 
 the course of the operation, the plaintiff had suddenly jerked her head 
 about, causing the production of a false incision, deep and long, di- 
 rectly across the cornea. To this unfortunate movement the defendant 
 attributed the non-success of his operation. The plaintiff, in her turn, 
 contended that the movement w^as unavoidable by reason of the fact 
 that the work had been done under local, instead of general, anesthesia. 
 The plaintiff's counsel was allowed to read from Wells's '^Treatise on 
 the Eye" the remarks by that author on the subject of iridectomy. 
 In the course of these remarks the author states that, for iridectomy, 
 chloroform should always be administered. He does not even men- 
 
 1 88 Iowa 320, 55 N. W. Eep. 511 ("N. W. Eep." stands for "Northwestern 
 Beporter," a convenient periodical, published by a private company, but contain- 
 ing in each issue the latest decisions of the courts of last resort in various north- 
 western states. It appears sooner, and is often more accessible later, than the 
 ofiicial state reports. There is also a ' ' Southwestern Beporter, " a * ' South- 
 eastern Beporter," etc.). 
 
 123 
 
OPHTHALMIC JURISPRUDENCE 
 
 tion local anesthesia. In accordance with the views of this book, the 
 counsel for the plaintiff declared that the defendant had neglected his 
 duty, inasmuch as he had operated with local anesthesia only. But 
 said the higher court : ' ' The book was published in 1880 . . . the 
 operation was performed in 1886, and it is claimed that, after 1880, 
 and prior to 1886, great changes had occurred in optical surgery; 
 that during that time, cocain, a local anesthetic, was discovered, and 
 came into use, thus superseding the use of general anesthetics in such 
 cases. This may be conceded . . . that fact was fully shown to 
 the jury. ' Physicians and surgeons are required to use ordinary skill 
 and diligence . . . having regard to the improvements and ad- 
 vanced state of the profession at the time of the treatment.' " The 
 judgment, which, in the lower court, had been for the plaintiff, was, 
 therefore, by the higher court reversed. 
 
 Here is a still further point in connection with the question of 
 what constitutes a reasonable degree of learning and skill. The matter 
 is always to be tested by the doctrines of one 's own school of practice. 
 This legal proposition is absolutely indisputable, having been decided 
 in a very large number of cases, with, so far as I know, not a single 
 dissenting case.^ The principle is, in fact, not merely good law, but 
 also good sense. So long as the law gives recognition to various 
 so-called "schools," it must, as a natural consequence, allow the treat- 
 ment of any given physician to be tested by the doctrines of the school 
 he professes to practice. To hold a regular practitioner culpable for 
 ignoring the principles of, say, homeopathy or of eclecticism, or an 
 osteopathic physician for not proceeding according to the principles 
 of regular medicine or of homeopathy, would be, in effect, not mcrelyi 
 to violate the compact made with the State when the physician was 
 granted a license to practise, but also to break the contract made by 
 implication between the patient and the practitioner when the latter 
 was employed in the case. 
 
 The rule, however, does not apply to the case of a clairvoyant or 
 of any other person who practises a system which has no recognition 
 under the law and nothing definite in the way of rules and principles. 
 Thus, in Nelson v. Harrington,^ said Lyon, J.: "To constitute a 
 school of medicine under this rule, it must have rules and principles 
 of practice for the guidance of all its members, as respects principles, 
 diagnosis, and remedies, which each member is supposed to observe 
 in any given case. Thus, any competent practitioner of any given 
 
 1 This rule, however, has never been adopted, at least so far as I have been 
 able to ascertain, in any of the countries of Continental Europe. As to American 
 cases, see Bowman v. Woods (1 G. Greene, 441); Force v. Gregory (63 Conn., 
 167) ; Spead v. Tomlinson (73 N. H. 46) ; Grainger v. Still (187 Mo. 197) ; 
 Shockley v. Tucker (127 loiva 456). 
 
 2 72 Wis. 591. Cited also supra, under another legal proposition. 
 
 124 
 
OPHTHALMIC JURISPRUDENCE 
 
 school would treat a given ease substantially the same as any other 
 competent practitioner of the same school would treat it. One school 
 may believe in the potency of drugs and blood-letting, and another 
 may believe in the principle similia similibus curantur; still others may 
 believe in the potency of water, or of roots and herbs ; yet each school 
 has its own peculiar principles and rules for the government of its 
 practitioners in the treatment of diseases. Not so, however, with the 
 clairvoyant practice. True, the practice has but one mode of ascer- 
 taining what the disease is, and the remedy therefor. This mode has 
 already been stated. But the mode in which a physician acquires a 
 knowledge of his profession has nothing to do with his school or 
 system of practice. One person may acquire such knowledge from cer- 
 tain books ; another from certain other books, which perhaps teach dif- 
 ferent principles; still another from oral communication, as lectures, 
 et cet., or from experience alone ; and still another from his intuition 
 Avhen in an abnormal mental state ; yet these differences do not neces- 
 sarily constitute separate schools of medicine." 
 
 This was "a case of first impression," (as mentioned by the learned 
 justice himself in his opinion) but it is now the settled law. 
 
 3. Now it is, furthermore, absolutely necessary that a doctor, 
 whether his field of work be limited or unlimited, and whether his 
 practice be chiefly in the city, or in a town, or in the smallest country 
 village, not merely possess, but that he also actually make use of the 
 skill and learning which the law requires him to possess in accordance 
 with the rules above stated. He must not be negligent, however skill- 
 ful he may be. He must actually exercise his skill. Otherwise he is 
 guilty of malpractice. 
 
 It is not essential that this division of the general subject be greatly 
 amplified, but here it is certainly important to lay some stress on a 
 matter Avhich should prove of interest to oculists, who, as a rule, do 
 rather a great deal of innovating. I refer to the matter of experi- 
 mentation. On this head, the general principle is quite clear : Thou 
 shalt not experiment on mankind. The use of new and untried rem- 
 edies or new and untried operative procedures, are alike forbidden, in 
 the case of man. The view of the law is that experimentation should 
 be conducted on the lower animals. Just what would happen to 
 medical progress in case our friends, the antivivisectionists, should 
 carry their point, and experimentation on animals should be forbid- 
 den also, as well as that on man, is a trifle unpleasant to think about. 
 Possibly, in the words of Micawber, we should "progress in a retro- 
 grade direction." However, the matter is not so bad as it looks in the 
 light of the general rule. There is one exception : The doctor may in- 
 
 125 
 
OPHTHALMIC JURISPRUDENCE 
 
 novate in the ease of an unusual disease (pellagra, for example) or 
 of new and unusual combinations of symptoms in old diseases. Even 
 in such cases, however, he must be altogether able and ready to prove 
 that his innovations were not haphazard, but that they were based on 
 things already known and that they were carried out in accordance 
 with a definite and sensible theory of some benefit to accrue to the sub- 
 ject of the experiment himself.^ Said the court, in Jackson v. Burn- 
 ham: 2 ''There must be some criterion by which to test the proper 
 mode of treatment in a given ease; and, when a particular mode of 
 treatment is upheld by a consensus of opinion among the members of 
 the profession, it should be followed by the ordinary practitioner; ^ and 
 if a physician sees fit to experiment with some other mode, he should 
 do so at his peril. In other words, he must be able, in the case of dele- 
 terious results, to satisfy the jury that he had reason for the faith that 
 was in him, and justify his experiment by some reasonable theory." 
 Again, in Carpenter v. Blake,^ said the court: "Some standard by 
 which to determine the propriety of treatment must be adopted ; other- 
 wise experiment will take the place of skill, and the reckless experi- 
 mentalist, the place of the educated, experienced practitioner. If the 
 case is a new one, the plaintiff must trust to the skill and experience of 
 the surgeon he calls ; so must he if the injury or the disease is attended 
 with injury to other parts, or other diseases have developed themselves, 
 for which there is no established mode of treatment. But when the case 
 is one as to which a system of treatment has been followed for a long 
 time, there should be no departure from it, unless the surgeon who does 
 it is prepared to take the risk of establishing, by his success, the pro- 
 priety and safety of his experiment." 
 
 Of course the great defect of the law with regard to the matter of 
 experimentation and iiniovation (medically speaking — we admit that 
 the subject is difficult) lies in this one point, namely: That it makes no 
 kind of provision whatever for the finding out of new and more perfect 
 methods of treatment in old and well-known diseases presenting old and 
 well-known combinations of symptoms. For instance, an oculist desires 
 
 1 In this connection the words of Aristotle with reference to the Ancient 
 Egyptian law, are interesting : ' ' Even in Egypt the physician was allowed to 
 alter the mode of cure which the law prescribed to him, after the fourth day. 
 But if he did so sooner, he acted at his own peril. ' ' — Politics, Book III, c. 15. 
 
 2 20 Col. 533. 
 
 3 These words (which have been italicized by the present writer) are, though 
 oMter dictum, extremely interesting. They suggest this question: Have some 
 practitioners a better right to experiment ou human subjects than have others? — 
 a question which, so far as I have been able to ascertain, has never appeared for 
 direct decision in any court of last resort. 
 
 4 60 Barb. 488. (" Barb. ' ' is short for ' ' Barbour. ' ' The Barbour reports are 
 certain N. Y. reports which bear the name of their reporter.) 
 
 126 
 
OPHTHALMIC JURISPRUDENCE 
 
 to ascertain whether the injection of certain substances into the ante- 
 rior chamber of the eye will result in the complete absorption of a senile 
 cataract. Now, senile cataract is by no means a "new" disease, but per- 
 haps older than the human race itself, and, furthermore, for this condi- 
 tion there exists a well-established line of operative treatment. Yet, to 
 forbid the innovator from trying his injection (with or without pre- 
 vious animal experimentation, according to his judgment) would, be- 
 yond question, be to hinder the onward march of medicine. Even 
 though the results of the experiment should be unfavorable to the in- 
 dividual, something might very conceivably have been ascertained that 
 would prove immensely serviceable, indirectly at least, in many an 
 after case. Of course, there should be a reasonable chance that the 
 innovation would prove to be an improvement, even for the subject of 
 the experiment himself, over methods long established. Perhaps the 
 dictum in the Colorado case with reference to "ordinary" doctors, 
 might help out, should an innovator in the case of an "old" disease, 
 presenting nothing but old and well-known combinations of symptoms, 
 get into legal difficulties by reason of his experimentation,^ 
 
 Other matters coming under the head of negligence, or failure act- 
 ually to use and employ the reasonable skill and knowledge which the 
 law requires a physician to possess, may thus be stated briefly: A 
 physician is liable for giving improper directions and for failure to 
 give proper ones. He is also liable for failure to call counsel in proper 
 cases. He is just as truly liable for an improper opinion (if damages 
 ensue therefrom) as he is in the case of actual treatment given. He 
 is bound to use pure and proper drugs and aseptic instruments, and to 
 write correct prescriptions. A physician is liable for the malpractice 
 of his partner, though he himself had nothing to do with the case. He 
 is also responsible for the acts of a nurse, if the nurse was acting 
 according to his instructions; and, further, even in other instances, if 
 the nurse was placed in charge of the case by the physician in question 
 who thus by implication warranted her skill and carefulness. A phy- 
 sician is not, however, liable for the acts of a nurse in a public institu- 
 tion in which the physician himself has no direct control over the 
 nurses. A physician is not responsible for the malpractice of a phy- 
 
 1 The leading ease on this subject is the Colorado case above mentioned, Jackson 
 V. Burnham. Here the plaintiff had had severe phimosis, and the defendant, 
 instead of slitting up the prepuce, had applied to the penis a flaxseed-meal poultice. 
 Gangrene ensued, together with extensive sloughing, and it became necessary to 
 amputate "his penis wholly from the body." The district court gave judgment 
 to the plaintiff. This judgment was reversed by the Court of Appeals, but sus- 
 tained by the court of last resort (Supreme Court). Here, however, the inno- 
 vation was clearly not founded on things already known or on a definite and 
 well-formed theory of benefit to accrue to the subject of the experiment nimself. 
 
 127 
 
OPHTHALMIC JURISPEUDENCE 
 
 sician in whose charge he leaves a case, provided the two are in 
 independent practice (i. e., not in partnership) or of a specialist in 
 independent practice to whom the case has been referred by him. 
 
 Sometimes the patient himself is negligent, and, under certain cir- 
 cumstances, this ' ' contributory negligence, " as it is called, is a complete 
 defense against a claim for malpractice. However, if the acts of the 
 patient did not produce the injury, but merely aggravated it, they are 
 not a complete defense, but may be shown only "in mitigation of dam- 
 ages" — i. e., to diminish the amount of the judgment. An important 
 principle is that, if the injury produced by the patient's negligence 
 cannot be separated from that produced by the negligence of the physi- 
 cian, the patient cannot recover damages. 
 
 Some of the commonest forms of contributory negligence consist 
 in (a) failure to follow the physician's directions (b) not giving to 
 the physician full information with respect to the case, (c) the simul- 
 taneous employment by the patient or his friends of other treatment in 
 connection with that of the regular physician.^ 
 
 4. The fourth duty of the physician is, in eases of doubt to use 
 his best judgment. This is a difficult rule to understand, because its 
 meaning is indefinite. Nevertheless, the rule exists, and is exceedingly 
 important. The conception is that a physician, though possessed of a 
 reasonable degree of learning and skill and though exercising care in 
 its application, is now and then confronted by peculiar conditions in 
 which he nuist use his own individual judgment instead of relying on 
 the common stock of knowledge. Whether, in such conditions, it is 
 actually incumbent on the physician to experiment, is a question which, 
 so far as I have been able to ascertain, has never been decided. Prob- 
 ably, should the question arise, it would be decided in the negative. 
 However, it is likely that an actual case or two will do the utmost pos- 
 sible service in the way of making clear this very difficult rule. 
 
 In a rather early case. West v. Martin,^ the defendant was sued 
 for unskilfullness in the setting of the plaintiff's leg. The defendant, 
 among other matters, pleaded "mere error of judgment." But said 
 Ewing, J., in the Supreme Court: ". . , there may be responsi- 
 
 1 A discussion of this matter would lead us into the never-ending realm of 
 medical folklore. I cannot, however, refrain from mentioning a case in which I 
 was much blamed because, after an entropium operation performed by me, 
 erysipelas supervened. On inquiry, I learned from the patient himself that his 
 mother had twice removed the dressings and applied each time for several hours 
 a poultice of warm cow's dimg. I also knew of a case where tetanus set in fol- 
 lowing the application of road mud to a burn. Without doubt, if proper investi- 
 gation were made in all cases of malpractice, the matter of folk-mediclue would 
 assume a more important aspect in connection with the subject of malpractice 
 defence. 
 
 2 31 Mo. 375 (1861). 
 
 128 
 
OPHTHALMIC JURISPRUDENCE 
 
 bility where there is no neglect, if the error of judgment be so gross as 
 to be inconsistent with the use of that degree of skill that it is the duty 
 of every surgeon to bring to the treatment of a case according to the 
 standard indicated." 
 
 In Dubois v. Decker/ the plaintiff, having a crushed foot, was 
 taken to an almshouse, in which institution, some nine or ten days 
 later, the defendant amputated the leg above the ankle joint, "Six or 
 seven days thereafter, gangrene having set in, he again amputated the 
 leg. this time at the knee-joint. After the second amputation the leg 
 did not properly heal, but became a running sore, and at the time of 
 the trial the bone protruded some three or four inches. ' ' The position 
 taken by the plaintiff was that the second amputation had been necessi- 
 tated, and the deleterious results which followed it had been caused 
 by the delay of nine or ten days in the performance of the first opera- 
 tion. There was expert evidence to show that this w^as really the case. 
 The defendant alleged "mere error of judgment," stating that he had 
 "waited ten days before operating for the purpose of seeing whether 
 the foot could not be saved, and that a physician and surgeon will not 
 be held liable for mere errors in judgment." But said Justice Haight : 
 ". . . his judgment must be founded upon his intelligence. . . . 
 he should have known the probable consequences that would follow 
 from the crushing of the bones and tissues of the foot. ' ' 
 
 These two instances serve as well as any that could be selected to 
 show the condition of the law with regard to this very important, yet 
 very indefinite, matter. The cases, unfortunately, relate almost ex- 
 clusively to the negative side of the question — i. e., as to what does not, 
 rather than to what actually does, constitute the use of one's own best 
 judgment.2 
 
 Miscellaneous matters. — An interesting question arises with respect 
 to the medical or surgical malpractice of persons not licensed as physi- 
 cians. A "graduate optician," for instance, employs the title of 
 "doctor" and "eye specialist" and declares to a patient, that he is a 
 practitioner of medicine and that he can cure the patient's affection 
 by means of a pair of spectacles. The patient is suffering from 
 
 1130 N. Y. 331 (1891). 
 
 2 We might add, as being somewhat relevant to this rule, the legal principle 
 that a physician who does not feel himself competent to treat a given case, should 
 never, for that reason only, rely upon his judgment in that case, for the "judg- 
 ment" rule has not for its object the protection of incompetency. In all cases 
 where a physician feels himself to be incompetent, his duty is to recommend his 
 patient to employ another doctor, whether specialist or general practitioner. If, 
 however, the patient, after being thus recommended, is willing and desirous that 
 the first physician continue in charge of his case, then the first physician is not 
 liable (as suggested some distance supra) for anything but the very grossest 
 negligence. 
 
 129 
 
OPHTHALMIC JURISPRUDENCE 
 
 syphilis of the retina and optic nerve, and in consequence of the negli- 
 gence of the graduate optician, he fails to receive the proper kind of 
 medical attention, and his sight is destroyed. Is the optician liable? 
 Again, a druggist treats an injured finger, pretending the while to the 
 patient that he is a physician, and damage ensues as a result of the 
 improper treatment. In all such cases the defendant is liable, precisely 
 as if he were really a physician.^ A still stronger case is that of Nelson 
 V. Harrington 2 in which the defendant was a clairvoyant whose 
 practice it was to place himself in a kind of trance, and, from that 
 coign of vantage, to diagru)se and prescribe for his patients. He had 
 never declared himself to be a physician, but, on the contrary, had 
 often asserted that he had no medical knowledge. Nevertheless, the 
 judgment was against him both at the trial and in the higher court. 
 However, in this connection it is to be noticed that where the 
 therapeutist or the surgeon does not profess to be a physician, and at 
 the same time gives the advice or the service as a friend or neighbor 
 merely, he incurs no liability. The leading case ^ upon this point pos- 
 sesses an especial interest for oculists. The defendant was a midwife, 
 practising in Boston, Mass. She attended the mother of the plaintiff 
 when the plaintiff was born, and, three days later, was shown one of the 
 plaintiff's eyes, which seemed to be inflamed. The defendant declared to 
 the plaintiff's mother that the trouble was "nothing serious, that it re- 
 sulted from too much light," and she then "directed the witness to 
 darken the room and to dip a linen cloth in water and place it on the 
 child 's eye. ' ' The room was darkened accordingly, and the application 
 made. Next day the defendant again declared that the trouble was 
 ' ' nothing serious, ' ' and that she could cure it, and, this time, she made 
 an application of rose-water. Two days after the tirst eye presented 
 symptoms of disease, the second e.ye became affected. However, for two 
 weeks the defendant came in twice daily and applied her washes to the 
 child's eyes. The plaintiff's mother said to the defendant that she was 
 alarmed about the child's eyes, and thought some competent physician 
 should be called in. The defendant, however, replied that she need not 
 be alarmed ; that she, the defendant, could cure the disease ; that she 
 had cured with her washes several children so afflicted, and mentioned 
 the child of one Mrs. Stevens, whose eyes were much sorer than the 
 plaintiff's, and said she had cured the child's eyes with her washes; 
 that the defendant also told her not to call in a doctor, saying that ' ' the 
 doctors spoiled the eyes of half the children," that "the doctors' washes 
 
 1 Mathei v. Wooley, 69 III. App. 655. 
 
 2 72 Wis. 591. 
 
 3 Higgins V. McCabe, 126 Mass. 13. 
 
 130 
 
OPHTHALMIC JURISPRUDENCE 
 
 would burn the child's eyes out"; that she then told her to send for a 
 fresh egg and have it beaten up with sugar, and wash the child's eyes 
 with that, ' ' etc. The result was that the child became totally blind, and 
 there was evidence from regular physicians to show that, had other and 
 more powerful remedies been seasonably employed, they would prob- 
 ably have effected a cure. The court, however, said : ' ' The defendant 
 was originally employed only as a midwife. . . . there was no 
 competent evidence that the treatment of diseases of the eyes which 
 might be developed in the child was embraced in the duties which the 
 defendant undertook as a midwife. ... A physician must apply 
 the skill and learning which belong to his profession, but a person who, 
 without special qualifications, volunteers to attend the sick, can at most 
 be only required to exercise the skill and diligence usually bestowed 
 by persons of like qualifications, under like circumstances. To hold 
 otherwise would be to charge responsibility in damages upon all who 
 make mistakes in the performance of kindly offices for the sick.^ 
 
 A further miscellaneous matter, and one of much importance, is 
 that, in some states, the defendant in a personal injury suit (to 
 which variety of actions, of course, malpractice suits belong) is wholly 
 devoid of power to oblige the plaintiff to submit to a physical examina- 
 tion for the purpose of determining whether or not his alleged injuries 
 do actually exist, and whether, in case they exist, they are actually of 
 as great extent and severity as the plaintiff has alleged. This would 
 seem to be a very unjust holding, but it is actually the law in Illinois,^ 
 Texas, Montana, Delaware, Massachusetts, South Carolina, Utah, and 
 also in the courts of the United States. To the contrary, however, 
 hold the courts of Ohio, Kentucky, Georgia, Alabama, Missouri, 
 Kansas, Arkansas, Michigan, Indiana, Wisconsin, Minnesota, Iowa, 
 Washington, California, Colorado, Maryland, Nevada, Oklahoma, and 
 North Dakota. The courts of New York formerly held against the 
 
 1 This case, however much one 's sympathies may go out to the child, is never- 
 theless undoubtedly good sense as well as good law. One cannot, in fact, help 
 recalling, in this connection, the words of Marshall D. Ewell (Medical Jurispru- 
 dence, p. 291) : "If a patient voluntarily employs in one art a man who openly 
 exercises another, his folly has no claim to indulgence. The old Mahommedan case 
 cited by Puffendorf with approbation is very much to the point: A man who had 
 a disorder in his eyes called on a farrier for a remedy who gave him one com- 
 monly used upon his quadrupedal patients. The man lost his sight and brought an 
 action against the farrier for damages, but the judge held that no action would 
 lie, for if the complainant had not himself been an ass he would never have 
 employed a horse-doctor. ' ' 
 
 2 I personally know two Illinois physicians (in independent practice) who are 
 considerably out of pocket by reason of the fact that the court which heard their 
 cases refused to compel the plaintiff to submit to an examination of his alleged in- 
 juries. The condition of the law on this point ought by all means to be regulated 
 by statute in every State of the Union. 
 
 131 
 
OPHTHALMIC JURISPRUDENCE 
 
 existence of the power, but the decisions of these courts have been 
 overruled by a statute. There are also statutes to the same effect in 
 Florida and New Jersey. 
 
 The courts which hold against the existence of the power, assert 
 that the defendant, in ease the plaintiff refuses to submit to a physical 
 examination, may still find a sufficient protection against injustice in 
 the privilege which his lawyer possesses of directing the jury's atten- 
 tion to the fact of the plaintiff's refusal. But, on this point, said Beck, 
 J. : 1 " This position is not correct. The defendant is left to depend 
 upon the inference of the jury, which might or might not have been 
 exercised, instead of having the truth disclosed by direct and positive 
 evidence. The law will not require it to depend upon such inference 
 when it can afford the means of producing competent evidence upon 
 the question in issue. ' ' - 
 
 Still another miscellaneous matter relates to the effect which a 
 judgment rendered by a court of law in favor of a physician for his 
 fee, has on the right of the patient, at some later period, to sue the 
 physician for malpractice. It is a well-known fact that not infrequently 
 when a suit is brought by a physician for his fee he is met by a counter- 
 claim for malpractice. Then both matters are litigated together. If 
 the jury decides that the physician has not been guilty of malpractice, 
 then (provided the claim for fees be just and reasonable, not already 
 paid, etc.), the court will give to the physician a judgment for his fees 
 whereas if, on the other hand, the jury holds adversely on the question 
 of the doctor's treatment, then not only does the doctor fail to secure a 
 judgment for his fees, but, generally, he is mulcted in compensatory 
 damages besides. But now suppose the doctor, when he sues for his 
 fees, is not confronted by a claim for malpractice, and that he actually 
 recovers a judgment against the plaintiff for the value of his services, 
 and that, further, at some later date, the patient decides to sue the 
 physician for malpractice. Is the suit for malpractice barred, or is it 
 not? 
 
 The answer is that, in the vast majority of jurisdictions, it is, un- 
 doubtedly, barred. The great courts of New York, New Jersey, and 
 West Virginia so hold in language clear and unmistakable.^ Some 
 
 1 In Scliroeder v. C. E. I. & P. Ky., 47 la. 375. 
 
 2 For an extended discussion of this subject see an article by the present writer, 
 entitled "May the Plaintiff in a Personal Injury Suit be Compelled to Exhibit 
 His Injuries? If so, Under What Circumstances?" in the Michigan Law Review, 
 Vol. I, Nos, 3 and 4, p. 193 and p. 277, Dec, 1902, and Jan., 1903. 
 
 It is interesting to note that the question in hand, though much adjudicated in 
 America, has never arisen for decision in England. 
 
 8 Bellinger v. Craigue, 31 Barb., 534; Gates v. Preston, 41 N. Y. 113; Blair v. 
 Bartlett, 75 N. Y. 150; Dunham v. Bower, 77 A^. Y. 76; Ely v. Wilbur, 49 
 N. J. L. 685. 
 
 132 
 
OPHTHALMIC JURISPRUDENCE 
 
 courts make a distinction, however, between cases in which malpractice 
 was actually pleaded as a defense, and those in which a judgment for 
 the fees was taken hy default, or where, though the defendant in the 
 suit did actually appear, he nevertheless defended on some other ground 
 than that of malpractice. Such courts hold that, in the latter two con- 
 tingencies, the suit for malpractice is not barred. However, even in 
 the great majority of states where the question has never as yet arisen 
 in a court of last resort, the decisions of the courts of New York, New 
 Jersey, and West Virginia, would, by reason of the great persuasive 
 authority of these courts, almost certainly be followed. 
 
 A final miscellaneous question relating to the American law of mal- 
 practice is : May a valid judgment ever be rendered against a physician 
 for malpractice in the total absence of expert testimony against his 
 manner of treatment? The answer is. Yes, in certain very exceptional 
 circumstances (namely where the existence of malpractice is patent to 
 ordinary comprehension) such a judgment in the trial court would most 
 undoubtedly stand. Just what the necessary circumstances are to enable 
 a court to dispense with expert testimony in a malpractice case, is al- 
 ways a question of fact (not of law) but the following are typical and 
 also actual instances of such circumstances, or rather sets of circum- 
 stances. In j\Ioratzky v. Wirth,^ an accoucheur permitted a portion 
 of the placenta, 2 in, long by % in. in thickness, to remain in the 
 uterus, by which neglect, as was alleged, the plaintiff suffered from 
 septicemia, resulting in the loss of her leg. Held, that expert testimony 
 was not necessary. In Lewis v. Dwinnell,^ a physician failed to dis- 
 cover, as was alleged, an extensive perineal rupture. Held, that ex- 
 pert testimony could not be dispensed with. In Richardson v. Carbon 
 Hill Coal Co.,^ a physician who discovered a fracture of the femur 8 
 inches from the hip joint, did not discover, as was alleged, a co- 
 existing and very manifest dislocation of the hip. Held, that expert 
 testimony was not necessary. And, in Gedney v. Kingsley,'* a physician, 
 after the reduction of a Colles' fracture, put on the bandages so tightly 
 that, as was alleged, great ulcers formed and the flesh sloughed off. 
 Held, that expert testimony was not necessary. However, in James v. 
 Crockett,^ when a physician after repeated and careful examinations 
 and a consultation with a competent fellow practitioner, did not dis- 
 cover a dislocation of the arm, it was held that expert testimony could 
 not be dispensed with. 
 
 1 67 Minn. 46. 2 84 Me. 497. 3 10 Wash. 648. 
 * 16 N. Y. Supp. 792. s 34 N. B. 540. 
 
 133 
 
OPHTHALMIC JURISPRUDENCE 
 
 Legal considerations regarding malpractice in England. 
 
 The law of medical and surgical malpractice is, in England, very 
 much the same as in America. In England, for instance, a physician 
 (if not under obligations by reason of some official position) is never 
 obliged to accept a case, no matter how great may be the urgency of the 
 call or the importunity of the caller. But, a case once accepted, the 
 doctor is under stringent legal obligations to continue in charge of that 
 case — exactly as in America. In England, too, as in this country, the 
 fact of gratuitous treatment does not alter a physician's responsibility 
 for malpractice, nor is a contract with the patient, or with those who 
 stand to him in loco parentis, of the very least validity. Such a con- 
 tract is, as here, ' ' opposed to public policy and therefore void. ' ' 
 
 The rule which regulates the quantum of skill, however, which a 
 physician is supposed to bring to a case is different, in England, from 
 what it is (or rather they are) in America. In America, as we have 
 seen, there exist three rules: (1) That the physician must use such 
 knowledge and skill as prevail in the particular locality in which he 
 practises. (2) Such knowledge and skill as prevail in such localities 
 generally. (3) Such as are possessed and used by highly educated 
 physicians. The second rule, in America, we saw to be by far the 
 most frequently adopted and enforced. Now, in England, the rule is 
 that a physician must possess and use a "reasonable," or "ordinary," 
 degree of knowledge and skill. Not only in the cases but in the text- 
 books and cyclopedias, the words, "reasonable" and "ordinary" occur 
 with great persistency. Thus, in Jones v. Fay (1865) "Any one who 
 attempts to treat a sick person (otherwise than on sudden emergency) 
 will be liable for any lack of such skill as an ordinary qualified medical 
 practitioner possesses." Again, the Encyclopedia of the Laws of Eng- 
 land" : 1 " A medical practitioner, whether qualified or not, is responsi- 
 ble in a civil action for damages or a criminal prosecution for man- 
 slaughter, in case of the lack of reasonable care and skill. In civil ac- 
 tions everything depends on the interpretation of the qualifying word 
 reasonable, and this is for the jury to interpret." The idea of locality, 
 which seems to be the central, the controlling, notion in the American 
 view of medical responsibility, possesses, in English law, absolutely no 
 place whatever.2 indeed, in one case, that idea is expressly rejected. 
 Thus, Garrow, B. : "It matters not whether the individual consulted be 
 the President of the College of Physicians or the humblest bone-setter 
 
 1 1900-09, Vol. IX, p. 125. 
 
 2 Has not the small geographical area of England, together with the large 
 geographical area of the United States, had much to do with the formation of this 
 distinction ? 
 
 134 
 
I 
 
 OPHTHALMIC JURISPRUDENCE 
 
 in the village, he ought to bring into the case ordinary skill, care, and 
 diligence. ' ' 
 
 Lately, however, and unfortunately, there has been developing a 
 tendency on the part of High Court Judges to apply a stricter rule of 
 accountability. This, it seems to me, is a step in the wrong direction 
 undoubtedly, for the proper rule of accountability in a calling in which 
 so much is, from the very nature of things, a matter of individual judg- 
 ment in the individual case, should be that the practitioner is to be held 
 responsible, not, as in Germany, for the lack of a very high degree of 
 skill, but, as in France, for gross negligence or unskillfuluess only. The 
 trouble with the legal view both in England and in America (a fortiori 
 in Germany) is that it regards the practice of medicine and surgery 
 as something like, for instance, the industry of cabinet-making. Give 
 to a cabinet-maker the proper materials and the proper tools, and, if 
 he be neither unskillful nor negligent, he will make — and always make 
 — for instance, a proper sort of chair. Then, too, the task of making 
 a given kind of chair, for instance, is always and forever the same, and 
 few, if any, competent workmen, would materially disagree as to how 
 that particular variety of chair should be made. In the practice of 
 medicine and surgery, however, the case is very different. In such a 
 calling, a given variety of task is not always and forever the same. In 
 fact, in such a vocation, the task, one is almost tempted to assert, is 
 never twice alike. To a great extent, therefore, in such an occupation, 
 the workman's individual judgment will always be of necessity engaged, 
 and different workmen will, of course, ever be of very different opin- 
 ions. Only the great settled governing rules and principles should al- 
 ways be adhered to — asepsis, for instance, and the necessity of liga- 
 turing a large-sized w^ounded artery — the non-adherence to these, i. e., 
 gross unskillfulness or gross negligence, might very properly be chas- 
 tized by the courts. This, as said already, is the rule in France, and, 
 again, may we not declare avec raisan that they do really "order these 
 things better in France?" 
 
 To hold a medical man responsible for a high degree of skill, is to 
 insist that he shall, under legal sanction, possess a high degree of judg- 
 ment. This, of itself, would be bad enough, for rules in the realm of 
 judgment have but little application; but where, as in England and 
 America, that high degree of judgment which is legally required, would 
 have to be submitted to the further judgment of twelve often illiterate 
 men, "assisted" by casual (instead of official) expert witnesses, who 
 are sometimes not even licensed physicians, and concerning whose abil- 
 ity to "assist" in the matter in hand, the jury are about as incompetent 
 to decide as they are of determining for themselves the medical ques- 
 
 135 
 
OPHTHALMIC JURISPRUDENCE 
 
 tions at issue, then the medical defendant simply plays in a law court a 
 game of chance and with the odds decidedly against him at that. 
 
 And, in England, even under such circumstances, the jury might, 
 if they saw, or thought that they saw, occasion, assess punitive, as well 
 as compensatory damages! 
 
 In England, as in America, one who poses as a specialist is respon- 
 sible for a higher degree of skill than is a general practitioner. I have 
 never been able to find on this point any ophthalmic cases, but it is, 
 undoubtedly, the law as to specialism generally. 
 
 In England, too, one who copies an erroneous prescription, as, for 
 example, from a text-book, or a journal article, "adopts the error" 
 "and is liable for any resulting injury." 
 
 In England, however, a medical man is not liable for disastrous 
 consequences which ensue upon the following of his "mere friendly 
 street-opinion." 
 
 Legal co)isideratimis regarding wAilpractice in France. 
 
 The question of malpractice in civil cases, is, of course, never sub- 
 mitted to a jury in France, for the simple reason (as stated in the 
 division on courts and basic legal principles) that, in France, there is 
 never a jury in a civil proceeding. Thus, a civil suit for malpractice 
 can be, and as a fact generally is, in France, conducted very quietly, 
 and, in general, if judgment is not delivered against the physician, the 
 public learns but little about the affair. In a common law country, 
 such as ours, this phase of the French expert system could not, of 
 course, be adopted, for, with us, there must assuredly be juries ; but a 
 person cannot help reflecting on the manifest justness and fairness of 
 the French method to physicians who have been improperly accused of 
 malpractice. 
 
 In France, moreover, as mentioned already, a physician is respon- 
 sible only for "clumsy mistake," "gross imprudence or negligence," 
 "ignorance of those things which a man of the profession ought surely 
 to understand." In the language of a text-book,^ "But, as soon as there 
 arises a possibility of discussion as to the value and efficacy of the 
 treatment which has been employed, upon the propriety of an opera- 
 tion which has been performed, as soon, in other words, as it becomes 
 necessary, in order to determine whether or not a physician has been 
 at fault, to trench upon questions exclusively technical and scientific, 
 wlien, in a ivord, the fault does not appear manifestly? the courts 
 
 1 Manuel Pratique de Droit Medical, par Simou-Auteroelie, Paris, 1908, p. 186. 
 
 2 The italics do not appear in the original. 
 
 136 
 
OPHTHALMIC JURISPRUDENCE 
 
 recognize of themselves their incompetence in this matter. ' ' * Thus it 
 would seem that, in France, a physician is held responsible for mal- 
 practice only in that particular class of cases in which, as we have 
 remarked heretofore, an American court delivers a judgment in the 
 total absence of expert testimony. 
 
 In France, however, there exists no law providing that a physi- 
 cian's practice in any particular case be tested by the rules and prin- 
 ciples of his own school.2 
 
 Legal considerations regarding malpractice in Germany. 
 
 In Germany, as previously remarked, a physician is responsible if 
 he does not exercise ' ' a high degree of skill, " " the skill of a thoroughly 
 educated physician. "^ The disadvantages and manifest injustice of 
 such a standard of professional excellence have already been adverted 
 to. However, it is only fair to redirect attention to the fact that, in 
 Germany, a civil suit for malpractice is never tried before a jury, and 
 that all the scientific points involved are generally investigated, or at 
 least may be investigated, by a corps of medical experts who, as a rule, 
 are really competent for their task. As a rule, the court-physician 
 (Kreisarzt) functionates, and this without respect to the school of 
 practice which the defendant has been following, or professing to 
 follow. The defendant is permitted, however, to summon as experts 
 a number of physicians of his own school, and this is occasionally done 
 by the court on its own motion. As in America, general practitioners 
 are often allowed to testify in matters which involve the skill of spe- 
 
 1 Owing no doubt to the existence of this rule, malpractice cases are com- 
 paratively rare in France. In fact, I have never been able to find so many as a 
 single instance in which the defendant was an oculist. A number of cases of a 
 general nature can be found collected in Briand et Chaude, Manuel de Medecine 
 legale, Paris, 10th ed.. Vol. I, p. 73 ff. Several cases (perhaps more accessible) 
 are collected in Dubrac's Traite de Jurisprudence Medicale et Pharmacoutique, 
 Paris, 1893. 
 
 2 The scarcity of such rules in Civil Law countries is owing to the fact that, as 
 stated in an earlier portion of this article, in such lands the subject of Evidence 
 does not exist as a well-developed branch of jurisprudence. 
 
 3 The law on this point was, until Jan. 1, 1900, landesgesetzlich (i. e., gov. 
 erned by state law) and hence was different in each of the Bundesstaaten, as is 
 the case in America. On Jan. 1, 1900, however, with the entering into effect of 
 the new ' ' Civil Code, ' ' the matter in question passed under the federal law, and, 
 therefore, all the decisions in force (so far as the decisions of courts are possessed 
 of force in Germany) at the present time, are based on the following provision 
 of that code: "Wer vorsatzlich oder fahrlassig das Leben, den Korper, die 
 Gesundheit, das Eigentum oder ein sonstiges Eecht eines anderen widerrechtlich 
 verletzt, ist dem anderen zum Ersatze des daraus entstehenden Schadens ver- 
 pflichtet. Die gleiche Verpflichtung trifft denjenigen welcher gegen ein den Schutz 
 eines anderen bezweckendes Gesetz verstosst. Ist nach dem Inhalte des Gesetzea 
 ein Verstoss gegen dieses auch ohne Verschulden moglich, so tritt die Ersatz- 
 pflicht nur im Falle des Verschuldens ein." — Burgerliches Gesetsbuch, Sec. 823. 
 
 137 
 
OPHTHALMIC JURISPRUDENCE 
 
 cialists. In fact the Kreisarzt is almost always, as a matter of course, 
 a general practitioner. The right to bring an action for malpractice 
 outlaws (verjdhrt) not until three years. 
 
 Another peculiarity of the German law of malpractice (though 
 penal, instead of civil, in its nature) is that a physician is legally re- 
 quired to accept a case, if he is so requested, under certain circum- 
 stances, by a police-court or any of its representatives. The exact 
 language of the requirement ^ is as follows : ' ' Whoever in cases of 
 accident or of common danger or necessity is requested by a Police 
 Court or its representatives to afford assistance, and does not comply 
 with the request, although he might so do without material danger to 
 himself, is punishable by a fine not to exceed 150 marks or by im- 
 prisonment. " This provision of the Penal Code is held to contemplate 
 professional, as well as non-professional assistance. Being a part of 
 the Penal Code, it is, of course, federal in its nature, i. e., nation-wide 
 in its application. 
 
 With regard to experimentation, I can do no better than quote 
 from Strassman : ^ " A procedure, merely because it is new and un- 
 tried, cannot, only for that reason, be rejected as improper. Were 
 such a principle indeed set in force, there could be no further progress 
 in medicine. One can only require that a new and dangerous plan of 
 treatment should be justified in advance of its employment by much 
 consideration and reflection, by anatomical conditions, and by experi- 
 ment on the lower animals. And one should be all the more ready to 
 accept such a justification, the more obscure and atypical the disease." 
 This opinion is characteristically German, insomuch as it clearly ad- 
 mits the necessity for scientific progress by means at times of human 
 experimentation, and yet, nevertheless, lays down the only just condi- 
 tions under which the performance of experiments on human beings 
 could be permitted. It is decidedly in contrast to the rather vague, de- 
 cidedly unscientific, and often wholly unjust requirements to be found 
 in the law of America. 
 
 Legal considerations regarding malpractice in Italy. 
 
 Physicians in private practice in Italy are not obliged to accept a 
 case either for examination or for treatment, excepting only in cases 
 of great urgency, when immediate (though not subsequent) aid and 
 assistance is absolutely obligatory on the part of every physician. 
 
 Ziff. 10, Str.-G.-B. 
 2 Lehrbuch der Gerichtlichen Medisin, Stuttgart, 1895, S. 545. The high 
 degree of authority conceded to text-books by the German courts has already been 
 adverted to. 
 
 138 
 
OPHTHALMIC JURISPRUDENCE 
 
 Physicians, on the other hand, employed in the official medical 
 sanitary service of the various communes of the Kingdom, are obliged 
 to accept all cases that fall within the scope of their employment. 
 A very extensive and voluminous law ^ has been enacted with regard 
 to these official physicians, regulating their appointments, service, com- 
 pensation, responsibilities, and participation in the benefits of an elab- 
 orate pension system. 
 
 A non-ofificial physician, when he has once accepted a case, becomes, 
 of course, responsible for the exercise of diligence and skill while in 
 attendance on such case. His civil liability is regulated not by any 
 special provisions, but by the general laws of the Kingdom, contained 
 in the Civil Code. These laws run as follows: 
 
 1151. Any act of a person productive of damage to another, im- 
 poses on such person the obligation to indemnify for such damage. 
 
 1152. Every person is responsible for the damage he has caused, 
 not only by his act, but also by his negligence or imprudence. 
 
 It is, of course, extremely manifest that the law as laid down by 
 article 1151 would, if literally applied, be of so great rigor as absolutely 
 to prohibit the practice of medicine, surgery, and obstetrics in Italy. 
 The courts, however, have, in practice, very much mitigated the severity 
 of the law (as applied to physicians) being, in fact, in this regard, 
 almost, if not quite, as lenient as are the courts of France. Thus, for 
 a single example, the Court of Appeal of Bologna has said that 
 " . . . professional error is pardonable in the liberal pursuits when 
 . . . there is no gross negligence or ignorance of clear rules uni- 
 versally recognized and declared.^ So also Giorgi:^ ''If errare 
 humanum est there exists no field in which this sad truth is more ap- 
 plicable than in the exercise of certain offices or professions, which 
 furnish by their very nature a continued theme for controversy and 
 for doubt. The difficulty of tracing out the elements of fact which 
 should constitute the basis of any expert judgment; the variety of 
 systems and of schools ; the occurrence of unexpected events ; the vast 
 number of the causes which can influence the result in any case, render 
 excusable any such errors as do not depend on the violation of a clear 
 and certain precept or the neglect of treatment which is evidently 
 necessary. ' ' 
 
 A very peculiar circumstance connected with the matter in ques- 
 tion, is that, in Italy, no civil responsibility ensues till after a criminal 
 
 1 That of Feb. 25, 1904, entitled Sanitary Assistance, Hygienic Vigilance, and 
 Hygiene of the Communes of the Kingdom. 
 
 2 Sent. 2 maggio 1902, Pilangieri 1902, 862. 
 
 3 Quoted in the Enciclopedia Giuridica Italiana, Vol. X, p. 328. 
 
 139 
 
OPHTHALMIC JURISPRUDENCE 
 
 prosecution has first been brought against the physician and success- 
 fully. I know of no such law in any other country. 
 
 Another peculiar restriction, if such it may be called, relates to 
 the matter of experimentation. In Italy, in addition to the usual 
 restrictions (preliminary experimentation on the lower animals, some 
 justifiable theory of benefit to accrue to the particular patient who is 
 made the subject of the experiment, etc., etc., as in other countries) it 
 is suggested, in addition, by an eminent Italian legal authority, that the 
 experimenter "before he deduces the innocuousness to man [of the pro- 
 posed method] from the frog, the rabbit or the dog, ought to have 
 tested the method on himself. ' ' ^ This would seem to be a difficult 
 matter indeed to accomplish, in case the experimenter did not happen 
 to possess in his own person a case of the particular malady in question. 
 It would even be extremely difficult for the experimenter to test upon 
 himself the matter of dosage, in case the patient was a child. The 
 restriction might, however, under certain circumstances, very logically 
 he made a condition precedent of the performance of new operations 
 or the administering of new remedies. 
 
 In Italy no higher degree of care and skill is legally required of 
 a specialist than of a general practitioner in the same field. 
 
 Furthermore, a judgment for malpractice against a physician can 
 be rendered in that country, even in the total absence of expert testi- 
 mony, provided the existence of malpractice is patent to ordinary ap- 
 prehension — in other words is not dependent on technical medical or 
 surgical rules and principles. 
 
 This completes our discussion of the subject of malpractice with 
 respect to its legal side.- We will next take up the 
 
 1 < < * * * (jiversamente il medico risolverebbe i problemi scientific! cimen- 
 tando la salute e la vita altrui, risparmiando s6 stesso, ed allora il malato diven- 
 terebbe la bestia da laboratorio, e questa sarebbe seria disonest^ prof essionale. " 
 Enciclopedia Giuridica Italiana, Vol. X, p. 331. 
 
 2 The following extracts from the Code of Hammurabi, King of Babylon 
 (about 2250 B. C.) translated by Eob't Francis Harper, Ph. D., would seem to 
 possess especial interest for oculists, because without doubt they constitute the 
 oldest extant legislation concerning ophthalmology : 
 
 ' ' 196 — If a man destroy the eye of another man, they shall destroy his eye. 
 
 "198 — If one destroy the eye of a freeman or break the bono of a freeman, 
 he shall pay one maua of silver. 
 
 "199 — If one destroy the eye of a man's slave or break a bone of a man 'a 
 slave, he shall pay one-half his price. 
 
 "215 — If a physician * * * open an abscess (in the eye) of a man with 
 a bronze lancet and save that man's eye, he shall receive ten shekels of silver 
 (as his fee). 
 
 "216 — If he be a freeman, he shall receive five shekels. 
 
 "218 — If a physician * * * open an abscess (in the eye) of a man with 
 a bronze lancet and destroy the man's eye, they shall cut off his fingers. 
 
 "220 — If he open an abscess (in his eye) with a bronze lancet, and destroy 
 his eye, he shall pay silver to the extent of one-half of his price." 
 
 140 
 
OPHTHALMIC JURISPRUDENCE 
 
 B — Medical and Surgical Considerations Regarding Malpractice. 
 
 Under this head will be narrated typical and otherwise interesting 
 cases of ophthalmic malpractice which have been the subject of suits 
 either actual or contemplated. Excluded, however, will be all cases 
 which have undergone decision in courts of last resort, for the reason 
 that the most important of such cases have already been discussed 
 under "Considerations Legal." 
 
 The largest proportion of all the suits and claims for malpractice 
 that ever confront the ophthalmic surgeon arise from strabismus 
 operations.^ The reason is obvious. The strabismic eye is almost always 
 defective in its vision to begin with, and, if the oculist does not observe 
 the precaution to explain and even to demonstrate absolutely be- 
 yond cavil the fact of defective vision in each particular case in which 
 he is about to operate, then, after the operation, when the patient, 
 or his relatives for him, are curious about the exact results, the 
 undesirable fact of complete or partial blindness comes out, and the 
 surgeon is blamed for the defective condition of the sight. Already, 
 under the heading of ''Considerations Legal," we have seen that several 
 cases of malpractice suits following strabismus operations have even 
 reached the courts of last resort. Here is another instance. An oculist 
 of the highest standing (scientifically at least) did a double internal 
 advancement for a girl of eleven years. He had made a record of the 
 ease but had failed to set down the vision of either eye, nor had he 
 directed the parents' attention to the fact that the vision in both of the 
 eyes was decidedly defective. No doubt the operation was correctly 
 performed, but the immediate effect was undeniably an over-correc- 
 tion of six or eight degrees. This instigated the parents of the child 
 to do considerable investigating into the condition of the eyes on their 
 own account (in which proceeding they were ably assisted by a gradu- 
 ate optician) and at last they arrived at the conclusion that the dis- 
 tinguished oculist had ruined the eyes of their child. They then set up 
 a claim for damages against the operator, who, very properly, refused 
 to pay. In search of expert evidence they returned to two eye spe- 
 cialists (practising independently of each other) by whom the child 
 had been examined before they had taken her to the man by whom the 
 operation had been performed. Each of these oculists had, happily, 
 made a complete record of the case, including, of course, the vision of 
 
 For the rest of this remarkable code, see The Code of Hcmmurabi, King of 
 Babylon, by Eob 't Francis Harper, Ph. D., 2d ed., 1904, Chicago, Callaghan & Co, 
 
 1 So at least according to a collection which I made for many years of news- 
 paper and medical journal clippings which related to malpractice suits, as well as 
 also according to many notes which I made of various cases that either fell within 
 my personal experience or came to my ears by reliable report. 
 
 141 
 
OPHTHALMIC JURISPRUDENCE 
 
 each eye, and very soon the parents were convinced that their claim for 
 damages was unfounded. A laughable feature of the affair was that, 
 when their child had been taken to the last of the three oculists (that 
 one who had done the operation) and by him been examined, he had 
 expressed (after the fashion of some men otherwise sufficiently 
 worthy) several very decidedly unflattering views of the professional 
 attainments and judgment of the two oculists who had been consulted 
 before him. Afterwards, taxed with these ungracious opinions, he, 
 though contritely enough, admitted that he had made them. 
 
 I have also known of other instances in which the defective sight 
 of a crossing eye has given rise to malpractice suits, or claims, be- 
 cause, as in the case narrated, the surgeon had neglected, before the 
 operation, to impress the patient, or those responsible for him, with 
 the actual condition of his sight. 
 
 Deep retraction of the caruncle after a strabismus operation has 
 been, in one instance, the ground for a claim for malpractice. The 
 operation had been performed by a traveling charlatan who was one of 
 the few of his class that I have ever known to be made the subject 
 of a claim, or suit, of this sort. 
 
 Next to strabismus operations, as a fertile field for the growing 
 of malpractice suits, come the various foreign-body cases; foreign 
 bodies in the cornea, foreign bodies in the aqueous, foreign bodies in 
 the iris or the lens, foreign bodies in the vitreous, and, finally, foreign 
 bodies in the posterior wall of the eye and even in the orbital fat. For- 
 eign bodies in the cornea, not infrequently (and even after the most 
 aseptic removal) leave infection of that membrane with consequent 
 ulceration and all the deplorable sequelae. In such cases, just because 
 the offending substance was perhaps extremely minute, the patient 
 jumps to the conclusion that no such serious consequences would, or 
 could, have followed, had not the treatment been improper. 
 
 Small, hard bodies flying with great velocity sometimes perforate 
 the cornea, and then, if the patient is working in comparative darkness, 
 as often happens in the case of miners, the pupil is, of course, rather 
 widely dilated and the tiny projectile will lodge perhaps in the peri- 
 phery of the lens, and, later, when the surgeon examines the eye, as 
 he usually does, with a very strong light, he contracts the pupil and 
 prevents himself from seeing the offending substance. I was told of a 
 ease in which an eye was lost, or was said to have been lost, in this 
 very manner, and which formed the ground for a successful claim 
 for damages. 
 
 I had personal knowledge of a ease which formed the ground of 
 a claim for damages in which a piece of steel was supposed to have 
 
 142 
 
OPHTHALMIC JURISPRUDENCE 
 
 entered an eye very deeply. The attending oculist suggested that the 
 eye be submitted to the X-ray for the purpose, of course, of deciding 
 whether or not there was a foreign body present, and, further, if pres- 
 ent, its precise location. The patient, however, refused to have the 
 skiagraph made, first, because of what she regarded as ' ' the very great 
 expense which such a proceeding would necessitate"; and second, be- 
 cause she had heard of people being injured by the action of the Roent- 
 gen ray. At the time when the case appeared before the oculist, there 
 was not to be seen a breach of surface anywhere, nor even a trace of 
 any former breach. The aqueous was dark with blood, and so an 
 ophthalmoscopic examination was impossible. The surgeon combatted 
 the inflammation for several days, and then the patient sought another 
 oculist. The second practitioner, after several days of treatment, dis- 
 covered, whether by skill or by a lucky chance, the offending substance, 
 and removed it with a magnet. Unfortunately, this second oculist per- 
 mitted to escape him certain remarks which reflected on the skill, or 
 judgment, of the first practitioner, and the result was a claim for 
 damages. The patient brought with her to the first physician's office, 
 her two main witnesses, but these, fortunately for his reputation, re- 
 fused to stand by the claimant's allegations. The result was that no 
 suit was ever brought. ' 
 
 Ophthalmia neonatorum, too, presents its quota of claims for 
 damages against the attending physician, and, strangely enough, the 
 disgusting and discreditable character of the disease does not suffice 
 in every instance to keep the claim out of court. I know of a case in 
 which a general practitioner was sued for allowing the disease to occur 
 without the slightest effort to prevent it. He had known at the time of 
 delivery that the mother had recently suffered from gonorrhea, and, in 
 fact, himself had treated her for that disease up almost to the very day 
 of labor. The doctor was given an opportunity to settle for a small 
 sum, and, very wisely, he accepted the opportunity. 
 
 Glaucoma, strangely enough, considering the frequency with 
 which the disease is mistaken, and treated for iritis and conjunctivitis, 
 has seldom been the subject of a suit for malpractice. I know, however, 
 of two cases. One was where a family physician had treated a case of 
 this disease for a very short time by means of atropin and adrenalin, 
 with the result that the patient was very nearly blind, when, with con- 
 siderable indignation, she left him for an oculist. This oculist, though 
 he smoothed the matter over for the family practitioner, nevertheless 
 recommended, as was no doubt his duty, an immediate iridectomy in 
 both eyes. But the operation was indignantly refused. The patient 
 called again on her family practitioner, who strongly stayed her up in 
 
 143 
 
OPHTHALMIC JURISPRUDENCE 
 
 her contention that an operation was entirely unnecessary, and who 
 also bade her seek the services of another oculist. The second specialist, 
 being a man of careless speech, said something which aroused the 
 patient 's suspicion, and the result was a claim for damages against the 
 family practitioner. The matter was somehow settled. 
 
 The second case was where a family practitioner mistaking (as has 
 so often happened, sometimes without the practitioner's fault) glau- 
 coma for iritis, dispatched his patient to a pharmacy with a prescription 
 calling for cocain with atropin. The result was blindness for the pa- 
 tient, and a suit for the doctor. The prescription was on record, and 
 the fact of absolute glaucoma indisputable. The claim was settled out 
 of court by the payment of a small sun. 
 
 An oculist of excellent reputation and undoubted ability, being 
 rushed with work, performed a pterygium operation without sufficient 
 consideration of all the factors in the case. It so happened that the 
 patient had dacryocystitis on the same side as that on which the opera- 
 tion was performed, and the result was a panophthalmitis. A claim 
 followed, which, in some way, was settled out of court. 
 
 Now and then a cataract operation gives rise to a suit. I was told 
 by a friend, an oculist, that, after a simple extraction performed by 
 him, he was sued because the operated eye had recovered only half its 
 vision. The doctor, a man of much ability and the very greatest cau- 
 tion, knowing exactly what his rights were, would not scare at all, and 
 the suit was abandoned. 
 
 I know of an oculist who had a case of trachoma in the cicatricial 
 stage, complicated with pannus and numerous corneal ulcers. The 
 patient made an excellent recovery, so at least the oculist thought, but 
 the patient thought differently, or at least professed to do so, and made 
 a claim for damages. The oculist refused to pay the claim, and the 
 patient sued, alleging total blindness. Not long after, and before the 
 case had arisen for trial, the plaintiff fell from a tree in which he was 
 picking cherries, and sustained a fracture of the occipital bone. 
 Shortly afterward he died. 
 
 Another illustrative case was this: A miner was struck in the eye 
 by a piece of flying coal. That the injury was severe was shown by the 
 great contusion of the lids and the formation, subsequently, of a deep 
 and angry ulcer on the cornea. In order to cure the ulcer it became 
 necessary to perform a paracentesis of the anterior chamber, and this 
 procedure was carried out with the very greatest caution. The patient 
 got well, and had absolutely perfect vision — ^for a time at least. In the 
 course of a few weeks, however, a traumatic cataract appeared, and for 
 this the operation was supposed to be to blame. On being informed, 
 
 144 
 
OPHTHALMIC JURISPRUDENCE 
 
 however, that the blow inflicted by the coal was itself entirely responsi- 
 ble for this late manifestation, the miner, an exceptionally reasonable 
 man, was altogether satisfied.^ 
 
 Even refraction work is not devoid of the malpractice danger. I 
 had a clipping of a case which related that an oculist, a man of merit 
 and means, had been subjected to a suit because an optician had in- 
 formed the plaintiff (and afterwards been sustained in his contention 
 by an educated oculist) that one of his eyes had suffered an extensive 
 detachment of the retina because of a badly fitting lens. In another 
 case, a claim was made against a meritorious oculist because, as was 
 alleged, a badly-fitting pair of lenses had produced a pterygium and 
 ' * granulated ' ' eyelids. Here is still another case connected with refrac- 
 tion work. A lady, aged 20, complained of headache and rapid ocular 
 fatigue. Test-lenses and ophthalmoscope declared the refraction nor- 
 mal. Into each eye was instilled thrice daily for three days a 1 per 
 cent, solution of atropin. Then the test-lenses and ophthalmoscope re- 
 vealed four dioptres of hypermetropia. Glasses were prescribed, and 
 she suffered no longer from headaches or from ocular fatigue. Never- 
 theless, she evinced intense dissatisfaction because, her ciliary mus- 
 cles being now relaxed — as, of course, they ought to be — she was, as 
 she alleged, without her glasses "blind." She admitted that, with her 
 lenses, she saw as well as anyone, and had neither headache nor ocular 
 fatigue, but all this very evident improvement was as dust and ashes 
 beside the over-whelming and heart-rending fact that, without her 
 glasses she was "blind." All the proffered explanations made by the 
 oculist were unheeded, and, indeed, appearances, however unjustly, 
 were much against the doctor. Legal proceedings were discussed, and 
 it was only through the influence of the general practitioner who had 
 referred the case to the specialist, and who, by the way, was a relative 
 of the plaintiff, that legal action was averted. 
 
 I have the record of a number of other cases, but these are not 
 especially illustrative. However, I cannot leave this subject without a 
 bit of moralizing — for which, I trust, the great importance of the sub- 
 
 1 Here it may not be amiss to state that the possibility of the formation of a 
 late traumatic cataract should always be explained to patients suffering from 
 ophthalmic trauma, both when the case is taken and again when the patient is 
 discharged. The time consumed is well invested, nor need the patient be affrighted 
 unduly by such an advance explanation, for the matter can be represented (as, in 
 fact, it ought to be) as merely the remotest possibility; and then, should the 
 unexpected happen, the physician is safe. 
 
 It is a rather suggestive fact, at least from the doctor's viewpoint, that the 
 number of malpractice suits which a physician is liable to encounter, stands in a 
 direct ratio to his ability to make a judgment "good." In other words, such suits 
 seem to bear relation of some sort to the doctor 's financial ability rather than his 
 scientific inability. 
 
 145 
 
OPHTHALMIC JURISPRUDENCE 
 
 ject involved will provide a sufficient excuse. It will have been observed, 
 in nearly all the cases just narrated, that the real, the fundamental, 
 the underlying cause of the suit, or at least of the claim, for dam- 
 ages, was (either by intent or otherwise) another doctor. This fact 
 should give us pause. There is also another fact to be observed in 
 nearly all these cases which constitutes a ground for very serious con- 
 sideration. And that is this : The defendant in nearly every instance, 
 was an unusually competent man. I must really dissent from an 
 opinion quite recently expressed by an able lawyer in an American 
 surgical system,^ which runs thus: "On the other hand, the earnest, 
 diligent, well-read, scientific surgeon, who has a library and reads his 
 journals, who uses instruments of precision, who observes approved 
 methods; the 'good,' 'reliable' surgeon, who knows how to reduce 
 dislocations, adjust fractures, tie arteries and treat wounds, to super- 
 vise the use of anesthetics, and to prescribe or conduct the after treat- 
 ment, who, after a careful examination, uses his best judgment and skill 
 in operating, who is exacting as to prior assent, and who instructs 
 nurse and patient as to conduct, while not immune, has little to dread 
 in the courts." This, no doubt, is the strictly legal (also, perhaps, the 
 strictly public and general) view of the matter. But doctors, to whom 
 the subject of medical and surgical merit and demerit is not a sealed, 
 but an open book, are perfectlj^ aware that there could hardly exist a 
 greater mistake than that expressed in the opinion above-quoted. 
 Quacks, as a mere matter of absolute truth, are very seldom sued. On 
 the other hand, the greatest surgeons in the country, subject as they are 
 to continual jealousy, and receiving, as they do, many of the hardest 
 and most inveterate cases, as well as a very high proportion of the 
 most dangerous, are almost continually "in hot water." An excellent 
 ophthalmic surgeon of my acquaintance has been sued, or threat- 
 ened with suit, no less than seventeen times. And, though no judg- 
 ment was ever rendered against him, the worry has hurt him and 
 aged him vastly more than all his work. Moreover, in nearly every 
 instance the cause of his trouble was either the malice or the thought- 
 lessness of a fellow practitioner. The surgeon I have in mind was 
 probably not really to blame in any single instance. And equally good 
 men have not been quite so fortunate as he in the outcome of their 
 suits. All this sad state of affairs with regard to medical and surgical 
 malpractice could easily be different. In the first place, the French 
 standard of responsibility should be adopted everywhere. The phy- 
 sician should be held accountable only for violations of clearly eatab- 
 
 1 Hampton L. Carson, in Keen's Surgery, 1909, Vol. V, p. 1180. 
 
 146 
 
OPHTHALMIC JURISPRUDENCE 
 
 lished principles — in a word, for gross negligence or gross lack of 
 skill. Furthermore, expert evidence, in all these cases, should be 
 really expert. Then, too — and this perhaps is the most important 
 matter — every physician who examines a patient that has been to 
 another doctor, should be cautious in every word that he utters. Or, 
 rather, he should be more than merely negatively cautious, he should 
 be positively kind. He should do, in short, exactly as he would be 
 done by. If every physician would only observe this rule — the golden 
 rule in a professional aspect — ^he would never discover an occasion to 
 regret it, whether he practised in America, in England, in Germany, 
 France, or Italy, or, indeed, in the remotest portions of the earth. 
 
 With regard to the jurisdiction of United States courts in negligence 
 cases, I am greatly indebted to a private letter from Judge A. L. San- 
 born, federal judge for the Western District of Wisconsin, 
 
 For a number of suggestions in the proof I am under obligations to 
 Mr. James H. Brewster, formerly professor of law in the University of 
 Michigan. 
 
 With respect to foreign law, I desire to acknowledge my indebtedness 
 to the following gentlemen, not only for references to useful literature, 
 but, in a number of instances, for full answers to specific questions : 
 
 E. W. Lee, Dean, Dept. of Law, McGill University, Montreal. 
 
 Editor Lancet, London. 
 
 Mr. John L. Griffiths, late Am. Consul-General, London. 
 
 Oliver E. Bodington, Esq., Paris. 
 
 Dr. E. Sulzer, Paris. 
 
 Mr. Frank Mason, late Am. Consul-General, Paris. 
 
 Dr. J. A. Lippincott, Nice. 
 
 Mr. A. M. Thackara, late Am. Consul-General, Berlin. 
 
 Dr. E. H. Oppenheimer, Berlin. 
 
 Dr. 0. Rapmund, Minden, Germany. 
 
 Mr. Chapman Coleman, late Am. Consul, Rome. 
 
 Aw. Giovanni Ruggieri, Rome. 
 
 Dr. Rudolf F. Ohle, Rome. 
 
 Sig. Enea Noseda, Procuratore del Re, Milan. 
 I am also indebted to Mr. John H. Wigmore, Dean of the North 
 western University Law School, Chicago, for the privilege of consult- 
 ing the Gary Collection of Works on Foreign Law. 
 
 147 
 
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