UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 'if. MEDICAL JURISPRUDENCE A STATEMENT OF THE LAW OF FORENSIC MEDICINE BY ELMER D. BROTHERS, B.S., LL.B. Member of the Chicago Bar; Lecturer on Jurisprudence in the Medical and Dental Departments of the University of Illinois, and in John Marshall Law School ST. LOUIS C. V. MOSBY CO. 1914 T COPYRIGHT, 1914, BY C. V. MOSBY COMPANY A - 3 '6 Press of O. V. Mosby Company St. Louis PREFACE For the last twenty years, the writer has been delivering a course of lectures on the subjects involved in this pro- duction, but during that time he has not been able to find a satisfactory text on the legal phase of the subject for rec- ommendation to medical students. The medical features have been thoroughly discussed by many writers. What- ever the merit of this effort in supplying the desideratum, it embodies a brief explanation of those phases of the sub- ject which he found most interesting and instructive to the student. No effort has been made to exhaust the subject but rather to abridge and condense wherever possible with- out sacrifice to completeness of exposition and accuracy in elucidation of fundamental principles. Liberal reference has been made to the authorities sus- taining or justifying the propositions set forth and, while seldom quoting from decisions, the writer, wherever ex- pedient and appropriate, has not hesitated to adopt the language of the courts in announcing and illustrating principles. References on important subjects are made to annotated cases where the student will find fuller illustra- tions of the application of the law to facts in adjudicated cases, the reference to L.R.A. being to the new series unless otherwise indicated, and to American and English An- notated Cases, being as A.C. Medical subjects are not discussed except where consid- ered necessary to an exposition of the legal subjects or to illustrate the application of the legal principles announced. ELMER D. BROTHERS. CONTENTS. CHAPTER I. INTRODUCTION. Law. Municipal Law. Criminal Law. Civil Law. Criminal Action and Civil Suit. Substantive Law. Administrative Law. Development of Medical Sci- ence. The Physician and the Courts. Definition of Medical Jurisprudence 17-26 CHAPTER II. COUETS AND PROCEDURE. Courts. Jurisdiction. Notice. Procedure. Trial. Trial by Ordeal. Jury 27-31 CHAPTER III. EVIDENCE. Definition. Testimony. Witness. Oath or Affirmation. Competency of Evidence. Rules. Subjects of Testimony 32-38 CHAPTER IV. EXPERT WITNESS. Definition. Preliminary Inquiry as to Qualifications. Conduct. Basis of Opinion. Confined to Special Knowledge. Physicians as Experts. Subjects of Inquiry. Hypothetical Question. Objective and Subjective Symptoms. Cross-Examination of Ex- pert. Medical Books 39^45 CHAPTER V. HEARSAY. Dying Declarations. Res Gestae. Adverse Statements in the Presence of a Party. Statements against Inter- est. Statements by Patient to Physician .... 46-54 CONTENTS. CHAPTER VI. PRIVILEGED COMMUNICATIONS. Admissibility of Adverse Statements. Confidential Com- munications. Incidental Information. Patient Need Not be Party to Suit. Statement by Physician to Patient. Publishing Operation. Imposing on Pri- vacy. Waiver of Privilege. Privilege is an En- tirety. Autopsy. Duty of the Physician. The Privilege is Not to Protect Criminals. Criminal Pur- poses. Presumption of Good Faith 55-62 CHAPTER VII. LICENSE. Common Law Right to Practice Medicine. Liberty to Pursue Calling. Professional Practice is Not Prop- erty. Public Welfare. Right of State to Control. Soliciting Patients. Itinerant Vendors of Medicines. Itinerant Physicians. How Regulated. Require- ments. Construction of License Statutes. Practic- ing Without License. Practicing Medicine. Right of Physician to Practice Dentistry. Exemption of Resident Practitioners. Board Cannot Delegate Dis- cretion. Reserved Right of State. Vested Rights. Due Process of Law. The Law of the Land. Revocation Not a Judicial Function. Grounds for Revoking. Proceedings to Revoke. Effect of Deci- sion by Board. Statutes of Limitation. Revoca- tion and Criminal Prosecution 63-79 CHAPTER VIII. CONTRACTUAL RELATIONS. General Observations. Contract. Delivery. Other Classes. Mutuality. Parties. Contracts by In- fants. Persons Under Legal Disability. Considera- tion. Effect of Signing Contract. Validity of Contracts. Constitutional Right to Contract. Guaranty. Receipt. Release 80-90 CHAPTER IX. EMPLOYMENT AND COMPENSATION. Accepting Service. Unconscious Patient. Employment by Third Person. History. Agreement as to Fee. CONTENTS. No Agreement as to Fee. Special Agreement as to Result. Services During Life of Patient. Fre- quency of Visits. Value of Services is a Question of Fact. What May be Shown. What May Not be Shown. License Presumed. Unlicensed Practition- ers. Nature of Remedies Must be Disclosed if Sought. What Physician Must Prove. Husband and Wife. Parent and Child. Guardian and Ward. Malpractice. Consultant. Witness Fees. Expert Witness Fees 91-108 CHAPTER X. AGREEMENT FOR SURGICAL OPERATION. Elements of the Agreement. Nature of Agreement. Surgeon 's Discretion. Consent Necessary. Form of Action. Presumptions. Controlling Facts. Emergency. More than One Method Affecting the Patient Differently. Patient's Conclusion Para- mount. Operating at Patient's Request. Good Faith of Operator. Departure from Agreed Opera- tion. Prohibited Act, or Operation. Damages for Unauthorized Operation 109-123 CHAPTER XI. RES IPSA LOQUITUR. The Maxim. Basis of the Maxim. Presumptions. Presumption Upon Presumption. Mental Convic- tions. Application of the Maxim. The Reason for the Rule. When Maxim is Applicable. History and Illustrations. Effect from More than One Cause. As Applied to Physicians and Surgeons. As Applied to Dentists. Where Not Applicable. Infection 124-131 CHAPTER XII. CIVIL MALPRACTICE. Obligations Imposed by Law. Implied Conditions of the Relation. Public Policy. Statement of the Obliga- tions. Obligations Measured by Liability. Re- quirement is General. Skill. Care. Degree of Care Required. Judgment. Nature of Judgment Required. Presumptions of Skill, Care and Judg- CONTENTS. ment. Agreement Waiving These Requirements. Agreement for Special Skill. Specialists. Practi- tioner Must Keep Pace with the Times. Experimen- tation. Established Treatment. Gratuitous Serv- ices. Non-Professional Volunteer. Unlicensed Practitioner 132^147 CHAPTER XIII. CIVIL MALPRACTICE. Elements of Breach. Essentials of Liability. Negli- gence. Intent. Good Faith. Accident. Liabil- ity in Case of Accident. Accident and Negligence. Contributory Negligence. Effect of Contributory Negligence. Reasons for the Rule. Relation Be- tween the Physician's and the Patient's Negligence and the Patient 's Injury. Independent Services. Nurse's Negligence. Negligence of Druggist. Neg- ligence of Assistant or Apprentice. Partners. Prac- titioner Not a Guarantor of Beneficial Results. Intoxication. Physician Engaged in Other Avoca- tions. Arbitrary Refusal to Take Case. Statutes Do Not Require Licentiates to Practice. Civil Rights Acts 148-159 CHAPTER XIV. CIVIL MALPRACTICE. Enforcement of Liability. Proof Necessary to Establish Malpractice. Anesthetic, Refusal to Give. Mistake in Diagnosis. Usual Results Not the Test of Duty. How Proven. Burden of Proof. Different Schools of Medicine. Failure to Present Bill No Admission of Wrong. Exhibiting Injury. When the Relation Begins. When the Relation Ends. What Consti- tutes Malpractice, Is a Question of Law .... 160-170 CHAPTER XV. CIVIL MALPRACTICE. Defenses. Proper Treatment. Former Judgment for Physician. Injury from Other Causes. One Suit, One Recovery. Mistake by Patient. Damages. Kinds of Damages. Presumptions. Elements of Damages. Patient's Duty to Prevent Aggravation CONTENTS. of Injury. Mere Contingencies. Cannot Recover for Original Injury or Disease. Mitigation. Exces- sive Damages. Form of Action. Death from Mal- practice. Joint Tort Feasors. Joint and Several Actions. Survival of Action 171-181 CHAPTER XVI. CRIMINAL MALPRACTICE. Definition. Negligence. Criminal Liability. Abortion. Criminal Abortion. At Common Law. Attempt to Abort. Intent. Without the Woman's Consent. Knowledge of Pregnancy. Pregnancy Not Nec- essary to Attempt to Abort. Means Employed. Failure to Produce Abortion. Advice to Procure Abortion. Proof of Pregnancy. Stage of Preg- nancy. Period of Pregnancy. Existence of Preg- nancy. Evidence. Statutes. Necessary to Save the Mother's Life. Distinction Between Civil and Criminal Malpractice 182-190 CHAPTER XVII. FALSE REPRESENTATIONS. Fraud. Definition. Effect. Intent. Corrupt Motive. Materiality. Opinions. Caveat Emptor. Ac- tionable Misrepresentation. Peculiarity of the Re- lation. Trust and Confidence. Confidential Rela- tions and Special Knowledge. False Pretenses. Fair Dealing. False Advertisements. As to Third Party. Illustrations of the Principle. Illustration. Certainty of Proof. Elements of the Tort. Remedies. Damages 191-204 CHAPTER XVIII. ANESTHETICS. Definition. Kinds of Anesthetics. Effects of Anesthetic. Right to Administer. Selection of Anesthetic. Duty to Administer Anesthetic. Legal Responsibil- ity in Administering Anesthetics. Extreme Respon- sibility in Fact. Value of Testimony 205-210 CONTENTS. CHAPTER XIX. INSANITY. MENTAL FACULTIES. Mental Processes. Cerebral Cortex. Classification. Functional Disturbances and Mental Phenomena. Progress of the Law. Insanity in Law. Presenta- tion. Definition. Presumption of Sanity. Pre- sumption of Continuity of Insanity. Evidence as to Insanity. General Practitioner is an Expert on Insanity 211-216 CHAPTER XX. INSANITY. IN CRIMINAL LAW. Intent. At Common Law. Homicide. Tests. Sub- jects of Inquiry. Insane Delusion. Delirium Tre- mens. Somnambulism or Somnambulentia. Drunk- enness. Epilepsy. Degree of Proof Required. Moral Insanity. Irresistible Impulse. Emotional Insanity. Kleptomania. Statute 217-223 CHAPTER XXI. INSANITY. IN CIVIL LAW. Contracts. Validity. Purpose. Necessaries. Degree of Insanity Invalidating Contracts. Marriage. Delirium Tremens. Drunkenness. Impaired Fac- ulties. Wills. Mental Capacity. Insane Delusion. Undue Influence. Sound Mind and Memory. Torts. Responsibility. Homicide. Damages . . 224-230 CHAPTER XXII. WOUNDS. Definition. Surgically. Character of Wounds. Cause of Death from Wounds. Relation of Wound to Death. Shock. Definition. Symptoms. Opin- ions of Physicians 231-234 CHAPTER XXIII. BLOOD STAINS. Definition of Blood. Classification. Origin. Color of Blood. Weight, or Specific Gravity. Quantity. CONTENTS. Composition. Coagulation. Tests for Blood. Color of Blood Stains 235-241 CHAPTER XXIV. CRIMES WITH MEDICAL ASPECTS. Introduction. Rape. Definition. Age of Consent. Punishment. Physical Violence. Force. Previous Unchastity of the Women. Signs. Poisoning. Definition. Malice. Common Law. Post-mortem. Infanticide. Definition. Duty of the Mother. Prevalence. Intent. Independent Existence. Natural Causes of Death. Identity of Mother. Burden of Proof. Statutes 242-252 CHAPTER XXV. STATUTES OF LIMITATIONS. Policy of the Law. When Cause Accrues. Malprac- tice Cases. Period of the Statutes. Diligence. Specified Services. Knowledge of Injury. Latent Injuries. Continuing Obligations. A Continuing Wrong. Suit for Fee. Persons Under Disability . 253-258 CHAPTER XXVI. MISCELLANEOUS. Business, Contracts and Work on Sunday. Coroners. Boards of Health. Medical Services Required by Law. Malingerers. Contracts in Restraint of Pro- fessional Activity. Asexualization and Steriliza- tion. Vaccination. Charitable Institutions. In- mates of Public Hospitals. Jury Service. Libel and Slander. Gifts and Legacies 259-276 Index . . 277-301 MEDICAL JURISPRUDENCE CHAPTER I. INTRODUCTION. Law. Definition. In its broadest sense, Law is a mode of exist- ence or an order of sequence. 1 Law exists and controls without reference to our knowledge. There is a limit to human ken, a boundary to effort which, like rocks in the sea, wash but slowly away. " Canst thou by searching find out God? Canst thou find out the Almighty unto perfec- tion? It is as high as heaven; what canst thou do? Deeper than hell; what canst thou know? The measure thereof is longer than the earth and broader than the sea." Prevalence of Law. Law is ubiquitous. We cannot es- cape its rule nor emancipate ourselves from its influence. It follows us from the cradle to the grave, to protect, ad- monish, restrain, compel. It anticipates nativity and guards our tongueless silence long after we have mouldered into dreamless dust. The attempts to explain the rights and duties of men in society, by supposing them to have ad- vanced from a state of nature, may be accounted for on the ground of fiction and excused on the score of entertainment, but they are barren of any practical application and en- tirely destitute of any useful suggestion. Society was not a mutual compact; but a categorical necessity. iWayland: Moral Science, p. 25. 17 18 MEDICAL JURISPRUDENCE. Municipal Law. But we are to discuss law as instituted and enforced among men for their protection and guidance, and we call it municipal law. Definition. " Municipal Law is a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." By this defi- nition, the author (Blackstone) must be taken to mean what the "supreme power" believes right or wrong* under the circumstances, at the particular time. Cicero first an- nounced this idea and it is repeated by Justinian. Doubt- less many things that are wrong are not prohibited, and much that, at various periods, was prohibited, is not wrong. Primitive law was fragmentary and imperfect. The status of society, the moral instincts of the people, must be re- garded in framing a code of laws. The person who ob- jects to this proposition either must impugn the wisdom of God or must deny the claims of the Pentateuch to divine origin. Upon being asked whether he had prepared the best laws for the Athenians, Solon replied: "The best they were capable of receiving." As the patient's condi- tion determines the appropriate medicine to be adminis- tered and influences its effect, so the state of society affects the nature and operation of municipal law. Classes. Municipal law is classified as (a) Criminal. (b) Civil. Criminal Law. Criminal law deals with those offenses against the individual, or the community, which the state recognizes as wrongs to society. DEFINITION. "Crime is an act committed or omitted in violation of a public law either forbidding or commanding INTRODUCTION. 19 it." 2 A wrong which is punished by the sovereign power is a crime. Courts redress such wrongs by punishing the offender, but in criminal procedure they do not grant relief to the person who suffers from the offense. Crime and wrong are not interchangeable, because not all wrongs are crimes and the crimes of the past may become the virtues of the future. EIGHT AND WRONG. Every act is endowed with many qualities, according to the purpose of the classification; such as right or wrong, legal or illegal, moral or immoral, rational or irrational. Eight and wrong are inherent ele- ments of human actions fixed by the Creator at the founda- tion of the world. They are as essential to our ideas of conduct as time to our conceptions of existence or space to our understanding of matter. The common instincts of man suggest them, reason recognizes their potency in shaping men's course of action, and the experience of ages has almost crystallized them into material substance. They are controlling factors in all men's calculations and modify the course of human life. "Cast your eyes over all the nations of the world and all the history of nations," says Eousseau; "and amid so many and absurd superstitions, amid that prodigious diversity of manners and character, you will find everywhere the same principles and distinc- tions of moral good and evil. The paganism of the ancient world produced, indeed, abominable gods who on earth would have been shunned or punished as monsters, and who offered as a picture of supreme happiness only crimes to commit and passions to satiate. But, armed with this sacred authority, vice descended in vain from the eternal abode. She found in the heart of man a moral instinct to repel her. The continence of Xenocrates was admired by those who celebrated the debaucheries of Jupiter. The 2 4 Blackstone, 5. 20 MEDICAL JURISPRUDENCE. chaste Lucretia adored the unchaste Venus. The most in- trepid Roman sacrificed to fear, invoked the god who de- throned his father and died without a murmur at the hand of his own. The most contemptible divinities were served by the greatest men. The holy voice of nature, stronger than that of the gods, made herself heard and respected and obeyed on earth, and seemed to banish to the confines of heaven guilt and the guilty." Moral qualities cannot be eliminated from conduct without remodeling human nature. PENALTIES. Criminal law seeks merely the infliction of a penalty on the guilty party. The right to inflict and the purpose of the penalty will not be discussed. The tendency of enlightenment has been to lessen the number of penalties and to ameliorate their severity, and the purpose is grad- ually changing from vindictive to remedial. DEATH BY ACCIDENT. Owing to the difficulty sometimes experienced in distinguishing between occurrences which happen by pure accident and those which spring from con- cealed design, there was a time when accident did not re- lieve a party from punishment for untoward results. Among the Israelites, the person who, accidentally, with- out fault or negligence, in the reasonable prosecution of a lawful pursuit, caused the death of another, was not held entirely guiltless; for his life might lawfully be taken by the avenger of blood. Cities of refuge were appointed unto which such offenders must flee for safety nor depart thence upon pain of being slain by the prowling avenger until the death of the high priest or acquittal before the whole congregation. Voluntary expatriation for a year was the Athenian penalty in such cases. "If an ox gore a man or a woman that they die; then the ox shall be surely stoned, and his flesh shall not be eaten. ' ' The last clause seems to imply that the animal was guilty of wrong. INTRODUCTION. 21 Only a few years ago there was abolished in England a law providing that an inanimate object which without fault or negligence of its possessor, caused the death of a human being, should be forfeited. Similar laws prevailed in Greece, Eome and~other nations of antiquity. PENALIZING BELIEFS. Nor did the criminal law confine itself to overt acts capable of demonstration, but even be- liefs, especially when of a religious character, were sub- ject to control. Superstition rummaged heaven and hell to lay her pal- sied hands on offenders against prevailing beliefs. She was seized with paroxysms of hate, miscalled piety, in the presence of heretics and witches. For five hundred years, the laws from which our jurisprudence is derived were blasted by bigotry and mildewed by fanaticism. Punish- ments that would shock the sensibilities of cannibals were ordered in the name of the Prince of Peace and adminis- tered in the name of humanity. Intelligent conviction was prima facie heresy. Genius might mimic; it must not create. Mind was permitted to imitate but not to think. All the issues of life were directed into the narrow chan- nels of the past, so that wise men were made the disciples of fools. Intelligence was hounded to the gates of the grave. Eational investigation was the greatest crime and an original idea was banished to the regions of chaos and night. Only in hypocrisy was there safety. Civil Law. Civil law deals with disputes between indi- viduals and usually aims at recompensing a party for the damage he has sustained by the act or default of another. This branch of the law has two divisions, (a) common law, and (b) equity. A judgment at law is usually for a speci- fied sum of money payable to the adversary party to the suit, and in default of payment the goods of the judgment debtor may be seized and, in most states, where the action 22 MEDICAL JURISPRUDENCE. was founded upon tort, the debtor himself may be impris- oned in default of payment. The term civil law, as used in this classification, must not be confounded with the great system of jurisprudence that came down to us through the Romans and is still prevalent on the continent of Eu- rope, and which we designate as the civil law, to distinguish it from the English system of jurisprudence which is de- nominated the common law. IMPRISONMENT FOR DEBT. Imprisonment for debt has been abandoned by the advancing columns of civilization. America took the lead in the humane reform among Eng- lish-speaking nations. "There shall be no imprisonment for debt, except in case of fraud" is a general constitu- tional provision. Formerly, debtors were commonly liable to punishment, forfeiture of right or ignoble servitude. Among the Athenians, prior to the statutes of Solon, this unfortunate class were subjected to penal servitude in the interest of the creditor or exiled for life. The laws of Eome entitled the creditor to the services of the debtor during a time sufficient to satisfy his claims. They some- times imprisoned and bound in chains the debtor's person and subjected him to whipping at the instance and discre- tion of the merciless creditor, and permitted himself, his wife and children to be sold into perpetual foreign slavery. Some maintain that the law of the twelve tables authorized the creditors to cut the debtor's body into pieces and take their proportional parts determined by their respective claims. Blackstone tells us that, among certain people of India, the creditor might violate with impunity the chastity of his debtor's wife in satisfaction of his claim. Legis- lators, prompted by the cupidity and malice of creditors, exhausted ingenuity in deriving methods of persecution and means of extortion. Bankrupts in England were treated as criminals by early statutes. The merchant who, INTEODUCTION. 23 hoping to retrieve his losses by a propitious turn of for- tune, concealed his insolvency was pursued by the sleuth- hounds of malice until the tomb, more charitable than man, opened to receive him. Taking a risk in commercial indus- try was facing the debtor's prison and the felon's disgrace. Criminal Action and Civil Suit. A criminal action and a civil suit at law may grow out of the same facts ; thus, if A assaults and beats B he will be liable in a criminal action for assault and battery, at the suit of the state, and if found guilty he may be fined or imprisoned, or both, and he will also be liable in a civil suit at law for damages to B, and if found guilty a money judgment will be entered against him which, if not paid, is in most states a basis for a capias on which he may be imprisoned. A thief may be proceeded against criminally by the State, and also civilly by the owner of the property converted to recover the value thereof. Substantive Law. Substantive law is based upon the prevailing notions of right and wrong and develops with our ideas of justice. It is the expression of permanent, prevalent, persistent public opinion, fortified by the composite conscience of the race, hence the similarity in laws of all civilized peoples. Administrative Law. Administrative law grows out of custom. What at one time was practice, developed into custom and finally crys- tallized into law. Development of Medical Science. The study of human ailments has always challenged th-3 attention and absorbed the best thought of mankind. Be- cause of the early association of disease with the idea of punishment for offenses against the deities it is not surpris- 24 MEDICAL JUKISPKUDENCE. ing that in the earlier ages the treatment of maladies should have taken on a religious aspect. As disease was supposed to be a punishment by the gods for the sins of those who were afflicted, the rational course of treatment was to ap- pease the wrath of the offended deities by appropriate ex- piatory incantations. This notion is still entertained in modified forms, and the old treatments, also modified, are still believed by some to be efficacious. But it was early discovered that this hypothesis of the origin of disease did not harmonize with all cases; that afflictions were visited alike on the just and the unjust, and, therefore, a belief arose that human ailments were the manifestations of the possession of the afflicted by evil spirits. In fact it was be- lieved that man and the world he lives in were the field of contest between the evil and the good. Then, to be ill was to be possessed of malignant and wicked spirits. In such frame of mind the rational treatment for sickness would naturally consist in the unrelenting exorcism of these de- mons of hate. Often the remedy was worse than the dis- ease, but if the patient recovered he sang the praises of his deliverers; if he died well he was gathered to his fathers. During these stages of the healing art, but little atten- tion was paid to the study of the real causes of disease and the means of its amelioration. But gradually enlighten- ment dawns on a prejudiced and biased world and one by one, by slow degrees, by more and more, the eternal veri- ties are revealed. Some one had the temerity to think that somehow the human organism itself might have some- thing to do with the subject of sickness, and the study of anatomy began. It finally dawned upon the more intelli- gent that possibly the various organs, parts and tissues of the body had some function, some purpose in the economy of life, and the beginning of physiology dawned. INTRODUCTION. 25 For the purposes of this volume it is unnecessary to trace minutely the development of the science of medicine and surgery and its allied fields of investigation. Suffice it to say that medical knowledge kept pace with the develop- ment of other inductive sciences and, as law is the expres- sion and interpretation of the enlightenment of the time, the medical fraternity has, step by step, shaped our juris- prudence in matters pertaining to medical subjects. What- ever the state of knowledge at the time, that was the condi- tion which prevailed and was enforced in the courts. The latter turned to the medical profession for enlightenment and guidance on medical subjects and, of course, accepted the prevailing sentiments on the subjects involved. As late as the latter half of the 17th Century the courts ac- cepted the opinions of doctors and learned men that persons on trial were bewitched. All the vagaries of the profession have at one time or another prevailed in the administra- tion of the law. In all ages the medical profession was looked to for the last word on what was right and what was wrong within its domain. The Physician and the Courts. Courts have always tried to enforce the laws in the spirit of the enlightenment of the time and have never hesitated to impress the services of men of science and skill to enable them to arrive at a correct conclusion on the issues presented for consideration. They never lead but should keep pace with public opinion. Where the science of medicine is involved, the physician is appealed to for enlightenment in the administration of the law and the set- tlement of the matters in dispute. The scenes enacted in courts are always intensely human. Questions with a medi- cal significance are always being pressed for answer and the ingenuity of the specialist is taxed to keep pace with 26 MEDICAL JURISPRUDENCE. the exacting demands of the issues raised. The distinctly medical subjects involved are not only intricate and diversi- fied but also incapable of exact classification, while the legal aspect thereof includes both substantive and admin- istrative law. Some of the earliest questions raised were the legitimacy of claimants to inheritances and put in issue matters of impotency, sterility, period of gestation in women and other sexual subjects, and the courts sought the assistance of medical men for information and guidance. The tremendous development of industry and transporta- tion has its corresponding concomitant in injuries to the person, and its inevitable attendant, death by violence through negligence and accident, and as a result our courts are flooded with litigation between the injured and those alleged to be legally responsible for the misfortune, and in turn this fact has given a like prominence to the medical significance of personal injuries, their causes, cures and effects. Every branch of medical knowledge, in one form or another, may be needed to settle disputes between liti- gants. Definition of Medical Jurisprudence. Medical jurisprudence is the science which treats of the application of medical and surgical knowledge and skill to the principles and administration of the law. It comprises all legal subjects which have a medical aspect. The author has confined himself to the legal phase of the subject and the reader is referred to standard medical works for the medical side. CHAPTER II. COUETS AND PROCEDURE. Courts. Every civilized community establishes tribunals charged with the duty of doing justice between disputants, of inter- preting laws and settling legal disputes between its mem- bers and places at their disposal the supreme power in the State, to enforce their judgments and commands. Hence Definition. A court is a judicial tribunal constituted by the supreme power of a State to interpret and apply its laws and to enforce certain rights and redress certain wrongs in accordance with established usage or prescribed rules of procedure. Legal Right. A legal right is a claim enforcible in a judicial tribunal ; a capacity residing in one person to con- trol or restrain, with the assent and assistance of the State, the actions of another. With reference to their applica- tion and origin, legal rights in common law, are divided into two classes, (a) rights in personam and (b) rights in rem. The former are exercisable over persons, the latter over things. Rights, in the civil law, have been classified as (a) rights in law, enforcible in the courts; (b) rights in trust, enforcible in conscience, that is to say, in equity, and (c) rights in courtesy, enforcible only by persuasion, entreaty, etc. Jurisdiction. Definition. Jurisdiction is the power to hear and deter- mine. In this connection, two things must be considered, 27 28 MEDICAL JURISPRUDENCE. (a) the subject-matter of the controversy, and (b) the per- son of the litigants. Jurisdiction of the subject-matter is derived expressly or impliedly from the authority which creates the court, while jurisdiction of the person is ac- quired by notice in accordance with the provisions of law or established usage. Notice. Some form of notice to the party whose rights are to be affected is indispensable to the right of the court to proceed against him; in fact such course is inherent in human ideas of justice. The notice given a party in a civil suit is known as a summons, and must be served in time to give the party a reasonable opportunity to be heard. Granting that the court has jurisdiction over the subject- matter of the controversy, then jurisdiction of the person attaches with service of the summons. When a court has a right to try and to determine a cause, it is said to have jurisdiction thereof, and its orders and judgments are binding upon all parties to the suit and their privies, and even upon the court itself in all subsequent litigation involving the same points and parties. How- ever, if a court does not have jurisdiction its decrees are an absolute nullity and are binding upon no one. In civil matters the actual presence of the defendant is not essen- tial to the power of the court to proceed, when it appears that the defendant has been given due notice according to law. Under certain circumstances, courts may proceed against property within their territorial jurisdiction, even though they cannot reach the owner personally by their processes. The property which is protected by the law of a state must be subject to its laws for the enforcement of rights with reference to the property itself and also with reference to claims against its owner. In this connection jurisdiction may be (a) in rent, or (b) in personam. COURTS AND PROCEDURE. 29 Procedure. Court procedure is a development from custom, while customs have their origin in the habits, mode of life and special circumstances of the people among whom they pre- vail. The chief merit of any system of procedure lies in the generality of its application, the uniformity of its rules and the certainty of its course. Courts must adhere to established modes of procedure, otherwise the administra- tion of justice would fall into chaos. There is great di- versity in the procedure of the courts of different countries and yet all arrive in the end at substantial justice. In some systems of jurisprudence the lawyer has but little influence on the course of inquiry, while on the other hand wherever English jurisprudence prevails, the interrogating lawyer can determine in a large measure the course of the testi- mony. The witness may be confined to a categorical an- swer to a specific, limited question propounded to him. He may even be required to answer a specific question by either "yes" or "no," according to the circumstances, and if he says he cannot so answer, his testimony thereon in that examination may be limited to that admission. The object of rules of procedure, relating to the introduction of evidence, is to enable the court to control the character of evidence introduced and confine it to the point at issue. All answers to direct interrogatories must be responsive to their respective questions, and confined to the purview of the questions to which they respond. Any answer or part of answer which does not meet these requirements, either by not being responsive or by volunteering more than the question called for, will be stricken from the record, on motion. This is in sharp contrast to some systems of juris- prudence. In certain actions in some jurisdictions it ap- pears that the witnesses are permitted to harangue the court and jury without any power or right on the part of 30 MEDICAL JURISPRUDENCE. counsel to interfere with their tirade. They may comment upon the effect of testimony, may boast of the prominence of themselves, the superiority of their intellect and experi- ence, the importance of their statements and conclusions, may give their opinion on the guilt of the accused, may berate the defendant from the witness chair, and even refer to matters of hearsay of several persons removed. Trial. A trial is a regular and formal examination by a competent court or judicial officer into the material facts of a controversy in issue, in order to determine and enforce the respective rights of the contestants. Some trials may be conducted by the judge alone, and others with the as- sistance of a jury. By the Federal Constitution a party charged with crime has a right to a trial by a jury, which shall determine all controverted questions of fact. In courts of equity the trial is had before the chancellor. However, he may call a jury to pass upon issues of fact, but the finding of the jury is usually only advisory and not binding upon him. Trial by Ordeal. Sometimes the accused was given the right of trial by ordeal. According to the beliefs of the time, an innocent person accused of crime, could walk, hoodwinked, unharmed over red-hot irons placed on the ground at irregular intervals; could drink with impunity the most deadly poisons; could put his hands in boiling water or hold a hot iron without injury, and would sink if thrown into water. Formerly, but few trial privileges were given to persons accused of crime. They were not permitted to have coun- sel and were debarred the right to make a defense. Pre- sumption of guilt and burden of proof were against them. The trial was purely an ex parte proceeding, and in many cases all that remained to be done after the indictment was found was to inflict the penalty. The accused might not COURTS AND PROCEDURE. 31 see or know who were the witnesses against him nor know the nature of their testimony. In this country these sub- jects are controlled by constitutional provisions. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to be informed of the nature and cause of the accusa- tion; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his de- fense." i Jury. Since the time when his rebellious subjects wrung Magna Charta from the reluctant hands of King John in 1215, it has been a cardinal principle of civil liberty among Eng- lish speaking people that no person may be seized or im- prisoned or disseized of his free-hold or estate; or exiled or condemned or deprived of life, liberty or property except by the law of the land or the judgment of his peers. "No freeman, ' ' runs that great proclamation of the rights of the common people, "shall be seized or imprisoned, or dis- possessed or outlawed, or in any way brought to ruin; we will not go against any man nor send against him, save by legal judgment of his peers or by the law of the land." In all criminal prosecutions, and in civil suits in Illinois, where the value in controversy exceeds twenty dollars, questions of fact are to be decided by jury. All States have similar provisions, constitutional or statutory. i Const. U. S., Amdmt. 6. CHAPTER III. EVIDENCE. Definition. Evidence is a general term and means that which demonstrates or tends to establish or make clear or certain the truth or falsity of a fact in issue. In law evi- dence is any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion, an inclina- tion, affirmative or negative, of the existence of some other matter of fact which is the subject of inquiry and includes all the means, whether of fact or opinion, by which an al- leged fact, the truth of which is submitted for investigation, is established or disproved. Testimony. Testimony is the statement or declaration of a witness before a court for the purpose of establishing or refuting some fact in issue. It is a branch of evidence and is the means by which certain facts, within the knowl- edge of persons, are brought before the court when the same are material to the issues in the case. Witness. A witness is one who gives testimony in a case before a court, and includes every person from whom testi- mony is received to be used in a judicial proceeding. 1 Oath or Affirmation. Before testifying a witness must be sworn or affirmed to tell the truth. Competency of Evidence. The question of the compe- tency of evidence is addressed to the court but, its compe- tency admitted, its weight and effect are exclusively for the jury. "The competency of witnesses has been greatly extended in modern times by legislation. The tendency of courts 1 Baker v. Coit, 1 Root, 225; Bliss v. Scheman, 47 Me., 252. 32 EVIDENCE. 33 has been in the same direction of liberality. More and more has been left to be determined upon the credibility of the witness, but there has not been any relaxation of the rule against hearsay evidence. Nor has the scope allotted to the field of opinion evidence been materially enlarged. Hearsay evidence has been always regarded as generally untrustworthy, while opinion evidence is placed low in the scale and receivable at all only because there seems no other practicable way to establish the fact. ' ' 2 Rules. A knowledge of the rules for the introduction of evidence is practically indispensable to efficient testimony as an expert, and it is highly to be desired even when testi- fying as an ordinary witness. A few of the more important rules are, 1. The answer must be responsive to the question. 2. The answer should not go beyond the purview of the question. 3. Ordinarily the witness should not volunteer informa- tion. 4. A witness who speaks English, must testify in that language. Subjects of Testimony. A. Facts. Generally speaking, a witness may testify only to facts, circumstances and conditions which have been brought to his knowledge by means of one or more of the senses, but he may not state inferences or conclusions drawn by him from such observations or from admitted facts. B. Opinion Evidence. BY OBDINAEY WITNESSES. In ac- tual practice, however, there are a great variety of subjects in which ordinary testimony savors of opinion evidence. Illustrations. Thus, an ordinary witness may state his opinion concerning the age of a person whom he has seen ; 2 0. & O. By. Co. v. Wiley, 134 Ky., 461. 34 MEDICAL JUEISPEUDENCE. on matters of color, size, weight, quantity, value, distance, speed, time, etc. ; relative to the identity of persons, places or things ; whether a person appeared angry, sad, nervous, excited, sick, in poor health, well, ill, attached to another, sober or intoxicated ; whether a person appeared to be suf- fering pain, showed fear, manifested grief, was formerly in good health, was rational or irrational, sane or insane, had failed mentally in a given time, looked bad, was of in- temperate habits, acted strangely or in a childish manner, was "short" in answering questions, eccentric, or of a fickle mind; whether the mind of a person was clear, etc. Weight of Such Evidence. The confidence to which such opinion is entitled depends upon the character of the exami- nation made by the witness, the nature of the subject-mat- ter to which it refers, and the intelligence and good faith of the witness. 3 Reason for Admission. These exceptions to the general rule that ordinary witnesses can testify only to facts which come to their knowledge through some of the senses, are made to promote justice and are founded upon necessity. Circumstances there are in which, because of the imperfec- tion and limitations of language and the instability of men- tal impressions, the witness can express a condition or state of facts more clearly by giving his inferences at the time, from the impressions made on his mind, than by at- tempting a detailed enumeration of those impressions. Often facts of personal observation, especially of conver- sations, are remembered only by the mental conclusions which they produce at the time. Thus, it may be difficult or even impossible, to describe in detail a person's condi- tion or conduct at a given time, when the observer may disclose the key to the whole matter by merely stating his own impression at the time; such as, that the person was 3 Hopt. v. Utah, 120 U. S., 437. EVIDENCE. 35 angry, or excited, or intoxicated, or sad, etc. Whenever the condition sought to be established is such that it cannot be reproduced and made palpable in the concrete to the court or jury, or when language is inadequate to make the court or jury see it and know it as the witness saw it and knew it, then the ordinary witness may describe the condi- tion by its effect upon his own mind at the time, even though such method savors of an opinion. 4 Such evidence has been said to be competent from necessity, on the same ground as the testimony of an expert, as being the only method of proving certain facts essential to the proper ad- ministration of justice. It has been said that it is not a mere opinion which is thus given by the witness, but a conclusion of fact to which his judgment, observation and common knowledge have led him. The admission of the opinion is an exception to the general rule, which does not permit opinions, in regard to a subject-matter which re- quires no special learning or experience, and which is within the knowledge of men in general. 5 ' 'Argument in support of the objections to all these answers is comprehended within the general rule that a witness, not an expert, is not competent to testify to an opinion. Where a previous habit of study is essential to the formation of an opinion sought to be put in evidence, only such persons are competent to express an opinion as have, by experience, special learning or training, gained a knowledge of the subject-matter upon which an opinion is to be given, superior to that of an ordinary person. Wit- nesses, not experts, are, however, allowed to express opin- ions when the subject-matter to which the testimony relates is such in its nature that it cannot be reproduced and de- scribed to the jury precisely as it appeared at the time. 4 Whittier v. Franklin, 46 N. H., 23 ; Knoll v. State, 55 Wis., 249. 5 Com. v. Sturtevant, 117 Mass., 122. 36 MEDICAL JURISPRUDENCE. Opinions may be given by non-expert witnesses as to the state of health, hearing or eye-sight of another, or the ability of another to work, or walk, or use his arms or legs naturally, or whether such other person is apparently suf- fering pain, or is unconscious, or in possession of his or her mental faculties, intoxicated, excited, calm, etc. ' ' 6 Not Favored. The law does not look with favor upon the introduction of opinion evidence, whether ordinary or expert. As a rule, witnesses are required to testify to facts directly within their knowledge; it is for the court or jury to draw conclusions and form opinions of ultimate facts from the probative facts thus brought before them. BY EXPERT WITNESSES. Opinion evidence is testimony in the form of an opinion based upon facts proved or assumed, concerning a matter involving scientific or technical knowl- edge not within the experience of the ordinary witness. 7 Subject-Matter of Expert Testimony. The test of the admissibility of expert testimony is, Is the question upon which the evidence is offered, one of science, skill or special experience or occupation? The subject must be one which the courts recognize, as a matter of judicial notice, as being a matter of special study, experience or occupation, either for professional or other purposes, and it must relate to some particular department of human knowledge or activ- ity. The subjects to which this kind of evidence is appli- cable are not necessarily confined to classified and specific professions. It is applicable wherever particular skill, experience and judgment, applied to particular subjects, are required to explain results or trace them to their causes, and in which, as a matter of business, recreation or study, there are persons who are specially informed. Effect of Opinion Evidence. The jury cannot disregard 6W. C. 8. R. Co. v. Fishman, 169 111., 196, 198; Greinke v. Chicago City Ry. Co., 234 111., 564, 571. 7 W. C. S. R. Co. v. Fishman, 169 111., 196. EVIDENCE. 37 the testimony of experts where it refers to facts pertaining to the profession, but when it comes to the mere opinion of witnesses, however skillful, as in cases of insanity, the jury have a right to disregard the opinions and substitute their own conclusions from their ordinary intelligence and infor- mation. Opinion evidence is only advisory. It may be followed or disregarded by the jury. Experts are per- mitted to testify with a view of assisting the jury to draw the right conclusions but they do not take the place of the jury. After all the experts have spoken, the jury must draw its own conclusions of legal responsibility. 8 The following charge to the jury was held to be a cor- rect statement of the law: "You are necessarily bound, independent of every other consideration, to adopt the tes- timony of the physicians and surgeons when you come to determine whether, on the facts in this case, these defend- ants have treated the case in a proper form and by the use of proper appliances. ' ' 9 But the opinion of experts as to the customary charge for services, the reasonableness of a fee or the value of professional services are not considered binding on court or jury, but they cannot be arbitrarily disregarded without reason appearing in the evidence.. 10 The opinion of a physician is entitled to such weight and consideration as his experience, skill and knowledge, in the special subject of inquiry justify. 11 It is the duty of the jury to consider, as affecting credibility, that a physician who testified as an expert was specially compensated by the party in whose favor he testified. 12 At the present time, the force of expert testimony is greatly weakened by 8 Rolater v. Strain (Okl.), 137 Pac., 96, 99; Oborn v. State, 143 Wis., 249. 9 Spaulding v. Bliss, 83 Mich., 311. 10 Spaulding v. Bliss, 83 Mich., 811; Ladd v. Witte, 116 Wis., 35; In re Smith, 41 N. Y. Supp., 1093. 11 U. S. v. Prendergast, 32 Fed., 198. 18 Ware v. Starkey, 80 Va., 204 ; Harvey v. Packet Co., 8 Miss., 99. 38 MEDICAL JUEISPKUDENCE. a prevailing conviction that the expert is a special pleader who presents at best only one side of the case and whose opinion is regulated according to the size and source of Ms fee. CHAPTER IV. EXPERT WITNESS. Definition. An expert witness is one who has made the subject upon which he gives his opinion, a matter of par- ticular study, practice or observation, and who has a par- ticular knowledge on the subject which must be recognized in law as a distinct department of human knowledge and endeavor. An expert is one who, in regard to a particular subject or department of human activity, possesses knowledge not possessed by ordinary persons. 1 An expert is a person instructed by a specially acquired information, knowledge and experience upon subjects pre- sumably not within the range of ordinary intelligence and observation. 2 Preliminary Inquiry as to Qualifications. Whether a person who has been called as an expert has the requisite qualifications in the particular subject-matter involved to enable him to testify as an expert, is a preliminary ques- tion to be determined by the court, and the decision of the court is conclusive, unless it appears from the evidence to be clearly erroneous or to have been founded upon some error in law. 3 After a witness has been permitted to tes- tify as an expert, the weight and effect of his testimony is a question exclusively for the jury, and is entitled to such weight and consideration as his skill and experience in the special subject of inquiry justify. 4 In determining the 1 Sievert v. People, 145 111., 571; Jones v. Tucker, 41 N. H., 546. 2 Page v. Parker, 40 N. H., 47, 59; Hyde . Woolfolk, 1 la., 167. 3 Parkins v. Stickney, 132 Mass., 218 ; Congress Co. v. Edgar, 99 U. S., 657. 4 Davis v. State, 35 Ind., 496; U. S. v. Prendergast, 33 Fed., 198, 39 40 MEDICAL JUKISPBUDENCE. weight to be given to the testimony of an expert, it is proper for the jury to take into consideration the fact that he was specially compensated by the party in whose favor he tes- tified. 5 Conduct. The expert witness should endeavor to make his statements clear and intelligible to the ordinary lis- tener. He must not forget that he is called upon to testify because the subject is not within the field of knowledge of the person to whom his testimony is directed and for whose benefit he is called as a witness. He should avoid as much as possible the use of technical terms and language sug- gestive of pedantry, subterfuge or display. He should shun even the suggestion of advertising himself or parading his accomplishments and speak with becoming modesty on all matters pertaining to his qualifications, experience and achievements. Able testimony may lose its convincing force by being preceded and introduced by a spirit of brag- gadocio. It is important to the expert to be familiar with rules and practices of courts relating to the examination of witnesses, as it may save conflict with the attorneys and, possibly, even reprimand from the judge. Basis of Opinion. An expert may base his opinion upon information (a) obtained by his own examination of the party and testified to by him in court, or (b) gained by him from testimony which he heard in the case in court, or (c) assumed in a hypothetical question propounded to him. Confined to Special Knowledge. When testifying an ex- pert must be strictly confined to the limits of the special knowledge of his profession or occupation. 6 Physicians as Experts. The earliest recognition of ex- pert opinion evidence was in the admission by the courts of opinions of physicians in matters pertaining to their 5 Ware v. Starkey, 80 Vs., 204. 6 Milwaukee Co. v. Kellogg, 94 U. S., 472 ; Page v. Parker, 40 N. H., 47, 59 ; People v. Lehr, 196 111., 361, EXPERT WITNESS. 41 profession. The acceptance of this class of witnesses as experts is now so general that their opinions are taken in all matters pertaining to their profession. In 1619, an ejectment case turned on the question of the legitimacy of a posthumous child, and the court, having first received "the testimony of two doctors of physic," held as a matter of law "that it might well be, as the phy- sicians had affirmed, that ten months may be said properly to be the time of gestation." The record in this case closes by reciting, "So the court delivered to the jury that the said Elizabeth, who was born forty weeks and more after the death of the said Edmund Andrews, might well be the daughter of the said Edmund. " 7 At a famous trial for witch-craft, at Bury St. Edmund's, in 1665, Dr. Thomas Browne, who testified as a "person of great knowledge," after viewing the accused, "was desired to give his opinion what he had conceived of them, and that he was clearly of opinion that the persons were bewitched. ' ' 8 The case does not disclose why a doctor should be any more competent to testify on that subject than a layman. In 1678, the testimony of medical men was admitted be- fore the jury regarding the cause of blood in a certain por- tion of the body of a person supposed to have been mur- dered, and in the following year similar testimony was introduced before a jury concerning the cause of death. 9 Subjects of Inquiry. In an action for malpractice against a physician, on a charge of negligence, a practitioner in the profession, or one who is skilled therein, may give his opinion, if material, as to whether the treatment complained of was proper and in accordance with the usual and cus- tomary practice, under the circumstances, and, if not, 7 Alsop v. Bowtrell, Cro., Jac., 541. 8 Trial of Witches, 6 How. St. Tr., 687, 697. 9 Trial of the Earl of Pembroke, 6 How. St. Tr. 1310, 1337; Rex v. Green, 7 How. St. Tr., 159, 42 MEDICAL JUKISPKUDENCE. wherein it was not; whether the given operation was skill- fully performed ; whether the defendant, whom he has seen operate, is a skillful operator; whether the specified condi- tion could have resulted from the specified treatment, or course of treatment; whether under the given conditions the specific methods, treatments, appliances or devices adopted were practical or approved by the profession; whether a given infection could have been induced at the time or in the manner alleged ; whether the given condition was curable or incurable ; whether the recovery was a fair, usual recovery; whether certain adverse results can, with proper skill and care, always be anticipated and avoided; whether an amputation was skillfully performed, and in fact on any subject of inquiry at issue coming within the range of his special skill, knowledge and experience. His opinion may be based (a) on facts assumed in a hypo- thetical question, or (b) on the stated results of his own investigation, or (c) on all the evidence in the case, assum- ing it to be true. When the fact is material to an issue in court a physician may give his opinion whether the given effects upon the sexual organs of a female might have resulted from her ravishment in the manner stated; whether pregnancy is likely to occur as a result of rape ; whether penetration con- stituting rape has occurred ; whether an infant was prema- turely born and its age, or both ; whether a person was sane or insane at a given time; whether fright caused by being put off a train would produce heart disease in a young child; whether a condition was the result of previous wounds or injuries; whether death was caused by drown- ing ; whether certain wounds were sufficient to cause death ; whether a certain clot of blood could have existed twelve hours without causing death ; and also the effects of wounds and injuries; the permanence of an injury; the cause of EXPERT WITNESS. 43 death; the probable results of disease and injuries; the effect on a person of a certain quantity of a particular drug, and the different effects from different quantities ; the cause of a miscarriage ; the effects of a nervous shock ; the gen- eral cause of an injury or disease; from symptoms, how long a disease has been running; where there are several concurrent causes which might have produced death, that one cause operated to the exclusion of the others and, gen- erally in all medical and surgical matters where an expert may be able to form an opinion, or draw a rational con- clusion. Physicians may testify as medical experts, from given symptoms or from examination, whether or not an abortion has been committed on a woman, and, in case of death of the woman, whether or not death was the result of an abor- tion. These are matters peculiarly within the range of the expert knowledge of physicians. 10 Hypothetical Question. A hypothetical question is one which states and assumes as true certain probative facts appearing in evidence, and asks the opinion of the witness thereon as to some ultimate fact in issue. 11 It is well settled that when the testimony of experts is proper, counsel may assume the existence of any state of facts which the evidence fairly tends to justify, according to the theory of examining counsel, for the purpose of eliciting an opinion therefrom. A hypothetical question need not embrace all the evidence in the case, but may be addressed to any reasonable theory which may be taken of the facts. 12 Of course, the facts are assumed for the pur- pose of the question and the opinion thereon. 13 The value of the opinion will depend somewhat on the completeness 10 Com. v. Leach, 156 Mass., 99; Com. v. Thompson, 159 Mass., 56; Slattery v. People, 76 HI., 217. 11 Cent. Diet. 12 R. Co. v. Wallace, 202 111., 129; Howard v. People, 185 111., 552. 13 Stearns v. Field, 90 N. Y., 640. 44 MEDICAL JURISPRUDENCE. with which the question contains all the facts in evidence, whether for or against the theory of examining counsel. Besides, the expert is entitled to know all the facts before being called on to express an opinion. But the opinion must be based upon the facts assumed in the question re- gardless of what other facts may be known to the witness at the time, and where the facts stated are not sufficient to enable the witness to form an intelligent opinion, he should so answer. Witness has a right to explain that he cannot form an opinion without information on certain other essen- tial elements. A hypothetical question may assume such facts, covering an entire situation, as are reasonably warranted by the evi- dence. As in the case of all other questions, its competency must be finally determined by the court. 14 Objective and Subjective Symptoms. A physician who has not treated an injured party but has examined him solely as a basis on which to found an opinion to be given in a trial to recover damages for injuries sustained by him, when called as a witness, cannot testify to the statements made by the injured party to him or in his presence, during such examination ; nor base an opinion upon the statements of the injured party. In other words, an expert who has examined the patient for the sole purpose of testifying must base his opinion on objective symptoms, in so far as it is based upon his examination, and purely subjective symptoms must be disregarded. 15 Cross-Examination of Expert. In the direct examination of an expert witness, the facts assumed in a hypothetical question should be such as are fairly within the scope or range of the testimony, or necessarily inferable therefrom. However, upon cross-examination, any fact which, in the 14 Oborn v. State, 143 Wis., 249. is Eckels v. Mutschall, 230 111., 462. EXPEET WITNESS. 45 sound discretion of the court, is pertinent to the inquiry, whether testified to by any one or not, may be assumed in a hypothetical question with a view of testing the skill, learn- ing or accuracy of information of the expert, or to ascer- tain the reasonableness or expose the falsity of the opinion he has expressed. Although a question goes beyond the scope of the evidence it may be propounded upon cross- examination if its purpose is to elicit the reason upon which the expert bases an opinion expressed by him in his exami- nation in chief, or to ascertain the extent of his skill and learning in the particular subject upon which he assumes to be an expert. 16 While medical works are not admissible in evidence to prove the things contained in them, still where a medical expert says he bases his opinion upon what a certain text-writer says on the subject, the text may be read from on cross-examination to show the witness that the author does not sustain the contention of the witness. 17 Medical Books. Ordinarily medical works, or treatises on any other inductive science, cannot be introduced in evi- dence nor read from by either party, or by the physician witness for the purpose of showing the opinion of the au- thors. 18 However, where a physician says, either on direct or cross-examination, that he bases his opinion upon what a certain text-writer says, counsel, on cross-examination, may show that the author does not sustain the witness. 19 16 W. C. S. Ry. v. Fishman, 169 111., 196, 200. 17 Bloomington v. Schrock, 110 111., 219. isYoe v. People, 49 111., 410; N. C. B. M. Co. v. Monka, 107 111., 340; Com. v. Brown, 121 Mass., 69. 19 Bloomington v. Schrock, 110 111., 219 (Dicta). CHAPTEE V. HEARSAY. Dying Declarations. A dying declaration is a statement of material facts concerning the cause and circumstances of a homicide, made by the victim under a solemn convic- tion of impending death. HEARSAY. Under the rules of evidence in our jurispru- dence, hearsay testimony is excluded. It comes clothed in too much uncertainty to give it any probative force, and except in rare cases it is not admissible for any purpose. This rule of law is based upon our habit of reasoning and, therefore, the law indulges no presumption or inference of the truth of an issue merely because a witness states that some one, not before the court, asserted its existence medi- ately or immediately to the witness. It is the policy of the law to exclude from the evidence the statements of a party who is not before the court to be put under oath, cross- examined, and the source and credibility of his information inquired into. 1 It is a rule of common law, in criminal cases, to which there are but few exceptions, that witnesses must (a) be produced in open court, (b) confront the defendant, and (c) give their testimony under oath or on affirmation. It will be observed that the admission of dying declarations violates these rules ; the defendant is not in court or under oath and, usually, the statement is not made in the presence of the accused. REASONS FOB THE EXCEPTION. This well recognized ex- ception to the rule excluding hearsay evidence is made (a) i Grubey v. National Bank, 133 111., 79 ; Kent v. Mason, 79 111., 540. 46 HEARSAY. 47 because of the necessity of the situation and (b) because of the strong probability that, under the circumstances, the declaration is true. The Supreme Court of Illinois gives a concise and able statement of the reason of the rule, as follows : "The statements of the deceased as to the cause of the injury from which death finally results, when dying decla- rations, within the meaning of the law, are admitted in evi- dence on the ground of necessity, and the rule under which they are admitted forms an exception in the law of evidence. The accused, under the rule, has not the benefit of * meeting the witnesses against him face to face'; a constitutional right in all criminal trials, with this solitary exception. He is deprived of the security of an oath, attended with consequences of temporal punishment for perjury. He is deprived of the great safeguard against misrepresentation and misapprehension, the power of cross-examination. The evidence is hearsay in its character ; the statements are liable to be misunderstood and to be misrepeated upon the trial, and the evidence goes to the jury with surroundings tending to produce upon the mind emotions of deep sym- pathy for the deceased and of involuntary resentment against the accused. It is vain to attempt to disguise the infirmities and imperfections of the human mind and its susceptibilities to false impressions under circumstances touching the heart and exciting the sympathies, and the law has wisely, in case of dying declarations, required all the guaranties of truth the nature of the case admits of. The principle upon which such declarations are admitted is, that they are made in a condition so solemn and awful as to exclude the supposition that the party making them could have been influenced by malice, revenge or any conceivable motive to misrepresent, and when every inducement, emo- tion and motive is to speak the truth. In other words, in 48 MEDICAL JURISPRUDENCE. view of impending death, and under the sanctions of a moral sense of certain and just retribution. A dying declaration, therefore, is a statement made by a party, relating to the cause of the injury of which he afterwards dies, under the fixed belief and moral conviction that his death is impend- ing and certain to follow almost immediately, without oppor- tunity for repentance, and in the absence of all hope of avoidance; when he has despaired of life, and looks to death as inevitable and at hand." 2 ESSENTIAL CONDITIONS TO THE ADMISSIBILITY OF SUCH STATEMENT: 1. The statement must be made in the immediate pros- pect of death, and death must be imminent both as a matter of fact and of declarant's impressions. 2. The cause of death must be the subject of judicial inquiry; it cannot be used on a trial for robbery, 3 nor for perjury, 4 nor for abortion, 5 nor for rape. 6 3. The declaration must refer to the circumstances of the injury. 4. Death must have resulted without delay from the in- jury. 5. The declarant must have been competent to testify to the facts in the statement, if he were living. 6. The statement is admissible only to the extent the declarant could testify. 7. The declaration must have been complete in itself. 8. The declarant must have been rational at the time of making the statement. 9. The declaration may have been by signs, in response to questions, or otherwise. 2 Starkey v. People, 17 ID., 17, 20. 3 Rex v. Lloyd, 4 C. & P., 233. 4 Rex v. Mead, 2 B. & C., 605. 5 Rex v. Hutchinson, 2 B. & C., 608 note. 6 Johnson v. State, 50 Ala., 456. HEARSAY. 49 10. The competency of such statements is a matter to be first determined by the court, but when once admitted the weight of the same is for the jury. If the statement is in writing the instrument should be produced, if possible; if the statement was oral, witnesses may repeat the same, though they are able to give only the substance. ADMISSIBILITY. The question of the admissibility of a statement offered as a dying declaration is addressed to the sound discretion of the court, whose duty it is to inquire into the circumstances of the statement, the condition of the declarant's health and mind at the time, the time of death with relation to the injury, the nature of the declaration itself, the relation of the injury to the death, the persons who were present, the means by which it was communicated, and from all these facts and circumstances determine whether the declaration shall be admitted. Once admitted, its weight and probative force are matters exclusively for the jury. Medical men are frequently in positions where statements of this character are made to them. The entire statement of the deceased, and what was said to him or in his presence at the time should be reduced to writing without delay in order to preserve the statement for court, should the matter at any time become the subject of judicial inquiry. Physicians are frequently called (frequently is used ad- visedly) to attend women who are suffering from the results of criminal abortions. In such a case the patient sometimes discloses to the physician the circumstances of the opera- tion. When made for the purpose of treatment, while the patient has hopes of recovery, such statements do not amount to dying declarations and the physician, after the death of his patient, as the result of the illegal act, will not be permitted to repeat them from the witness stand in the 50 MEDICAL JURISPRUDENCE. prosecution for murder of the person supposed to have per- formed the operation. In these cases, the medical profes- sion owes it to the public to secure, wherever possible, state- ments from such patients after they are thoroughly im- pressed with the idea that they cannot live and that death is certain and at hand, as to the nature and circumstances of the operation, and the names of the parties who were active in the performance thereof. Often a dying declara- tion is the only direct evidence of the relation of the defend- ant to the crime. Of course, the physician should first satisfy himself of the good faith of the patient and that she is not actuated by malice or any ulterior motives. The statement should be sufficiently explicit to connect the sup- posed offender with the intent to produce an abortion. The mere statement that the defendant treated her, or even that he used instruments on her, unless corroborated by other incriminating evidence, would not be sufficient to sustain a conviction. What the defendant did may have been for the purpose of relieving a condition inevitably tending to pro- duce a miscarriage. Granting that the crime exists, the statement should disclose facts and circumstances inconsist- ent with the innocence of the accused, and should character- ize his conduct as criminal and improper on any hypothesis of good faith. When called on a case where abortion or attempted abortion is suspected, a physician should imme- diately take every available precaution which will have a tendency to show that he was not the party responsible for the unnatural condition. A very good course is to call in another physician in consultation and together get as much of the history of the case as the patient can be induced to disclose. Of course the physician can always refuse to take the case, but even then the circumstances of his visit or of the would-be patient's call may be such as to cast suspicion on him or give excuse for the tongue of gossip to wag and, HEAESAY. 51 therefore, wherever possible, this result should be guarded against at the time. Res Gestae. Spontaneous exclamations and statements made at the time of the occurrence of an event which is the subject of judicial inquiry, are called res gesta and are ad- missible in evidence as being a part of the incident under consideration. These statements cover a much broader field than dying declarations. Some courts have admitted statements made to physicians, including exclamations of pain and suffering, by patients in the course of professional examination on the ground that they were a part of the res gestce, in a case where the physical condition of the patient was the subject of inquiry. When an expert is called upon to give his opinion as to the cause of his patient's condition at a particular time, he may state what his patient said to him in describing his bodily condition, if said under circum- stances which free it; from all suspicion of being spoken with reference to future litigation and which give it the character of res gestcB. 1 Adverse Statements in the Presence of a Party. If state- ments against a party's interest are made in his presence and hearing, under circumstances that he ought to refute then, but does not, the incident naturally raises an inference adverse to his interest or contention. In the administra- tion of justice courts recognize this rule of logic and when the person whose interest has been assailed is a party to the suit, the statements may be introduced in evidence, together with the fact of his silence or other attitude denoting acquiescence or admission. Thus, the failure of a physician to reply to the charge of his patient that he caused her to abort may be shown. 8 Statements .Against Interest. Where a party makes 7 I. C. R. B. Co. v. Button, 42 111., 438, 441. S Com. v. Brown, 121 Mass., 69. 52 MEDICAL JUKISPKUDENCE. statements or admissions against his interests, and the mat- ter thereafter becomes a subject of inquiry in court in a case to which he is a party, his statements or admissions are competent evidence for the purpose of establishing the fact in accordance with the statements or admissions. Of course, no such evidence is conclusive and the party is not precluded from making an explanation. Statements by Patient to Physician. Statements by a patient to his physician are divided into two classes, (a) when made to assist the physician in diagnosing his case for purposes of testimony in court or other purposes not re- lated to the treatment of the patient, and (b) those state- ments which are made during the progress of diagnosis to enable the physician properly to treat the patient. It has been held that the statements of the patient to his physician relative to his condition and the cause and circumstances thereof, made in good faith, for the purposes of profes- sional treatment of such condition, are not hearsay if they should later become relevant to an issue of a suit in court. Even though such statements are favorable to the conten- tion of the patient in a suit to which he is a party, it has been considered that the practitioner may testify thereto and repeat them from the witness stand. 9 Relative to this general subject Chief Justice Bigelow said that the admissibility of such statements, when made for the purpose of receiving medical advice, "is an excep- tion to the general rule of evidence which has its origin in the necessity of the case. To the argument against their competency founded on the danger of deception and fraud, the answer is that such representations are competent only when made to a person of science and medical knowledge, who has the means and opportunity of observing and ascer- taining whether the statements and declarations correspond 9 Shearer v. Buckley, 31 Wash., 370; 72 Pac., 76. HEARSAY. 53 with the condition and appearance of the person making them, and the present existing symptoms which the eye of experience and skill may discover. Nor is it to be forgotten that statements made to a physician for the purpose of med- ical advice and treatment are less open to suspicion than the ordinary declarations of a party. They are made with a view to be acted on in a matter of grave personal concern- ment, in relation to which the party has a strong and direct interest to adhere to the truth." 10 PAIN AND SUFFERING. Some courts limit such statement to questions of pain and suffering. In Illinois, it has been held that declarations made by an injured party to his at- tending physician are admissible in evidence when they relate to the part of his body injured, his sufferings, symp- toms and the like, but not if they relate to the cause of his injury. 11 Such statements are admissible, (a) when made to a physician during treatment or upon an examination, not for purpose of testifying in litigation then pending, (b) when they refer to pains immediately connected with the injury, and (c) when they are in the nature of res gesta. 12 When not made for professional treatment, as when made during an examination of the patient with a view of quali- fying the physician to testify in a pending suit, statements of pain and suffering to a physician by his patient are not admissible. 13 A physician, when asked to give his opinion as to the cause of the patient's condition at a particular time, must neces- sarily in forming his opinion be to some extent guided by what the sick person may have told him in detailing his pains and sufferings. This is inevitable, and not only the 10 Barber v. Merriam, 11 Allen, 322. 11 Globe Ace. Ins. Co. v. Gerisch, 163 111., 625. 12 \V. C. S. R. Co. v. Carr, 170 111., 478. 13 R. Co. v. Carr, 170 111., 478, 483. 54 MEDICAL JURISPRUDENCE. opinion of the expert, founded in part upon such data, is receivable in evidence, but he may state what his patient said in describing his bodily condition, if said under circum- stances which free it from all suspicion of being spoken with reference to future litigation, and which give it the character of res gestce. 1 * 141. C. R. Co. v. Sutton, 42 111., 438, 441. CHAPTER VI. PRIVILEGED COMMUNICATIONS. Admissibility of Adverse Statements. It is a rule of evi- dence that incriminating or adverse statements freely made, out of court, by a party to a suit, may be introduced against him by his adversary if they are pertinent to the issue. The statements may be pertinent by being an admission of the fact in controversy, or of some collateral fact tending to prove the issue, or by being in contradiction of statements by the witness on the witness stand and, therefore, tending to impeach his testimony. From motives of public policy, certain exceptions to the rule have been introduced for the benefit of the party making the disclosures. Confidential Communications. Confidential communica- tions between attorney and client, priest and penitent, physician and patient and husband and wife, sometimes relate to matters which then are, or subsequently become, the subject of judicial inquiry. When, by law, these com- munications are excluded from disclosure in evidence they are termed privileged communications. When the disclo- sure of such communications is forbidden by the law, it is upon grounds of public policy on the presumption that * ' greater mischief would probably result from requiring or permitting their admission than from wholly rejecting them." 1 AT COMMON LAW. Under the common law this privilege extended only to attorney and client. STATUTES. The exemption has been enlarged by statutes 1 1 Greenleaf on Evidence, Sec. 236. 55 56 MEDICAL JURISPRUDENCE. in many states and countries to include communications be- tween physician and patient, priest and penitent and hus- band and wife. PROVISIONS. The statutes referring to physicians usually designate the parties, disclosures to whom shall be privi- leged, as "physicians and surgeons in the practice of their profession," those "practicing physic and surgery," and other similar expressions. The student is referred to the statutes in which he is interested for their special pro- visions. PURPOSES. The purpose of these statutes is to throw around such disclosures as the patient is required to make for the necessary information of his attending physician the cloak of secrecy; the prime object being to invite confi- dence in respect to ailments and the causes thereof, in order that the patient may get the fullest measure of benefit from the professional services. Where the relation is such that no public necessity or propriety exists for encouraging the reposing of confidence the reason for the privilege fails and the law does not apply. If there is no justification for dis- closing secret maladies and their history and causes, there is no confidence to be abused and there is no privilege. INTERPRETATION. In spirit, such statutes do not usually include cases where the malady is apparent to every one on inspection, but in their application they are generally con- strued to apply to all information necessarily disclosed or discovered upon any investigation which was necessary to the proper treatment of the patient. They protect with the mantle of privilege whatever, in order to enable the physician properly to prescribe, was disclosed to any of his senses and which was in any way brought to his knowledge for that purpose ; that is to say, any information which was necessary to enable the physician to prescribe for the patient as a physician, or to perform any surgical operation PRIVILEGED COMMUNICATIONS. 57 for him as a surgeon, is privileged. 2 Under such statutes any information disclosed to a physician by a patient to enable him properly to prescribe for the patient, or discov- eries made by the physician in the course of his examination therefor, cannot be revealed on the witness stand by the physician, and the privilege usually extends to persons present during the interview. 3 Where no proof appears to the contrary, the court will presume that the communica- tion of a physical condition and of all matters pertaining thereto, was necessary to enable the physician properly to treat the patient. Since the examination is with the consent of the patient, any knowledge obtained thereby is construed to be a communication. 4 Incidental Information. Knowledge which was not ac- quired for the purpose of treatment, but is obtained inci- dentally without special reference to the relation, is not usually exempt from disclosure. Thus, a physician is called to treat a party soon after an injury, and by his own observation or the admission of the patient, discovers that the patient is under the influence of liquor, it has been held that the knowledge of such fact is not protected from dis- closure because the disclosure was not necessary to the proper treatment of the injury and the physician was not required to make an investigation as to intoxication in order properly to diagnose the trouble and dress the wound. Such discovery or disclosure is a mere incident to the treat- ment. 5 Where the disclosure is purely voluntary and man- ifestly not necessary for the purpose of the employment, the privilege will not apply. Thus, where a woman about to be delivered of a bastard child, said to her physician: ' ' The father of my child never promised to marry me, ' ' the 2 Campau v. North, 39 Mich., 606, 609 ; Dittrich v. Detroit, 98 Mich., 245. 3 Campau v. North, 39 Mich., 606 ; Edington v. Insurance Co., 67 N. Y., 185. 4 Williams v. Johnson, 112 Ind., 273; Prader v. Ace. Assn., 95 la., 149. 5 Note to Dittrich v. Detroit, 98 Mich., 245. 58 MEDICAL JUKISPKUDENCE. statement was held not to come within the privilege. 6 Patient Need Not be Party to Suit. The purpose of the privilege does not relate to the nature or circumstances of the litigation and therefore the privilege prevails whether the patient is or is not a party to the suit. Statement by Physician to Patient. A statement of fact or opinion by a physician to his patient in the course of pro- fessional treatment based upon a narration of facts by the patient for the purpose of treatment, or upon a physical examination of the patient by the physician for that purpose is privileged. If the physician were permitted to disclose what he told the patient as to the character of his ailment, the protection contemplated by the statute would often be defeated, for, otherwise, by indirection, a disclosure of the nature of the disease could readily be effected. 7 For the same reason the privilege attaches to statements by one physician to another in the presence of the patient during a consultation. 8 Publishing Operation. A physician is not justified in publishing or causing to be published, without the consent of his patient, an article describing a surgical operation wherein he names or otherwise identifies the patient. 9 In Michigan, at the time of this opinion, there was a statute making a communication from patient to physician priv- ileged from disclosure in court, but the inhibition will be equally true if there is anything in the article which will tend to humiliate the patient or bring her into public ignominy or disgrace. If there is anything in the operation of interest to the public or benefit to the profession, it cer- tainly can be presented without identifying the patient. Imposing on Privacy. A physician took with him a non- e Collins v. Mack, 31 Ark., 684. 7 Bryant v. M. W. A., 86 Neb., 372, 378; 21 A. 0., 365. 8 Prader v. N. M. Ace. Ass'n, 95 la., 149. 9 Dictum by James V. Campbell, in Sailings v. Shakespear, 46 Mich., 408, 412. PKIVILEGED COMMUNICATIONS. 59 professional unmarried man when attending a woman in confinement, there being no real need of his services to assist the physician either in making the trip or the delivery. The patient and her husband thinking him to be a medical asso- ciate of the physician made no objection to his presence in the room. In an action by the patient for the deceit, it was considered that both the physician and the intruder were liable. 10 Waiver of Privilege. The courts usually construe these privileges as being for the benefit of the patient and that the patient can waive the privilege if he desires ; but unless he waives it, the lips of the physician are forever sealed, ( ' the seal of the law once fixed upon them, remains forever, unless removed by the party himself in whose favor it was there placed." In some jurisdictions the courts hold that, as it is a personal privilege, it must be claimed by the patient, otherwise the courts will enforce disclosure thereof. 11 Where the patient sues the physician for malpractice or defends a suit by the physician for his fee, on the ground of malpractice, the rule of privilege does not lie as to all mat- ters connected with the treatment or operation in reference to which malpractice is alleged, because by raising the issue of improper treatment or operation, he is conclusively pre- sumed to waive the privilege. The patient will not be per- mitted to raise an issue and at the same time bar the phy- sician's defense thereto. But where the defense to a suit by a physician for his services is the general issue, that is, a general denial of the services and of their value, the char- acter and propriety of the treatment are not in issue and the privilege will apply. Privilege is an Entirety. The privilege is an entirety 10 DeMay v. Roberts, 46 Mich., 160. 11 Railroad Co. v. Martin, 41 Mich., 667. 60 MEDICAL JURISPRUDENCE. and a waiver of the benefit of a protecting statute is a waiver of the disqualification of the physician as to the entire course of treatment or transaction. 12 Autopsy. (A) BY ATTENDING PHYSICIAN. Where the attending physician performs an autopsy on his late patient, at the instance of the defendant charged with negligence causing the death, and over the objection of the plaintiff in the case, he will not be permitted to disclose on the trial, either the results of the autopsy, or his conclusions there- from, as to the cause of death. 13 As to the opinion, at least, it would necessarily be founded in part upon information disclosed by the relation of phy- sician and patient during the life of the latter and, there- fore, should be privileged from disclosure. (B) BY STRANGER. Where the autopsy was held by a physician who had not attended the deceased during his life- time and where the cause of death was the subject of inquiry, the physician was permitted to testify to the results of the autopsical examination and to give his opinion as to the cause of death. 14 This decision is based, in part, upon the wording of the statute and, apparently, the ruling would have been the same had the deceased in his lifetime been the patient of the physician at the time covered by the inquiry. The court says : "A dead man is not a patient capable of sustaining the relation of confidence toward his physician which is the foundation of the rule given in the statute, but is a mere piece of senseless clay which has passed beyond the reach of human prescription, medical or otherwise. ' ' Duty of the Physician. When called upon to make a dis- closure which may be in violation of the confidence of his patient, the physician should claim the privilege and give 12 Bryant v. M. W. A., 86 Neb., 372, 378. 13 Thomas v. Bryan, 168 Mich., 593. 14 Harrison v. Sutter St. R. R. Co., 116 Cal., 156. PBIVILEGED COMMUNICATIONS. 61 the opinion only when the court orders him to answer; otherwise he would be justly subjected to criticism. In passing upon a case involving this question, the able Judge Cooley observed: "This evidence ought not to be passed over without re- mark. It is surprising evidence for many reasons. One of these is that the physician had no business to give it. ... Every reputable physician must know of the exist- ence of this statute and he must know from its very terms, as well as from the obvious reasons underlying it, that it is not at his option to disclose professional secrets. A rule is prescribed which he is not to be allowed to violate; a privilege is created which does not belong to him but to his patient, and which continued indefinitely and can be waived by no one but the patient himself." 15 The Privilege is Not to Protect Criminals. According to the great weight of authority, the defendant in a criminal prosecution has no right to object to the testimony of a physician in reference to the victim of the crime on the ground that the information is privileged. 16 Also while the statute protects with the mantle of privilege, communi- cations by one physician to another, in the presence of the patient during a consultation, still, where such statement incriminates the speaker with reference to an abortion which had been performed on the patient, and the speaker is subsequently a defendant to a suit relating to the abor- tion, the privilege of the statute will not avail. 17 But in a trial for abortion, where the woman survives, a physician who treated her will not be permitted to disclose her com- munications. 18 Criminal Purposes. If communications are made to a 15 Storrs v. Scougale, 48 Mich., 387. 16 People v. West, 106 Cal., 89; Pierson v. People 79 N. Y., 424; Siefert v. State, 160 Ind., 464; State v. Law, 150 Wis., 313. IT State v. Smith, 99 la., 29. 18 People v. Murphy, 101 N. Y., 126. 62 MEDICAL JURISPRUDENCE. physician for the purpose of furthering some criminal de- sign or conspiracy, or some other violation of law, they would not be privileged. 19 The solicitation by a woman of a physician to perform an abortion on her, or to give her medicine for that purpose, would not be privileged and, should the fact ever become material to an issue in court, he would be a competent wit- ness to testify thereto. Presumption of Good Faith. In the absence of evidence to the contrary, the court will presume that the communica- tion was for a lawful purpose. 19 Hewitt v. Prime, 21 Wend., 79. CHAPTER VII. LICENSE. Issuance. Common Law Right to Practice Medicine. At common law any one might practice medicine or perform surgical operations. As a matter of law no preliminary prepara- tion and no license to practice were required. This condi- tion was also true within the jurisdiction of the civil law. Of course the practitioner was responsible to his patient for the exercise of an ordinary and reasonable degree of skill and knowledge, as measured by the standards of pro- ficiency and professional learning at the time ; but the State did not then attempt to prohibit incompetent persons from practicing nor to regulate the standard of proficiency by establishing a minimum qualification. The common law left it to natural selection as it were, to eliminate the in- competent. But such method of elimination did not always protect the weak and confiding and the incompetence was often not discovered until the patient was in his grave. The experience of the ages was that civil and even criminal responsibility for injurious consequences was not sufficient to deter the adventurer, the parasite, the ignoramus, the impostor, from attempting the practice of medicine, and governmental control became indispensable. Liberty to Pursue Calling. To adopt and follow such lawful pursuit as he may see fit when not injurious to the community, is a fundamental right and privilege of every American citizen. 1 It is undoubtedly the right of every i Frorer v. People, 141 111., 171. 63 64 MEDICAL JURISPRUDENCE. citizen of the United States to follow any lawful calling he may choose, subject only to such restrictions as are im- posed upon all persons of like age, sex and condition. This right may, in many respects, be considered as a distinguish- ing feature of our Eepublican institutions. Here, all voca- tions are open to every one on like condition, but no one has a right to practice any profession, without the requisite knowledge and skill. 2 Professional Practice Is Not Property. The right to continue the practice of a profession is often of great value and cannot be arbitrarily taken away any more than you can take away real or personal property, still such right is not property, within the strict meaning of the term, and does not amount to a contract with the State, within the meaning of these constitutional terms. Public Welfare. There is no arbitrary deprivation of such right, where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. While such laws are an invasion of the common law right of the individual, they are justified on the ground of public necessity. Ordinarily the law cannot interfere with freedom of private contract. Why should the citizen not be permitted to engage whomso- ever he pleases to administer to him when he is sick? The answer is, The public must protect itself against impostors, fakers, charlatans, empirics, ignoramuses and quacks. Right of State to Control. " The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as may be and are necessary to secure the people against the consequences of ignorance and incapacity as well as deception and fraud." 3 The right of the States to regulate the practice of medicine and 2 Dent v. W. Va., 129 U. S., 114. 3 Dent v. W. Va., 129 U. S., 114, 121. LICENSE. 65 surgery by fixing a reasonable and uniform standard of requirement is universally recognized by the courts and has passed out of the realm of discussion. The courts uni- formly hold that States may regulate the practice of med- icine, and, for that purpose, may establish a standard of requirements, or may constitute a board of examiners with power to fix reasonable regulations for examination and standards of proficiency and fitness required on the part of applicants for license. Generally speaking, the legis- lative power of the State may prescribe the conditions on which any avocation or calling, affecting the public welfare, shall be pursued. It has been uniformly held that reason- able license statutes are lawful exercise of the police power ; are not an unlawful abridgment of the rights and privileges of citizens; are not an infringement on the right of con- tract ; do not deny a citizen the equal protection of the law ; are not an unwarranted interference with vested rights and are not an unlawful delegation of legislative or judicial power. Soliciting Patients. The State may impose on the prac- tice of the profession any conditions which are reasonably promotive of the public welfare and those who are in au- thority for the time being are clothed with the discretion of determining whether a certain requirement meets the test. Experience demonstrates that in the medical profession at least, competition is not confined to efforts to excel in skill but frequently degenerates into a scramble for fees. Free competition sounds all right as a theory, but the test is, What is the result of its practice! Herbert Spencer's philosophy as announced in Social Statics, does not give sufficient consideration to certain human factors in the problem. "It is best," says he, "to let the foolish man suffer the penalty of his foolishness. For the pain, he must bear it as he can; for the experience, he must treasure 66 MEDICAL JURISPRUDENCE. it up and act more rationally in the future. ' ' 4 The lame- ness of this moralizing, when applied to the medical pro- fession, lies in the fact that it is frequently addressed to the victim who has been sent to his grave by the empiric. Self-reliance is highly essential, but it is only foolhardiness which will not adapt means to ends. We can swim; but we don't swim the ocean. We use boats. By experience we have learned to recognize, and been taught to avoid, the deadly rattle-snake, but we don't rely upon this wisdom alone for protection, as we have also learned that a more complete safeguard is to kill him. Children are under the special protection of the law until they arrive at an age of sound discretion and the wisdom of the policy is attested by the approval of the ages. The policy of the law is to pro- tect the weak, decrepit and helpless against the evil designs of the wicked, the crafty, the self-serving. Therefore, a law prohibiting licensed physicians from soliciting patients through paid agents has been held to be a valid exercise of the police power. 5 Itinerant Vendors of Medicines. This power of the State extends to the control of the practice of vending drugs, medicines and nostrums by itinerant physicians, peddlers and fakers. 6 Itinerant Physicians. Statutes regulating the sale and administration of drugs, nostrums and medicines by itiner- ant physicians and vendors have been generally enacted and, except on occasions of mere technical defects, have been uniformly enforced. 7 Such statutes are passed to protect the health and promote the welfare of society, and to safeguard the people against imposition, chicanery and fraud, and bring the profession of medicine under the con- 4 Spencer : Social Statics, 205. 5 Thompson . Van Lear, 77 Ark., 506. 6 Kirk v. State, 126 Tenn., 7. 7 People v. Blue Mountain Joe, 129 111., 370; State v. Wheelock 95 la., 577; 29 A. 0., 1239, 1242. LICENSE. 67 trol of the law and thus exclude the ignorant and unscien- tific from the practice. CITY LICENSE. A city ordinance which requires itinerant physicians to take out a license to sell their nostrums in the city, and which is not expressly limited to non-residents, is not void on the ground of unreasonable discrimination in favor of residents. 8 How Regulated. BY STATUTE. The legislature may fix, by statute, reasonable standards for determining the com- petency and fitness of applicants for license to practice medicine and surgery. 9 BY BOARD. The legislature may provide for a Board of Examiners and invest it with power to establish standards of competency and fitness. 10 Statutes usually provide for a medical board, or board of health, and leave the matter of fixing a standard of qualification to such board, and it has been held that such provision is not a delegation of either legislative or judicial power to an inferior body. Requirements. The only proper test is, 7s the party com- petent, worthy and fit to practice the profession? Of course, the nature and extent of the qualifications required must de- pend primarily on the state of the science at the time, but they should cover every field of the profession. If the standard is attainable by reasonable study and application, within a reasonable period of time, no valid objection can be successfully urged even though it is difficult to accomplish ; but it must be reasonable in the light of present advance- ment and the requirements of the profession. 11 MORALITY. The public welfare requires not only compe- tence in the practitioner but also morality, general upright- ness, respectable appearance and reasonable obedience to 8 Fairfleld v. Shallenberger, 135 la., 615. 9 Williams v. People, 121 111., 84; 1 A. C., 18. 10 In re Thompson, 36 Wash., 377; 2 A. 0., 149; State v. Rosenkrans, 30 R. I., 374; 19 A. 0., 824. 11 Dent v. W. Va., 129 U. S., 114. 68 MEDICAL JUKISPKUDENCE. law. A grossly immoral or criminal practitioner is more dangerous to society than one who is merely incompetent and, therefore, good moral character and a record free from crime are universally required of applicants, and the courts have uniformly held such provisions constitutional. The same body which is empowered to determine the com- petency of persons may also pass upon the other qualifica- tions required, and reject those who do not fulfill reason- able demands in this behalf. Good moral character is a prerequisite to the practice of any profession. Such re- quirement has become a settled policy of all the states and has been held to be indispensable to the exercise of the right under a license. EEQUIREMENTS MUST BE REASONABLE. Public welfare and interest are safeguarded when proper qualifications and fitness are assured. When that object is accomplished, interference should cease. A restriction should have some reasonable relation to the purpose to be attained. 12 The restrictive and classifying provisions of such statutes are uniformly considered void unless they are in fact in good faith reasonably within the necessities of the public pro- tection and promotive of the public welfare. 13 A statute which requires that an applicant for license to practice shall have a diploma from some college in good standing, and shall pass an examination by a Board of Examiners, has been held not unreasonable, even when there is no col- lege in the State. 14 Also a statute which permits the Board of Examiners to determine whether an applicant for a cer- tificate has graduated from a reputable college has been held not a delegation of judicial power to an inferior board, and the requirement not unreasonable but enforcible. 15 12 Almond v. Nugent, 34 la., 300. 1 3 Railway Company v. Jacksonville, 67 111., 37; Lakeview v. Cemetery Co., 70 111., 192; Babcock v. Buffalo, 56 N. Y., 268; Evarts v. Council Bluffs, 46 la., 46. 14 State v. Littooy, 52 Wash., 87 ; 17 A. C., 292. 15 Ex Porte Whitely, 144 Cal., 167. LICENSE. 69 However, there must be no unreasonable classification with extra burdens on some, not on others. 16 Construction of License Statutes. Though, in a measure, in derogation of the common law, such statutes and regu- lations should be liberally construed to promote and accom- plish the object of their creation. 17 To bring such statute within constitutional requirements, "or" will be construed to mean ' ' and, ' ' on the ground that the legislature did not intend to pass an unconstitutional act, and also because, when a statute is reasonably susceptible to either of two constructions, that meaning must be adopted which will render it constitutional. 18 Practicing Without License. In a prosecution for prac- ticing without a license, it is immaterial that the defendant is entitled to a license, or that the Board unlawfully with- holds the same from him. 19 It is no defense to such pros- ecution that the complaining witness who was in the em- ploy of the Board went to the office of the physician, so- licited treatment and paid him for the services with the view of testifying against him. 20 Practicing Medicine. Parties charged with practicing medicine without procuring a license have frequently de- fended on the ground that their conduct did not amount to practicing medicine within the meaning of the law, and therefore the courts have frequently been called upon to decide whether certain conduct amounted to practicing medicine. 21 CHKISTIAN SCIENCE. The practice of Christian Science healing for a fee was held to come within the provisions of 16 State v. Gravett, 65 Ohio St., 289. 17 Smith v. People, 51 Colo. 270, 36 L. R. A., 158; State v. Yegge, 19 S. D., 234; 9 A. C., 202. 18 Kirk v. State, 126 Term., 137. 19 State v. Mosher, 78 la., 321. 20 State v. Littooy, 52 Wash., 87 ; State v. Smith, 152 N. C., 798 ; 30 L. R. A., 946, 954; 25 L. R. A., 341 et seq. and 349 et seq. ?i State v. Pavis, J94 Mo., 485; 4 L. R. A., 1023. 70 MEDICAL JURISPRUDENCE. a license statute of Ohio, the court holding that the intent of the legislature was to bring within its provisions every person who for a fee prescribes or recommends a cure for disease, even though the cure is to come, not through him- self, but, through his intercedence, from God. 22 It was also held that the act was not void because it did not make special provisions for licensing such healers on examina- tion in accordance with their standards and professions. Another court, however, has said that " prayer for those suffering from disease, or words of encouragement or the teaching that disease will disappear and physical perfec- tion be obtained as a result of prayer, or that humanity will be brought into harmony with God by right thinking and a fixed determination to look on the bright side of life, does not constitute the practice of medicine in the popular sense. ' ' 23 Where the statute includes the treatment, heal- ing or prescribing for any mental or physical ailment with- out words of limitation, it will include Science practitioners, faith healers and others of that type of ministration. 24 The policy of the law is to exclude the incompetent and un- worthy from attempting to cure disease or heal injuries in whatever school or line he may practice, and it is asking too much to assume that all Scientist healers, or would-be healers, are competent, and therefore, all should be pro- hibited from practicing as a profession for a fee until they have devised a reasonable and practical means of elim- inating the incompetent from among them. MISCELLANEOUS PRACTITIONERS. One who diagnoses dis- ease by alleged microscopic examination of the blood and proposes to cure disease by an application of light comes within the provisions of a statute requiring license of any person who shall profess to treat or prescribe for any phys- 22 State v. Marble, 72 O. St., 21. 23 State v. Mylod, 20 B. I., 637. 2* State v. Bus-well, 40 Neb., 158. LICENSE. 71 ical ailment, and he does not come within the provision exempting opticians. 25 The giving of electric treatment for disease is practicing medicine. 26 Offering and trying to cure the opium habit by one who styled himself a doctor, is practicing medicine, for which he must procure a li- cense. 27 One who, for a fee, professes to cure disease by dieting his patients, regulating their exercise and using spectacles, must be licensed as a physician. 28 One who professes to treat disease and injuries by Christian Science is required to procure a license to practice medicine or desist from his practice. 29 Where a person calls himself professor and pretends to be a magnetic healer and publicly professes to cure disease and heal injuries, comes within the law requiring license. 30 The practice of osteopathy is the practice of medicine. 31 A party who publicly an- nounces his ability to cure cancer by a preparation pre- pared by himself from herbs and vegetables, and under- takes for reward to cure persons so afflicted is practicing medicine, though he makes no pretense of being a doctor. 32 One who claims to cure diseases and prescribes and fur- nishes what he calls tissue food must take out a license. 33 ITINERANT PATIENT. A physician who is regularly li- censed in the State of his domicil may go with his patient, who is also a resident of said state, into any other state in search of health or recreation, and there continue to treat the patient without being amenable to the license laws of the state of temporary residence, and he may recover his fee for services in the latter state. As long as he confines him- 25 O'Neil v. State, 115 Tenn., 427. 26 Davidson v. Bohlman, 37 Mo. App., 576. 27 Benham v. State, 116 Ind., 112. 28 State v. Edmunds, 127 la., 333. 29 State v. Buswell, 40 Neb., 158. 30 Parks v. State, 159 Ind., 211; State v. Heath, 125 la., 585. si Little v. State, 60 Neb., 749 ; State v. Gravett, 65 O. St., 289 ; Jones v. People, 84 111. App., 453; Bragg v. State, 134 Ala., 165; 3 L. B. A., 762. 32 State v. Huff, 75 Kan., 585 ; 12 L. B. A., 1094. 33 State v. Breese, 137 la., 673 ; 24 L. R. A., 103. 72 MEDICAL JURISPRUDENCE. self to his transient patient he will not be considered as practicing medicine in the state of temporary residence. 33 * OPTICIAN. An itinerant optician who announces that he does not give medical or surgical treatment, and who tests eyes and sells glasses to correct errors in refraction is not a practitioner of medicine, nor a vendor of "appliances intended for the treatment of disease. ' ' 34 * Right of Physician to Practice Dentistry. In a State which requires dentists to procure a license before engaging in the practice of the profession, and fixes a penalty for practicing without a license, a regularly licensed physician will not be permitted to practice dentistry. 35 Exemption of Resident Practitioners. The statutes usu- ally excuse from examination physicians who are practicing in the state at the time the law takes effect. Such exemp- tion is legal and does not render the act void. 36 Board Cannot Delegate Discretion. The Board provided by license statutes for administering the same cannot dele- gate its right to determine the qualification and fitness of an applicant for leave to practice, to another organization or body. An attempt to do so is treated as a refusal to exercise the discretion, and courts will interfere to compel action. 37 Revocation. Reserved Right of State. The power to grant a license for competency and fitness, or refuse a license for incompe- tency or unworthiness implies the power to revoke, for cause, a license which has already been issued. The causes which will justify refusing a license will ordinarily justify revoking the same. The issuing of a license for supposed 33a Zeigler v. C. T. & S. Bank, 245 111., 180. 34 People v. Smith, 208 HI., 31. 35 State v. Taylor, 106 Minn., 218; 16 A. 0., 487. 36 State v. Green, 112 Ind., 462; Ex Parte Spinney, 10 Nev., 323. 37 Board v. Cooper, 123 111., 227. LICENSE. 73 merit must necessarily imply the reservation of the right to revoke the same if it shall subsequently appear that it was obtained by fraud or through mistake by one not en- titled thereto, or in event the licensee shall subsequently prove incompetent or unworthy. From the very nature of things, a license can be held only during good behavior. The purpose of the law, the protection of society, demands this interpretation. Vested Rights. A license is not a vested right, nor an irrevocable franchise, but is at all times subject to the police power and the policy of the State in the protection of its citizens. A person cannot acquire an absolute vested right under a license for any definite period beyond the control of the police power of the State. A license to prac- tice a profession confers no vested right or privilege above legislative control. A licensee takes the license subject to all the conditions and restrictions imposed by the law un- der which the same was issued or granted, including the reservation by the State of the right to revoke for cause, on proper notice and reasonable opportunity to be heard and to amendment of the law. The party accepting a license, takes the same subject to the right of the State to make further restrictions, requirements and regulations at any time the public welfare demands, and where such new re- strictions and increased requirements are reasonable and fairly promotive of public health and weal, they will be sus- tained even though, in their enforcement, they have the effect of prohibiting some physicians from further engaging in the profession under a license previously issued. 38 The State has a right to require physicians to furnish evi- dence of continuing qualifications and fitness. 39 Due Process of Law The Law of the Land. Due process 38 Eeetz v. Michigan, 188 U. S., 505; 127 Mich., 87. 39 State v. Webster, 150 Ind., 607; 8 L. B. A., 1272; Ex parte Garland, 4 Wall., 333. 74 MEDICAL JURISPEUDENCE. of law, or the law of the land means such an exercise of the powers of government as the settled maxims of law permit and sanction, under such safeguards as those maxims pre- scribe for the class of cases to which the one in question belongs. They do not necessarily refer to judicial pro- ceedings. Private rights and enjoyment of property may be interfered with by the legislative or executive, as well as the judicial, department of the government. 40 Revocation Not a Judicial Function. The revocation of a license to practice a profession is not necessarily the exer- cise of a judicial function, where all the formalities of courts of justice must be observed, and the action of a board invested with such power, in revoking a license, for justifiable cause, is not the deprivation of the practitioner of property without due process of law, in violation of sec- tion 8, Article 2 of the Federal Constitution. 41 Such act is only an exercise of administrative discretion, an en- forcement of the police power of the State, by the executive department. Investing an examining board with power to issue and revoke license for cause, is not, generally speak- ing, clothing it with judicial power, but rather investing it with administrative discretion. 42 Grounds for Revoking. A board has the power to re- voke certificates issued to individuals for the same reasons it may refuse to issue such certificates. But the right of the citizen to practice his profession is too important to be taken away from him without some reasonable cause. The revocation must be based upon some act or conduct that would, in common judgment, be deemed immoral, unworthy, dishonorable or clearly unprofessional. Procuring a li- cense by one who is grossly immoral, without disclosing his unfitness, is a fraud upon the public and will justify a 40 Chapman v. State, 34 Minn., 387. 41 Wilkins v. State, 113 Ind., 514. 42 France v. State, 57 O. St., 1. LICENSE. 75 rescission of the license, within a reasonable time, on proper notice and hearing. Thus, a license may be revoked for immorality, even though the only evidence offered, or speci- fications given, are of acts prior to the time the license was issued, or even prior to the passage of the law under which the license was granted. The law which permits such revo- cation is not ex post facto. The real ground of revocation is want of good moral character at the time of complaint or hearing. Of necessity, this want can be proven only by past conduct, sufficiently recent to leave an inference of present delinquency. Character is built by a course of con- duct. Acts are the cause; character the effect. In such case the party is not being tried for past offenses, but for the present deficiency which the prior conduct tends to prove. If, in the meantime, a reformation has taken place, it should be susceptible of proof, and such fact must be within the knowledge, and the means of proof, therefore, must always be at the command, of the accused. 43 But a license cannot be revoked from mere caprice and without cause, when fairly issued upon sufficient evidence of the applicant's fitness and qualifications. 44 ILLUSTBATIONS. A license may be revoked for immoral- ity ; 45 for fraud in procuring the same, 46 such as present- ing a fraudulent diploma, 47 or one issued to another per- son ; 48 for false statements in advertising, to the effect that the advertiser can cure all diseases, or statements which are calculated to deceive and defraud the public ; 49 for sale of intoxicating liquors without a license therefor and with- out prescription ; 50 for criminal abortion ; 51 for maintain- 43 Meffett v. Packer, 66 Kan., 710. 44 People v. McCoy, 125 111., 289. 45 Meffert v. Packer, 66 Kan., 710. 46 Curryer v. Oliver, 27 Ind. App., 424. 47 Cully v. Territory, 19 Okl., 189. 48 State v. Roy, 22 B. I., 532. 49 State v. Examiners, 34 Minn., 387; State v. McCreary, 95 Ark., 511. 50 State v. Goodier, 105 Mo., 551. 51 Matthews v. HedtilK 82 Neb., 825; Munk v. Frink, 81 Neb., 631. 76 MEDICAL JURISPRUDENCE. ing two offices under different names, with the intent thereby to perpetrate a fraud upon the public ; 52 for an advertisement relating to venereal diseases, in violation of law ; 53 for commission of a felony ; 54 for accepting money from persons in the last stages of consumption, under the representation that they were suffering from catarrhal bronchitis, when he must have known the truth ; 55 for ad- vertising to cure incurable diseases, where a statute pro- hibits the same ; 56 and for conviction of an offense involv- ing moral turpitude. The making of statements and promises by a physician with reference to the treatment and cure of the sick and afflicted, which were calculated to deceive and defraud the public, were held unprofessional and dishonorable, and should properly subject the offender to a revocation of his license, when proceeded against in a legal manner. 57 Proceedings to Revoke. CHARGES. Written charges set- ting forth the nature of the complaints need not be filed with nor prepared by the Board unless the statutes or the rules of the Board so require. In the absence of such re- quirement, the body charged with the duty of supervising practitioners may act upon an informal oral complaint. However, even in the absence of statutory requirement, it is desirable to require written charges signed by the party making them, specifying the nature of the offenses with which the licensee is charged. The complaint need not be drafted with the accuracy of an information or an indict- ment in criminal law; the allegations are sufficient if they challenge the attention of the Board and notify the licensee of the nature of the accusations made against him. 58 The 52 Rose v. Backster, 7 Ohio N. P. N. S., 132. 53 Kennedy v. State, 145 Mich., 241. 54 Spurgeon v. Rhodes, 167 Ind., 1. 55 In re Washington, 23 Ont. Rep., 299. 56 State v. McCreary, 95 Ark., 511. 57 People v. McCoy, 125 HI., 289. 58 Meffert v. Packer, 66 Kan., 710. LICENSE. 77 complaint must set forth facts which constitute an offense and justify a revocation. 59 Where written complaint is not necessary, but neverthe- less one is filed, the evidence need not be confined to the written charges, but the record should show that the re- spondent was given a reasonable opportunity to explain or refute all the evidence adduced against him, and the records should show the consideration by the Board of all such matters and its conclusions thereon. NOTICE. Notice to the person whose rights are involved is indispensable to the right to proceed against him. Be- fore a license to practice medicine can be revoked by a board of examiners, the licentiate must be given due notice and a reasonable opportunity to be heard. Nothing is pre- sumed in favor of the jurisdiction of such a body, and the particular facts necessary to confer jurisdiction must be made to appear from the record of its proceedings. If the records do not show such jurisdictional facts, the judgment will be void. 60 Whether the right to practice a profession is property in the technical sense, it is a valuable franchise and one of which a person cannot be deprived without an opportunity, by timely notice, to refute the charges pre- ferred against him. Where a practitioner had a charge made against him of making statements and promises cal- culated to deceive and defraud the public, of which charges he had no notice, and of which he was never found guilty upon any evidence of their truth, an order of the Board revoking his certificate was unauthorized and void, and was set aside by the court. 61 In the absence of statutory re- quirement, or rule of the Board, any form of notice, oral or written, will be sufficient, but the advisability of written 59 State v. Kellogg, 14 Mont., 426. 60 Swearengen v. Gulick, 67 111., 208; Foster v. Glazenor, 27 Ala., 391; Harney v. Tyler, 2 Wall., 342 ; Freeman on Judgments, Sec. 123. 01 People v. McCoy, 125 111., 289. 78 MEDICAL JURISPRUDENCE. notice personally served is so manifestly preferable as not to require recommendation. The notice should specify the general nature of the complaint, the time and place of the hearing, and be signed by the proper members or officers of the investigating body. HEARING. When hearing complaints, such Board is not a judicial body, and it is not required to adhere strictly to rules of procedure in court in the conduct of the hearing or in the introduction of evidence. JURY TRIAL. In an action to revoke a license, the de- fendant is not entitled to a trial by jury, and it is not nec- essary that the proceedings shall be conducted with that degree of exactness required upon a trial for a criminal offense, in an ordinary judicial tribunal. 62 RECORD. A record should be kept showing in detail the complete proceedings from the complaint to the finding and order. The revocation of a certificate cannot be sus- tained when it does not appear from the record of the pro- ceedings that the Board, from evidence submitted to it, or otherwise, ever found the holder of the certificate guilty of any act or conduct that was unprofessional or dishonor- able. 63 Effect of Decision by Board. Its decisions, made in good faith, after due notice and reasonable opportunity to be heard, are binding on the courts unless clearly and mani- festly wrong and oppressive. Such bodies are a depart- ment of the administrative affairs of government, not cor- porate bodies, and may not be interfered with by the courts, except for arbitrary refusal to act, for oppressiveness or for unauthorized, unjust or arbitrary conduct. 64 The courts are not concerned in the right or wrong of such de- B2 Munk v. Frink, 81 Neb., 631. 63 People v. McCoy, 125 111., 289. 6* Iowa E. M. 0. A. v. Schrader, 87 la., 659; State v. Fliescher, 41 Minn., 69; U. S. v. Hitchcock, 190 U. S., 324; Harding v. People, 10 Colo., 109; State v. Examiners, 34 Minn., 387. LICENSE. 79 cisions unless an appeal to the courts is expressly provided by statute. However, this is a government of laws, not of men, and our courts must be the final arbiters where any oppressive or illegal element is involved. 65 Statutes of Limitation. The object of a revocation of license is the future protection of society, not the punish- ment of the licensee. Therefore, the usual statutes of limi- tations do not apply to such proceedings, and a party may have his license revoked for an offense for which he cannot be prosecuted criminally, owing to the statute having run against the offense. 66 Revocation and Criminal Prosecution. A license may be revoked for a criminal offense before the party has been prosecuted for the crime, as the criminal prosecution and the revocation of the license are absolutely independent proceedings. 67 65 Boyd v. U. S., 116 U. S., 616. 66 State v. Stewart, 46 Wash., 79; 11 L. R. A., 557; in re Lowenthal, 78 Cal., 427; Ex parte Tyler, 107 Cal., 78; State v. Schaeffer, 129 Wis., 459; People v. Hooper, 218 111., 313. 67 Munk v. Frink, 91 Neb., 631. CHAPTER VIII. CONTRACTUAL RELATIONS. General Observations. The relation of patient and phy- sician is contractual in character, two consenting minds being necessary to create the same. In other words, it is voluntarily assumed, not imposed by law as a matter of duty and public policy. In fact most relations in life are voluntary in nature, and when voluntary a party may avoid their responsibilities by refraining from entering into them, but, generally speaking, he cannot enjoy their benefits and emoluments without incurring the obligations which the law, as a matter of public policy, imposes thereon. The marriage relation is a good illustration of the extent to which public policy ingrafts responsibilities on the contract between the parties, even irrespective of their intentions or wishes. The relation of physician and patient creates rights and obligations which the parties may not have dis- cussed and of which they may have been ignorant at the time. Contract. Not only is the relation in question founded on agreement of the parties, express or implied, but also all transactions between a physician and his patient are based upon contract and, therefore, the general principles of the law of contracts apply. In its widest acceptation, contract is the basis of social and political organization. In this meaning of the term all obligations of the individual to society or to government result from his implied agreement. Here, contract is synonymous with duty. The individual has contracted to 80 CONTBACTUAL RELATIONS. 81 do and to refrain from doing all that which, in the then conception of right and wrong, it becomes his duty to do or not to do. But, according to the use of the term in law, contract has a more definite meaning. " Jurisprudence is concerned with such rights only as are recognized by law and enforced by the power of the State." A right which cannot be enforced in law is an imperfect obligation. DEFINITION. "A contract is an agreement between two or more competent persons, upon sufficient consideration, to do or not to do some lawful thing. ' ' 1 KINDS OF CONTRACTS. Contracts may be said to be (1) express or (2) implied, and the latter may be again divided into (a) those in which the agreement is a natural and rea- sonable inference from the facts and circumstances of the transaction, and (b) those in which the law imposes the duty as a matter of public policy irrespective of the real intention of the parties. The latter are sometimes called constructive contracts. 2 An express contract is one in which the parties have de- clared orally or in writing the terms of their agreement. An implied contract is one in which the terms of the agreement are (a) an inference of fact or law deduced from the conduct of the parties in relation to its subject matter, or are (b) imposed by law as a matter of duty. CONTRACT AND DUTY. In the latter sense, contract is conterminous with legal duty. It is a well recognized maxim, though not of universal application, that whatso- ever a man ought to do the law supposes he has promised to do. "Implied contracts are such as reason and justice dictate and which, therefore, the law presumes that every man undertakes to perform. ' ' 3 ILLUSTRATIONS. In the first class of implied contracts 1 2 Bl. Com., 446. 2 Hertzog v. Hertzog, 29 Pa. St., 465, 468. 3 2 Bl. Com., 443. 82 MEDICAL JURISPRUDENCE. above referred to, the agreement or promise is signified by some other means or symbols than words; thus, where a person orders and accepts goods at a store and says noth- ing further, there is an implied promise, from the order and acceptance, to pay for them. Such is the usual course of conduct. There is an inference that the person who re- ceives the benefit of labor expended or professional serv- ices rendered, promises to pay the reasonable and custom- ary charges therefor. Thus, a sick patient impliedly agrees to pay a consulting physician for his services, even though, as between the physicians, or as between the patient and the attending physician, the attending physician agreed to pay him. 4 The same inference applies in the case of the employment of an assistant or consulting attorney; in the absence of other understanding, the client who knowingly accepts the services is liable therefor. 5 In the second class of implied contracts, it will be ob- served that the inference of an agreement or promise is a pure fiction. The duty is imposed by law, not only (a) in the absence of, but also (b) sometimes in direct conflict with, the real intention of the obligor. The absence of in- tention is illustrated in the case of treasure-trove which the finder converts to his own use in the belief that the owner is unknown. If the owner appears, and claims and proves his ownership, the law raises a promise on the part of the finder to compensate him for the value of the prop- erty converted. Where the responsibility under the law is in opposition to the real intention of the obligor appears in the case of a thief taking and appropriating to his own use the property of another. Here the law raises a prom- ise on the part of the thief to pay the value of the property on demand, and in an action by the owner to recover for 4 Shelton v, Johnson, 40 la., 84; Garry v. Stadler, 67 Wis., 512. 6 McCrary v. Ruddick, 33 la., 521. CONTRACTUAL RELATIONS. 83 the goods thus wrongfully taken, the thief will not be per- mitted to show that he did not intend to pay for them. EXPRESS EXCLUDES IMPLIED. A contract may be partly express and partly implied, partly oral and partly written ; but, where there is a complete express contract there can- not be an implied contract inconsistent therewith. An ex- press and an implied contract cannot both exist in the same part of a transaction, or touching the same right or obliga- tion. Where an express contract is shown, there cannot be maintained an action based upon an implied agreement as to the same matter, neither against a party nor against a third person. 6 An express agreement necessarily ex- cludes an implied one. 7 What is implied in an express contract is as much a part of it as what is expressed. 8 WRITTEN CONTRACTS. A written contract is one which, in all its terms, is reduced to some form of written lan- guage. 9 All prior propositions are superseded by the writ- ten agreement, and all prior and contemporaneous stipu- lations, material to the contract, are merged in it. 10 The written contract is presumed to contain all the agreement and when it appears to be complete the burden of proof is upon the party who seeks to establish the contrary. PARTLY WRITTEN, PARTLY ORAL. But where only part of an agreement has been reduced to writing, extrinsic evi- dence is admissible to show the complete contract. 11 When a written contract is so incomplete as to require resort to extrinsic evidence to make it enforcible, it may be treated as an oral agreement. 12 Delivery. A written contract takes effect, if at all, upon 6 Shaw v. Graves, 79 Maine, 166 ; Ford v. McVay, 55 111., 119. ^ Bamming v. Oaldwell, 43 111. App., 175. 8 Hart v. Otis, 41 111. App., 432. 9 Memory v. Niepert, 131 111., 630. 10 School Dist. v. Stilley, 36 111. App., 135; Covel v. Benjamin, 35 111. App., 299; Caa- selberry v. Warren, 40 111. App., 627. 11 Covel v. Benjamin, 35 111. App., 299. 12 Plumb v. Campbell, 129 111., 106; Wood v. Williams, 40 111. App., 117. 84 MEDICAL JURISPRUDENCE. delivery, unconditional and as a contract. Where there is no delivery there is no contract. 13 If delivery is condi- tional, the condition must be performed before the contract will become effective. 14 Other Classes. Executed and executory is also a classi- fication of agreements. In an executed contract both par- ties did all that they were required to do under the agree- ment, at the time it was entered into. It creates rights in rem; it gives title to property at the time of its execu- tion. Technically this is not a contract at all. When the agreement is reached, all acts are performed and, in the absence of fraud, accident or mistake, that is the end of it. Each has received something as an equivalent for what he gave. In an executory contract something remains to be done by one or both parties after the execution of the agreement. It contemplates something in the future, and creates rights in personam and in rem. Mutuality. Executory contracts must have the quality of mutuality; if one of the parties is bound the other must be bound also; if one is at liberty to refuse performance the other cannot be compelled to discharge his promises. 15 Parties. Two competent parties are essential to the mak- ing of a contract. A person cannot contract with himself. 16 Any person not under legal disability is competent to contract. Infants and persons of unsound mind do not have full legal capacity to become parties to binding obli- gations, and courts will set aside contracts which are not manifestly to their advantage. However, to justify the setting aside of a contract on the ground of mental inca- 13 Bierdeman v. O'Connor, 117 111., 493. 14 Jordan v. Davis, 108 111., 336. 15 Weaver v. Weaver, 109 111., 225. 16 Nelson v. Hayner, 66 HI., 487. CONTRACTUAL RELATIONS. 85 pacity of one of the parties to it, the mental debility must be such as, in law, renders the person incapable. 17 Contracts by Infants. Infants may make binding obli- gations for necessaries actually furnished them by accept- ing the same, but not for money loaned them, though subse- quently invested in necessaries. Necessary medical or surgical treatment is a legal necessity, within reasonable limits, for which a minor will be held liable. 18 Persons Under Legal Disability. The foregoing propo- sitions relative to minors apply to all persons under legal disability. Consideration. The law of contract is a natural con- comitant of the private ownership of property and the nec- essary exchange thereof occasioned by diversification of industry and the wants and desires of men. In a business sense, contract may be considered as having its origin in the transfer of private property. Even a contract for serv- ices, while not immediately referring to property, usually contemplates, in its ultimate analysis, the production of values as the result of the services. The parties have in view this fact at the time of the agreement. The effect of labor expended in value produced, or wants satisfied, is the basis of the negotiations. How much value or satisfaction will the exertion of muscle or brain create, is the question upon which the contract depends. EQUIVALENCE. The idea of equivalence enters into every business transaction. In matters of business a man does not part with his right to an article which is capable of satisfying some want without receiving therefor the satis- faction of some desire or some other article equally and similarly potent. Therefore, two things of value, and only IT Perry v. Pearson, 135 111., 224, 230. 18 People v. Pierson, 176 N. Y., 201, 203; See Oilman v. Andrus, 28 Vt., 241; Strong v. Poote, 42 Conn., 203, 205. 86 MEDICAL JURISPRUDENCE. two, are essential to every contract, namely (a) the thing given, and (b) the thing received. These are called the consideration. In the preliminary stage of a contract, the minds of the parties weigh and compare these two things. When they agree as to the equality of their values, the ex- change of the right therein is made and the contract is complete. This comparison of values is a matter entirely for the parties to the contract, and when, in the absence of fraud or undue influence, they have agreed upon their equivalence, the question will not be investigated by legal tribunals. Courts will not revise the judgments of the par- ties to a transaction in the matter of the equality of the respective considerations, except for fraud or undue influ- ence. The inference is that, on entering into a contract, every man intends at least to acquire an equivalent for what he gives. Where nothing is to be received, the infer- ence is that there has been no agreement. Courts will not enforce performance of a promise for which there has been no consideration. This was the case in the civil law, in which such an agreement is called a nudum pactum. In such cases the obligee did not change his position and is in no worse situation by reason of the promise having been made and, therefore, has no standing in court when he seeks to enforce performance of a promised gratuity. PROMISE FOR PROMISE. One promise is sufficient consid- eration to support another promise. 19 BENEFIT OR DETRIMENT. Any benefit to the promisor or detriment to the promisee is sufficient consideration for a promise. 20 Thus, medical services rendered by A to B or to C, at the request of B, are sufficient to support B's promise to pay A therefor. The consideration must con- 19 Bishop v. Busse, 69 111., 403. 20 Buchanan v. International Bank, 78 111., 500. CONTRACTUAL RELATIONS. 87 sist of a present act or of a future act promised. The act cannot be in the past. 21 While the acceptance of the services of a physician raises an implied promise to pay what those services are reason- ably worth, the mere fact that such services are beneficial to the patient does not justify such inference ; thus, it may be of lasting benefit to the patient to have had a certain operation performed, but the operator cannot recover for his services in performing the operation if it was done over the objection or without the consent of the patient. Effect of Signing Contract. Where a party, adult, of sound mind and able to read and write, and who has had full opportunity to read a contract, signs it without read- ing, he is bound by its terms and provisions, in the absence of fraud or other equitable considerations. 22 Validity of Contracts. As a general proposition, a con- tract which is valid at the place where it is executed, is valid any place in the world. 23 Constitutional Right to Contract. The right to enter into contracts is as sacred as life, liberty or the pursuit of hap- piness. The inviolability of the obligations growing out of contract, equally sacred as the right of contract itself, is a matter of supreme moment to industrial prosperity. The enforcement of such obligations is a duty imposed upon legal tribunals wherever governments assume to protect business affairs. Impressed with the importance of main- taining inviolate the right to demand fulfillment of prom- ises according to their terms, the framers of the Federal Constitution provided therein that no State shall pass any ''law impairing the obligation of contract." This obliga- tion may not be impaired by a State through its Legisla- 21 Johnson v. Johnson, 31 Pa. St., 450; Curry v. Shelby, 90 Ala., 277. 22 Seymour v. Mackay, 126 111., 350. 23 Pecks v. Mayo, 14 Vt., 33; Roundtree v. Baker, 52 111., 241; 9 Cyc., 672. 88 MEDICAL JURISPRUDENCE. ture ; 24 nor by its courts ; 25 nor by the people of the State. 26 This inhibition applies to contracts to which a State is a party, and to cases where the contract is in the form of a statute, or grant. 27 Both executed and executory contracts are included in this constitutional provision. 28 Guaranty. If work be done for a person on the guaranty of another that the services will be paid for by the guaran- tor, if needs be, the guaranty should be in writing; but if the services be rendered upon an unconditional promise of a third person to pay for them, the promise need not be in writing, but the credit should be given to the promisor, and not to the party for whom the services were rendered. The test is, Was the whole credit given to the third person ? If the undertaking of a person who agrees to answer for another is collateral or conditional, it must be in writing, but if direct and original it need not be. 29 Where the guar- anty is in writing, the account may be kept in the name of the patient; but if the third person is to be held as an original obligor, the account should be entered in his name. Doing the work at his request is sufficient consideration for his promise to pay whether direct or collateral, regardless of his relation to the beneficiary of the services. In other words, the consideration for a promise may be either a benefit to the promisor or a detriment to the promisee. 30 Courts will not enforce promises for which there has been no consideration. Such promises are imperfect obligations and are called naked promises. Receipt. A receipt in writing is not conclusive, but is open to explanation, correction or contradiction by oral testimony or other evidence. It is regarded as evidence of 24 People v. Canal Trustees, 14 111., 420. 25 Harmon v. Auditor, 123 111., 122. 26 Railroad Company v. Hoyt, 1 HI. App., 374. 27 Bruce v. Schuyler, 4 Gilm., 221. 28 Dartmouth College v. Woodward, 4 Wheat., 518. 29 Smith v. Hyde, 19 Vt., 54. so Morgan v. Park National Bank, 44 111. App., 582. CONTRACTUAL RELATIONS. 89 a high character and, to overcome it, the evidence should be clear and convincing. 31 A receipt in full of a liquidated claim is not conclusive evidence of payment in full, and is subject to contradiction and explanation. In the absence of other proof it establishes payment in full. 32 Payment in part of an undisputed claim, which is due, is no consid- eration for an agreement that the payment shall be in full, because the debtor has done only what he was legally bound to do, and, after such partial payment, the creditor may proceed to collect the balance, but a partial payment before due may be a sufficient consideration for an agreement to release the balance. 33 The compromise and settlement, for any reasonable con- sideration, of a doubtful or speculative claim, is a sufficient consideration when made with knowledge and without fraud, and receipt in full, in connection with such compro- mise, is binding on the party giving it. A receipt in full for an unliquidated or honestly disputed claim, accepted in good faith and obtained without fraud, is binding on the party who issues it. Thus, where a physician has no agree- ment as to his charge for services, his claim would be said to be unliquidated, and if the patient, honestly and in good faith misunderstood the terms and conditions or honestly disputed the value of the services, the acceptance of pay- ment and the giving of a receipt in full, as a condition thereof, would be binding on the physician. A written in- strument which operates both as a contract and a receipt, may be enforced as a contract and be corrected or contra- dicted as a receipt. 34 Release. A release is a quittance, remission or discharge 31 Walrath v. Norton, 5 Gilm., 437; Cunningham v. Baars, 36 Minn., 350, 353; Win- chester v. Grosvenor, 44 111., 425; Rockford R. Co., v. Rose, 72 111., 183. 82 Lyons v. Williams, 15 111. App., 27; Neal v. Handley, 116 111., 421. BSWolford v. Powers, 85 Ind., 294, 304; Smith v. Bartholomew, 1 Mete. (Mass.) 276; Smith v. Phillips, 77 Va., 548; Shepard v. Rhodes, 7 R. I., 470. 3* Hossack v. Moody, 39 111. App., 17. 90 MEDICAL JURISPRUDENCE. of a right of action. It is a unilateral contract. As in the case of all other contracts, a release must be supported by a consideration. The agreement may be oral but it is ad- visable to reduce the same to writing and have it executed under seal. In fact, the term release implies a writing under seal. 35 At common law a seal imports consideration and obviates the necessity of introducing any other evidence of that fact. A written release, like any other written con- tract, cannot be contradicted, varied or modified by parol evidence. KELEASE AND RECEIPT COMPARED. A receipt is not a con- tract, it is only an admission of payment and may be con- tradicted, modified or impeached. 36 A receipt is merely evidence of the fact of payment, while a release extinguishes a pre-existing right; and, while a receipt in full may be explained or modified or contradicted, a release under seal forever estops and concludes the party. 37 35 I. C. R. B. Co. v. Read, 37 111., 484, 511. 36 Gillett v. Wiley, 126 111., 310. 37 Frink v. Bolton, 15 111., 343 ; Crane v. Ailing, 15 N. J. L., 423 ; Equitable Security Co. v. Talbert, 49 La. Ann., 1393. CHAPTEE IX. EMPLOYMENT AND COMPENSATION. Employment. Accepting Service. Knowingly accepting the services of a physician is usually prima facie evidence of employment, whether raised in an action for malpractice or for a fee. Unconscious Patient. Where a party receives an injury which results in unconsciousness, and from which he dies without regaining consciousness, and a surgeon is sum- moned by a spectator and renders professional services in a bona fide endeavor to save the victim's life, a claim for services against the patient's estate, by the surgeon, is sus- tained on the legal fiction of a contract in order to afford a remedy which the justice of the case requires. 1 Such serv- ices are regarded as a necessity and the law places the patient in the same category as infants and others incapa- ble of entering into contracts. The reasons upon which this fiction rests are too broad and humane to be overborne by any deduction which a refined logic may make from the circumstances that in such cases there can be no meeting of the minds of the parties. 2 Employment by Third Person. A mere request by a third person, of a physician, to render services to another, does not constitute an employment by such party nor raise an implied promise on the part of the person making the request, to pay for the services. 3 Where medical services were rendered by the plaintiff 1 Cotnam v. Wisdom, 83 Ark., 601. 2 Sceva v. True, 53 N. H., 627 ; Sherman's estate, 6 Pa. Co. Ot., 225. 8 Starrett v. Miley, 79 111. App., 656. 91 92 MEDICAL JURISPRUDENCE. to a third person upon request of the defendant, the liabil- ity was held to be established by proof that the services were rendered at the instance and request of the defendant and that when the plaintiff proposed to discontinue his visits, the defendant requested him to continue them and that when the plaintiff presented his bill to the defendant, the latter did not deny his liability, though he disputed its amount. 4 Where a person called at the office of a physician in a hotel and, on being informed that the physician was out, wrote on a card, having his name and address printed thereon, the words "Call on Mrs. Day at No. 769 Broadway" and handed it to the hotel clerk with the request to give it to the physician and tell him to go as soon as possible, and where it did not appear that credit was originally given to the patient, and where a jury found for the physician under all the circumstances, the court held that such person became liable to pay for the physician's attendance and services upon Mrs. Day. 5 It must appear from the evi- dence that the physician understood that the party calling him was to be responsible and this understanding must have been either by direct statement or reasonably deduced from all the evidence and circumstances in the case, and it must also appear that the physician extended the credit in the first instance to the third person. 6 Ordinarily a master is not liable for the services of a physician summoned in his temporary absence by his man- ager to attend an employe, who was injured in an accident in the course of his employment. 7 Also a railroad or other transportation company is not liable for the services of a 4 Curry v. Shelby, 90 Ala., 277. 5 Bradley v. Dodge, 45 How. Pr., 57 ; Clark v. Watterman, 7 Vt., 76. 6 Starrett v. Miley, 78 111. App., 658; Morrell v. Lawrence, 203 Mo., 363. 7 Holmes v. McAllister, 123 Mich., 493; Sevier v. R. Co., 92 Ala., 258; Clark v. B. Co., 48 Kan., 654; Qodshaw v. Struck, 109 Ky., 285. EMPLOYMENT AND COMPENSATION. 93 physician called by a by-stander to attend a passenger who was injured, whether the accident was the fault of the com- pany or otherwise. Of course, where a custom of the com- pany of paying for such services, can be shown, a promise might be implied, and, where the party calling the phy- sician is an employe of the company, the nature of his duties may be such as to imply authority to bind his em- ployer in that behalf. 8 Even though the master personally summons the physician where the patient is unable to do so, he will not be liable for the services. Other facts must be shown, before he can be held. 9 Compensation. History. At common law, professional men could not sue and recover for services rendered, nor even contract beforehand for pay for such services. This grew out of a supposed analogy with the legal profession, the law having its origin at a time when the lawyer was an official of the court in fact. The patient might pay the physician if he chose to do so, and it was always lawful for the latter to accept such remuneration, but the question of pay was en- tirely within the discretion of the patient. The law on this subject has undergone a complete revolution and, at the present time, professional services stand upon the same footing, as to compensation, as all other services. Agreement as to Fee. Where the charge is agreed upon, such agreement, if reasonable, will control, in the absence of fraud or undue influence. 10 In the absence of fraud or duress, a physician may stipulate any price for his serv- ices, and when once rendered, he can recover the contract price therefor. This presumes that the contract is made before the relation of physician and patient is created. 8 Hanscom v. Minn. St. B. Co., 53 Minn., 119 ; B. Go. v. Davis, 126 Ind., 99. 8 Norton v. Bourke, 130 Ga. 600, 18 L. R. A., 173. 10 Doyle v. Edwards, 15 S. D., 648 ; Burgoon v. Johnson, 194 Pa. St., 61. 94 MEDICAL JURISPRUDENCE. Where such relation exists, the fiduciary nature thereof prevents the physician contracting for more than a fair and reasonable price for his services. No Agreement as to Fee. One who, without previous agreement, knowingly accepts services from another is bound in law to render compensation to the extent of the reasonable value thereof. The law presumes that he agreed to do so, and that such understanding was in the minds of both parties at the time the work was done. It is based upon the broad principle that the law will require a party to do what he apparently promised to do, or what he ought to do, regardless of his real undisclosed intention in the premises. In the absence of previous agreement, a phy- sician is entitled in law to a reasonable compensation for his services and the medicines and materials furnished by him. The basis of the obligation to pay may be either (a) a benefit to the patient, or (b) a detriment to the prac- titioner, or (c) the two combined. BENEFIT TO PATIENT. Both in fact and in law the origin and foundation of the relation of patient and physician is a supposed benefit to be derived by the patient. Eliminate this idea from the minds of the people and the profession will cease. It is absurd, therefore, to suppose that the re- sult of the treatment should in all cases be entirely ignored in questions of the reasonable value of the services. PROPER TREATMENT KEQUIRED. The physician must be prepared to show that his treatment was proper, if that be disputed, in order to prove that he is entitled to his reward ; otherwise he has not performed what he undertook to do and the consideration fails. 11 A practitioner is employed to treat his patient properly, and a departure therefrom is a change of the employment. Where the fault of the practitioner is an element in the final 11 Basten v. Butter, 7 East, 479. EMPLOYMENT AND COMPENSATION. 95 result he can recover only the value to the patient of his services. If, by such test, they had no value, he can recover nothing and, if the patient was damaged thereby, the obli- gation may rest on the practitioner to respond therefor. If the patient in fact received no benefit from the treatment sued for, and this result was due to the lack of ordinary professional skill and care of the practitioner, or was be- cause of his failure to exercise such skill and care to dis- cover or treat the case, there could be no right on his part to recover from the patient for his services. Where the practitioner is guilty of a breach of duty, failure to relieve may be taken into consideration in determining the amount to which the practitioner is entitled, since the basis of the claim then becomes the benefit derived by the patient from the services, when the same is susceptible of demonstra- tion. 12 If the value is affected by the fault of the servant in the performance of his duty, a different question arises. He did not do what he was employed to do but, in reality, departed therefrom and is held responsible for results. Therefore he is entitled to compensation only as he bene- fited his employer. DETRIMENT TO PHYSICIAN. The event of the treatment so generally lies with the forces of nature that all intelligent men know and understand that the physician is seldom re- sponsible therefor, hence, where the services were properly performed, benefit to the patient, in the absence of special agreement, is not essential to the right of recovery for such services. 13 Since a physician is not an insurer of the success of his treatment he is entitled to the reasonable value of his serv- ices, whether he succeeds in curing his patient or not, pro- vided he acts in good faith, uses the skill and care of an 12 Ely v. Wilbur, 49 N. J. L., 684; Gallaher v. Thompson, 1 Wright (Ohio) 466; Kanna v. McMullen, 1 Peake, 83 ; Hupe v. Phelps, 2 Stark, 424. isLadd v. Witte, 116 Wis., 35; Cotnam v. Wisdom, 83 Ark., 601. 96 MEDICAL JUKISPBUDENCE. ordinarily skillful and careful physician, and exercises his best judgment. 14 It cannot always be determined before- hand whether he can be of any benefit to his patient; in fact he may respond promptly to a call and, on his arrival, may find his patient dead. Having attempted to discharge his duty to his patient and being prevented by no fault of his own he is entitled to be reimbursed for his efforts made in good faith. It is a general law of service that so long as the servant does his duty faithfully, promptly and properly, he is not concerned in the real value of his efforts to his master. The determination of that question is exclusively with the latter and, so long as he continues to accept the services, he must pay for them, regardless of their real value to him. Suppose, in the last illustration, that the physician de- layed unnecessarily, and without reasonable cause or ex- cuse to respond to the call, a different and probably con- trolling element would be injected into the problem. By delay he breached the contract. He departed from the im- plied agreement. He was not employed for that purpose. If he did his patient no good, and if such result was due to his own fault, then he should not be entitled to any com- pensation. Special Agreement as to Result. Where a professional man makes a special agreement to afford relief to his pa- tient, or to accomplish any other specific result, he cannot recover either for services rendered or material supplied, unless he reasonably accomplishes what he promises. 15 An agreement to do work to the satisfaction of another, means to do such work as the party should be satisfied with. He cannot object to it from mere caprice or to avoid his obli- gation. 16 i4Yunker v. Marshall, 65 111. App., 667; Logan v. Field, 75 Mo. App., 594. 16 Smith v. Hyde, 19 Vt., 54 ; Hupe v. Phelps, 3 Stark, 480 ; Mock v. Kelley, 3 Ala., 387. 16 Keeler v. Clifford, 165 111., 544, 548. EMPLOYMENT AND COMPENSATION. 97 Services During Life of Patient. An agreement to render medical services to a patient as long as he lives, for a stipu- lated sum to be paid by the estate of the patient, has been held by some courts to be against public policy on the ground (a) that it gives the physician a distinct benefit in the death of his patient, whereas his interest and desire ought to be to prolong the life of the person under his professional care, and (b) that it is a wagering contract. 1611 However, some courts have not adopted this reasoning, and it is man- ifestly advisable for a physician never to put himself in a position where he will apparently profit by the death of his patient. 165 Where the consideration of such a contract is dependent upon the number of visits or the time consumed by the physician, or the time the patient survives, the reason for the holding does not apply and the consideration can be recovered from the estate of the patient, provided it is not fraudulent. All agreements must be interpreted in the light of public policy, which forbids that contracts shall receive such interpretation as will encourage crime or make their enforcement a reward therefor. Wager policies of insur- ance were held void at common law because of the obvious temptation presented by them to the commission of crime. A physician should avoid a contract whose enforcement might appear to be an award for crime. Frequency of Visits. The physician must determine the frequency of calls required by the condition of his patient, and if the patient accepts such services he cannot escape liability for services actually rendered, on the ground that calls were more frequent than necessary, unless he can show fraud or other improper motive on the part of the practitioner. 17 Where the services are admitted, but an alleged special contract as to fee denied by the patient, the I6a Dent v. Bennett, 4 M. & C., 269. leb Zeigler v. Illinois Trust & Savings Bank, 245 111., 180. 17 Ebner v. McKay, 166 111., 297 ; Todd v. Myers, 40 Cal., 355. 98 MEDICAL JURISPRUDENCE. physician can recover at least what his services were rea- sonably worth. 18 Value of Services is a Question of Fact. Where he has no previous understanding with the patient, the amount to which the practitioner is entitled, is a question of fact for the jury, and is said to be what the services were reason- ably worth, under the circumstances. In determining the value of the services the jury should take into consideration the time consumed, the delicacy and difficulty of the oper- ation, the usual and customary fees for the same or similar services in the locality, and the success or failure of the efforts, where improper treatment is shown. 19 What May Be Shown. The practitioner may show the number of his visits or treatments, the time consumed, the distance traveled, the medicines and materials furnished. The implied agreement is to pay what the services are rea- sonably worth in the market, as it were, and all matters bearing upon that fact are admissible in evidence by either party. 20 PREVIOUS CHARGES. Charges for similar services previ- ously rendered to the same patient are regarded as ad- missible, as presumably being in the minds of the parties at the time the services in question were rendered, and espe- cially when offered on behalf of the patient. 21 PROFESSIONAL STANDING. A practitioner may show his high professional standing as affecting reasonable value of the services he performed. 22 COMMUNICATION OF INFECTIOUS DISEASES. In reduction or defeat of a fee the patient may show that the physician communicated to him, or his family, the smallpox while 18 Henderson v. Hall, 87 Ark., 1. 19 Adams v. Stevens, 26 Wend., 451; Smith v. Watson, 14 Vt., 332; Wheaton r. Johnson, 55 111. App., 53. 20 Starrett v. Miley, 79 111. App., 658. 21 Sidener v. Fetter, 19 Ind. App., 310. 22 Lange v. Kearney, 51 Hun, 640; 127 N. T., 676; Heintz v. Cooper, 47 Pac., 360; Morrell v. Lawrence, 203 Mo., 363. EMPLOYMENT AND COMPENSATION. 99 on the professional visits for which he is seeking to re- cover. 23 BILL DIFFERING FROM PRESENT CLAIM. The fact that a practitioner in an action to recover the value of profes- sional services, presented a bill for an amount less than he is suing for, is competent evidence on the question of the value of his services, as it is in the nature of an admission that the amount thereof is the fair and reasonable value of the same. Some courts hold that his right of recovery is limited to that sum, but others hold that, while his own estimate of the value of his services is evidence against him of a high character, it is by no means conclusive, and that he still has the right to show that his services were in fact worth more, and that the bill was rendered for a less amount by mistake, or for some other satisfactory reason. 24 What May Not Be Shown. CHARGE TO OTHER PA- TIENTS. The reasonableness of a charge is not shown by testimony of what the practitioner charged another patient in a similar case. 25 PROFESSIONAL INCOME OF THE PHYSICIAN. The profes- sional income of the physician can have no bearing on the value of his services, regardless of the issues. 26 PROBABLE CHARGE BY OTHER PHYSICIANS. The patient will not be permitted to show for what he could have procured other practitioners to render the services in question. 27 BAD CHARACTER OF PHYSICIAN. Neither can he show, in defense, the practitioner's bad character or bad reputation generally. 28 PROFESSIONAL CHARACTER OF PHYSICIAN. In such an action the professional character of the practitioner is not 23 Piper v. Manifee, 12 B. Mon., (Ky.) 465. 24 Heath v. Kyles, 1 N. Y., <Supp., 770; Williams v. Glenney, 16 N. Y., 389. 25 Collins . Fowler, 4 Atl., 647. 26 Marion County v. Chambers, 75 Ind., 409 ; Thomas v. Caulkett, 57 Mich., 392. 27 Marion Co. v. Chambers, 75 Ind., 409. 28 Jeffries v. Harris, 10 N. C., 105. 100 MEDICAL JURISPRUDENCE. involved, and evidence on that subject is immaterial and cannot be introduced. 29 FINANCIAL CIRCUMSTANCES OF PATIENT OB PHYSICIAN. The pecuniary circumstances of the patient or practitioner are not an element in determining the value of the services, as the value whether considered as a benefit to the one, or a detriment to the other, cannot be affected by the ability of the obligor to pay, nor by the necessities of the obligee. 30 The reason for holding (as some courts hold) that the financial standing of the patient may be shown is based upon the fact that there was evidence in the case showing that there was at the time and place of service a general custom, known to the public, among physicians and sur- geons to graduate their fees according to the financial standing of their patients. But in any event the charges must be reasonable, whether considered from the viewpoint of benefit to the patient or detriment to the physician. 31 License Presumed. In an action for fee, in the absence of any evidence, it will be presumed that the practitioner had a license in a State where a penalty attaches for prac- ticing without a license. 32 Unlicensed Practitioners. An unlicensed practitioner cannot recover for his services in a State where the statutes in force at the time the services were rendered require a license, and especially if the statutes bar recovery or fix a penalty for practicing without a license. 33 Money paid to an unlicensed physician for services can- 29 Jeffries v. Harris, 3 Hawks, 105. 30 Wheaton v. Johnson, 55 111. App., 53; Cotnam v. Wisdom, 83 Ark., 601; Hess v. Lowrey, 122 Ind., 225; Robinson v. Campbell, 47 la., 625; Morrell v. Lawrence, 203 Mo., 363; Marrisett v. Wood, 123 Ala., 384; Apparently contra, Succession of Haly, 50 La. Ann., 840; Lange v. Kearney, 127 N. Y., 676. 31 Morrell v. Lawrence, 203 Mo., 363; 11 A. C., 655. 32 Good v. Lascher, 99 111. App., 653 ; Williams v. People, 20 111. App., 92. 33 Patrick v. Ferryman, 52 111. App., 514; Chicago v. Honey, 10 111. App., 535; War- ren v. Saxby, 12 Vt., 146; Oscanyan v. Winchester Co., 103 U. S., 261; Harrison v. Jones, 80 Ala., 412; Orr v. Meek, 111 Ind., 40. EMPLOYMENT AND COMPENSATION. 101 not be recovered by suit at law, and it has been held that the amount of a note, given under such circumstances, may be recovered by a bona fide holder for value, notwithstand- ing the provisions of a statute prohibiting the practice of medicine without a license and fixing a penalty for its vio- lation. 34 Nature of Remedies Must be Disclosed if Sought. In an action for his fee, wherein the patient defends on the ground that services were useless by reason of the fault of the physician and the worthlessness of the medicines, the phy- sician may be required to disclose the nature of remedies used by him, even though he claims a secret formula, and the patient may show that such remedies have no efficacy towards the result sought to be attained, or that they are, in fact, injurious when so used. 35 What Physician Must Prove. A physician must estab- lish the contract of employment, that he rendered the serv- ices in question and, where there was no agreement as to fee, that they were of the value claimed. 36 How PROVEN. The usual and customary fee for like serv- ices, and the reasonableness of the charges made, must be shown by the testimony of other practitioners. 37 In such cases the testimony of the witness is ordinary in so far as it goes to the usual and customary fee, 38 and opinion evi- dence, in so far as it assumes to state what is a reasonable fee, or what is the reasonable value of the services. 39 EFFECT OF OPINIONS. These opinions as to reasonable- ness of a fee and value of services, while not binding on the court and jury must not be disregarded, and a value 84 Citizens State Bank v. Nore, 67 Neb., 69. 35 Jones v. King, 81 Ala., 285. 36 Styles v. Tyler, 64 Conn., 432; Robinson v. Campbell, 47 la., 625. 37 Chicago v. Wood, 24 111. App., 40 ; Wood v. Ohio R. Co., 53 S. 0., 10 ; MacEvitt v. Maass, 72 N. Y, Supp., 158. 38 Walker v. Cook, 33 111. App., 561-3. 39 Marion Co. v. Chambers, 75 Ind., 409 ; MacEvitt v. Maass, 72 N. Y. Supp., 158. 102 MEDICAL JURISPRUDENCE. fixed by them upon their judgment, based upon their own observation and experience. 40 Husband and Wife; Parent and Child; Guardian and Ward. NECESSARIES. A husband is liable for necessaries furnished his wife. This liability attaches even though they are supplied her over his objection, when he fails or refuses to provide the same. Under the law a minor is liable for necessaries furnished him to the extent of their reasonable value at the time. A special contract with the minor relative to the consideration is disregarded. The estate of an insane person is liable to the party who sup- plies him with necessaries. Necessaries Explained. The question of what are neces- saries has often been adjudicated by the courts. Like most cases coming before the courts, the answer is not always self-evident. A necessity to one might be a luxury to an- other, while a luxury today may be a necessity tomorrow. With reference to husband and wife necessaries embrace the usual provisions for maintenance of the wife's health and comfort appropriate to their mode of life, in view of their social standing and station, and his financial ability. 41 MEDICAL SERVICES ARE NECESSARIES. As a general propo- sition, the estate of any person under legal disability, for any cause, will be liable for medical and surgical attention and services reasonably necessary for the health, comfort, convenience or appearance of the patient, and the measure of the liability is the fair, reasonable value of the services and materials at the time and place. 42 HUSBAND SELECTS PHYSICIAN. Ordinarily the husband has the right to select the physician who performs work for the wife, and it is the wife's duty to go where the hus- 40 In re Smith, 41 N. Y. Supp., 1093; Ladd v. Witte, 116 Wis., 35; Wood v. Baker, 49 Mich., 295; Spalding v. Bliss, 83 Mich., 311. 41 McMahon v Sankey, 133 111., 636; Clark v. Tenneson, 146 Wis., 65. 42 McCreery & Co., v. Martin, 84 N. J. L. 626, 47 L. R. A., 279. EMPLOYMENT AND COMPENSATION. 103 band determines. Therefore, if a husband specifically ob- jects to a certain practitioner and provides for his wife a reasonably competent person to do the work for her, the physician objected to cannot, with knowledge thereof, ren- der the services and hold the husband liable therefor. In such case he could look alone to the wife, and should make a contract of special agreement with her to that effect. The same rule applies to guardian and ward and similar relations. FAMILY EXPENSE. Medical treatment for husband or wife, or any minor member of the family, are reasonably within the intent of those statutes which make both hus- Band and wife liable for family expenses. Parent and Child. At common law the liability of a father for the support, maintenance and education of his minor child, while recognized, was not well defined and amounted to little more than an imperfect unenforcible obligation. The duty was always conceded, but the man- ner of its discharge was exclusively within the discretion of the parent. The party who voluntarily supplied the wants of a minor had no legal claims against the parent, and all that he did in this respect was at his own risk, unless he had the express promise of the father to re- munerate him, or the circumstances were such that a prom- ise of that character would reasonably be implied. In the absence of special legislation, this obligation remains the same as at common law, and the general rule prevails that where a person furnishes necessaries to a minor without authority from the parent, he does so at his peril and, in order to recover from the parent, he must show by a pre- ponderance of the evidence, either an express authority or circumstances from which such authority may be implied. The parent is to be the judge of the wants of his child and of his ability to supply them, and the extent to which he 104 MEDICAL JURISPRUDENCE. shall respond to this obligation, and, when no express au- thority has been given to the child to bind the parent, it devolves upon the party supplying such necessities to show the neglect or refusal of the parent to provide the same. CHILD SPECIAL AGENT OF PARENT. If the child has au- thority to bind the parent it is usually in the nature of a special agency, and the party dealing with the minor is bound to know the extent of that authority. 43 LIABILITY OP MOTHER. In States where married women have complete control of their separate estate, a mother may bind herself to pay for medical attention and services rendered to her minor children, notwithstanding the father is living and able to pay. KATIFICATION. Where, without the knowledge of the par- ent, a physician prescribes for a minor by giving him a pre- scription or medicine, and the parent, with knowledge of the facts, or of such facts as to put him on inquiry, permits the prescription to be compounded and the medicine to be taken, he is considered in law as having ratified the act of the child in engaging the physician and will be held liable for the reasonable value of the services. Malpractice. The evidence that will sustain an action against a physician for malpractice will be sufficient to de- feat his recovery in an action for compensation in such case. In fact less negligence is necessary to defeat a right to compensation than is requisite to sustain an action of malpractice for the injury. 44 If the services of the phy- sician were of no value, and if the remedies used in the treatment of the patient were worthless and possessed no efficacy in producing a cure, and these facts were known to the practitioner or ought to have been known to him, at the 43 Dumser v. Underwood, 68 111. App., 121. 44 Mixon v. Phelps, 29 Vt., 198 ; Loan etc., v. Friedley, 133 Ind., 143 ; Hill v. Feather- stoneaugh, 8 Bing., (Eng.) 572. EMPLOYMENT AND COMPENSATION. 105 time of the treatment, no recovery can be had for the serv- ices. 45 MALPRACTICE AS A DEFENSE TO AN ACTION FOE SERVICES. Malpractice by a physician resulting in injury to his patient may be pleaded by the patient as a defense to an action by the physician for the value of his services or for an agreed fee, or to recoup his damages. 46 EFFECT OF JUDGMENT FOR FEES. The courts are not agreed as to the effect of a judgment for the services in barring a subsequent action for malpractice, in reference to the same services. Some courts distinguish between cases where the suit for the fee is defended and cases where the judgment is by default. 47 Consultant. In the absence of an agreement to the con- trary, a patient is liable to a consulting physician for the reasonable value of his services, even though as between the patient and attending physician, the latter agreed to assume the bills, 48 or as between the physicians, the one in attend- ance on the case guaranteed the consultant his usual fees. 49 Where the patient is unconscious or insane and knows nothing of the conference or consultation, and never regains consciousness or sanity, his estate will be liable for the services of those who are called into the conference by the attending physician, presuming all acted in good faith. Witness Fees. A witness subpoanaed to appear and tes- tify in a civil case is entitled to compensation, to be de- termined by the number of day's attendance and the dis- tance necessarily traveled in going to and returning from court. The law does not recognize difference in the earn- 45 Logan v. Field, 75 Mo. App., 594, 603. 46 McLure v. Hart, 19 Ark., 119; Howell v. Goodrich, 69 111., 556; Hyles v. Tyler, 64 Conn., 432; McKleroy v. Sewell, 73 Ga., 657; Holmes v. McKennan, 120 111. App., 320. 47 Jordahl v. Berry, 72 Minn. 119; 45 L. R. A., (O. S.) 541 note| Barton v. South- wick, 258 111., 515. 48 Shelton v. Johnson, 40 la., 84. 49 Garry v. Stadler, 67 Wis., 512. 106 MEDICAL JURISPRUDENCE. ing capacity of witnesses. The professional or business man is entitled to no more than the most unskillful laborer out of employment. Expert Witness Fees. ''There is a distinction between the case of a man who sees or hears a fact and is called to prove it in a court of justice and the case of a man who is selected by a party to give his opinion on a matter with which he is particularly conversant from the nature of his study, experience or employment in life. The former is bound, as a matter of public duty, to testify to a fact which happens to have fallen within his knowledge. Without such testimony the course of justice must be stopped. The latter, however, is under no such obligation. There is no such necessity for his evidence and the party who selects him must pay him." 50 However, in most States the courts hold squarely that an expert who knows nothing whatever of the facts in a case may be subpo3naed and required to give his opinion on a hypothetical question without any compensation other than the usual witness fee, and he can- not refuse to testify when interrogated as an expert only, upon the ground that no compensation greater than that allowed ordinary witnesses has been paid or promised to him. 51 "It is to be regretted that a member of a profes- sion so distinguished for liberal culture and high sense of honor and duty, should refuse to testify in a case pending before the courts of his country, involving the life or liberty of a fellow being and the rightful administration of the laws of a common country. ' ' 52 The court has a right to compel a physician to give expert testimony in answer to a hypothetical question calling for his opinion in suits between individuals, and is not confined to criminal prose- so Maule, J., in Webb v. Page, 1 C. & K., 23. 51 Philler v. Waukesha Co., 139 Wis., 211; Dixon v. People, 168 111., 179, 186, 52 Summers v. City, 5 Tex. App., 365. EMPLOYMENT AND COMPENSATION. 107 cutions, since in either case the object is to promote public justice and insure the peace and good order of society. Refusal of a physician, who has been regularly subpanaed and placed upon the witness stand to answer a hypothetical question calling for his opinion, for the reason that special compensation has not been paid or assured to him, justifies the trial court in fining him for contempt. 53 By a divided court a different conclusion was reached in Indiana. 54 SPECIAL PREPARATION. Courts will not require a phy- sician to make a special preparation in order to qualify himself as a witness in a case ; hence, he cannot be punished for a contempt for refusing to make a post-mortem exami- nation, unless paid therefor, nor can he be required to pre- pare himself in advance for testifying in court by making an examination or performing an operation or resorting to a certain amount of study, without being paid therefor. 55 WHEN NOT SUBPOENAED. If no subpoana is served upon an expert and he attends as a witness under a specific agreement for special compensation made with the party calling him and not in pursuance of the process of the court, he may be enabled to enforce such an agreement in court and compel payment for his services in accordance with the terms thereof, as a condition of his being sworn as a witness. 56 EXTRA FEES FOR EXTRA SERVICES. If a physician at the request of a party to a suit, performs extra services, such as assisting the attorney, it is entirely proper and legal for him to receive pay therefor, and to make an agreement whereby he is to receive such payment. 57 If he testifies without an express agreement as to the amount of his com- 53 Ex parte Dement, 53 Ala., 389; Dixon v. People, 168 111., 179. 5t Buchman v. State, 59 Ind., 10. 55 Dixon v. People, 168 111., 179. 56 Walker v. Cook, 33 111. App., 561, 565. 57 Lewis v. Blye, 79 111. App., 256. 108 MEDICAL JURISPRUDENCE. pensation, he cannot afterwards recover more than the statutory fee. 58 POST-MORTEM FOR CORONER. Where there is no law mak- ing the county liable for services of a physician employed by the coroner of the county to make an examination of a dead body and hold a post-mortem thereon for the purpose of enabling him to give expert testimony at an inquest, the physician must look to the coroner for his compensation, and unless a previous arrangement was made with the coroner as to the amount of his fee he doubtless would be entitled only to the usual witness fee. 59 58 Ex parts Dement, 53 Ala., 389; Sumner v. State, 5 Tex. App., 365. 59 Piatt v. Knott, 99 111. App., 420. CHAPTER X. AGREEMENT FOR SURGICAL OPERATION. Elements of the Agreement. The question is purely one of contract, and we must look to that subject for the prin- ciples to be applied. Whatever right or authority the surgeon has in the premises he derives by agreement, ex- press and implied, with his patient. IMPLIED STIPULATIONS. Express executory agreements seldom contain everything which was in the contemplation of the parties at the time. Some terms may be unexpressed because considered self-evident. Some elements may be omitted by oversight. What is implied in an express execu- tory contract is as much a part of the agreement as what is expressed. 1 The rule of reason is inherent in mental processes and must always be applied in human trans- actions. 2 To the express stipulations of an executory con- tract the law ingrafts, (1) Those elements which are essential to complete the contract as the parties must have intended it, and which (a) are reasonable and necessary inferences from the ex- press stipulations and the circumstances, or (b) were rea- sonably in the minds of the parties at the time, and (2) Those elements which, although not manifestly in the contemplation of the parties at the time, are essential (a) to a rational execution of the agreement, or (b) to the attainment of the general purposes of the agreement. 3 Nature of Agreement. Usually the express stipulations 1 Hart v. Otis, 41 111. App., 431, 432. 2 Holy Trinity Church v. United States, 143 U. S., 457. 3 See Hadley v. Baxendale, 2 0. L. B., 517. 109 110 MEDICAL JUKISPKUDENCE. for a surgical operation are very meagre and are clothed in the most general terms. Often the essential features are not discussed. Details are almost never referred to. We must look to the purpose of the operation and the other circumstances to find, by inference, the terms of the agree- ment. Where the facts are not disputed and only one con- clusion can be reasonably drawn therefrom, such inference may be a conclusive presumption of fact and, therefore, become a part of the contract, as a matter of law; that is, where the only reasonable inference from the facts and cir- cumstances is in favor of the exercise by the surgeon of certain authority, such authority should be considered as being within the purview of the original contract of em- ployment, as a matter of law. Where the only reasonable inference from the stipulations and the circumstances neg- atives the right of the operator to exercise a certain dis- cretion, the exercise of such right by the operator should be considered, as a matter of law, to be no part of the con- tract. However, if the legitimate inference to be drawn from the stipulations and the circumstances would either affirm or deny the right to perform a certain act, then the question of the authority of the operator to perform such act should be left to the jury to be determined as a matter of fact ; in other words, where reasonable men, uninfluenced by ulterior motives, might arrive at different conclusions as to the authority for the act, under the stipulations and the circumstances, then the question of authority should be left to the jury as one of fact. Surgeon's Discretion. The surgeon cannot go beyond the authority given him by the patient. To this proposition there can be no exception. The difficulty lies in determin- ing the extent of his authority. Generally it must be in- ferred in great measure from the circumstances. Not his wish, but the patient's welfare must control when stipula- AGREEMENT FOB SURGICAL OPERATION. Ill tions do not cover the point; but even his notion of the patient's welfare must give way to the expressed wish of the latter. Where the patient has decided, there is no occa- sion for the exercise of the surgeon's discretion. He is bound by his patient's conclusion. Where there is an express stipulation there cannot be an implied one inconsist- ent therewith. Where a specific operation has been agreed upon and the attending circumstances are such as to neg- ative the idea of an intention on the part of the patient to lodge a discretion in the operator, any departure from the specified operation by the latter, would be a trespass, for which he may be required to respond in damages. What was fairly within the mind of the patient? That was im- plied. What does the welfare of the patient require? In the absence of inconsistent stipulations, the patient will be presumed to have intended and authorized what was for his best welfare. Anything which, within the discretion of the practitioner, was reasonably necessary to accomplish the general purpose of the operation, will also be presumed to have been intended by the patient. Consent Necessary. Consent of the patient is indis- pensable to the justification of a surgical operation. It is an absolute right of the patient to determine what he wants done, and his will must prevail. Without consent, such an operation is a trespass. 4 MOTIVE. An unauthorized operation is a trespass regard- less of the motive which prompted the operator. The basis of the liability is the wrongful invasion of the person, and proper motive is neither justification nor excuse for the assault. The only relation of motive to the offense is its effect on the damages to be recovered. Where the motive was good and the act performed free from negligence, the law allows only compensatory damages, but never less than * Pratt v. Davis, 224 111., 300. 112 MEDICAL JURISPRUDENCE. nominal, while in a case involving evil motive or reckless disregard of the wishes of the patient, the injured party may recover punitive damages in addition to his actual loss. CONSENT MAY BE IMPLIED. Knowingly submitting to a particular operation or course of treatment, by an adult, implies consent thereto. Where a patient, without objec- tion, voluntarily submits to an operation, or a course of treatment, his specific consent will be presumed as such conduct is prima facie evidence of his consenting mind. 4a When a person has selected a surgeon to operate upon him, and has appointed no other person to represent him during the period of unconsciousness which constitutes a part of such operation, the laiv casts upon the operator the responsi- bility of so acting, in good faith, in the interest of his patient, within the reasonable scope of his employment and the gen- eral purpose of the relief sought, that the latter shall receive the fullest benefit of that professional judgment and skill to which he is legally entitled. 5 WHOSE CONSENT is NECESSARY. In case of an adult, not under mental disability, his consent alone is sufficient to justify a practitioner in performing any reasonable opera- tion within the scope of his profession and employment. Consent of the parent is usually necessary to authorize work of a radical nature on a minor who has not arrived at the age of mature discretion. A person standing in the rela- tion of a parent would be qualified to authorize the services and relieve the practitioner of a charge of trespass for per- forming the operation. When the minor resides with his parents, an adult sister could not be said to stand in loco parentis and, therefore, her consent would not be sufficient authority. 6 In the case last cited, the patient was a minor about ten years of age. While on a visit with an adult 4a State v. Housekeeper, 70 Md., 162. 5 Brennan v. Parsonett, 83 N. J. L., 20 ; 83 Atl., 948. 6 Rishworth v. Moss., Tex., ; 159 S. W., 122. AGREEMENT FOR SURGICAL OPERATION. 113 sister, she was taken by tlie sister to the surgeon for exam- ination for adenoids. After examination, the surgeon rec- ommended an operation to which the adult sister consented, and the child acquiesced therein. The child died under the influence of the anesthetic without any fault on the part of the operator. It has been held that failure to get the consent of the father before administering a general anesthetic to a youth 17 years old who, in company with adult relatives, applied to a surgeon to be relieved of a small tumor on the ear, will not render the surgeon liable to the father for the death of the boy while under its influence, where it appears that the son left the home of the father for the express pur- pose of consulting a specialist about his affliction, returned to the home to await the report of an analysis, and there- after again went to the office of the surgeon with his adult relatives to get the surgeon's final report and recommenda- tion, and gave his consent to the administration of an anes- thetic and the performance of the operation. Here consent may reasonably be implied ; the father apparently gave the boy authority to consent for him. 7 Form of Action. Where there was no consent on the part of the parent, and the minor dies notwithstanding there is no negligence, the father would not have a right of action under a statute based on Lord Campbell's Act, because the want of consent did not cause the death. Where the only cause of complaint is want of consent by the parent, the right of action would be in the parent for loss of services whether from disability or death resulting from the anesthetic or operation. In case of death, the question of the survival of the right of action may be an important factor under some statutes. Presumptions. FROM CONSENT AND CIRCUMSTANCES. 7 Baker v. Welsh, 144 Mich., 632. 114 MEDICAL JURISPRUDENCE. Mere consent to an operation does not extend the agreement beyond the reasonable limits of the specific relief stipulated at the time the patient goes under the influence of the drug. An agreement with reference to the performance of an operation does not imply consent to an entirely different or more extensive invasion of the body. In fact, under the doctrine that the specification of one is the exclusion of others, the right to perform a distinctly different operation would apparently be specifically prohibited. The mere em- ployment of a surgeon to perform an operation does not give him implied authority to do whatever, in his discretion, he may deem necessary or expedient without consulting the wishes of his patient. Great though his responsibilities are, they do not confer upon him unlimited, arbitrary and absolute power to treat his patient in accordance with his own judgment without reference to the wishes of the latter. Surgical operations cannot be performed as you erect a house, build a city, or construct a machine, according to plans and specifications. Plans and procedure must be varied to meet emergencies. The welfare of the patient demands that the operator shall have implied power to deal with unforeseen incidents and unexpected conditions as they arise in the progress of the stipulated operation, in such manner as he shall consider proper, and a reasonable depart- ure from the exact purpose and scope of the original opera- tion, for the benefit of the patient, ought not and, as a mat- ter of law, does not make the operator liable for malprac- tice. 8 FROM SURGEON'S DUTY. The implication of authority must necessarily be as great as the implication of the re- sponsibility of the surgeon in the premises. In fact there should be some latitude for the exercise of the operator's discretion and, doubtless, such right must have been con- 8 Pratt v. Davis, 224 HI., 300, 309. AGREEMENT FOE SURGICAL OPERATION. 115 templated by the parties. The implied consent of the patient must be broader than the operator's duty, for there must be a field within which the latter may use his dis- cretion. There can be no duty on the part of the surgeon without an implication of consent in reference thereto on the part of the patient. Controlling Facts. When a person agrees in general terms, with a surgeon, for an operation for specific relief and, in pursuance thereof, takes a general anesthetic without giving any special instructions to the operator, he impliedly gives the latter authority to do any act reasonably neces- sary to accomplish the general purpose of his specific em- ployment, or clearly incident thereto, and, in his discretion, to depart from the specific operation originally contem- plated, so far as to give the patient the fullest measure of benefit from his skill, judgment and observation, within the purview of the relief sought. Thus, in the Mohr case, infra, if the general employment had been to relieve the patient of defective hearing, and had such relief been the specific purpose of the operation agreed upon, the mere fact that the surgeon made a wrong operative diagnosis re- sulting in recommending an operation on the wrong ear, should not have limited his authority to an operation on the ear mentioned, because the patient was entitled to have the benefit of his skill and best judgment at all times. Neither party should be bound by the mistake. On the other hand, if the relative conditions of the ears changed between the examination and the operation, the surgeon should be con- sidered as having the implied authority to deal with condi- tions as he found them at the time, keeping in view the gen- eral purpose of his employment to relieve defective hear- ing. Emergency. The surgeon is sometimes confronted with an emergency requiring immediate operation, under circum- 116 MEDICAL JURISPRUDENCE. stances where express consent is impossible, as in case where a party is unconscious from an injury, where no one is present who, in law, might be presumed to have authority to speak for him. In such case the consent of the patient, if an adult, or of the parent, if the patient is a minor, is presumed. Here the constructive consent, presumed by law from the necessity of the situation, goes only to the per- formance of the usual and ordinary operation to relieve the particular injury and meet the emergency, and no farther, and, therefore, would not include an operation for some chronic ailment with which the injured party was suffering at the time, unless the same were practically necessary to the skillful performance of or recovery from the traumatic operation. Thus, an injury necessitating entering the ab- dominal cavity for proper treatment and relief, would excuse the operator for so doing and, in case the patient is un- conscious and the necessity of operation imperative, consent therefor will be presumed, ex necessitate; but the circum- stances would not carry therewith authority to remove a diseased ovary, an inflamed appendix, a calcined gall blad- der, a tumor or other chronic affliction, unless such organ was involved in the injury, or such operation were reason- ably necessary to a successful recovery from the emergent operation. 9 More Than One Method Affecting the Patient Differently. Where either of two or more courses may with equal pro- priety be pursued, but affecting the patiently differently, the surgeon should counsel and recommend to the patient what should be done, and how, but should finally adopt the method selected by the patient. If the latter refers the question back to the operator he should follow the course which in his best judgment is preferable, under all the cir- e Cotnam v. Wisdom, 83 Ark., 601. AGREEMENT FOR SURGICAL OPERATION. 117 cumstances, and will be liable in damages only in case of negligence, even though another practitioner would have recommended a different course. Patient's Conclusion Paramount. It is for the prac- titioner to examine, consider and recommend; it is for the patient to decide. His final determination must be re- spected even though it be clearly wrong. The only alterna- tive to obeying that conclusion, when expressed, is to refuse to operate at all and discharge the patient. Usually the patient will accept and follow the advice of his surgeon, given in good faith after proper diagnosis and considera- tion ; but when he will not do so, his wishes must control in all operations undertaken. Merely because the prac- titioner's judgment ought to be better than the judgment of his patient is no sufficient reason why the judgment of the former should prevail. This applies with special force where major operations are involved. Operating at Patient's Request. A surgeon, however, is not always justified in performing a surgical operation merely because the patient requests it. Still, having in good faith given proper advice, which the patient refuses to adopt, the surgeon will not be liable in damages for doing, in a proper manner, what he was requested to do, provided always the patient was, in law, competent at the time to determine for himself, and the character of the operation was not such as to negative the idea of good faith and proper consideration for the welfare of the patient. Good Faith of Operator. The surgeon is bound to exer- cise the utmost good faith and fair dealing towards his patient in respect to the operation to be performed and any material deception will convert his efforts into an assault justifying punitive damages, regardless of his real motives. He dare not falsely pretend that only a slight operation is 118 MEDICAL JURISPRUDENCE. necessary and contemplated and then, after his patient is under the influence of an anesthetic, perform a more exten- sive and serious operation. 10 Departure from Agreed Operation. A surgeon may not materially depart from the operation originally stipulated without the consent of his patient. This question does not arise in cases where the surgeon, during the progress of the operation, discovers unexpected conditions necessitating a greater invasion of the body and the removal of more tissue than at first contemplated. In such case he performs the operation specified but is required to do more than orig- inally supposed. Perhaps he intended to amputate a limb just above the knee, but finds that he can save only a few inches of femur. Perhaps he operates for a tumor and in addition removes several smaller offenders; or in excising a gall bladder he discovers and closes a perforation in the stomach. These are fairly within the purview of the agreed undertaking; but an agreement to operate on the right ear may not be an agreement to operate on the left instead, even though for the same cause. Consent to close a hernia on the left side of the abdomen may not imply the right to substitute therefor an operation on the right groin, although the latter is more imperatively needed. Consent to curettage could scarcely be regarded as including permis- sion to remove the uterus and corelated organs. QUESTION OF FACT. What will constitute a departure may be a question of fact. 11 It is impossible to lay down any strict rule for determining what constitutes an improper departure from the specific agreement between patient and operator, since each case must depend upon its own special facts. Whether there was such a substantial departure from the scope and purpose of his employment as to neg- 10 Pratt v. Davis, 224 .111., 300. 11 Mohr v. Williams, 95 Minn., 261; Rolater v. Strain, 39 Okl., 572. 137 Pac., 96. AGREEMENT FOB SURGICAL OPERATION. 119 ative the idea of consent must be determined from a consid- eration of all the circumstances in the case, including the general purpose of the employment, the character of the operation specified and of the one actually performed, their relation to the relief sought, the exigency of the situation, the general welfare of the patient, the good faith and fair dealing of the operator. SURGEON, AGENT FOR PATIENT. The suggested fiction that the surgeon becomes the agent of the patient under an anes- thetic only complicates matters, since the same questions arise in determining his authority as agent, and must be answered on the same state of facts. Prohibited Act, or Operation. In no event is the operator justified in performing an operation which the patient has expressly forbidden. Even though he may consider that the health and welfare of the patient demand immediate opera- tion, he has no right to disregard the prohibition of the latter. ILLUSTRATIONS. About sixty days after stepping on a nail, a patient, still suffering from an inflamed and open wound at the first joint of the great toe of her right foot, consulted a surgeon with reference to an operation. He advised her that an operation was necessary to effect a cure, and that the operation would consist in making an incision in the foot or toe so as to drain the joint and remove any foreign mat- ter that might be found therein. The patient agreed to such operation. She was taken to a hospital and an anesthetic administered, and the operation performed. In performing the operation a sesamoid bone was removed, and the cause of action was based on this removal. There was no claim that the operation was unskillfully performed, but the pa- tient alleged that she consented to the operation upon the express condition that no bone should be removed from her foot, and that by reason of the removal the foot had been 120 MEDICAL JURISPRUDENCE. permanently injured and she had suffered great pain and distress of body and mind. The surgeon claimed that he was employed as her physician to drain the wound ; that in compliance with said employment he made an incision into the toe; that before reaching the joint, so as to drain the same, he found it covered with a sesamoid bone which ren- dered it impossible to drain the joint without the removal of said bone ; that said bone was in an unusual place on the side of the toe and its presence could not be ascertained by an examination ; that had the bone not been removed and the joint properly drained, serious results would have followed ; that the removal was necessary to effect a cure; that said bone is not considered one of the bones of the human anat- omy and was not within the contemplation of the parties at the time the surgeon consented to operate. The issues were submitted to a jury which found for the plaintiff and gave her $1000 damages, on which judgment was rendered. Held- (a) That the plaintiff in error had no authority to remove a sesamoid bone from the patient's foot without her consent, either express or implied. (b) That she did not expressly consent, and whether or not her consent was implied, from the circumstances, was a question for the jury to determine under all the evidence. (c) That the inhibition to remove any bone from her foot might, as a matter of fact, include a sesamoid bone, even though such bones are not usually contemplated by surgeons when speaking of the bones of the body. (d) That if the patient did not consent, the removal of the sesamoid bone was wrongful and unlawful and consti- tuted in law a trespass upon her person and a technical assault and battery. 12 In a certain English case, 13 a young lady consulted an 12 Rolater v. Strain, 89 Old., 572, 137 Pac., 96. 13 Baty v. Cullingworth, decided in London in 1896. AGREEMENT FOB SURGICAL OPERATION. 121 eminent surgeon relative to some ovarian trouble, and before consenting to an operation told him that if he found only one ovary diseased he should remove it, but if both were in- volved he must not remove either. To this express inhibition the surgeon claims to have replied: "You must leave that to me." The patient claims that she did not hear such re- mark. Upon opening up the cavity both organs were found to be badly diseased and the surgeon removed them. The patient brought action for damages for operating in viola- tion of instructions. There was evidence to the effect that her health and, possibly, her life required the excision of the organs. There was no claim of unskillfulness or careless- ness. The court instructed the jury to find for the surgeon ; thus holding, as a matter of law, that the patient had con- sented. Such holding is clearly wrong, as the jury should have passed upon the question as to whether, under the cir- cumstances, the patient did in fact leave the entire matter to the discretion of the surgeon. In view of her express prohibition, if she did not hear his alleged reply, and if she did not withdraw her instructions, he was a trespasser ab initio, whatever may have been his motives and regardless of what he thought her health and welfare required. In an action for assault and battery, brought against a surgeon by a patient, the facts were as follows : The patient had been operated upon a couple of years before for a rup- ture on the left side, and it was causing him some trouble. He consulted with the surgeon with reference to the same and, apparently, the surgeon's diagnosis was limited to an examination of the specific rupture. The defendant advised an operation but it appears that while such operation was advisable it was not imperative. After the anesthetic had been administered the surgeon discovered on the right side a hernia which was a serious menace to the patient, and of a character to cause his death should strangulation occur, and 122 MEDICAL JURISPRUDENCE. operated for the latter trouble without first procuring the patient's consent. The trial court correctly stated the law, to the effect that the patient must be the final arbiter to decide whether or not he will take the chances of an opera- tion, and that his consent, express or implied, must be given before a surgeon can lawfully operate; but the court held that the consent to operate for one hernia, under the circum- stances, was not, as a matter of law, an implied consent to operate for the other and left the question of consent to the jury, as one of fact. The jury found that the patient did not consent and rendered a verdict of one thousand dollars against the surgeon. On appeal, the upper court ostensibly rejecting this rule as being unsuited to modern operations, held that under the circumstances consent was reasonably implied. 14 In a widely quoted case, the patient was taken by her fam- ily physician to a specialist for examination of her hearing. After examining both ears the expert decided an operation on the right ear was necessary. Later, the patient sub- mitted to an operation for that purpose, and after she was under the influence of a general anesthetic and the surgeon examined the right ear, he found that such operation was not imperative at that time, but, upon examination of the left ear, he found it in such condition as to demand im- mediate attention. Without waiting for the patient to re- cover from the anesthetic and getting her consent, he aban- doned the operation on the right ear and operated on the left. It may be inferred from the opinion that the opera- tion was upon the middle ear, through the drum, from the outside. The operation originally contemplated would apparently have required a similar invasion of the body on the right side of the head. After leaving the hospital the patient brought an action for assault and battery against the 14 Brennan v. Parsonett, 83 N. J. L., 20 ; 83 Atl., 948. AGREEMENT FOB SURGICAL OPERATION. 123 surgeon. She was successful before the jury and obtained a verdict for $14,322.50. The defendant moved for a new trial and also for judgment against the plaintiff dismissing the suit, notwithstanding the verdict, on the grounds (a) that the patient's consent was not necessary; (b) that the patient did, in fact, consent to the operation as performed ; and (c) that the consent of the patient was implied under the circumstances. The motion for a new trial was allowed on the ground that the verdict was excessive, and the plain- tiff appealed therefrom, but the motion to dismiss the suit was denied and the defendant appealed from that part of the order. The court found that the operation was success- fully and skillfully performed, and was of a generally ben- eficial nature to the patient. There was no bad faith shown on the part of the operator. This case appears to be quite generally misunderstood. The opinion shows a thorough consideration of the subject by the court and is in perfect consonance with the rights of all parties concerned, though it is barely possible that the defendant's motion to dismiss should have been sustained on the ground that the consent of the patient was implied. 15 Damages for Unauthorized Operation. In determining the amount of damage for an operation beyond the purpose and scope authorized, the jury should take into consideration the character of the injury inflicted, the good faith of the operator, the reasonableness of what he did, in view of the general purpose of his employment, the nature and exigency of the malady which was the subject of the engagement and of the disorder actually treated, and the beneficial nature of the operation performed. 16 Even though the services were actually beneficial to the patient, still he should recover nominal damages for the technical trespass, and the opera- tor cannot recover a fee for his services in that behalf. 15 Mohr v. Williams, 95 Minn., 261. 16 Mohr v. Williams, 95 Minn., 261. CHAPTER XL RES IPSA LOQUITUR. The Maxim. The maxim, res ipsa loquitur, is a well rec- ognized principle in the law of evidence as applied to negli- gence cases. Literally translated, the expression means the thing itself speaks, or the thing speaks for itself. Basis of the Maxim. Like most rules of evidence it has its basis in the nature of our mental processes. Thanks to our faculty of reason, our knowledge is not confined to information which conies to us through the senses. We early learn the relation of cause and effect, and that certain causes always (or usually or sometimes) produce certain effects, so that when either is brought to the mental consciousness through the senses the other is deduced by a mental process which, where the relation always exists, be- comes so natural as to be almost, if not entirely, without conscious effort. The man who passes through a tropical hurricane, when it is over, admittedly has, by memory, the observation of his senses at the time of the fact of such an event and knows as a matter of memory of causes and effects that such disturbance of the elements occurred. The man who views the devastated forests, the raging torrents and the spreading floods, with their usual concomitants, by a simple process of reasoning, based upon past experiences, knows that nature has experienced one of her periodic con- vulsions and thereafter, the event to him becomes a memory of effects. In our mental processes we go so readily from cause to effect and vice versa, as often to confuse them in thought and speech. Our minds are so constituted that any 124 RES IPSA LOQUITUR. 125 given fact presupposes other facts in corelation therewith, both prior and subsequent thereto. Every effect is the result of some prior cause, and in its turn becomes the cause of some subsequent effect. When in the universal experience of mankind, a certain familiar effect has but one known cause, the presence of the effect is a conclusive demonstration of the existence of the prior cause, even though the specific effect does not always result from the given cause. Thus, the fact that a woman is pregnant is unanswerable proof of prior sexual intercourse, and hence, of sexual contact with some man. 1 Presumptions. A presumption is a hypothetical or in- ductive inference; something that is supposed to be true upon grounds of probability. Presumption is an inference as to the existence of a fact from the existence of some other fact or facts based upon previous experience of that connec- tion, implying relation or association, or dictated by the policy of administrative law. Presumptions are inferences in accordance with the common experience of mankind and the established principles of logic. The strength of a pre- sumption is dependent on the closeness or uniformity of association of the given fact or facts with the fact inferred. Thus, from the fact that the ground is wet, the presumption that it has rained will be strengthened according to the appearance of the ground, the extent of the wet area and other incidents exclude other causes for the condition. KINDS OF PRESUMPTIONS. Writers on legal topics speak of presumptions of fact and presumptions of law, and divide the latter into disputable and indisputable presumptions. Presumptions of law are only strong presumptions of fact. Where public policy or welfare are involved, these strong presumptions of fact are usually indisputable presumptions of law. Thus, rational men usually intend the reasonable i Thrasher v. State, 92 Neb., 110. 126 MEDICAL JURISPRUDENCE. and probable consequences of their conscious acts and, there- fore, where the act is wrongful, the law conclusively pre- sumes such intent. A party will not be permitted to show that he really intended otherwise. In criminal law an act is inevitably characterized by its consequences, when reason- able and probable, regardless of the real intent of the actor. In this connection we are interested only in certain pre- sumptions of fact in which no questions of the policy of the law are involved. They are only the application of the principles of logic to the ascertainment of facts which are the subject of inquiry in judicial tribunals. Presumption Upon Presumption. As a matter of evi- dence a presumption cannot be based upon a presumption. Thus, it is too remote to presume an accidental injury from lifting a box, when the fact of lifting the box must be pre- sumed from facts and circumstances. 2 Here there was suf- ficient evidence to justify the inference that the patient did lift and carry the box in question, and also that he was in- jured by force or violence, but there was no evidence to con- nect the injury with the handling of the box. Other causes of the injury were not excluded. Mental Convictions. To produce a given mental convic- tion some fact or state of facts having a probative tendency in that direction, must be adduced. Evidence precedes rational conviction. Hence the law naturally places upon the party who asserts a certain proposition the burden of introducing some evidence to establish his contention. If he alleges that his adversary was negligent whereby he was injured, he must show by some evidence both the negligence and the injury. In the law of evidence nothing is taken on faith, and what cannot be proven, either directly or from inference from which the possibility of mistake is sub- stantially eliminated, is treated as though it did not exist. 2 Globe Ace. Ins. Co. v. Gerisch, 163 111., 625. RES IPSA LOQUITUR. 127 The law always requires the best evidence. Juries in de- termining ultimate facts may draw any rational, reasonable conclusions from the facts in evidence before them. Application of the Maxim. Now, it sometimes happens that the party complaining cannot produce direct evidence of the negligent act, the proof thereof being entirely within the control of his opponent ; but he may be able to produce abundant facts from which, unexplained, reasonable minds would naturally draw the conclusion that the party against whom he complains was in the wrong. Therefore, The Reason for the Rule. The necessity of the case con- stitutes the reason for the departure from the usual rules of evidence in such cases. If the general rule were to be applied justice might sometimes be defeated under circum- stances from which all rational, unbiased minds would not hesitate to draw a conclusion of wrongful conduct on the part of the person sought to be charged. The maxim is a departure from the harshness of the common law, in that it shifts the burden of explanation from the party complain- ing to the party who naturally is in the best position to know the facts. When Maxim Is Applicable. (a) The party against whom it operates must owe the injured party some general or special duty of protection or care, and that duty must have been violated, and (b) the fact must be such as, in the absence of explanation, naturally raises an inference of neg- ligence on the part of some one, in which event the party owing the duty is charged with the burden of showing that the occurrence was without his fault. It has been said that this phrase is often used in actions for injury by negligence when no proof of negligence is required beyond the occur- rence itself, "which is such as necessarily to involve negli- gence." 3 3 Bouvier Law Dictionary. 128 MEDICAL JURISPRUDENCE. History and Illustrations. The doctrine was first applied to a case where a traveler on a public highway, while passing in front of a building adjoining the same, was injured by a barrel rolling out of a second-story door. Barrels, when properly placed, do not, of their own volition, change their position. Hence negligence of the party in charge of the barrel was properly inferred, and, as the owner of property adjoining the highway owed a person, rightfully using the same, the special duty of so using his property as not to injure the other, the court said that the burden of explain- ing, the circumstances under which the barrel fell, should be upon the owner in possession of the property and the barrel, as he was in the best position to know the circum- stances leading up to the accident and injury, in other words, why the barrel fell. 4 As stated by one authority, * ' the occurrence itself is evidence of negligence. ' * 5 The doctrine has also been applied to a case where a pedestrian on a sidewalk in a city was injured by a hammer falling from a swinging scaffold which was being used by workmen in front of the building. 6 Effect From More Than One Cause. The inference would not have arisen in the original case if the evidence had left it uncertain from which of two doors, on different premises, under different control and ownership, the barrel fell. If, from the evidence, the hammer might have fallen indiffer- ently, either from a scaffold under the control of A, or from a scaffold under the control of B, there can be no presump- tion that either A or B specifically was negligent. There must be at least a preponderance of the evidence that it came from one rather than the other. Where the death of a patient might have been caused by 4 Byrne v. Boadle, 2 H. & 0., 722. 5 Cunningham v. Dady, 191 N. Y , 152, 155; Ennis v. Gray, 87 Hun (N. Y.), 355, 361. 6 Hunt v. Hoyt, 20 111., 544. BBS IPSA LOQUITUR. 129 the improper administration of an anesthetic by the prac- titioner or by calcareous degeneration of the heart, the practitioner is not liable unless it is made to appear by a preponderance of all the evidence that death resulted either wholly or in part from the improper use or negligent admin- istration of the anesthetic. 7 Where a result may be ex- plained by either of several causes its presence does not establish either, and the greater the number of probable causes the weaker the inference of any one cause. 8 As Applied to Physicians and Surgeons. X-RAY. Burn- ing a patient by X-ray is prima facie evidence of negligence, that is to say, the result, unexplained, condemns the operator and casts upon him the burden of showing how it happened without his fault, and if he fails he is liable. 9 SPONGE CASES. This doctrine is illustrated in cases where absorbent gauze or sponges, or other foreign bodies, are left in the abdominal cavity after operations. The pres- ence of the intruder, left without purpose, impels the un- biased mind to the inference that the surgeon in charge failed to do his whole duty and, because of that inference and the fact that he owed the patient a special duty of care and skill, the law casts on him the burden of showing that he was without fault. Of all persons, he ought to know why the foreign substance was left there. The broad equities of the case and common conscience demand that he be called upon to explain the occurrence and show, if he can, that he did all that could be done, or should have been done, under the circumstances to find and remove all foreign objects. An explanation that merely shifts the blame on others will not suffice. In the language of one of our courts "Why was there left in the parts a foreign substance which the operating surgeon should have removed? It TYaggle v. Allen, 48 N. Y. Supp., 827. 8 Ewing v. Goode, 78 Fed., 442. 9 Shockley v. Tucker, 127 Is., 456. 130 MEDICAL JURISPRUDENCE. was for him to acquit himself of negligence with respect to it. The sponge escaped his observation. Why? Was it so hidden and concealed that reasonable care on his part would not have disclosed it, or were conditions such that, in his professional judgment, further exploration by him for sponges would have endangered the safety of the patient? In a word, did he do all that reasonable care and skill would require ? Except as one or the other of these questions can be answered affirmatively, from the evidence, the law will presume to the contrary and attribute the unfortunate con- sequences to his contributing negligence. Neither does the defendant, nor a single witness in his behalf, undertake to give any explanation of the fact that a sponge, which the defendant should have removed, was allowed to remain, except to say that the nurses failed to keep accurate count. From all that appears in the case, the retained sponge might readily have been discovered by the surgeon, and reasonable prudence and care on his part would have avoided the acci- dent. If this were so, clearly his negligence contributed with that of the nurses and responsibility therefor, in law, attached." 10 As Applied to Dentists. Leaving part of a brooch in a tooth and closing up the cavity, should trouble afterwards result therefrom, would cast upon the operator the burden of showing that he was without fault in the premises. The presence of the broken end of the brooch requires an ex- planation from the person responsible for its presence, and a failure in this respect rightfully fixes his responsibility. 11 A complete fracture of the submaxillary, while extracting a tooth, is of such rare occurrence, where proper care is exer- cised, as to raise a presumption of negligence on the part of the extractor, and the law should impose upon him the bur- 10 Davis v. Kerr, 239 Pa. St., 351. See Palmer v. Humiston, 87 Ohio St., 351; Gil- lett v. Tucker, 67 O. St., 106. 11 Van Skike v. Potter, 53 Neb., 28. RES IPSA LOQUITUR. 131 den of showing that he exercised due and reasonable care and skill under the circumstances. It has been held, how- ever, that dislocating the jaw in extracting teeth does not raise a presumption of negligence. 12 Leaving a tooth go down the windpipe of a patient who is under the influence of an anesthetic raises a presumption of negligence on the part of the operating dentist and casts upon him the burden of showing that the incident occurred without his fault. 13 Where Not Applicable. Where the inference is uncertain and doubtful the maxim does not apply. Thus, where the evidence is uncertain whether the foreign body was left in the cavity by the operating surgeon at the time of closing the incision from the original operation, or was put in after- wards by others, independent of the operator, in the course of drainage, the doctrine would not apply. 14 In the Harris case last cited there was evidence tending to show that the surgeon should have discovered the gauze during his course of treatment after the operation and before the termination of the relation. Infection. Ordinarily the sequence of an aggravated condition, does not raise any presumption of improper treat- ment. Where a condition can be explained by either of several causes, its presence proves neither. Thus, the presence of infection following treatment does not of itself prove that the practitioner was at fault, because the trouble may have been introduced by other means, either before or after the services. 15 Evidence must be produced to connect the treatment with the untoward result. 12 Donoghue v. Shane, 170 Mich., 544; 136 N. W., 367. 13 Keily v. Colton, 1 City Ct. (N. Y.), 439; See McGehee v. Shiftman, 4 Cal. App., 50. 14 Harris v. Pall, 177 Fed., 79; 27 L. B. A., 1174; Holmes v. McKennan, 120 111. App., 320. 15 Friend v. Kramer, 236 Pa. St., 618 ; Ewing v. Goode, 78 Fed., 442. CHAPTER XII. CIVIL MALPRACTICE. Obligations Imposed by Law. Implied Conditions of the Relation. Skill, care and judgment are required in the performance of every duty. They are inherent in our ideas of proper conduct, and are an implied stipulation of every undertaking. Their degree varies with the character of the act in question, and is pro- portionate to the nature of the calling involved and the pur- poses and aims of the efforts. They have a direct relation to the risk involved. Public Policy. These requirements are elementary, and the law is merely declarative of the basic principles of our notions of right and justice. They have their foundation in most persuasive considerations of logic, equity and public policy. The purpose of the law in incorporating these im- plied stipulations as binding obligations of the relation is to protect the health and lives of the public from the unskill- fulness, carelessness and bad judgment of practitioners by holding them liable to respond in damages for injuries re- sulting from default in these respects. 1 Therefore, ques- tions of skill, care and judgment are always raised in actions of malpractice. The untoward result complained of may have happened because of the ignorance, carelessness or bad judgment of the party sought to be charged. Statement of the Obligations. A person who offers his services for employment in any profession, as a practitioner in that profession, by implication contracts with his em- ployer, and by positive requirement the law demands i Nelson v. Harrington, 72 Wis., 591. 132 OBLIGATIONS IMPOSED BY LAW. 133 FIRST. That he possess that reasonable degree of learn- ing, skill and experience which is usually possessed by mem- bers of the profession at the time and place, and which is ordinarily regarded by the community, and by those con- versant with that profession, as necessary and sufficient reasonably to qualify him for such employment : SECOND. That he shall exercise reasonable and ordinary care and diligence in the exertion of his skill and the applica- tion of his knowledge to accomplish the purpose for which he is retained, and THIRD. That in the exertion of his skill and the applica- tion of his care and diligence, he shall use his best judg- ment. 2 Obligations Measured by Liability. The implied obliga- tion of a practitioner, retained to treat a person profession- ally, extends no further, in the absence of special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, and from his failure to exercise due care, under the circumstances, or to use his best judgment in the premises in the execution of his employment. 3 Requirement Is General. The same obligation rests upon the practitioner of any profession. Persons who offer themselves to the public as practitioners of any profession thereby impliedly promise the persons employing them that they possess the requisite skill and knowledge to enable them to handle or treat with reasonable success such cases as they undertake. This rule does not require the possession of the highest, or even the average, skill but only such as will enable the practitioner to treat the cases undertaken safely and understandingly. " Every person who enters a learned profession undertakes to bring to the exercise of it 2 Leighton v. Sargent, 27 N. H., 460; Kuhn v. Brownfield, 34 W. Va., 252; Coombs v. King, 107 Me., 376; Whitesell v. Hill, 101 la., 629; 37 L. B. A. (O. S.), 830, n. 3 Craig v. Chambers, 17 O. St., 253 ; 9 Cyc. Ev., 851. 134 MEDICAL JURISPRUDENCE. a reasonable degree of skill. If he is an attorney, he does not undertake at all events to gain the case; nor does a surgeon undertake that he will perform a cure, nor does the latter undertake to use the highest degree of skill, as there may be persons of higher education and greater advantages than himself. However, he does undertake to bring a fair, reasonable and competent degree of skill. ' ' 4 Skill. Degree of Skill Required. In this connection the word skill is used in the broadest sense and means knowledge, qualification, ability, dexterity. The degree of skill re- quired is not capable of exact determination. It can be stated only in relative terms, which are necessarily variable in their nature. Each generation each moment takes care of itself. THE TEST. The test is, Does the practitioner possess the reasonable knowledge and skill ordinarily possessed by members of the profession in average localities similarly situated at the time? When a person assumes the profession of medicine and surgery but makes no special representations as to his skill, the law implies that he thereby represents that he has an ordinary degree of skill, knowledge, qualification and ability in that respect, and holds him accountable to his patient therefor. 5 The presumption and obligation extend to the positive requirement that such skill shall be applied to the particular case in order that the patient may have the benefit thereof. 6 The law implies an undertaking on the part of the practitioner that he will use reasonable and ordinary skill in the professional treatment of his patients. 7 * Lamphier v. Phipos, 8 Car. & P., 478. 5 Ritchie v. West, 23 111., 329, 330. 6 Barnes v. Means, 82 111., 379, 384, 7 Cnitty on Contracts, 553. OBLIGATIONS IMPOSED BY LAW. 135 ORDINARY SKILL. By ordinary skill is meant such skill as is commonly possessed by men engaged in the profession in similar localities at the time. 8 The standard of ordinary skill may vary even in the same State according to the greater or less opportunities afforded by the locality for observation and practice. 9 The reasonable and ordinary skill which is required of practitioners of any profession is such as those in the same general lines of practice at the time and in similarly situated localities, ordinarily have and exercise. 10 BEST SKILL. A practitioner is not chargeable with neg- ligence for failure to use his own best skill, if he uses the skill which is exercised generally by practitioners of ordi- nary skill in similar localities at the time, provided his con- duct is consistent with due care and good judgment under the circumstances. 11 HIGHEST SKILL. The law does not require that a physician shall have the highest degree of knowledge and skill. 12 He is not bound to possess the highest degree of art and skill possessed by eminent surgeons practicing in large cities. 13 AVERAGE SKILL NOT REQUIRED. The standard of require- ment in this respect is not even as high as the average skill of the competent members of the profession in similarly situated communities generally, at the time, because average means midway between two extremes and, therefore, there must be some competent practitioners on both sides of the line. In its ultimate analysis the standard of capacity is the lowest qualification tolerated by law. 14 NOT THE SKILL OF THE EDUCATED ONLY. The skill re- 8 Heath v. Glisan, 3 Ore., 64; Dashiell v. Griffith, 84 Md., 363. 9 Smothers v. Hanks, 34 la., 289. 10 Carpenter v. Walker, 170 Ala., 659. 11 Dorris v. Warford, 124 Ky., 768; 9 L. R. A., 1090. i2McNevins v. Lowe, 40 HI., 209, 210; Ritchie v. West, 23 111., 329, 330. is Small v. Howard, 128 Mass., 131. 14 Holtzmnn v. Hoy, 118 111. App., 534. 136 MEDICAL JURISPRUDENCE. quired need not be that of thoroughly educated practitioners only, but must be that of the average, having regard to the improvement and advanced state of the profession at the time of the treatment. 15 ONLY THE COMPETENT CONSIDERED. While the law does not exact the highest degree of skill and proficiency obtain- able in a profession, still it does not, on the other hand, con- template mere average merit, including the skillful and un- skillful. 16 In order to determine who will come up to the legal standard, we are not permitted to aggregate into a common class the quacks, the charlatans, the empirics, the new men who have had no practice, the old ones who have dropped out of the practice, the skilled and the unskilled, the good and the very best, and then strike an average between them, as such method would place the standard too low. In fixing a standard and striking an average only the ordinarily and reasonably skillful should be considered. LOCALITY AND TIME AFFECT SKILL REQUIRED. A physician practicing in a small village who undertakes to perform a difficult operation, is bound to possess that skill and ability only which physicians and surgeons of ordinary ability and skill practicing in similar localities at the time, with oppor- tunities for no large experience, ordinarily possess. 17 In determining what constitutes the reasonable and ordinary skill and diligence which it is the duty of a physician to possess and exercise, the test is the degree of skill and diligence which other physicians in the same general neigh- borhood, and in the same general line of practice, at the time, ordinarily have and practice. 18 In other words, a physician must have such skill as physicians in the same general neighborhood in the same general line of practice 15 Peck v. Hutchinson, 88 la., 320. 16 Holtzman v. Hoy, 118 HI. App., 534. IT Small v. Howard, 128 Mass., 131. 18 Force v. Gregory, 63 Conn., 167. OBLIGATIONS IMPOSED BY LAW. 137 ordinarily have and exercise in like cases. 19 A physician is required to use no more skill than that of the physicians of his neighborhood, if there are other physicians there pre- sumably of average ability when compared with similar localities. In its ultimate analysis the rule means that the practi- tioner must exercise the average degree of skill possessed by ordinarily and reasonably skillful members of the pro- fession in such localities generally, at the time, and not a standard determined by the average skill in his own lo- cality. 20 DEGREE OF SKILL AILMENT TREATED. The degree of skill required has no relation to the character of the services to be performed in the particular case. The standard of knowledge and skill fixed by the law for the practice of any profession has no relation to the condition or disease treated, is not in proportion to the severity of the injury, nor the nature of the operation, nor is it dependent upon the circumstances of the case. 21 PROOF OF SKILL. A license is prima facie evidence of the possession of skill and, in the absence of evidence to the contrary, is sufficient to establish that fact. INFERENCE OF WANT OF SKILL. If the ground of com- plaint be stated as want of skill, the evidence must have reference to lack of that qualification as displayed in the particular case. It is quite clear that the treatment might show such gross ignorance of the business of the practi- tioner as to put it beyond all doubt that he has not the amount of skill usually possessed by members of the pro- fession or even, in fact, that he had no knowledge of his profession at all. 22 It might appear that the course pur- 19 Gates v. Fleisher, 67 Wis., 504 ; Nelson v. Harrington, 72 Wis., 591. 20 Oramm v. Boener, 56 Ind., 407 ; Kelsey v. Hay, 84 Ind., 189. 21 Utely v. Burns, 70 111., 162, 164. 22 Com. v. Thompson, 6 Mass., 134. 138 MEDICAL JURISPRUDENCE. sued was wholly unknown to the profession and that it re- sulted, as it necessarily must, in detriment to the patient. Certainly nothing further would need to be shown to render answerable for an injury done, one who should offer his services as a skillful practitioner. 23 SKILL AT TIME OF SERVICE. The inquiry as to skill must be directed to the time of the alleged malpractice, not to a period long subsequent thereto. Possession of skill to- day does not tend to establish skill two years ago. 24 Care. Degree of Care Required. DEFINITION. Care is atten- tion with a view to safety or protection; or oversight or watchful regard, implying concern or a sense of personal responsibility, in an endeavor to promote an aim or accom- plish a purpose. It is a relative term and varies accord- ing to the danger involved in the want of vigilance. Due care means attention according to circumstances. All the circumstances must be taken into consideration in determining what is due care. As a general rule, he who undertakes for reward to per- form any work, is bound to use a degree of care, diligence and attention adequate to the performance of his under- taking, according to the rules of the particular art involved. Care must be proportionate to the extremities of the situ- ation. The degree of care, like the degree of skill, is not capable of exact determination or statement. Here again, we are forced to resort to relatives. Ordinary care and diligence, under the special circumstances, constitutes the measure of duty and responsibility of the practitioner in the application of his skill and knowledge in the treatment 23 Leighton v. Sargent, 31 N. H., 119. 24 Leighton v. Sargent, 31 N. H., 119. OBLIGATIONS IMPOSED BY LAW. 139 of his patients. He must act with the reasonable care and diligence ordinarily and reasonably used by ordinary prac- titioners of the profession in average localities similarly situated at the time. 25 THE TEST. The test is, What would an ordinarily skill- ful, careful and prudent practitioner have done under the circumstances^ ORDINARY CARE. The reasonable and ordinary care which is required of practitioners of a profession, is such care as those in the same general neighborhood, in the same gen- eral lines of practice, at the time, ordinarily exercise in like cases. 26 HIGHEST CARE. A practitioner is not required, as a mat- ter of law, to use the highest degree of care of which he is capable, if the care which he does exercise is that degree which is exercised generally by practitioners of usual and ordinary skill and care in similar localities, under the same or similar circumstances, provided his conduct is consist- ent with ordinary skill, having reference to the state of the science in the locality at the time. CARELESSNESS MISCONDUCT. Carelessness is an act of omission and involves an abuse of discretion under a defi- nite obligation; misconduct is an act of commission by vio- lating a definite law or duty. Misconduct is a forbidden act and is, necessarily indefinite, depending upon the cir- cumstances. 27 CARELESSNESSS NEVER EXCUSED IN LAW. That others have been similarly careless is no defense to an action for mal- practice. The fact that all men are sometimes careless, does not excuse any man for being careless at any time. 28 25 Ritchie v. West, 23 111., 329, 330; McNevins v. Lowe, 40 111., 209, 210; Beck v. German Klinik, 78 la., 696. 26 Carpenter v. Walker, 170 Ala., 650. 27 Citizens Ins. Co. v. Marsh, 41 Pa. St., 386, 394. 28 Samuels v. Willis, 133 Ky., 459; 19 A. C., 188. (A sponge case.) 140 MEDICAL JURISPRUDENCE. Judgment. Nature of Judgment Required. GENERALITY OF APPLICA- TION. In the discharge of every mandate there is involved the exercise of more or less judgment. However menial the service may be, a certain latitude of discretion is neces- sarily incident to its performance. You cannot eliminate this human element from any conscious effort. From the laborer who digs in the ditch to the surgeon who holds a life in his hands, the element of judgment in the discharge of his duties is an essential part of the undertaking. In employing a person for any task, the employer knows that the exercise of that person's judgment will be involved in the performance of the services, and it is that person's judgment which is being paid for. "We do not expect om- niscience nor infallibility, and the law does not require that standard. A man's judgment may be good, bad or indif- ferent and, whichever it is, the employer engages that and nothing more, and the servant has discharged his whole duty when he has given his employer his best judgment. 29 REQUIREMENT STATED. In every contract of service the law injects the stipulation that the servant must use his best judgment in the discharge of his duties. LATITUDE OF DISCRETION. In all professional services, there is a wide latitude for the exercise of discretion, and the practitioner fulfills his obligation in this respect when, in good faith in the exercise of due skill and care, after rea- sonably informing himself, he determines the course to pursue. The medical and surgical practitioner is contin- ually required to exercise his discretion as to the course of treatment, or method of operation to be pursued. Herein, he owes his patient his best judgment and nothing more. 30 Of course, as a basis for the exercise of that judg- 29 Gramm v. Boener, 56 Ind., 497. so McKee t>. Allen, 94 111. App., 147. OBLIGATIONS IMPOSED BY LAW. 141 ment he owes his patient the obligation carefully to diag- nose the case, and reasonably to inform himself of condi- tions and circumstances. No GUARANTY THAT JUDGMENT IS CORRECT. A physician does not guarantee that his judgment is correct, nor that it is as good as the judgment of some other practitioner. When in the exercise of reasonable and ordinary skill and due care he gives his patient the benefit of the exercise of his best discretion, he has done all that the law requires and he is not liable in damages, even though his judgment is wrong and his patient is injured thereby. 31 Of course reasonable information must precede the exercise of good judgment. Good faith requires that the practitioner un- derstands before he decides. If he makes a skillful and careful investigation, in good faith, he is not liable even though his diagnosis is wrong, and, on the other hand, as- suming that his diagnosis is correct and that, in the exer- cise of his best judgment, he arrives at a wrong conclusion, still he is not liable for the inconvenience or damage which his patient may suffer. 32 DIFFERENT METHODS. Where, under the usual practice of the profession, different courses of treatment or pro- cedure may properly and reasonably be applied, and the patient does not limit the practitioner to any particular treatment or procedure, the latter has a right to use his best judgment as to the manner and means of treatment and procedure, and he will not be liable in an action for malpractice so long as his conduct is not inconsistent with ordinary skill and due care under the circumstances. If a practitioner uses his best judgment in all respects he is not liable in damages to his patient for malpractice, provided his conduct was not inconsistent with the possession and 31 Wilkins v. Ferrell, 10 Tex. Civ. App., 231. ' 32 Patten v. Wiggins, 51 Me., 594; Williams v. Peppleton, 3 Ore., 139; Fisher v. Niccolls, 2 111. App., 484. 142 MEDICAL JURISPRUDENCE. use of ordinary skill and due care under the circumstances, even though some other practitioner would have pursued a different course, and the results show that the former was mistaken. 33 Presumptions of Skill, Care and Judgment. In the ab- sence of evidence the law indulges no presumption of want of skill, care or good judgment; neither does it infer the presence of these qualities. 34 It is not enough to render a practitioner liable to show that he has a less degree of skill than some other practitioner might have shown, or that he exercised a less degree of care than he himself might have been able to bestow; or that he made a mistake in judg- ment; nor is it enough that he even acknowledges some want of care or some error in judgment : There must have been a want of ordinary skill and care to such a degree as to have led to the bad results. 35 The manner in which the services were performed is the true test of their charac- ter. 36 In the absence of proof, the courts presume that the work was skillfully and carefully done and that the prac- titioner used his best judgment, or rather, at least, the bur- den is on the patient to establish the contrary, and in the absence of any proof there would be no basis for a claim for liability. 37 INFERENCES FROM INJURIOUS RESULTS. Ordinarily the fact that injurious results followed treatment does not jus- tify an inference of want of skill, care or good judgment. The consequences complained of may be the result of the patient's condition, and in no respects due to the conduct of the practitioner. Generally speaking, the fact that a patient is suffering from some abnormal condition after the services, or that he received no benefit from the treat- 33 Luka v. Lowrie, Mich., ; 41 I. R. A., 290. 34 Davis v. Kerr, 239 Pa. St., 351. 35 Rich v. Pierpont, 3 Foster & F., 35. 36 Bute v. Potts, 76 Cal., 304. 37 State v. Housekeeper, 70 Md., 162. OBLIGATIONS IMPOSED BY LAW. 143 ment, or that the practitioner failed to accomplish satis- factory results, does not raise any presumption of want of skill, care or good judgment. 38 Default in these respects must be established from all the facts and circumstances in the case. The result of treatment is often only a minor consideration. That a fractured limb is shorter than the other after the recovery of the patient, is not evidence that the practitioner was negligent, as such condition might result from the nature of the fracture or the condition of health and age of the patient. 39 The burden of explaining the fact is on the patient and he must show that the treatment of the case was the primary cause for the shortening. However, leaving a tooth go down the windpipe of a pa- tient who is under the influence of an anesthetic raises a presumption of negligence on the part of the operating dentist and casts upon him the burden of showing that the incident occurred without his fault. 40 Also, it has been held that failure of a physician to discover a serious rupture of the perineum, after repeated examinations for that purpose, is actionable negligence. 41 In the case cited, the condition must have been such as to make the failure to discover the ailment inconsistent with reasonable skill or ordinary care. The jury may find that it is negligence for an attending physician to fail to dis- cover and remove a detached portion of the placenta after a miscarriage. 42 Agreement Waiving These Requirements. A practi- tioner cannot contract with his patient against his responsi- bility for negligence growing out of his want of skill or 38 Friend v. Kramer, 236 Pa. St., 618. 39 Piles v. Hughes, 10 la., 579. 40Keily f. Colton, 1 City Ct. (N. Y.), 439; flee McGehee v. Shiftman, 4 Cal. App., 50. For full discussion see chapter on Res Ipsa Loquitur. 41 Lewis v. Dwinell, 84 Maine, 487. 42 Moratzky v. Wirth, 67 Minn., 46 ; See Langford v. Jones, 18 Ore., 407. 144 MEDICAL JURISPRUDENCE. care, or Ms failure to exercise his best judgment in his services to his patient, as such an agreement is against public policy and, therefore, void. 43 Agreement for Special Skill. A practitioner may agree to bring to the aid of his patient a higher degree of skill and to exercise a higher degree of care than the law im- poses on the relation, and he will be required to fulfill his special promise. If the practitioner defaults, the patient will have a right of action for breach of contract. If the patient relies on specific representations of extraordinary skill and ability on the part of the practitioner, he must allege such facts in his declaration, because the law does not imply them from the relation. 44 Specialists. Where a person holds himself out as a spe- cialist in the treatment of a certain organ, anatomical part, physiological function, injury or disease, he is bound to bring to the aid of the one employing him as such, both in diagnosis and treatment, that degree of skill and knowledge which is ordinarily possessed by those who devote special study and attention to that particular organ, part, func- tion, injury or disease, in the same general locality, having regard to the state of scientific knowledge at the time. 45 Thus, one who undertakes to treat an eye as a specialist, must have that degree of care and skill which is ordinarily possessed by physicians who devote special attention and study to the treatment of that organ. 46 The physician who makes a specialty of surgery, the oculist, the aurist, the rhinologist, must give to his patient that degree of knowl- edge and skill which is ordinarily possessed by such spe- cialists in the general locality at the time. 47 Practitioner Must Keep Pace with the Times. Medical 43 Hales v. Raines, 162 Mo. App., 46. 44 Goodwin v. Hersam, 65 Minn., 233. 45 Rann. v. Twitchell, 82 Vt., 79 ; 20 L. R. A., 1030. 46 Feeney v. Spalding, 89 Me., 111. 4T Baker v. Hancock, 29 Ind. App., 456 ; 20 L. R. A., 1030. OBLIGATIONS IMPOSED BY LAW. 145 science is moving forward with rapid strides. What is proper practice today may be questioned tomorrow, be abandoned during the week, be antiquated before the close of the month and become all but criminal before the lapse of the year. Practitioners must progress with their profession. They cannot cling to antiquated and abandoned methods, prac- tices, remedies and appliances and escape liability for in- juries resulting therefrom. They should not resort to every new-fangled theory, nor always test the latest fad, but the best generally approved improvements should be resorted to when the proper occasion arises, having respect to the locality and time. What was proper a few years ago may be malpractice today. Eesponsibilities are based on present enlightenment and experience. 48 Experimentation. The policy of the law is very strict against practitioners trying experiments. In other words, a physician cannot experiment with his patients to their injury. 49 Established Treatment. Generally speaking, where there is an established treatment, it must be followed substan- tially. 50 If the ordinary and established practice of the profession is to treat an ailment in a particular manner, it is the practitioner's duty substantially to follow such prac- tice, and if he adopts some other mode which proves in- jurious, he is guilty of negligence. Where a particular mode of treatment, to the exclusion of others, is upheld by the consensus of opinion among the reasonably skillful and careful members of the profession, and sustained by the general experience of practitioners, it must be substantially followed by the practitioner and, if he sees fit to experiment 48 McOandless v. McWha, 22 Pa. St., 261; Van Hooser v. Berghoff, 90 Mo., 487; Gramm v. Boener, 56 Ind., 497. 49 Hasse v. Knippel, 1 Mich. N. P., 102. 50 Carpenter v. Blake, 60 Barb., 488. 146 MEDICAL JURISPRUDENCE. with other modes, he does so at his peril. 51 The burden is upon the patient, however, to show that the departure from the established practice was the cause of the injury. 52 ESTABLISHED TREATMENT INAPPLICABLE. The rule does not apply where, for any reason, the established mode of treatment cannot be adopted, or is impracticable. 53 Gratuitous Services. Kesponsibility is not dependent upon nor related to the size or source of the fee. Where the relation exists, the liability attaches. When a profes- sional man undertakes to render professional services to a patient, the law, from necessity, imposes upon him the duty to exercise the skill, care and judgment heretofore explained, and default therein, resulting in damage to the patient, constitutes a cause of action. Therefore, the fact that the services were rendered gratuitously or were paid for by a third party is no defense to an action for malprac- tice. 54 Non-Professional Volunteer. These requirements of skill, care and judgment are implied by law from the rela- tion of practitioner and patient, and therefore do not apply where the relation does not exist. If a person does not profess to be a physician or to practice as such, and is merely asked his advice as a friend or neighbor, he does not incur any professional responsibility in attempting to give relief, and in the absence of malice on the part of the volunteer the person following his advice would have to bear the consequences. Thus, the friend who, in case of neuralgia, cold, indigestion or other infirmity, volunteers advice and assistance to relieve the distress, does not thereby undertake to possess the qualifications of a phy- sician, and where there is no such implied representation 51 Jackson v. Burnham, 20 Col., 532. 52 Winner v. Lathrop, 67 Hun, 511. 53 Hallam v. Means, 82 111., 379. 54 Peck v. Hutchinson, 88 la., 320; Pippin v. Sheppard, 11 Price, 400-; Becker v. Janinski, 15 N. Y. Supp., 675 ; DuBois v. Decker, 130 N. Y., 325. OBLIGATIONS IMPOSED BY LAW. 147 the want of such qualifications does not create a liability, even though injury results to the recipient of the services by reason of default in this respect. 55 Where the sufferer, however, in good faith, understands that the party rendering the assistance is a physician and accepts the services in the belief that he is a member of the profession, and where the circumstances of the case and the conduct of the party are such as to justify him in entertaining such belief, the party rendering the assistance may be chargeable with the responsibility, as to skill, care and judgment, of a member of the profession and be re- quired to respond in damages for any injury resulting by reason of his lack of such qualifications, or application. 56 Unlicensed Practitioner. The requirements of law as to skill, care and judgment apply to unlicensed as well as to licensed practitioners and the same tests should be applied. No greater obligations in this respect rest upon the party by reason of the fact that he does not have a license ; neither are they less even though the patient knows the want of sanction. 57 But, in an action for malpractice against an unlicensed physician, the burden of showing ordinary skill is on the physician. 58 55 McNevins v. Lowe, 40 111. 209; Higgins t>. McCabe, 120 Mass., 13; Shields v. Black- burn, 1 H. Bl., 158; Beardslee v. Richardson, 11 Wend., 25. 56 Matthei v. Wooley, 69 111. App., 654. 57 Nelson v. Harrington, 72 Wis., 591. 58 Cf. Nations v. Lumber Co., La. ; 48 L. R. A., 531 CHAPTER XIII. CIVIL MALPRACTICE. Elements of Breach. Definition. Civil malpractice is improper treatment of a patient by a practitioner, whereby the patient is injured. It means default in some one or more of the legal require- ments of skill, care and judgment, as discussed in the pre- ceding chapter. The fault may be an act of either omis- sion or commission, and may result from ignorance, care- lessness or poor judgment. Besides, there is the case where the patient is operated upon without his consent or over his objection and, though the operation may be skillfully performed, the act is in the nature of a trespass and con- stitutes an assault for which an action will lie. This action is in the nature of an action for malpractice. Essentials of Liability. In order to maintain an action for malpractice against a physician, a patient must prove by competent evidence, (a) Improper treatment and (b) Injury from such treatment. Improper treatment without injury, or injury not shown to be the result of improper treatment, is not enough to make a case of malpractice in law. Unless both exist in the relation of cause and effect, and not as a mere coinci- dence, the patient has no reason for complaint, but, if, be- cause of default shown, the service did the patient no good, the practitioner would not be entitled to receive any fee, in the absence of a special agreement for a fee in any event. Malpractice is a branch of the general law of negligence. 148 ELEMENTS OF BREACH. 149 Negligence. Definition. Negligence is the absence of care according to circumstances. 1 " Negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circum- stances justly demand, whereby such other person suffers injury. ' ' 2 The physician who fails to do what a reason- ably prudent practitioner would have done under the cir- cumstances, or does what a reasonably prudent practitioner would not have done under the circumstances, whereby the patient is injured, is considered guilty of negligence and is liable for the damages sustained by his patient. 3 Negli- gence may be the result of either ignorance, carelessness or poor judgment, and in either event, the practitioner will be liable to the patient for the consequent damages ; but if poor judgment is relied upon as the basis of liability the error must be so gross as to establish either ignorance or care- lessness, or that the party did not, in good faith, use his own best judgment. Intent. Intention to injure is not an essential element in an action for malpractice; in fact, the term negligence excludes the idea of intent. 4 Good Faith. Although the practitioner acted in the ut- most good faith, believing his treatment proper and safe, still, if he was not sufficiently qualified under the law, or if he omitted some duty or performed some negligent act, whereby his patient was injured, he will be liable for the consequences. Accident. Definition. The Century Dictionary defines accident as 1 Turnpike Co. v. R. Co., 54 Pa. St., 219, 225; Barker v. Essex, 27 Vt., 62; C. B & Q. R. Co. v. Johnson, 103 111., 512, 518 et seq. 2 Cooley on Torts, 630. 3 Alderson, B., in Blythe v. Birmingham Water Works Co., 11 Exch., 784. 4 Bindbental v. Street Rd. Co., 43 Mo. App., 463. 150 MEDICAL, JURISPRUDENCE. "anything that happens or begins to be without design, or as an unforeseen effect; that which falls out by chance; a fortuitous event or circumstance." Where an event takes place, the real cause of which can- not be traced or is, at least, not apparent, it ordinarily be- longs to that class of occurrences which are designated as purely accidental. 5 Even though accident and negligence be not opposites, they cannot be regarded as identical, without confounding cause and effect. Accident and its synonyms, casualty and misfortune, may proceed or result from negligence or other causes known or unknown. 6 Liability in Case of Accident. For injuries resulting from mere accident, no liability attaches. For a purely accidental occurrence causing damage, without the fault of the person to whom it is attributed, no action will lie; for, though there is damage, the thing amiss, the injuria is wanting. 7 A patient may be injured under circumstances which, in law, are considered purely accidental. In such cases the practitioner is not liable for the damages sustained by the patient from the injury. Accident and Negligence. The term accident, as above used, necessarily excludes the idea of negligence on the part of the practitioner. Merely calling an act, which re- sulted in injury to another, an accident will not relieve the party of responsibility for his negligence. The untoward result must have been what, in law, is recognized as an accident. Where the negligence of the operator contributed to the untoward result, it was not, as to him, an accident within the meaning of the law of negligence. There must be an entire absence of negligence on the part of the party sought to be charged. 8 An occurrence which, to the pa- 6 Wabash, etc., B. Co. v. Rocke, 112 Ind., 404. 6 McCarthy v. N. Y., etc., R. Co., 30 Pa. St., 347, 351. ^ Cooley on Torts, 80. 8 Button v. Bonnett, 114 Ind., 243. ELEMENTS OF BREACH. 151 tient, may properly be spoken of as an accident, is not neces- sarily an accident from the viewpoint of the responsibility of the practitioner. If the latter was at fault, the occur- rence as to him was not an accident. Where an accident combined with the negligence of the practitioner to produce the injury to the patient, and without which negligence the injury would not have happened, the former is liable for the entire damage. 9 Contributory Negligence. Definition. Contributory negligence is such an act or omission on the part of the patient, amounting to want of ordinary care, as, concurring with the negligent act or omission of the practitioner, is the proximate cause of the injury. 10 Effect of Contributory Negligence. Where the negli- gence of the person injured primarily contributed to the in- jury, by direct association with the cause of action, he can- not recover damages. 11 Both parties being in fault with reference to the cause of the injury complained of, the law leaves the burden rest where it fell. Reasons for the Rule. Though the action of malpractice is in the nature of an action for a breach of the implied terms of a contract, the general rules of law governing con- tributory negligence are applied where both are contempo- raneously and concurrently at fault, because of the difficulty which would usually be encountered in an attempt to appor- tion the injury between them. In this respect, however, there is practically no difference between actions for mal- practice and other actions in tort, because, as a matter of fact, all actions sounding in tort have their origin in and 9 Rookfalls v. Wells, 169 111., 224; Weick v. Lander, 75 111., 93; I. C. R. Co. v. Siler, 229 111., 390; Joliet v. Varley, 35 111., 58; Carterville v. Cooke, 129 111., 152; Joliet v. Shufeldt, 144 111., 403. 10 29 Cyc., 505. U Littlejohn v. Arbogast, 95 111. App., 605 ; Haering v. Spicer, 92 111., App., 449. 152 MEDICAL JURISPRUDENCE. are based upon a breach of some obligation imposed by law. Where the injury resulting from the negligence of the patient can be distinguished from the results of the phy- sician's negligence, the reason for the rule does not apply, and the patient may maintain his action and, in that event, the negligence of the patient can be used only in mitigation of damages, and not to defeat the patient's right of action. 12 And for the same reason a physician will be liable for the damage occasioned by his improper treatment although a part of the patient's sufferings proceeded from other causes. 13 Thus, where a physician treated a broken limb in an improper and careless manner, necessarily resulting in permanent injury to the patient, the fact that the con- tributory negligence of the latter increased the injuries, does not bar the patient's right of action, but affects only the measure of damages. 14 Relation Between the Physician's and the Patient's Neg- ligence and the Patient's Injury. The causal relation be- tween a physician's conduct and his patient's injury, in connection with operation and course of treatment, and the conduct of the patient, presents itself in several different aspects involving different phases of liability : FIRST: The patient alone may be at fault, in which event the practitioner will not be liable for the damages sustained. Under this condition of facts, the want of re- sponsibility is the same, without regard to the time of the patient's negligence, with reference to the time of the oper- ation or the course of treatment; that is, whether (a) before, or (b) during, or (c) after the services. SECOND: The practitioner alone may be at fault, in which event he will be liable to the patient for the entire 12 Hibbard v. Thompson, 109 Mass., 286. 13 Gates v. Fleischer, 67 Wis., 504. 14 Wilmot v. Howard, 39 Vt., 447. ELEMENTS OF BREACH. 153 damage sustained by the latter by reason of such negli- gence. THIRD: Both patient and practitioner may be at fault, in which event the question of liability is affected by the fact as to whether the negligence of the patient was (a) contemporaneous or concurrent, or (b) in order of sequence, with the negligence of the practitioner. (a) When the negligence of both operates contemporane- ously, concurrently and jointly to produce the injury, the patient cannot recover but must bear the entire loss alone. (b) When the negligence of both operates successively to produce the injury to the patient, the practitioner will be liable for all damages or aggravation of damages, natu- rally resulting from his own negligence, but he will not be responsible for the injury flowing from the patient's negli- gence, nor for the aggravation of the injury occasioned by the subsequent negligence of the patient. 15 A practitioner is liable for the injurious results of his own negligence, al- though the subsequent acts of the patient, or a nurse, or others over whom the practitioner had no control, may have aggravated the injury. 16 If the improper treatment makes the injury unavoidable and inevitable, an action against the practitioner will not be defeated by the fact that subsequent mismanagement, or negligence of the patient, or others may have aggravated the trouble. 17 A practitioner is liable to his patient for the damages resulting from his own negli- gence, even though the injuries are aggravated by reason of the subsequent or prior negligence of the patient, or others. 18 15 Sauers v. Smits, 45 Wash., 559; 17 L. B. A., 1242; Sanderson v. Holland, 39 Mo. App., 233; Wilmot v. Howard, 39 Vt., 447; Du Bois v. Decker, 130 N. Y., 325; Geisel- man v. Scott, 25 O. St., 86. 16 Carpenter v. Blake, 75 N. Y., 12; Sanderson v. Holland, 39 Mo. App., 233; Hathorn v. Richmond, 48 Vt., 557. 17 Hibbard v. Thompson, 109 Mass., 286; Wilmot v. Howard, 39 Vt., 449. 18 Wilmot v. Howard, 39 Vt., 449; Hathorn v. Richmond, 48 Vt., 557; Murdock v. Walker, 43 111. App., 590; Sanderson v. Holland, 39 Mo. App., 223; Sauers v. Smith, 49 Wash., 557; Morris v. Despain, 104 111. App., 452; 17 L. R. A., 1242. 154 MEDICAL JURISPRUDENCE. RECOGNITION OF THE CLASSIFICATION. There is consider- able confusion among the decisions with reference to this subject, and some decisions have entirely lost sight of the foregoing relations, but wherever the attention of the court has been directed to the subject, these distinctions have been recognized. TEMPERAMENT. That the natural temperament or phys- ical weakness of a patient contributed to produce the injury primarily caused by the malpractice of the physician, is no defense to an action against the physician for such injury, but the same may be shown in mitigation of damages. 19 FAILURE TO OBEY INSTRUCTIONS. It is the duty of the pa- tient to obey any reasonable instructions by his physician. Failure of a patient to observe such reasonable instructions and requirements of his physician may be negligence. 20 Thus where a patient fails to return to the office for further treatment, as directed, whereby he suffers injury, though the treatment was proper and skillful, his trouble is at- tributed to his own carelessness, and he cannot recover from the practitioner. 21 The refusal of the patient to em- ploy an assistant for the practitioner, when the same is necessary and recommended by the practitioner, and the patient is injured by reason of such want of assistance, such conduct of the patient is negligence on his part, enter- ing into the cause of action itself, and will defeat his right of recovery against the physician, unless the conduct of the practitioner, under the circumstances, was such as to be inconsistent with ordinary skill, due care and good judg- ment. 22 Independent Services. If two or more practitioners, simultaneously or successively perform independent serv- 19 Mullen v. Flanders, 73 Vt., 95. 20Whitesell v. Hill, 106 N. W., 894; Haering v. Spicer, 92 111. App., 449. 21 Dashiell v. Griffith, 84 Md., 363; Jones v. Angel, 95 Ind., 376; 17 L. R. A., 1243. 22 Haering v. Spicer, 92 111. App., 449. ELEMENTS OP BREACH. 155 ices for a patient, neither is liable for the independent mal- practice of the other. 23 One practitioner is not liable for an injury inflicted by another, if not partners, unless they acted in concert or co- operation. Where their acts are entirely independent, separate and distinct as to aid, concert, co-operation and advice, there can be no joint liability and each will be liable only to the extent of his own wrong. 24 Nurse's Negligence. The practitioner is not responsible for the consequences of the ignorance, carelessness, or bad judgment of nurses over whom he has no control. 25 But where he selects the nurse and exercises control over her actions, so that she may be said to represent him, or where the physician is careless in observing her conduct, he may be liable for injuries resulting from her negligence. 26 Negligence of Druggist. The fact that the negligence of the druggist concurred with that of the physician in produc- ing the death of the patient cannot be set up as a defense by the physician in a suit against him for malpractice in causing the death. 27 Negligence of Assistant or Apprentice. The attending physician is responsible to his patient for the want of skill, care or good judgment of his assistant or apprentice, whom he puts in charge or permits to assist. 28 The assistant is also personally liable. 29 Partners. General partners in the actual practice of the profession are liable for the independent malpractice of either. 30 23 Foster v. Wadsworth Howland Company, 168 111., 514. 24 Teazel v. Alexander, 58 111., 254, 262; Barnes v. Means, 82 111., 379. 25 Sanderson v. Holland, 39 Mo. App., 233 ; Baker v. Wentworth, 155 Mass., 338. 26 Stanley v. Schumpert, 117 La., 255; 6 L. B. A., 306. 27 Murdock v. Walker, 43 111. App., 590. 28 Hancke v. Hooper, 7 C. & P., 81 ; Chicago B. Co. v. Flexman, 103 111., 546 29 Fish v. Walker, 7 Ohio N. P., 472; Beed v. Patterson, 91 111., 288, 297. 30 Hyrne t). Erwin, 25 S. C., 226 ; Haase v. Morton, 138 la., 205 ; Whittaker v. Col- lins, 34 Minn., 299; Hess v. Lowrey, 122 Ind., 225. 156 MEDICAL JURISPKUDENCE. Negligence of Substitute. The physician in charge who, leaving town or from sickness, puts another physician in charge, would not under the ordinary practice, be liable for the malpractice of such substitute. 31 In recommending such substitutes, he owes his patient only ordinary care in the selection, and he will not be liable for the independent malpractice of the physician whom he thus leaves in charge of the case ; unless they are partners, the patient must look to the one in default for the recovery of any damage he sus- tains by reason of malpractice. However, wherever possi- ble, the patient should be informed of the contemplated substitution and his consent obtained, otherwise the attend- ing physician might be liable for the negligence, if any, of the substitute, in delaying to make his first visit, or in fail- ing to assume charge of the case. 32 Practitioner Not A Guarantor of Beneficial Results. A practitioner cannot be regarded as an insurer of a success- ful result from his treatment, and to base a liability on failure alone would be to make him a guarantor. 33 Intoxication. Evidence that the practitioner was intoxi- cated at the time of rendering the services alleged to be improper, is admissible as a part of the res gesta? 4 Physician Engaged in Other Avocations. It has been held that in an action for malpractice, the patient may show that the practitioner was devoting time and attention to some other avocation, as such fact was considered as hav- ing a bearing upon the question of his skill and care. 35 Arbitrary Refusal to Take Case. Since a professional man is not required to render professional services to every- 31 Keller v. Lewis, 65 Ark., 578; Hitchcock v. Burgett, 38 Mich., 501; Myers v. Hoi- born, 58 N. J. L., 193. 32 Jones v. Angel, 95 Ind., 376. 33 Quinn v. Donovan, 85 111., 194, 195 ; McKee v. Allen, 94 111. App., 147 ; Yunker v. Marshall, 65 HI. App., 667. 34 Merrill v. Pepperdine, 9 Ind. App., 416. 85 Hess v, Lowrey, 122 Ind., 225 ; Mayo v. Wright, 63 Mich., 32. ELEMENTS OF BREACH. 157 one, he may arbitrarily refuse to undertake the treatment of a case and, in such event, he will not be liable for mal- practice whatever may be the consequences to the appli- cant. 36 The case last cited was a suit in malpractice under a statute based upon Lord Campbell's Act, giving a right of action for wrongfully causing the death of a person. Suit was brought by the administrator of a deceased person against a physician charging him with wrongfully causing the death of the intestate. STATEMENT OF FACTS. The defendant was a licensed physician who was, and for a number of years had been, practicing medicine in the locality, and who held himself out to the public as a general practitioner in that profes- sion. He had previously been the family physician of the deceased. It appears that the decedent became seriously ill and sent for the defendant by a messenger who informed the defendant of the extreme sickness of the decedent, ten- dered him his usual fee for services and stated to him that no other physician was procurable at the time and that decedent was relying upon him for professional attention and services. In fact, it was conceded that no other phy- sician was procurable at the time and that decedent did rely upon the defendant for professional assistance and relief in the emergency. Without any reason whatever the defendant refused to accept the call or render aid to the decedent. No other patients were requiring his immediate attention and he could have responded to the call without inconvenience. Death ensued without the fault of the dece- dent. GEAVAMEN OF THE COMPLAINT. In the complaint the death was alleged to have been caused solely from the act of the defendant in refusing to accept and respond to the call, a difficult allegation to prove. It appears to have been con- 36 Hurley v. Eddingfield, 156 Ind., 416. 158 MEDICAL JURISPRUDENCE. ceded by the plaintiff that there is no common law liability on the part of the physician to render professional services to all who apply and, therefore, this question was not di- rectly before the court. Statutes Do Not Require Licentiates to Practice. The real contention of the plaintiff was that the statute requir- ing parties who desire to practice medicine to procure a license implied that obligation. The statute in force at the time, provided for a Board of Examiners, standard of qualification, examination of applicants and license to those found qualified, and prescribed p/enalties for practicing without a license. The court held that the statute is a pre- ventative, not a compulsive, measure; that in obtaining permission from the State to practice medicine, the licensee does not engage that he will practice at all, nor does he promise to render the services on any other terms than he may choose to accept or adopt in each particular case, and that by the fact of issuing a license the State does not re- quire that the licensee shall in fact practice the profession, neither does it stipulate that he must serve all who need him. A license is a privilege, not an obligation. Civil Rights Acts. PURPOSES. The Civil Eights Acts of the various States are intended for the protection of all citizens in their civil and legal rights, their general purport being to entitle all persons within the jurisdiction of the State, regardless of color or race, to the full and equal en- joyment of all the accommodations, advantages, facilities, conveniences and privileges of inns, restaurants, eating houses, barber shops, public conveyances on land or water, theatres, and all other places of public accommodation and amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens, irre- spective of race, color or previous condition of servitude. 37 37 Baylies v. Curry, 128 HI., 287. ELEMENTS OP BREACH. 159 APPLICATION. The business to which these statutes apply must be of a public character; the statutes do not attempt to control the conduct of the citizen in his private matters. The statutes do not attempt to confer equality of social rights or privileges or enforce social intercourse. The only effect of the 13th and 14th amendments to the Federal Con- stitution, and of the statutes passed in pursuance thereof by Congress and the several States, is to place all citizens on an equality before tine law. 38 PHYSICIANS. These statutes and amendments do not re- quire a practitioner to undertake the relation of physician and patient with a party, regardless of race, color or previ- ous condition of servitude. They do not attempt to abridge his right to determine with whom he will contract and for whom he will render services. While he may hold himself out as ready to accept as patients all persons presenting themselves for that purpose who need his services, still his work, being professional in character and having a large personal equation is not sufficiently public in its nature to bring it within the provisions of these statutes. 38 Ganaway v. Salt Lake Dramatic Asso., 17 Utah, 37; Civil Bights Act, 1 Hughes (U. S.), 541; Coger v. N. W Union Packet Co., 37 la., 145; People v. Washington, 36 Cal., 658. CHAPTER XIV. CIVIL MALPRACTICE. Enforcement of Liability. Proof Necessary to Establish Malpractice. Since injuri- ous consequences, or failure to cure or relieve, ordinarily do not establish either want of skill, default in care or bad judgment, it follows that proof of injurious results or of failure to cure or relieve, is not sufficient to fasten liability upon the professional man. The mere failure to effect a cure or afford relief, raises no presumption of either igno- rance, negligence or poor judgment. 1 The fact that the patient grew worse under the treatment, and improved when the services were dispensed with, is not of itself sufficient to establish malpractice, as such facts may have been mere coincidences. 2 Anesthetic, Refusal to Give. Failure or refusal to ad- minister an anesthetic is not ground for action for mal- practice. 3 Mistake in Diagnosis. A mere mistake in diagnosis, not accompanied by improper treatment for the real trouble, will not render the practitioner liable. 4 Generally speaking, liability for malpractice attaches by reason of improper treatment rather than from any mis- taken diagnosis. The patient is not materially concerned in what the practitioner thinks his trouble to be, except as his conclusion takes concrete form by treatment for the 1 Tifft v. Wilcox, 6 Kans., 46. 2Wurdenmann v. Barnes, 72 Wis., 206; Ely v. Wilbur, 49 N. J. L., 685. 3 Dye v. Corbin, 59 W. Va., 266. 4 Red Cross v. Green, 126 111. App., 214. 160 ENFORCEMENT OF LIABILITY. 161 supposed malady. 5 A wrong diagnosis, not followed by improper treatment and injury to the patient, is not suffi- cient to predicate an action for malpractice. 6 PURPOSE OF THE DIAGNOSIS, BASIS OF LIABILITY. Where the sole purpose of the employment is the diagnosis and report of the same, negligence or bad faith in making the examination, resulting in a wrong conclusion and erroneous report, and consequent damages to the patient, constitutes a cause of action. 7 ILLUSTRATION. In the case last cited a young man was engaged to be married but the father of the girl refused his consent because of rumors that the fellow was afflicted with a venereal disease. He denied the charge and agreed with the father to submit to an examination by a physician se- lected by the father at the latter 's expense. The examina- tion was made and the physician erroneously reported that the fellow had such a disease. In consequence, the engage- ment was broken off and the fellow brought various suits for conspiracy, slander and malpractice against the father, the physician and others. On the trial the suits were con- solidated. It was found that the young man was not dis- eased; that the father and physician acted in good faith and that there was no conspiracy. There was technical de- fect in the pleadings in the slander suits and, therefore, liability on that score was not considered. In the suit for negligence or malpractice against the physician, the trial court instructed the jury to find a verdict in favor of the defendant, to which the plaintiff excepted and, on appeal, the supreme court said : "The verdict in the action for negligence must be set aside. The evidence tended to show that the defendant was employed by Morrill (the father). Having undertaken for 5 Grainger v. Still, 187 Mo., 197. 6 Red Cross v. Green, 126 111. App., 214; Tomer v. Aiken, 126 la., 114. 7 Harriott v. Plimpton, 166 Mass., 585. 162 MEDICAL JUKISPKUDENCE. compensation, to be paid by another, to examine the plain- tiff, and to report whether he was diseased, the defendant was bound to have the 9rdinary skill and learning of a phy- sician, and to exercise ordinary diligence and care; and if he failed, and the plaintiff was injured because of his want of such skill and learning or his want of such care, the de- fendant was answerable to him in damages. ... In our opinion, the fact that the purpose of the examination was information, and not medical treatment, is immaterial ; and the breaking of the plaintiff's marriage engagement, in consequence of the wrong diagnosis, was not too remote a damage to sustain the action. Upon the evidence, it was for the jury to say whether the defendant used ordinary care, learning and diligence. ' ' 8 INQUISITION OF SANITY. In inquisitions of sanity, the physician who examines the respondent and testifies in the case, is liable to the respondent for any damages he may sustain by reason of a mistake of the physician in his con- clusion, if the mistake resulted from carelessness, either in diagnosis or examination of surrounding facts, the exercise of bad judgment, or the want of ordinary skill in the prem- ises. Even when the physician is appointed by the court and commissioned to make the examination and give his opinion, he is acting in a ministerial, not a judicial, capac- ity, and the law holds him to the same degree of accounta- bility for skill, care and judgment, to the party whose rights are involved, and an error in his opinion arising from his negligence, willfulness or corruption, will make him liable to the respondent for the damage sustained by the latter as a result of such error. His liability is predicated upon the breach of his duty to make an ordinarily skillful and careful examination, and to use his best judgment in form- ing his opinion therefrom, whereby his conclusion was 8 Harriott v . Plimpton, 166 Mass., 585. ENFORCEMENT OF LIABILITY. 163 wrong and injury resulted to the respondent. He is not liable for the false testimony, even though it be perjured, and uttered in malice. 9 Usual Results Not the Test of Duty. The patient has a right to expect proper treatment in the light of the ad- vanced state of the science at the time and place, and the fact that the result of treatment is as good as is usually obtained in like cases similarly situated, will not excuse the physician for failing to give the patient the full benefit of the chances involved in proper treatment. 10 How Proven. The method of treatment, what was done and when, how and by whom, and all facts within ordinary observation, may be established by the testimony of ordi- nary witnesses, but the propriety and skill of the treatment or operation can be proven only by experts on the subject. 11 Whether the treatment in question was in conformity with established principles and usage; whether a surgical oper- ation was performed skillfully; whether a specified diag- nosis was proper; whether subsequent disease was due to alleged negligent treatment; whether the treatment con- formed to the principles of the school of medicine in ques- tion; whether certain results are usual from certain in- juries or diseases, are medical questions, and from the very nature of the case, opinion evidence in relation thereto must come from physicians. 12 A physician, however, can- not give his opinion that there was not malpractice, as that is a conclusion of law. 13 Expert opinions cannot be intro- duced by hearsay. 14 FAILURE TO TAKE X-RAY. Failure of a physician to take an X-ray of a broken arm does not constitute negligence, 9 Cooley on Torts, 210. 10 Burk v. Foster, 114 Ky., 20. 11 Spaulding v. Bliss, 83 Mich., 311. !2Tifft v. Wilcox, 6 Kans., 46. 13 Hanover v. Koch, 84 111., 408, 409. 14 Sims v. Moore, 61 la., 128. 164 MEDICAL JURISPRUDENCE. even though the physician diagnosed the break as a sprain, where the evidence showed that the diagnosis was made in a careful and proper manner and that the physician acted with ordinary skill and due care in the premises. 15 How- ever, the use of the X-ray in diagnosis has become so gen- eral in metropolitan cities and is so effective that, in certain classes of cases, the physician who does not take such pre- caution when such means are readily available to him, doubtless would and, certainly at this stage in the develop- ment of the science, should be made to respond in damages for an injury to his patient for a wrong diagnosis followed by improper treatment, if it should be made to appear that an X-ray would readily have disclosed the true condition and thus have enabled him to avoid the injury to his pa- tient. The physician must use all approved, practical, available, distinctive means to determine the condition of his patient and relieve him of his ailment, and a failure in this respect on his part should spell liability to him for all damages resulting to his patient therefrom. Burden of Proof. The burden is upon the patient to show by a preponderance of competent evidence, (a) that the physician was negligent, and (b) that certain injury re- sulted to him thereby. 16 Patient must prove these facts whether the action be for malpractice or as a defense of or in recoupment in, an action by the physician for a fee. 17 PREPONDERANCE OF EVIDENCE. It is not necessary to prove these facts beyond a reasonable doubt nor by evidence sufficient to establish a clear conviction thereof. A pre- ponderance is all that is required. 18 Questions which are susceptible of exact demonstration 15 Wells v. Ferry Baker Lumber Company, 57 Wash., 658. 16 Ewing v. Goode, 78 Fed., 442, 443. 17 Styles v. Tyler, 64 Conn., 432; Robinson v. Campbell, 47 la., 625. 18 Hoener v. Koch, 84 111., 408. ENFORCEMENT OF LIABILITY. 165 or absolute determination, are not often the subject of liti- gation. 19 NEED NOT EXCLUDE ALL PROBABLE CAUSES. It is not nec- essary to exclude every possible cause for the injury, except the negligence of the practitioner, it being sufficient to show that the wrongful treatment was the probable cause. But the jury is not permitted to determine by mere conjecture between two equally probable causes of the injury com- plained of, for only one of which the practitioner is respon- sible. 20 The patient, however, makes out his case, under such circumstances, when he has shown that it is more probable that the cause for which the practitioner was re- sponsible is the one that was the proximate cause of the untoward results. 21 JURY is NOT PERMITTED TO GUESS AT LIABILITY. The jury cannot be permitted to determine by guess or mere con- jecture between two equally probable causes of the injury, for only one of which the practitioner is responsible. Thus, INFECTION FOLLOWING TREATMENT. Proof that an infec- tion followed treatment or operation does not discharge the burden resting upon the patient to establish liability of the practitioner. He must introduce evidence tending to show that the practitioner was to blame and that it is at least probable that the untoward result was due to the improper conduct of the latter, and might not have happened but for such conduct. 22 MALPRACTICE, OR OTHER CAUSES. Where the death of a patient might have been caused by the improper adminis- tration of an anesthetic by the physician, or calcareous de- generation of the heart, the physician is not liable unless it 19 Boucher v. Larochelle, 74 N. H., 433. 20 Deschennes v. Concord R. Co., 69 N. H., 285. 21 Boucher v. Larochelle, 74 N. H., 433; 15 L. B. A., 416. 22 Ewing v. Goode, 78 Fed., 443. 166 MEDICAL JUKISPKUDENCE. is made to appear from all the evidence that the death re- sulted either wholly, or in part, from the improper use or administration of the anesthetic. 23 Where the improper treatment is shown and the inquiry is addressed to the cause of the injury, the jury is not per- mitted to conjecture or surmise other causes, but such other causes must be conceded or proved by competent evidence. 24 The burden of proving contributory negligence is on the physician, he holding the affirmative of the proposition. 25 Different Schools of Medicine. The law recognizes that there are different schools of medicine and it does not favor any particular school. The treatment adopted by a phy- sician is to be tested by the principles and practices of the school to which he belongs and under which he practices. The jury are not' authorized to consider the relative merits of the different systems. 26 The word "physician" is not restricted to any particular school. 27 Where an action was brought against an osteopath to recover damages for al- leged injuries caused to the patient by reason of his errone- ously diagnosing her trouble as dislocation of the hip and treating her for that affliction, when in fact she was suffer- ing from incipient hip disease, it was shown that hip disease is ascribed to the same cause and diagnosed in the same way by osteopaths and physicians of all schools, and thereupon the plaintiff called several allopathic physicians to testify as to the correctness of the defendant's diagnosis. The court held that such testimony was properly admitted, and said: "The expert medical witnesses offered by the plain- tiff were competent to express an opinion as to the diag- 23 Yaggle v. Allen, 48 N. Y. Supp., 827. 24 Boucher v. Larochelle, 74 N. H., 433. 25 Gramm v. Boener, 56 Ind., 497. 26 Bowman v. Woods, 1 Greene (la.), 441; Force v. Gregory, 63 Conn., 167; Nelson v. Harrington, 72 Wis., 591. 27 Raynor v. State, 62 Wis., 289 ; White v. Carroll, 42 N. Y., 161 ; Corsi r. Maretzek, 4 E. D/Smith (N Y.), 1. ENFORCEMENT OF LIABILITY. 167 nosis that was made by the defendant of the plaintiff's trouble, as related by the lay witnesses, to-wit, that she had partial dislocation of the hip-joint, and did not have hip disease, and also competent to testify as to any scientific fact that is, or ought to be, known to every physician of every school and system; but they are not competent to express an opinion as to the treatment of the plaintiff by the defendant, unless it should appear that both the schools to which the witnesses and the defendant belonged em- ployed the same treatment. ' ' 28 In an action against a Christian Scientist for malprac- tice, the propriety and skillfulness of his treatment must be tested by the generally accepted doctrines of his school, and even though such treatment in the particular case is against public policy as announced in the law, still the pa- tient cannot recover for injuries sustained .thereby, if the treatment was proper when measured by that standard, and if he knowingly employed the practitioner for that purpose and consented to such treatment. 29 Where the patient is a minor who has not arrived at the age of dis- cretion, a different test should be applied and the practi- tioner, whatever his belief or religion, should be required to show that his method of treatment was in accordance with enlightened intelligence and the recognized verities of the time, and no maudlin sentiment of religious convic- tions should be permitted to shield him from responding in damages for the consequences of his folly, or ignorance, or zeal. Where an X-ray was used by a physician to locate a foreign substance in the lungs of a patient, and not in con- nection with treating the patient for the trouble, a college professor who was familiar with the principles and effects 28 Grainger v. Still, 187 Mo., 197; 85 S. W., 1114. 29 Spead v. Tomlinson, 73 N. H., 46. 168 MEDICAL JURISPRUDENCE. of the rays on the animal organism, and experienced in their use in taking pictures and diagnosing anatomical conditions, was competent to testify as to the proper method of operating the appliances, and that in the case at bar the tube was held too close to the body and that the exposure was too long, thus causing the burns in question. The method of operating the apparatus, the degree of exposure which the patient could stand for diagnostic purposes and the anatomical effect of the rays, could not possibly be affected by the school of practice to which the operator be- longed and must necessarily be the same regardless of the school. 30 Failure to Present Bill No Admission of Wrong. In an action for malpractice, the patient cannot show that he has paid nothing for the services and that no bill has been ren- dered to him or charge made against him by the practi- tioner, as such failure is not an admission of guilt. 31 How- ever, where the fact that nothing was paid for the services was introduced by the practitioner, it was held harmless under the particular circumstances. 32 Exhibiting Injury. In an action for malpractice, the pa- tient may exhibit the injured member to the jury in order that they may determine the nature of the trouble charged to the practitioner, provided the demonstration does not involve indecent exposure. 33 When the Relation Begins. The responsibilities of the relation attach from the very moment of the acceptance of a call by the physician. When a patient comes to the office, the relation ordinarily begins with the commencement of the first diagnosis, however informal it may be, and an un- 30 Henslin v. Wheaton, 91 Minn., 219. 31 Baird v. Gillett, 47 N. Y., 186. 32 Jones r. Angel, 95 Ind., 376. 33 Lenark v. Dougherty, 153 111., 163, 165; Jefferson Ice Co. v. Zwicokoski, 78 HI. App., 646; Fowler v. Sergeant, 1 Grant's Cases (Pa.), 355; Hess v. Lowrey, 122 Ind., 225 ; Freeman v. Hutchinson, 15 Ind. App., 639. ENFORCEMENT OF LIABILITY. 169 skillful, careless examination resulting in a mistaken recom- mendation that no treatment or operation is necessary, if it results in injury to the patient, is as much a breach of duty as though it had been followed by improper treatment. PROMPT RESPONSE TO CALL. If a physician accepts a call, he must respond with reasonable promptness, under the cir- cumstances, and if he defaults therein with resulting injury to his patient, he will be liable for the damages sustained. 34 When the Relation Ends. The relation, once begun, does not terminate until the patient has been discharged as cured or until the physician has been relieved of further responsi- bility by the patient. If he quits the case too soon, or, when discharging the patient, fails to give him proper and neces- sary instruction to enable the patient to get along without his services, he is guilty of a breach of duty. Of course, the physician or patient can always terminate the relation on notice to that effect. When the notice is given by the patient, the relation terminates in accordance therewith and it may be peremptory. If the physician gives the notice at a time when the patient is still in need of medical or sur- gical attention, the relation will continue for a reasonable time thereafter to enable the patient, with reasonable dili- gence, to secure another practitioner. Conceding that the relation has ceased, the parties are in the same position as though the relation had never existed, and the physician is not bound to respond to a new call, however urgent, espe- cially when another physician has been on the case in the meantime. 35 What Constitutes Malpractice, Is A Question of Law. The question as to what is the proper degree of skill and care required of a practitioner is a question of law, for the court to determine and announce. 36 But the question as to 34 Adams v. Henry, 165 Mich., 554. 35 Tomer v. Aiken, 126 la., 114; 24 A. C., 833 3Link v. Sheldon, 136 N. Y., 1. 170 MEDICAL JURISPRUDENCE. whether or not these requirements were present in the par- ticular case, is a question of fact for the jury to determine. 37 In other words, it is for the jury to say, from all the evi- dence, whether or not the treatment amounted to negligence, under the rule of skill, care and judgment required by the law. 38 37 Harriott v. Plimpton, 166 Mass., 585; Langford v. Jones, 18 Ore., 307; Olmstead v. Gere, 100 Pa., 127. 38 Van Hooser v, Berghoff, 90 Mo., 487; Hewitt v. Eisenbart, 36 Neb., 794; Tifft v. Wilcox, 6 Kans., 46; Carpenter v. Blake, 60 N. Y., 488. CHAPTER XV. CIVIL MALPRACTICE. Defenses, Damages and Other Features. Defenses. Proper Treatment. In defense of an action for malprac- tice, the practitioner is entitled to show by expert evidence that the treatment given was such as a practitioner of ordi- nary skill, care and good judgment, would and ought to have given. 1 Former Judgment for Physician. On the trial of an action for malpractice against a physician, he may show that he previously brought suit to recover his fee and obtained a judgment, although defended by the present plaintiff on the ground of malpractice. In some States such judgment is a bar to the subsequent action. 2 However, if the patient did not appear and defend the suit for fee but permitted the judgment to be entered by default, it has been held that he is not debarred his right of action for malprac- tice. 3 The courts are not in unison on the effect of judg- ments for fees on subsequent action for malpractice with reference to the same services. 4 Injury from Other Causes. The physician may show that the injury came, or might with equal likelihood have come, from other causes than his carelessness, and if the evidence leaves it uncertain whether the untoward results complained of arose from the wrongful conduct of the practitioner or 1 Quinn v. Higgins, 63 Wis., 664. 2 Howell v. Goodrich, 69 111., 556 ; Blair v. Bartlett, 75 N. Y., 150. 3 Lawson v. Conaway, 37 W. Va., 159. 4 Jordahl v. Berry, 72 Minn., 119; 45 L. R. A. (O. S.), 541. 171 172 MEDICAL, JUKISPKUDENCE. from other causes, the patient cannot recover in an action for malpractice nor defeat an action by the physician for his fee, because the law indulges no presumption against the latter. 5 One Suit One Recovery. The law does not permit a multiplicity of suits for one cause of action, but requires the plaintiff to prove his entire damage, present and prospec- tive, in his first case. Hence, a patient cannot bring suc- cessive suits, from time to time as his loss may accrue, for malpractice, but he is required to prove his entire damage in the first action, and if he fails to do so he must bear the loss. 6 The case just cited was an action against a physician for malpractice in setting a fractured arm. of plaintiff's son. It appeared that prior to the commencement of the suit the physician brought an action against the plaintiff to recover his fee for the same services ; that the plaintiff defended on the ground of malpractice and that on the trial the physician recovered the full amount of his claim. Held, that adjudica- tion in the suit for the fee was a bar to a recovery for the alleged malpractice. Mistake by Patient. A patient cannot recover for in- juries resulting from a mistake into which he himself led the physician, unless the conduct of the latter was incon- sistent with ordinary and reasonable skill and care. 7 Damages. Kinds of Damages. Damages are three in kind, (a) Nominal, (b) Compensatory, and (c) Exemplary or Puni- tive. Nominal damages are a trifling sum awarded when a breach of duty or an infraction of a right of the plaintiff is shown, but no serious loss is proven to have been sus- 5 Boucher v. Larochelle, 74 N. H., 433. 6 Howcll v. Goodrich, 69 111., 556. 7 Park v. Adams, 12 Mete., 417 ; Clark v. Keriom, 4 E. D. Smith, 21. DEFENSES, DAMAGES, OTHER FEATURES. 173 tained, or where, from the nature of the case, some injury has been done, the amount of which the proofs fail to show with sufficient certainty, or not at all, or cannot be shown. They are "a peg to hang costs upon." They arise by implication of law by reason of a breach of duty. 8 Compensatory damages are such as will compensate the wronged party for the injury he has sustained and nothing more. They proceed from a sense of natural justice and end at the point where the wrong has been repaired. 9 Exemplary or Punitive, or Vindictive damages are those given in addition to compensation for a loss sustained, in order to punish and make an example of the wrongdoer. They are allowed where a tort is aggravated by evil motives, actual malice, deliberate violence, oppression or fraud, or where the party acts willfully or with such gross negligence as to indicate a disregard of the rights of others. 10 The purpose and intent of such damages are to punish the of- fender and furnish an example of the dangers consequent on such misconduct. 11 While there is a maxim of law older than our language De minimus non curat lex the law does not concern itself with triflers still if, as a matter of substantial right, a party is entitled to nominal damages, carrying costs of suit, and the jury finds in favor of his adversary, a new trial should be allowed him on motion, or if judgment has been entered against him for costs, it should be set aside and a new trial granted; but the maxim usually applies in such cases and appellate courts will not interfere. 12 Presumptions. It is to be assumed that every physical 8 Stanton v. R. Co., 59 Conn., 272; Maher v. Wilson, 139 Cal., 514; W. U. T. Co. V. Lawson, 66 Kan., 660; Sellers v. Mann., 113 Ga., 643. 9 McKnight v. Dessny, 198 Pa., 323; Sachra v. Massilla, 120 la., 562; Navigation Co. v. U. S., 148 U. S., 312; Reid v. Terwilliger, 116 N. Y., 530. 10 Con. Coal Co. v. Haenni, 146 111., 614, 628. 11 Garrick v. R. Co., 53 8. C., 448. 12 Stevens v. Yale, 113 Mich., 580; Fisher v. Hopkins, 85 111. App., 207; 5 A. C., 223, 225. 174 MEDICAL JURISPRUDENCE. endowment, function and capacity is of importance in the life of every man and woman and that occasion will arise for the exercise of each and all of them, and to the extent to which any function is destroyed or its discharge rendered painful or perilous by the wrongful infliction of personal injury, is the party complainant entitled to damages. We can, in other words, conceive of no physical injury wrong- fully inflicted, whether entailing pain only, or disfigurement or incapacity, relative or absolute, to perform any of the functions of life, which may not be made the predicate for compensation in damages. 13 Elements of Damages. In assessing damages for mal- practice the court or jury should take into consideration the pain and suffering incident to the wrongful treatment, loss of time, loss of health, increased delay in effecting a cure and the probability of permanent injury necessarily or reasonably consequent on the injury sustained by the mal- treatment. 14 He may show his pecuniary loss direct or indirect, im- paired earning capacity, loss of time and its value, actual expenses incurred and pain and suffering, even up to the time of trial, any disfigurement of person resulting from the malpractice, permanency of the injury resulting there- from, and the station and condition in life of the patient, mental worry, anxiety, discomfort, mortification and chagrin, by reason of the injury from the malpractice. 15 The correct measure of damages for injury caused by carelessness or unskillful treatment by a physician is reason- able compensation for the bodily pain and mental suffering, if any, endured by the patient, and the impairment of the 13 Alabama R. Co. v. Hill, 93 Ala., 514, 515. 14 McCracken v. Smeathers, 122 N. C., 799. 15 Chamberlain v. Porter, 9 Minn., 244 ; Tint v. Wilcox, 6 Kans., 46 ; Cody v. Weins, 1 Mont., 424; Coombs v. King, 107 Me., 376, 380. DEFENSES, DAMAGES, OTHER FEATURES. 175 patient's ability to earn money and his loss of time, if any, occasioned by the negligence of the physician, and where the act is also willful or the negligence gross, exemplary damages may be assessed. 16 Patient's Duty to Prevent Aggravation of Injury. It is a general rule of law that a person who is injured by the fault of another must use all reasonable means to protect himself against aggravation of the injury and cannot recover for any suffering or physical disability which, under the circum- stances, could have been prevented by the use of reasonable precaution and attention in caring for the injury. 17 But this doctrine can have but little bearing in a case of mal- practice, because the patient is usually justified in assum- ing that he is already receiving proper medical and surgical attention. A person who is suffering from an injury is required to use reasonable diligence to employ a physician of skill to treat him, where treatment is reasonably necessary, and if he is not negligent in failing to employ any physician, all the damages he sustains will be regarded as the natural con- sequences of his original injury, even though physicians may have the opinion that, with medical assistance, the result would not have been as serious; and if he employs a skillful physician, the law regards an injury resulting from the mistakes of such physician, or from the failure of the means employed by him to effect a cure, as a part of the immediate and direct damages flowing from the original injury. 18 The reason for the rule does not apply in cases of patient and physician ; hence, a patient is not bound to seek the aid 16 Dorris v. Warford, 124 Ky., 768. IT Murphy v. S. P. Co., 31 Nev., 120, 134; Osborne v. Detroit, 32 Fed., 36; 21 A. 0., 502, 513. 18 Variety Mfg. Co. v. Landaker, 227 111., 22, 25. 176 MEDICAL JUEISPEUDENCB. of other practitioners to mitigate the consequences of the mistakes of his attending physician as long as the relation exists. 19 Mere Contingencies. Consequences which are contingent, speculative or merely possible are not proper to be consid- ered in assessing damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, or even that they are likely so to develop. To entitle the plaintiff to recover present damages for apprehended future conse- quences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. 20 Therefore, physicians will not be permitted to testify that certain speci- fied results sometimes follow a specified inquiry. 21 Cannot Recover for Original Injury or Disease. The damages which a patient may recover are those growing out of the injury resulting from the negligence, but not for any loss sustained by reason of the original disease or condition. Mitigation. Where a physician is sued for malpractice resulting in the death of his patient, he may show that the nature of the patient's disease was of such character that he would have died soon in any event. Though not a bar, the fact goes to mitigation of the damages. 22 Excessive Damages. In an action for malpractice, a ver- dict for the patient will not be set aside on the ground that the damages found are excessive, unless it appears that the jury was influenced by passion, prejudice or other improper motive. 23 An Illinois court considered that a judgment for three 19 Chamberlin v. Morgan, 68 Pa, 168. 20 McLain v. R. C., 116 N. Y., 460, 467. 21 Blate v. R. Co., 44 N. Y. Supp., 615; Pry v. R. Co., 45 la., 416. 22 Chase v. Nelson, 39 HI. App., 53. 23 Chamberlain v. Porter, 9 Minn., 260; Kelsey v. Hay, 84 Ind., 189. DEFENSES, DAMAGES, OTHER FEATURES. 177 thousand dollars was not excessive in a malpractice case, where the defendant, while claiming to put in artificial teeth without plate or bridge work, placed in the plaintiff 's mouth heavy bridge work by what was pretended to be a secret process, and in so doing filed, ground, broke and loosened plaintiff's teeth and produced other damage to her mouth. The case contained an element of fraud and deceit, and the court held that there was evidence to support such a charge, and these facts should be taken into consid- eration in accepting the case as an example, since it appears from the report of the case that the damages allowed were more than compensatory. 24 A verdict for $500 was held not excessive in an action against a dentist for negligence in allowing a tooth to fall into the patient's windpipe during the operation of extrac- tion. 25 Form of Action. A suit for malpractice is a civil action. Such actions are almost invariably in tort, that is, ex delicto in character. However, a practitioner may make a special contract with his patient for special skill and care, for viola- tion of which he will be liable in contract; but where the action is for a breach of the obligation imposed by law as a matter of public necessity and policy, it is in the nature of tort and not in contract. 26 Nevertheless, "if the defendant made a contract with the plaintiff to treat him and his fam- ily, as alleged in the petition . . . and simply broke the con- tract by refusing to come when sent for . . . the right of action would be simply for the breach of the contract, and there would be no right of action in tort. But if the phy- sician came and undertook the case and, having undertaken it, was negligent in his treatment, then a cause of action in tort may be maintained for the non-performance of the duty 24 Prout v. Martin, 160 111. App., 11. 25Keily v Colton, 1 City Ct. (N. Y.), 489. 26 Carpenter v. Walker, 170 Ala., 659 ; 25 A. C., 866. 178 MEDICAL JURISPRUDENCE. which the law cast upon him when he undertook to treat the case." 27 A practitioner who accepts but fails to respond to a call cannot be said to be guilty of malpractice, and, if the patient is damaged, his action ought to sound in con- tract. 28 But even in such case, the question might arise as to whether the delay in responding was due to refusal to call at all, or. to negligence in determining when to make the visit. Some courts hold that in any case the patient may waive the tort and sue in contract. 29 And the law of con- tracts with reference to limitations and survival applies. 30 Where the patient sues for the breach of a special agree- ment his action is in contract. 31 BEASON FOE ALLEGING CONTRACT. In actions of malprac- tice the usual allegations of employment of the practitioner by the patient are mere matters of inducement to show the relation existing between the parties and, inferentially, the obligation imposed by law on the practitioner by reason thereof. Death from Malpractice. At common law no action lies for damages caused by the death of a human being, by the wrongful or negligent act of another, in favor of the heirs, distributees or personal representatives of the decedent. 32 LORD CAMPBELL'S ACT. In 1846 the British Parliament passed a statute familiarly known as Lord Campbell's Act, in words as follows: "That whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to main- tain an action and recover damages in respect thereto, then 27 Randolph v. Snyder, 139 Ky. t 159. zsSee Adams v. Henry, 165 Mich., 554; 24 A. C., 829. 29 Lane v. Boicourt, 128 Ind., 420. so Staley v. Jameson, 46 Ind., 156 ; Long v. Morrison, 14 Ind., 595 ; Goble v. Dillon, 86 Ind., 327. 31 Burns v. Barenfield, 84 Ind., 43. 82 Holton v. Daly, 106 HI., 181, 136. DEFENSES, DAMAGES, OTHEE FEATURES. 179 and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person in- jured and, although the death shall have been caused under such circumstances as amount, in law, to a felony." The act then provides that the suit shall be brought for the benefit of the wife, husband, parent and child of the de- ceased in the name of the personal representative of the deceased. ADOPTED GENERALLY. This statute has been enacted, with slight modifications and additions, in all the States of the United States, and in all countries which follow English jurisprudence, and wherever such a statute is in force a practitioner is liable for all damages sustained by the bene- ficiaries named in the statute, in case the death of his pa- tient results from his malpractice. DAMAGES. In these cases, where the beneficiaries are lineal kindred of the deceased, the damages which are re- coverable are usually limited to the pecuniary loss sustained by such beneficiaries. 33 Joint Tort Feasors Joint and Several Actions. Where two or more physicians are jointly guilty of malpractice, suit may be brought by the patient against all jointly, or one, or any number less than all, at the option of the pa- tient, or separate actions may be brought against all, or any number less than all. 34 One practitioner, however, is not liable for an injury inflicted by another, unless they were partners or acted in concert or co-operation, and sev- eral will not be liable for the torts of one unless they con- certed or co-operated in the negligent act, or unless their combined, co-operating conduct produced the resultant injury. 33 Chicago, etc. v. Kelly, 182 111., 267. 34 Barnes v. Means, 82 111., 378; Yeazel v. Alexander, 58 111., 254, 261; Chicago v. Babcock, 143 111., 358, 366. 180 MEDICAL JURISPRUDENCE. INDEPENDENT ACTS. Where the acts of the practitioners are entirely distinct and separate as to aid, concert, advice, co-operation or countenance, one to the other, there can be no joint liability and each will be liable only for his own wrong. 35 PHYSICIAN AND DRUGGIST. The physician who writes a prescription and carelessly inserts a deadly drug, or too large a proportion thereof, in view of the prescribed dose, and the druggist who compounds it with knowledge of the use to which it is to be put, are jointly liable to the patient for injurious consequences, or to the proper representative in case of the death of the patient as a result of taking the medicine. 36 ASSISTANT TO SURGEON. Where the family physician is present at an operation and assists the operating surgeon in minor ways but does not exercise any discretion as to the operation, and did not have anything to do with the handling of sponges or gauze, he is not jointly liable with the operator who carelessly left gauze in the abdominal cavity after closing the wound. 37 CONTRIBUTION. Where a patient sues only one practi- tioner, or any number less than all who are jointly guilty of malpractice, those sued cannot require the others to be made parties to the suit nor to contribute to the payment of the judgment. 38 When an action is founded upon con- tract all parties liable are required to contribute their pro rata share. SATISFACTION. In cases of this character, a patient can have but one satisfaction of his damages. If, for a suffi- cient consideration, he releases one of the joint wrongdoers, he releases all and, if a judgment against one is satisfied, 35 Teazel v. Alexander, 58 111., 254, 262. 36 Sutton v. Wood, 120 Ky., 23 ; 8 A. C., 894 ; Tumblay v. Kimball, 24 A. C., 1215, 1219; Murdock v. Walker, 43 111. App., 590. 37 Brown v. Bennett, 157 Mich., 654. 38 Bend v. R. R. Co., 8 111. App., 517, 525; Reed v. Peterson, 91 111., 288, 297. DEFENSES, DAMAGES, OTHER FEATURES. 181 it bars a prosecution of the others, or a collection on the judgments. 39 PURCHASE OF PEACE AGREEMENT NOT TO SUE. An agree- ment not to sue is not considered an accord and satisfac- tion, does not amount to a release and, therefore, if given to one or more joint wrongdoers, for a sufficient consider- ation, does not bar action against other joint wrongdoers. 40 Survival of Action. In the absence of statutory pro- visions to the contrary, a right of action for malpractice does not survive the death of either patient or practitioner, and if suit has been brought, it abates upon the death of either. 41 However, if a partner, who is guilty of malpractice, dies, the right of action survives against the surviving partner, whether the latter contributed to the malpractice or not. 42 39 Vigeant v. Scully, 35 111. App., 44, 47. 40 Chicago v. Smith, 95 111. App., 335, 339. 41 Vittum v. Oilman, 48 N. H., 416 ; Boor v. Lowrey, 103 Ind., 468 ; Wolf v. Wall, 40 O. St., Ill; Lattimore v. Simmons, 13 S. & R., 183. 42 Hess v. Lowrey, 122 Ind., 225. CHAPTEE XVI. CRIMINAL MALPRACTICE. Definition. Criminal malpractice consists in doing acts which show a reckless disregard of human life or which are expressly forbidden by statutes or denounced by the common law, on the part of a physician in treating a pa- tient, by means of which the patient suffers death or un- necessary injury. 1 Negligence. Criminal Liability. In case of gross negligence of a phy- sician, resulting in the death of his patient, he may be guilty of manslaughter. 2 In order to sustain the action, gross incompetency or reckless inattention or indifference must be shown. An inadvertent mistake, a mere error of judgment, an inability to master unforeseen conditions will not be sufficient to predicate such liability. 3 In case of criminal negligence, where death does not result, the prac- titioner will be guilty of a misdemeanor. 4 The real intent of the physician is immaterial. He is presumed to intend the reasonable and probable consequences of his acts. 5 Thus, in England, a physician has been held criminally liable where corrosive sublimate was applied as a remedy for cancer and as an emetic to remove mercury from the system, and where other dangerous and deadly medicines, as arsenic and lobelia, were administered by one ignorant 1 Tucker v. Gillett, 22 O. Oir. Ct., 664, 669. 2 State v. Reynolds, 42 Kan., 320. 3 Com. v. Pierce, 138 Mass., 165. 4 State v. Reynolds, 42 Kan., 320; Hyatt v. Adams, 16 Mich., 198. 8 Rex v. Simpson, 4 C. & P., 398 ; Stehr v. State, 92 Nebr., 755. 182 CBIMINAL MALPRACTICE. 183 of their effects. Mere error of judgment does not consti- tute criminal carelessness. Eeckless failure to give proper instructions to a patient as to the use of a dangerous drug, gross ignorance of the proper use of instruments or of the effects of dangerous remedies employed and the selection and application thereof may constitute criminal malprac- tice. 6 Abortion. Definition. Abortion is the act of miscarrying, or pro- ducing young before the natural time; before the foetus is perfectly formed, or able to sustain life. To cause, procure or produce an abortion is, therefore, to cause, procure or produce this premature bringing forth of the foetus. Criminal Abortion. At Common Law. Abortion as a crime is to be found only in modern treaties and modern statutes. No trace of it is to be found in the ancient common-law writers. 7 How- ever, the courts of this country are not agreed as to the nature of this act at common law. In a number of the States there are decisions to the effect that "to produce an abortion on a woman before she is quick with child and with her consent" is not to commit the common law crime of abortion. On the other hand, it has been judicially de- clared in Pennsylvania that " It is a flagrant crime at com- mon law to attempt to produce the miscarriage or abortion of a woman, because it interferes with and violates the mysteries of nature in the process of which the human race is propagated and continued. It is a crime against nature which obstructs the fountains of life and therefore it is punished. ... It is not the murder of a living child which constitutes the offense of abortion, but the destruction of 6 22 Am. & Eng. Ency. Law, 811. 1 State v. Cooper, 22 N. J. L., 52. 184 MEDICAL JURISPHUDENCE. gestation by wicked means and against nature. . . . The moment the womb is instinct with embryo life and gesta- tion has begun, the crime may be perpetrated. " 8 It is perfectly certain, by the unanimous concurrence of all the authorities, that at common law, the offense could not be committed unless the child had quickened. This seems to be the reasonable and just doctrine. 9 Attempt To Abort. The law prohibits not only abortion when without legal justification but also the attempt to abort when not legally necessary. Intent. Intent to produce a miscarriage, without legal excuse, is a necessary element of the offense; hence to as- sault and beat, in anger, a pregnant woman, thereby caus- ing her to abort, does not constitute the crime of abortion. 10 Intent may appear manifest from the character of the means employed, must be shown by the circumstances and will be presumed if the statutory elements of the offense are present. 11 Where a physician attended a woman in premature con- finement, to which he in no way contributed, and removed the foetus by force, he was held not liable criminally under the provisions of the statute of Illinois. 12 That the de- fendant was the father of the child is competent evidence to show the motive for an attempt to produce an abortion. 13 Without the Woman's Consent. The use of violence upon a woman, with intent to produce her miscarriage, even before quickening, without her consent, is an assault highly aggravated by such wicked purpose and is indictable at common law. 14 8 Mills v. Com., 13 Pa. St., 630. 9 State v. Slagle, 83 N. C., 630 ; People v. Sessions, 58 Mich., 594 ; Smith v. Gafford, 31 Ala., 45; State v. Atwood, 54 On. 526; 21 A. C., 516, 522. 10 Slattery v. People, 76 HI., 217. 11 State v. Glass, 5 Ore., 73. 12 Honnard v. People, 77 HI., 481. 13 Scott v. People, 141 111., 195. i* Com. v. Parker, 9 Mete. (Mass.), 263; Smith v. State, 33 Me., 48; State v. Cooper, 22 N. J. L., 52. CRIMINAL MALPRACTICE. 185 Of course, the consent of the woman does not relieve the act of its criminality under the statutes or at common law. 15 Knowledge of Pregnancy. An intent to commit an abor- tion may exist without an absolute knowledge of preg- nancy. 16 Pregnancy Not Necessary to Attempt to Abort. Under some statutes which do not specify a pregnant woman, an attempt to cause abortion may be committed on a woman, even though she is in fact not pregnant. The offense is considered complete when the overt act is committed with the specific criminal intent. 11 Means Employed. Where the intent to commit an abor- tion exists, the means employed are usually not material. Thus, where a party has a pregnant woman under his con- trol and induces her to indulge in excessive and violent exercise with the intent thereby to produce an abortion, and such result follows, he is guilty of the offense. 18 Failure to Produce Abortion. The fact that the efforts of the defendant were barren of results and the contem- plated miscarriage was not effected, has no bearing upon the guilt of the accused when charged with an attempt to abort, since the actual abortion is not necessary to the consummation of the offense. 19 Advice to Procure Abortion. Ordinarily, mere advice to a pregnant woman to take medicine to bring about a mis- carriage, or to undergo an operation for that purpose, without any overt act or assistance, will not render the advisor guilty of the offense denounced by the statute. 20 However, owing to the language of some statutes, mere ad- 15 State v, Moore, 25 la., 128; Com. v. Snow, 116 Mass., 47. 16 Powe v. State, 48 N. J. L., 34. 17 Powe v. State, 48 N. J. L., 84; Com. v. Surles, 165 Mass., 59; Eggart i>. State, 40 Pla., 527. 18 1 Cyc., 170. 19 Smith v, 'State, 33 Me., 48; Willingham v. State, 33 Tex. Grim., 98; State v. Owens, 22 Minn., 238. 20 People v. Phelps, 133 N. Y., 267. 186 MEDICAL JUKISPEUDENCE. vice and information are considered as completing the offense of attempt, without any overt act. 21 Proof of Pregnancy. Where the statute designates a pregnant woman or a woman pregnant with child, the preg- nancy of the woman in question must be proven beyond a reasonable doubt, but not with absolute certainty, such reasonable certainty as shall silence all reasonable doubt is sufficient. 22 If the pregnancy is admitted and the de- fense offered is that the foetus was dead at the time of the operation, the burden is upon the defendant to introduce some evidence to establish that fact, on the ground that life once existing is presumed to continue. 23 Stage of Pregnancy. Where the statutes make preg- nancy of the woman an ingredient of the offense, without specifying the stage of gestation, the crime may be com- mitted at any time after conception and before complete parturition. 24 Period of Pregnancy. Pregnancy begins with conception and ceases when the foetus has come forth from the womb, even though it is still attached by the umbilical cord, and though the afterbirth has not been removed. 25 Existence of Pregnancy. Pregnancy may be shown by conduct, statements and probative circumstances, 26 and it need not be proven that the foetus was alive at the time and in the course of nature would have matured into a human being. 27 If the foetus was dead, such fact is a defense. Evidence. The mere fact that treatment was followed by expulsion of the foetus, does not establish the offense, but is a fact to be taken into consideration. A denial by 21 State v. Murphy, 27 N. J. L., 112. 22 State v. Stafford, 145 la., 285 ; Fitch v. People, 45 Colo., 298 ; State v. Lilly, 47 W. Va., 496. 23 Com. v. Reid, 8 Phila. (Pa.), 385, 400. 24 State v. Fitzgerald, 49 la., 260. 25 Com. v. Brown, 14 Gray (Mass.), 415. 20 State v. Alcorn, 7 Idaho, 599. 27 Com. v. Surles, 165 Mass., 59. CRIMINAL MALPRACTICE. 187 the woman that she had been .criminally aborted will not defeat a prosecution, and often is entitled to but little con- sideration in the light of other facts and circumstances. However, she is not usually considered an accomplice. 28 KES GEST.E. Letters, statements and conduct of the woman so closely connected in time and substance with the facts and conduct alleged as to be a part of the res gestce, are admissible in a prosecution of a physician for causing the abortion. 29 CIRCUMSTANTIAL EVIDENCE. The evidence in abortion cases is almost exclusively circumstantial, and the question of admissibility of collateral facts is often determined by the nature of the case under consideration. The tendency is to permit the evidence to cover a wide range of subjects and to admit in evidence any fact which has a bearing on any issue in the case. 30 It is proper to show that the physician accused held him- self out as able and willing to assist women in producing miscarriages, when evidence has been introduced tending to show the commission of the offense, or where the phy- sician admits the act and attempts to justify it on the ground of necessity, because such holding out tends to show his intent and characterizes the act. 31 OPINION EVIDENCE. The opinions of medical experts are admissible to prove that an abortion had been performed on a woman, the nature and effect of drugs, treatments and instruments, the stage to which pregnancy had advanced at the time of the expulsion, and other pertinent matters of a medical character. But the opinion of the woman as to 28 People v. Vedder, 98 N. Y., 630; Com. v. Boynton, 116 Mass., 343; Smartt v. State, 112 Tenn., 539; State v. Smith, 99 la., 26; Seifert v. State, 160 Ind., 464. 29 State v. Dickinson, 41 Wis., 299 ; Solander v. People, 2 Colo., 48 ; State v. Ryder, 80 Vt., 422. 30 Clark v. People, 224 111., 554, 562; People v. McGonegal, 136 N. Y., 62; Diehl v. State, 157 Ind., 549. 81 Clark v. People, 224 111., 554; People v. Sessions, 58 Mich., 594; Clark v. Com., Ill Ky., 443. 188 MEDICAL JURISPRUDENCE. the effect of the drugs taken or treatments administered is not admissible. 32 Of course, she can testify as to what followed the treatment or administrations, but she cannot state that such conditions were the result of the treatment or operation. 33 Statutes. This subject is now regulated by statute. The same general purpose is aimed at by all legislation and the provisions are substantially similar. The statute of Illinois may be taken as an illustration of the spirit of such laws. "Whoever, by means of any instrument, medicine, drug or other means whatever, causes any woman, pregnant with child, to abort or miscarry, or attempts to procure or pro- duce an abortion or miscarriage, unless the same were done as necessary for the preservation of the mother's life, shall be imprisoned in the penitentiary not less than one year nor more than ten years ; or if the death of the mother re- sults therefrom, the person procuring or causing the abor- tion or miscarriage shall be guilty of murder. ' ' 34 Necessary to Save the Mother's Life. BURDEN OF PROOF. All statutes except from their prohibition cases when the delivery is necessary to save the mother's life, the exception being expressed in slightly varying language in different States. Ordinarily the burden is on the de- fendant to show that his act comes within the exception to a statute. However, in cases of abortion, where the statute excepts cases necessary to save the mother's life, the ma- jority of the courts hold that the burden is on the prosecu- tion to prove the absence of such necessity for the oper- ation. 35 Even if the exception did not appear in the 32 State v. Baldwin, 79 la., 714; King v. State, 35 Tex. Grim., 472. SSNavarro v. State, 24 Tex. App., 378; People v. Olmstead, 30 Mich., 431. 34 R. S. 111., Chap. 38. 35 State v. Lee, 69 Conn., 186 ; State v. Aiken, 109 la., 643 ; State v. Clements, 15 Ore., 237; Moody v. State, 17 O. St., 110; State v. Meek, 70 Mo., 355; Hatchard v. State, 79 Wis., 357. CRIMINAL, MALPRACTICE. 189 statute, doubtless the existence of the fact that the oper- ation was necessary to save the mother's life, would com- pletely exonerate the physician and relieve him of criminal liability in performing the operation but the burden of proving such fact would be upon him. 36 NECESSITY . MEANING OF THE TERM. The necessity men- tioned in the various statutes, and which as a matter of common law will justify the operation, is intended to cover only those cases where the death of the mother might rea- sonably be expected to result from natural causes, growing out of or aggravated by the pregnancy, unless the child is destroyed. Of course, it need not appear that the death of the mother is inevitable and at hand in the absence of the operation. 37 However, the fact that the woman has threatened to commit suicide unless relieved of her child is not such a necessity as the statutes contemplate or the common law would recognize. The threatened death must be the natural and apparent result of existing conditions. 38 A desire to shield the woman from ignominy and disgrace does not bring the case within the exception, nor relieve the act of criminality. 39 ADVICE OF PHYSICIAN. Where a physician after proper examination, in good faith, concludes that an operation is necessary to save the life of the mother or child, and his diagnosis and prognosis are concurred in by other phy- sicians, after independent investigation, he is justified in acting, even though the statute makes no provision for de- termining when the necessity exists, or does not except such cases. 40 The mere belief of the operator that abortion is necessary, however conclusively established, is not suffi- 36 State v. Fitzporter, 93 Mo., 390; Bassett v. State, 41 Ind., 303; State v. Clements, 15 Me., 237; State v. Stokes, 54 Vt., 179. 37 Beasley v. People, 89 111., 571. 38 Hatchard v. State, 79 Wis., 357. 39 Com. v. Wood, 11 Gray (Mass.), 85; Com. v. Snow, 116 Mass., 47. 40 People v. Johnson, 33 Colo., 224; Beasley v. State, 89 111., 572. 190 MEDICAL JURISPRUDENCE. cient; the necessity must exist as a matter of fact* 1 and such conditions must be shown as reasonably to justify such belief. Distinction Between Civil and Criminal Malpractice. 1. The former is a civil, the latter a criminal action. (a) The one is brought by the injured patient; the other, by the State. (b) In the first, the patient recovers for his damages; in the second, a fine is levied and perhaps imprisonment in- flicted as a punishment for the offense. (c) The civil is compensatory, for damages sustained; the criminal is remedial and punitive for the purpose of preventing crime. 2. The civil action is based upon want of skill, care or good judgment; the criminal action has no reference thereto, the act itself constituting the offense. 3. In the civil, the consent of the patient usually is a complete defense where the fact (as consent to a surgical operation) enters as an element in issue; in the criminal, the consent of the patient is immaterial, and merely makes her a particeps criminis. 4. The necessity for the operation is not ordinarily a defense to a civil suit; whereas, in a criminal action, the necessity of the operation to save the life of the mother is a complete defense under our statute. 41 Hatchard v. State, 79 Wis., 357. CHAPTEK XVII. FALSE REPRESENTATIONS. Fraud. Definition. Any deceitful practice in depriving or en- deavoring to deprive another of property or rights by means of some artful device, trickery, chicanery, contriv- ances, stratagem or plan contrary to the plain rules of common honesty, is fraud. 1 Fraud may be said to consist in deception intentionally practiced upon another to induce him to part with his prop- erty or to surrender some legal right or claim, and which deception accomplishes the end designed. 2 The fraud which gives rise to an action of deceit exists where a person makes a false representation of a material fact susceptible of knowledge, knowing it to be false, or as of his own knowl- edge, when he does not know whether it is true or false, with the intention to induce the person to whom it is made, in reliance upon it, to do or refrain from doing something to his pecuniary hurt, when such person, acting with rea- sonable prudence, is thereby deceived and induced to do so, or refrain, to his damage. 3 Effect. Fraud vitiates everything it touches and makes voidable every contract it induces. Intent. A fraudulent intent or design is necessary in order to predicate a right of action. Where the statement is made or the opinion expressed with knowledge of its falsity, or recklessly without any knowledge of its truth 1 Mitchell v. Kintzer, 5 Pa. St., 216, 219. 2 Judd v. Weber, 55 Conn., 267, 277. 3 20 Cyc., 10. 191 192 MEDICAL JUKISPEUDENCE. or falsity, and as a positive assertion calculated to convey the impression that the speaker knows or believes it to be true, a fraudulent intent will always be inferred. Where the statement or opinion was false and material, and the party when he made it knew that it was false, or, not know- ing whether it was true or false and not caring what the effect might be, made it in reckless -disregard of the facts, and paying no heed to the injury which might ensue to the other party, a fraudulent intent will be presumed. 4 An honest error of judgment is not sufficient to predicate a charge of fraud because the wrongful intent is wanting. 5 Where an opinion is recklessly made, however, a fraudulent intent may be presumed. 6 Corrupt Motive. There need not be a corrupt motive of gain nor a wicked motive of injury to predicate an action of deceit, although the former is usually present. The gist of fraudulent representations is the producing, by statement or conduct, of a false impression upon the mind of the party to whom they are made, with the intent to create such false impression, and, where this result is ac- complished, the means by which it is consummated, whether by the expression of a belief or by the assertion of a fact, are not very material as a matter of justice and fair deal- ing. A charge of fraud may be based upon a knowingly false expression of opinion by an expert, or upon an ex- pression by an expert of an opinion in utter disregard of the facts and inconsistent with the honesty and good faith of the party expressing it, where the party has, or, under the law, should have special knowledge on the subject not possessed by the other party, and where he ought to be able to approximate the truth. 7 4 Hedin v. Institute, 62 Minn., 146; Kuntze v. Kennady, 147 N. Y., 124, 129. 5 Johnson v. Beeney, 9 111. App., 64. 6 Miller v. John, 208 111., 173. 7 Hedin v. Minnesota M. & 8. I., 62 Minn., 146 ; Picard v. McCormick, 11 Mich., 68 ; Kost v. Bender, 25 Mich., 515; Powell v. Fletcher, 18 N. Y. Supp., 451 and 19 N. Y. Supp., 911. FALSE REPRESENTATIONS. 193 Materiality. It must appear that the representation of fact or opinion was material to the transaction, otherwise the court will not attempt to give relief. If a false repre- sentation be such that, had it not been made, the trans- action would not have been entered into, then it is material ; but if it be established or made probable that the same thing would have been done in the same way by the party complaining, if the representation had not been made, it cannot be deemed material. 8 The fact that the statement or opinion was intended to deceive, was of a character cal- culated to deceive the party to whom it was addressed, and actually did deceive, are considered sufficient to establish its materiality. 9 To be actionable the representation must be as to a material fact, and susceptible of knowledge. Generally speaking, if they appear to be mere matters of opinion or conjecture, they are not regarded as material. 10 Opinions. In ordinary business transactions, the expres- sion of an erroneous or false opinion is not considered, in law, a false representation. Thus, opinions of quality, utility, value, capability or other generally recognized commercial attributes of an article are not regarded as statements of fact, within the meaning of the law. A repre- sentation that a worthless medicine is a sure cure for cholera is a statement of a fact, not the expression of an opinion, and is actionable fraud if relied upon. 9 Caveat Emptor. Caveat emptor is the prevailing doc- trine. The rule is based upon the presumption that both parties to the transaction are equally competent to form an opinion ; that neither should be misled by the knowingly false or honestly erroneous opinions of the other, and that as the basis of the opinion is equally within the knowledge of both, neither should be deceived by the alleged mental 8 McAleer v. Horsey, 35 Md., 439. McDonald v. Smith, 139 Mich., 21; 102 N. W., 668. 10 Hedin v. Institute, 62 Minn., 146. 194 MEDICAL JUEISPEUDENCE. conclusions of the other. In a great majority of business proceedings this presumption is practically true, and neither party thereto is materially influenced by the opin- ions of his adversary. Actionable Misrepresentation. False representations, to be the basis of an action of deceit or criminal prosecution, must be of a past or present existing material fact. The common law did not encourage reliance upon a mere opin- ion of an adversary in a business deal. Adversary is used advisedly; the common law practically forced a vendee to consider the vendor as an enemy. They were regarded in the light of duelists battling for advantage. So long as the vendor confined himself to opinions, whether of quality, utility, value, capability, future usefulness, productivity, salability or other similar attributes of the article, he was not required to fix any limit to his imagination, except the credulity of the prospective buyer; but the harshness of this doctrine has been somewhat modified in modern times and the more equitable doctrine of the civil law is gradually shaping a new attitude of the courts toward the subject. 11 Peculiarity of the Relation. We are readily convinced where we want to believe. The afflicted are easily deceived. "With reference to their ailments they grasp at phantoms, pursue the will-o'-the-wisp and cling to an offer of relief with the tenacity of a delusion. Money has little signifi- cance except as a means to a restoration to health. The invalid is readily persuaded to spend his substance for remedies which do him no good. Treatment, like religion, is taken on faith and, once the patient is convinced, he be- comes the dupe of the most arrant imposter. In any event he can know the value of the treatment only by results and in the meantime his money is being wasted. The causes 11 Hicks v. Stevens, 121 HI., 186; Hedin v. Minn. Med. & Surg. Institute, 62 Minn., 146. FALSE EEPEESENTATIONS. 195 which lead to health and disease are often obscure and elude even the trained mind of the honest and faithful prac- titioner. How easy, therefore, for the dishonest practi- tioner to persuade his victim to continue treatments until his substance is squandered and he is impoverished. The dishonest practitioner is the meanest of confidence men. The field of opportunity is great and, sorry commentary though it be, it must be admitted that the opportunity has been well improved. Trust and Confidence. The relation of physician and pa- tient necessarily imposes a large degree of trust and confi- dence on the part of the patient and should require the utmost good faith and fair dealing on the part of the prac- titioner. The law justifies a patient in relying upon the representations of his physician as to the nature of his malady, the curability thereof, the character of treatment necessary and the ability of the physician to afford relief. If a practitioner is required by his patient to give an un- qualified opinion as a condition precedent to his employ- ment to treat the patient, he must use reasonable and ordi- nary skill and care, and his best judgment; and exercise good faith and the strictest honesty, eliminating all selfish considerations in forming and expressing that opinion. In such manner only can he discharge his full legal duty in this respect. The reposing of faith and confidence by one party in another and the justification thereof in the law, are important elements in an action of deceit. 12 The law does not assume to safeguard every confidence, and cannot undertake to right every abuse thereof, since these elements enter into every business and social transaction. In the eyes of the law there are only two general classes of peo- ple, (a) the legally competent, and (b) the legally incom- petent. The legally competent are all put on substantially 12 Clodfelter t>. Hulett, 72 Ind., 137. 196 MEDICAL JURISPEUDENCB. the same plane ; they are treated, in the law, as though they were absolutely equal in mental ability, experience and de- velopment. The man with ten talents is under no different or greater obligation by reason of that fact than the man who has one talent. There are certain relations, however, in which the law takes cognizance of the fact that the par- ties thereto are not on an equality; that one of the parties holds a dominant position; that the origin of the special relation is due to the superior knowledge and ability of the one over the other in the subject matter involved; that a degree of special faith and confidence is essential, or at least important, to successful results from the efforts put forth in that behalf, and that the general welfare requires that the utmost good faith be exacted of the dominant party, and that the other party be encouraged to repose faith and confidence in the superior. These considerations have special application to the medical profession. Why should the practitioner be permitted to say that his patient should not have believed him, or that the patient should have doubted or questioned his motives? Confidential Relations and Special Knowledge. An opin- ion, however, may be a sufficient basis for an action of deceit, under proper conditions of subject-matter and rela- tion of parties. Introduce a confidential relation and the reason for the rule of caveat emptor ceases. Where the disparity is great, the expression of an opinion may have all the consequences, and should have all the legal responsi- bilities, of an assurance of a material fact. Where the relation is in its nature confidential, and the subject-matter is a profession requiring special knowledge and skill, and the party expressing the opinion is a practitioner therein, while the one to whom the opinion is conveyed is not versed in the profession but is actuated by self-interests to believe the statements, the assurance of a belief may be sufficient FALSE BEPRESENTATIONS. - 197 in itself to induce and control the conduct of the party to whom it is communicated, and the practitioner should be held to the strictest accountability for the honesty, disin- terestedness and practical accuracy thereof. The patient may have no means of testing the truth of the opinion of the practitioner or the good faith of its utterance. Where one of the parties to a transaction possesses special learn- ing and skill not possessed by the other on the subject with respect to which the opinion is given and which is the sub- ject of the relation, and where the other party is justified in believing that such opinion can and ought to be an ap- proximation to the truth, and the relation is such as to justify a reliance by the one on the good faith and ability of the other, an action of deceit may be predicated for the false or reckless statement thereof, when deception is in- tended and damage results in reliance thereon. Of course, this does not mean that a practitioner cannot express an opinion except at his peril, nor communicate his belief without being liable for deceit, if it turns out to be wrong. We are considering only his good faith in reference thereto. He cannot use a professed opinion as a vehicle to entrap and defraud his patients. He must not pretend to have a conviction which he does not hold, nor make capital out of an opinion which he cannot honestly possess. 13 False Pretenses. It is a fraud for a practitioner to pre- tend, to the detriment of his patient, that he can cure or alleviate a disease when he knows he cannot; or that his patient is improving, when he knows or ought to know that the trouble is not being relieved; or that he understands the nature of the malady when, in fact, he is ignorant thereof. In all these cases, the law should charge knowl- edge, where the practitioner with the application of ordi- 13 Hedin v. Minnesota Med. & Surg. Institute, 62 Minn,, 146; Hicks v. Stevens, 121 111., 186, 198 MEDICAL JURISPRUDENCE. nary skill and care, and the exercise of good judgment, ought to have known. If he finds he cannot help his pa- tient he must advise him of that fact. 14 He owes this duty of informing his patient for two reasons, (a) that the pa- tient may determine whether he wants to continue the services, and (b) that the patient may seek relief elsewhere, if he desires. MISSTATING IMPROVEMENT. Where a practitioner, know- ing that he cannot cure an ailment or relieve a trouble, and concealing such prognosis from the patient, persuades the latter to take or continue a course of treatment and, during the progress of the treatment, encouraging him to believe that he is improving satisfactorily, well knowing that his assurance is false and that the patient is relying upon his statements, he is guilty of such fraud as will defeat a re- covery for his services in that behalf. 15 Fair Dealing. If he finds that he cannot cure, he must so advise his patient, and any concealment of his ignorance of the patient's disease, or of his inability to afford relief, while at the same time encouraging the patient to continue the services, is a gross fraud on the part of the practitioner and ought to defeat his right of recovery for such services, if indeed it ought not to be attended by more serious conse- quences. 16 Even though, because at the inception of the treatment, the physician did not know that his method would be ineffective, he might be justified in undertaking the case, still, if, during the progress of the treatment, he discovered that he could do the patient no good, or, by the exercise of the care and skill required of him, he could have discovered such fact, but did not, or, if, having discovered it, he concealed the same from the patient and encouraged him to continue the treatment and accept the services, then i* Chase v. Heaney, 70 HI., 268. is Logan v. Field, 75 Mo. App., 594. i Chase v. Heaney, 70 111., 268. FALSE REPRESENTATIONS. 199 unquestionably he ought not to recover any compensation therefor, after the discovery that his treatment would be ineffectual, or after he could have discovered its want of efficacy by the exercise of reasonable skill and care. While the responsibility of practitioners is not based upon the result of their remedies, they owe their patients the highest degree of fairness and good faith and they must not be guilty of any deception or indirection to the detriment of their patients. 17 False Advertisements. False advertisements in news- papers or by circulars, intended for the public, and solicit- ing patronage, when acted upon by a party to his damage, may be grounds for an action of deceit. 18 The advertiser need not know that the patient saw the advertisement and has acted upon the information obtained therefrom, and he need not have made any personal representations to the patient. As to Third Party. False statements as to the curability of a malady, method of treatment, and the ability of a third party to cure the same, when made with intent to defraud and when acted upon to his damage by a patient, in good faith believing them to be true, may be sufficient to predi- cate an action for deceit against the party making them, by the party thereby defrauded. 19 Illustrations of the Principle. In a certain case the pa- tient, who was an illiterate man, had previously been perma- nently injured in an accident which left him a physical wreck. He consulted with the physician in charge of an Institute as to his condition, the probability of his recovery and their ability to give him relief. The injury which he had received was a fracture at the base of the skull, and it occurred about a year before the conference with the phy- 17 Logan v. Field, 75 Mo. App., 584, 601. is Warfield v. Clark, 118 la., 69. 19 Hedin v. Institute, 62 Minm., 146; Kenner v. Hardin, 85 111., 264. 200 MEDICAL JURISPRUDENCE. sician. The evidence warranted the jury in finding that his injuries were incurable and that any honest physician, hav- ing the history of the case before him, must, after a proper examination, have come to that conclusion. The evidence tended to show that after an examination the physician positively assured the patient that he could be cured, and that by treatment at the Institute he would be made sound and well again. Belying upon these representations, and believing them to be true, the patient was induced to enter into a written agreement obligating himself to pay the sum of five hundred dollars for the treatment. It appears from the opinion of the court that the written contract did not guarantee a cure or promise that the patient would be re- stored to good health, or even assure him of any relief, but merely obligated the institution to give him the treatment. He paid his money, took the treatment but was not cured. After learning his real condition he brought an action against the institute and the physician to recover the fee paid, on the ground that he was induced to enter into the contract and pay his money to the defendants by means of false and fraudulent representations. To maintain his action it was incumbent on the patient to prove that his malady was incurable ; that the defendants represented that he could be cured and that they would cure him; that they knew or, if skillful and honest, should have known that such representations were false; that they were not the expres- sion of an honest opinion, based upon a proper investiga- tion, but were either fraudulently made with knowledge of their falsity, or were uttered with a reckless or ignorant disregard of facts, and of the interest of the patient; that the patient did not know their falsity but believed them to be true; that in reliance thereon he entered into the con- tract and parted with his money; that his condition was such that an honest physician should have been able to FALSE KEPEESENTATIONS. 201 approximate the truth and to have known that his malady was incurable. On the trial, before a jury, the patient ob- tained a verdict and judgment for the $500 which he had paid, and interest thereon from the date of payment and, on appeal, the judgment was affirmed. 20 The honest prac- titioner can usually approximate the truth in his prognosis in such cases, and the patient is justified in relying upon his opinion as being substantially correct. The law must exact of the practitioner the utmost good faith in this respect. He dare not pretend to have an opinion which he does not hold, nor express an opinion which, ordinary skill and hon- esty should know to be false. If the expressed opinion is contrary to the enlightened judgment of the profession at the time and place, the jury are warranted in concluding that it was deliberately false and that the practitioner knew he could not accomplish the results stated and, therefore, that the representations and promises were made for the wrongful and deliberate purpose of depriving the patient of his money, without giving the consideration anticipated by the patient and promised by the physician. Illustration. In the Logan case a physician brought an action to recover his fee for treatments and the patient de- fended on the ground of malpractice, charging that the physician knew he was doing the patient no good, while pretending to the patient that he was improving. The phy- sician was practicing as a specialist for diseases of the nose, throat and ear. Covering a period of nine months he had previously given the patient sixty-four treatments for his malady, which was an affection of the nose, and had received his pay therefor. It appears that the treatment did not do the patient any good. Later, he returned for treatment, but told the physician he could not take the same unless he could be cured, and the physician said that he 20 Hedin v. Institute, 62 Minn., 146. 202 MEDICAL JURISPRUDENCE. could not tell him at that time, but encouraged him to renew the treatments, which was done. During the second course of treatment the physician frequently told the patient his nose was getting along beautifully. In fact, however, he was not improving and the physician subsequently admitted such fact and said that an operation would be necessary in order to effect a cure or afford relief. Apparently, the pa- tient refused to submit to an operation. On refusal of the patient to pay for the treatment, the physician brought suit for his fee and the patient, as his defense, charged malprac- tice, alleging that he had received no benefit and that the physician knew, or ought to have known, that he could not help him. The case went to the Appellate Court because of alleged error in the refusal of certain instructions asked by the patient. It was considered by the court that if the practitioner, by the exercise of that degree of skill and care which the law exacts of him, might and reasonably ought to have discovered (a) that the disease of the patient was incurable, or (b) that it was a case that would not yield to the usual mode of treatment, or (c) that it was probable that the patient would not be benefited by such treatment, and yet failed to make such discovery, or, if he made such discovery and failed to advise the patient thereof, he was guilty of such negligence and bad faith as ought to defeat his recovery for the services. It was his duty to act in the utmost good faith towards the patient, and if he knew that he could not accomplish a cure, or that the treatment adopted by him would probably not be of any substantial benefit, it was his duty to advise the patient to that effect, and a failure to disclose such fact to the patient was a breach of his duty. Certainty of Proof. None of the essential elements of fraud need be established to a 1 mathematical certainty ; in fact such a thing as mathematical certainty cannot exist in FALSE REPRESENTATIONS. 203 the enforcement of the law. All that courts and juries usually have to act upon is proof establishing belief to a moral certainty, and moral certainty always admits the possibility of error. 21 Elements of the Tort. The essential elements of an action of deceit brought by a patient against a practitioner for the expression of a false or erroneous opinion, or fraud as a defense to an action for a fee, are (a) The opinion must have been communicated directly or indirectly by the practitioner to the patient ; (b) The opinion must, in fact, have been false or errone- ous; (c) The practitioner must, at the time, have known it to be false, or, not knowing its truth or falsity, he must have promulgated it under such circumstances as to show a dis- regard for the interest of the patient, and that he ought to have known the approximate truth ; (d) The practitioner must have intended to deceive the patient ; (e) The patient must have known the falsity of the opinion ; (f) The patient must have been justified, under the cir- cumstances, in believing the opinion to be true ; (g) He must have believed it to be true; (h) He must have relied upon it and his conduct must have been controlled by it ; (i) The opinion must have materially induced the con- duct of the patient in his reliance thereon, and it must appear that without it his conduct would probably have been different, but it is not necessary that it should have been the sole inducement; (j) The patient must have been damaged by his reliance upon the representations. 22 21 Brown v. State, Okl., ; 132 Pac., 359. 22 Hicks v. Stevens, 121 111., 186; Eaton v. Winnie, 20 Mich., 126. 204 MEDICAL JURISPRUDENCE. Remedies. Where a patient has been defrauded by the false and fraudulent representations, opinions and pre- tences of a practitioner, into parting with his money for treatment which inevitably can do him no material good, he may, upon discovery of the fraud, bring an action and recover the money he has paid, and any other actual damage he has sustained. On the other hand, if he has made no payment, but is sued for a fee for the treatment, whether the action be based on a contract induced by the fraud or upon an implied agreement to pay for the services, he may urge the deceit as a defense and, if he establishes the same, he will defeat the claim asserted against him and, on proper pleadings, may even recover judgment for any actual dam- ages he may have sustained. Damages. The treatment may not have resulted in any actual damage to the patient, and he may have suffered no loss, except the money or other consideration with which he parted and, in that event, his recovery in an action of deceit would be limited to the amount of that consideration. If he parted with money he would be further entitled, in some States, to interest thereon from the date of payment to the time of the judgment. 23 If he parted with property, he can recover its fair cash value as of the date of delivery to the practitioner and, in some States, in addition thereto, he may recover interest thereon from the date of such de- livery to the date of the judgment. 23 Hauk v. Brownell, 120 111., 161. CHAPTER XVIII. ANESTHETICS. Definition. Anesthesia means a loss of sensibility to ex- ternal impressions; in a technical and restricted sense, a loss of the sense of touch. Frequently, however, it is a general term used to denote all classes of insensibility. The agent which produces anesthesia is termed an anes- thetic; therefore, an anesthetic is any remedy used to re- lieve pain or other hyperesthetic condition of the sensory nerves. Kinds of Anesthetics. There are two principal groups of anesthetics when classified according to the nature of their effects : 1. Local, as affecting a restricted area or part of the body, and 2. General, as affecting the entire body. Cold is one of the most useful and generally employed local anesthetics. This condition is now usually brought about by the use of ether or ethyl chlorides, as a spray. Local anesthesia is frequently produced by the use of cocaine, eucaine, holocaine and orthoform. Some of the more common general anesthetics are ether, chloroform, nitrous oxide, antipyrine, acetanilid, etc. Effects of Anesthetic. In cases of anesthesia from the administration of a general anesthetic the following propo- sitions of fact may be said to be established by the con- sensus of medical experience and opinion : 1. Consciousness of external impressions is impaired in the early stages. 205 206 MEDICAL JUKISPEUDENCE. 2. This impairment is progressive. 3. The impressions which reach the mind during the progress of anesthesia are distorted and somewhat per- verted. 4. Consciousness of external impressions is entirely lost in the final stage. 5. Voluntary muscular movement is not lost until the final stage. 6. Emotions of an erotic character are sometimes excited. 7. Memory of events occurring during the progress of anesthesia is distorted and sometimes wholly unreal. 8. Dreams are sometimes experienced. 9. The impressions left by these dreams remain fixed in the mind with all the vividness of real events. Right to Administer. The law recognizes the importance of anesthesia in the science of surgery, and that its use is indispensable to the successful performance of some oper- ations. The question of its use in a particular case is a matter resting largely in the sound discretion of the oper- ator. The welfare of his patient must always be the para- mount consideration. A general anesthetic should not be given where a local application will be equally effective and appropriate. The right to administer anesthetics, general and local, should be implied in a medical degree from a modern medical school, because the court should take judi- cial notice of the fact of universal knowledge that instruc- tion in the properties, effects and uses of anesthetics is an indispensable part of the work of all schools and that infor- mation on the subject is essential to equipment for the profession. However, if the patient charges ignorance in this respect and introduces any evidence tending to sustain his charge, the operator would be put to the necessity of showing his qualifications and experience in the premises. If there is any reasonable justification in fact for resorting ANESTHETICS. 207 to the expedient, considering the nature of the operation and the condition of the patient, and the patient desires or consents to the same, the practitioner may employ it in connection with his professional services, and he will not be answerable for untoward results merely by reason of the fact of having administered the drug. The law indulges no presumptions, either of ignorance or skill. If the plaintiff alleges ignorance in the matter of administering the anes- thetic, as the basis of his right of action, he must prove his allegation or lose his case. If he offers no proof of igno- rance, there is nothing on which to found his charge, since the law does not presume that the practitioner was ignorant. If the patient introduces evidence tending to sustain his allegations, the practitioner must show that the anesthetic administered, and the method of administration were in accordance with the teaching and practice of the profes- sion at the time and place. In practice, an operator is not likely to be charged generally with being ignorant. Such an allegation might be extremely difficult to prove and, even if proven would avail the patient nothing unless he also proved that, by reason of that ignorance, he was injured. The want of skill must have been manifested in the par- ticular case. Ignorance must be translated into action or non-action before the patient can complain. The conduct, not the ignorance, is the real ground of complaint. The practitioner may be generally ignorant and unskilled but may do right by chance, accident or mistake. Why should the patient complain? He may be ever so skilled and do wrong through negligence and, thereby, injure his patient. Why should the patient not recover for his injury? Selection of Anesthetic. The operator must use his best judgment, based on his knowledge, experience and skill, after careful examination of his patient, in selecting the most appropriate anesthetic under the circumstances. 208 MEDICAL JURISPRUDENCE. Chloroform should not be given where there is weakened heart action from disease, if any other reasonable course is available. Where there is chronic or severe kidney trou- ble an anesthetic should not be given unless absolutely necessary. An error in these respects, resulting in injury to the patient will render the operator liable for malprac- tice, in event the error was due either to his ignorance or to his carelessness. Duty to Administer Anesthetic. Failure or refusal to administer an anesthetic, where the same was not clearly and indispensably necessary and proper, is not even prima facie basis for an action for malpractice. 1 Legal Responsibility in Administering Anesthetics. In administering an ordinary anesthetic in general use for the purpose of his professional duties, a practitioner is re- quired, in law, to anticipate only natural, ordinary, usual and probable consequences, those results which, from gen- eral experience, may be expected. Conversely, he is not answerable in malpractice for failure to anticipate unusual results arising from a peculiar condition or temperament of his patient, of which, after the usual diagnosis with the exercise of reasonable skill and care, under the circum- stances, he had no knowledge. Where the administration of the anesthetic is necessary or proper for professional purposes, objection to its administration not appearing or being discoverable by skillful diagnosis, the practitioner is not liable, in an action for malpractice for resulting dam- ages unless at least two facts coexist, namely : 1. That he was guilty of negligence in reference to the administration of the anesthetic, and 2. That the injury of which the patient complains was the result of this negligence in the use of the anesthetic. The negligence in the administration of the anesthetic Dye v. Corbin, 69 W. Va., 266. ANESTHETICS. 209 may have consisted (a) in administering it without suffi- cient preliminary examination, or (b) in administering an unfit and unsuitable drug, or (c) in the unskillful or care- less manner of administration, or (d) in the excessive amount given. 2 Extreme Responsibility in Pact. In dealing with anes- thetics, the practitioner must know that he is using instru- mentalities which are dangerous and deadly, and his care in diagnosis, selection of drug and administration, must be in proportion to the risk involved to his patient. His re- sponsibility begins with the examination preceding the ad- ministration of the drug, and carelessness or ignorance in diagnosis, resulting in the determination to use the par- ticular drug, or to resort to anesthesia, when clearly it should not have been given, will make him liable in mal- practice for resulting injuries, and possibly for manslaugh- ter, where the consequences are death. He cannot trifle with the health or life of his patient and not shoulder the responsibility. 3 Value of Testimony. The fact that, during the last stages of anesthesia, the mind is entirely lost to outward impressions, and the entire sensory nervous system has suspended its functions, should be sufficient to stamp with great uncertainty the statement of a person as to what occurred to him during the progress of anesthesia, or while under the general influence of an anesthetic, when the state- ment is based upon his alleged sensations at the time; therefore, when to actual mental suspension there is added possible hallucinations and self-deception of a character similar to the alleged experience, the testimony has but few elements entitling it to credit. Manifestly, but little reliance can be placed upon supposed impressions alleged 2 Bogle v. Winslow, 5 Phila., 136, 139. 3 State v. Baldwin, 36 Kan., 1. 210 MEDICAL JURISPRUDENCE. to have been received, or experiences alleged to have oc- curred during the time. These facts have an important bearing on the credibility of a female who claims to have been deflowered while under the influence of a general anesthetic for professional purposes, and indicate that the corroborating circumstances should be strong in order to justify a belief that the event actually occurred. CHAPTER XIX. INSANITY. Mental Faculties. Mental Processes. There is no rigid line of demarkation between sanity and insanity. The processes of mental ac- tivity are the same whether sane or insane, although they differ in their origin as well as in the degree of their intensity. Cerebral Cortex. To understand insanity, you must know the normal action of the mind, and have some knowledge of the physical basis of mental action. This involves a study and knowledge of the contents of the cerebral cortex and its association fibers. The functions of the contents of the cerebral cortex, briefly and generally stated, are, A. INTELLECT. 1. To receive impressions from the organs of sensation, that is, conscious perception. 2. To group these impressions into a unit known as a concept, that is, conscious thought. 3. To store up these concepts or thoughts. (a) For future recollection and recognition, that is, memory. (b) For gathering into novel combinations, that is, imagination. (c) For use as a basis of reflection. 4. To express thought in speech and action. B. SENSIBILITY OR FEELING. 5. To experience emotions which accompany mental ac- tivity, that is, sensibility or feeling. 211 212 MEDICAL JUBISPEUDENCE. C. WILL. 6. To exert self-control over mental action, that is, at- tention, or choice. (Starr.) Classification. The faculties of the mind readily resolve themselves into the three distinct classes above referred to, namely : 1. Intellect, 2. Sensibility, or feeling, and 3. Will. To illustrate, You read the pages of a book, and thereby the thoughts of the author become your thoughts. This is intellect. But you get more than this from the reading of the book. The thoughts produced awaken in you feel- ings, emotions and mental instincts. This is sensibility. Perhaps you derive still more than this. The thoughts produced not only awaken and arouse your sensibility, but you are prompted to act, to do something, as the result of the emotion excited in you. This constitutes will. If either of these faculties is impaired, there will be a corresponding derangement of the mind. If the impair- ment is of sufficient magnitude, it will amount to what is known as insanity. Intellect as above implied is subdivided into presentation or Perception, re-presentation or Memory, and perhaps Recognition. If the re-presentation is not of exact previ- ous perceptions, it is Imagination. CHOICE. The free exercise of the will presupposes choice. Thus, in the illustration above given, you deter- mined or intended to act in a particular way. This pre- supposes a previous act of mind. It might have been so instantaneous as not to be perceptible except upon reflec- tion, but there must have been presented to your mind, pos- sibly only for an instant, the question, Shall I or shall I not do so and so? and the mind having exercised the INSANITY MENTAL FACULTIES. 213 choice between them, the executive will manifested itself in accordance with that choice. Where there can be no choice there can be no freedom of will, and if the inability to choose is the result of disease or a condition within the brain itself, the party is relieved from criminal responsi- bility for the resulting act. Functional Disturbances and Mental Phenomena. When areas of cerebral cortex are diseased, one or more of the cortical functions above named may be impaired, impeded or suspended, and mental disorder results. If changes in blood-supply or in nutrition occur, or if disease affects the entire cortex, insanity may result, and as a consequence, thought becomes illogical; emotion becomes excessive or depressed, or arises without external stimulus; action is irregular or purposeless, and conduct is not properly ad- justed to surrounding circumstances. In the insane person, impressions from sense-perceptions may be wrongfully interpreted, giving rise to illusions. Ideas may arise with- out any sense-perception at all, and these false perceptions without external origin in sensory experience are called hallucinations. A mistaken idea may be harbored by any- one; as, the size or distance of an object. Measurement, examination and calculation may convince the person of his error, and if he is sane he corrects his judgment. The insane man is not affected by logical methods and analyses, and retains his erroneous ideas in spite of demonstration and reasoning. A mistaken idea accepted without logical foundation is a delusion; if retained in spite of demonstration of its falsity, it is an insane delusion. The reader is referred to standard medical works for a discussion of the medical aspect of the subject, its factors and causes, forms and classification, signs and tests, etc. Progress of the Law. Law follows, but in normal condi- 214 MEDICAL JURISPRUDENCE. tions never precedes enlightened, deliberate, prevailing, persistent public sentiment. It is the delayed expression of public opinion on the subject involved. With experience and information our notions of right and wrong change and, therefore, where these changes are pronounced, there is a continual conflict between enlightened public conscience and its legal expression. If the law is not changed, it be- comes a dead letter and is relegated to the dominion of innocuous desuetude. Out of this fact of progression springs most of our so-called judge-made law. This is a misnomer. The judge does not make the law, he merely recognizes the manifestation of public conscience, as he interprets it. "If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns; which is an honorable and commendable thing in our law, for thereby it appears that we don't despise all other sciences but our own, but we approve of them and encourage them as things worthy of commendation. ' ' 1 The attitude of the law towards the insane is a good illus- tration of the growth of law in harmony with the develop- ment of our knowledge of the subject. Insanity in Law. Presentation. In law, the question of insanity is pre- sented in two phases, 1. In criminal law, as exonerative of what would other- wise be criminal acts, and 2. In civil law, as incapacitating a person for ordinary business transactions, making contracts, wills, etc. Definition. In legal contemplation, insanity consists in the lack of such mental soundness as renders a person criminally responsible for his acts, or capable of managing Uustice Saunders in Buckley v. Thomas, 1 Plowd., 118 (1553). INSANITY MENTAL FACULTIES. 215 his own business affairs. There is a great difference of legal opinion as to what extent of disease or imperfect de- velopment, and what, if any, aberrations of mind, not trace- able to disease or imperfect development of the brain, con- stitute this degree of mental unsoundness. The tendency has been, and still is, to enlarge the scope of the word and to extend the rules of insanity to derangements not recog- nized in earlier times as a defense to a charge of crime. Insanity, however, is not merely mental disorder, although disorder of mind is always present: that is to say, not every mental disorder is insanity. Thus, a person who cannot distinguish between red and green has a mental disorder, but it is not insanity ; he is merely color-blind. Presumption of Sanity. All persons who have reached the age of discretion are presumed to be sane until the con- trary is shown. The burden of proving insanity rests upon him who alleges it. 2 Presumption of Continuity of Insanity. Habitual insan- ity having once been established is presumed to continue until the contrary is shown. 3 In other words all persons, in the first instance, are presumed to be sane, but after insanity is once established by proof that condition is pre- sumed to continue. 4 When insanity is once shown to have existed, the burden of proving sanity rests upon the party who alleges a restoration. Evidence as to Insanity. In the trial of an issue of insan- ity, evidence of hereditary taint is competent to corrobo- rate direct proof of the disease, but proof of taint alone is not sufficient to overcome the presumption of sanity. Proof of acts, conduct, temperament and habits inconsist- ent with the known character and previous habits of the 2 Stevens v. Shannahan, 160 111., 330. 3 Langdon v. People, 133 111., 382. 4 Titcomb v. Vantyle, 84 111., 381 ; Ellars v. Mossbarger, 9 111. App., 122. 216 MEDICAL JURISPRUDENCE. person are competent in establishing insanity, taken in conjunction with surrounding facts and influences. 5 It may be shown that the person whose sanity is in question has been under and subject to the influences of the recognized causes of insanity. Any symptoms of the disease known to the medical profession and present in the case may be produced in evidence. Many of these symptoms are largely medical in character, and generally must be introduced through medical men. Where the question of sanity at a particular time is involved, insanity prior or subsequent to such time may be shown, remoteness merely affecting its weight. 6 SUICIDE AS EVIDENCE. Suicide is not per se even prima facie evidence of insanity but the fact and the circumstances may be taken into consideration in determining the ques- tion. 7 ABSENCE OF MOTIVE FOB CRIME. In criminal cases, the absence of any apparent motive for the commission of the offense is a circumstance to be considered by the jury in connection with other evidence of insanity, and the circum- stances and character of the offense, but, of itself, it does not prove insanity. 8 General Practitioner is an Expert on Insanity. The usual rule is that a general practitioner of medicine is a competent witness concerning insanity, and that a special study of that subject is not required. 8 Smith v. Kramer, 5 Pa. L. J., 226; Snow *. Benton, 28 111., 306. 6 Dickinson v. Barber, 9 Mass., 225. 7 22 Cyc., 1118. 8 People v. Barber, 115 N. Y., 475. CHAPTER XX. INSANITY. In Criminal Law. Intent. Non est reus, nisi meus sit rea. An evil intent is a necessary element of every criminal offense. "Let my disclaiming from a purposed evil, Free me so far in your most generous thoughts, That I have shot mine arrow o'er the house, And hurt my brother." 1 Since a criminal intent is an essential element in every crime, a person destitute of the mental capacity to main- tain this intent cannot incur legal guilt. The decisive question is, and, in every enlightened system of jurispru- dence, must be, Was the person mentally capable of enter- taining a criminal intent A person may act without the concurrence of a responsible will even though he is not raving, and though he knows what he is about and lays and executes plans with great shrewdness and sagacity. At Common Law. At common law an insane person could not be convicted of any crime, not even high treason. 2 Homicide. In criminal law, the question of insanity is most frequently raised as a defense in homicide cases, and the question becomes, What degree of insanity should ex- onerate the defendant from the penalty of his act? Here again, the history of the law is the history of the progress of knowledge on the subject of mental derangements. Tests. (a) ABSOLUTE WANT OF REASON. The early Eng- 1 "Hamlet" : Act. V, Scene 2. 2 Co. Inst. pt. 3, p. 4. 217 218 MEDICAL JURISPRUDENCE. lish law applied what is sometimes denominated "the wild beast test," and it was expressed by Lord Hale as follows: "A man to be exempt from punishment for an act must be totally deprived of his understanding and memory, and must not know what he is doing any more than an infant, a brute or a wild beast." 3 This is known as Lord Hale's test. An imbecile who had the intelligence of a child over four- teen years of age was held responsible for his acts. (b) KNOWLEDGE OF RIGHT AND WRONG GENERALLY. Later, the English Courts adopted the test, Had the de- fendant at the time he committed the act, the power to dis- tinguish right from wrong in the abstract. Both these tests, however, have now disappeared from English Juris- prudence and may be said never to have been the law in this country. (c) KNOWLEDGE OF EIGHT AND WRONG WITH REFERENCE TO THE PARTICULAR ACT. By this test, the question is, Was the defendant at the time of committing the act, able to distinguish between the right and wrong of the particu- lar act? Where this is the standard, insanity is the inabil- ity to distinguish between right and wrong in respect to the act in question, or inability to be conscious of acting contrary to law. This test substantially is, at present, used in England and in some of the States of the United States. (d) POWER OF CONTROL. This test is, knowledge of right and wrong with reference to the particular act, and the power to choose the right and avoid the wrong, that is, the power of control. The characteristic feature of this test is the power of choice. By this test the question is, Had the defendant, at the time of committing the act in ques- tion, the ability to distinguish right from wrong, with refer- 3 16 State Trials, 176. INSANITY CRIMINAL LAW. 219 ence to such act, and also the power to adhere to the right and avoid the wrong? 4 In the Hopps case above cited, the court says : ' ' Where a party who is upon trial on an indictment for murder, interposes the defense of insanity, the rule in regard to character and degree of insanity which would demand an acquittal, is thus laid down: That where it shall appear from the evidence that at the time of doing the act charged, the prisoner was not of sound mind, but affected with insanity, and such affection was the cause of the act, and that he would not have done the act but for that affection, he ought to be acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged, by over-riding the reason and judgment, obliterating the sense of right and wrong as to the particular act done, or depriv- ing the accused of the power of choosing between them." (391.) The real distinction lies in the power of choice. "If, from the observation and concurrent testimony of medical men who make the study of insanity a specialty, it shall be definitely established to be true that there is an unsound condition of the mind in which, though a person abstractly knows that a given act is wrong, he is yet, by an insane impulse, that is an impulse proceeding from a dis- eased intellect, irresistibly driven to commit it, the law must modify its ancient doctrines, recognize the truth and give to this condition, when it is satisfactorily shown to exist, its exculpatory effect. ' ' 5 Subjects of Inquiry. According to the enlightenment on the subject of insanity at the present time, the inquiries to be submitted to the jury in every criminal trial where the 4 Hopps v. People, 31 111., 385; Parson v. State, 81 Ala., 577. 5 State v. Falter, 25 la., 82; Parsons v. State, 81 Ala., 577. 220 MEDICAL JURISPRUDENCE. defense of insanity is interposed, are, it has been said, as follows : 1. Was the defendant at the time of the commission of the alleged crime, as a matter of fact, afflicted with a dis- ease of the mind so as to be idiotic, or otherwise insane? 2. If such be the case, did he know right from wrong, as applied to the particular question? If both these are answered in the negative, he is not legally responsible. 3. If he did have such knowledge, he may, nevertheless be legally irresponsible if the two following conditions concur : (a) If, by reason of the duress of such mental disease, he had so far lost the power to choose between the right and the wrong, and to avoid doing the act in question, as that his free agency in that respect was, at the time, de- stroyed, and (b) If at the same time the alleged crime was so con- nected with such mental disease in the relation of cause and effect as to have been the product of it solely. 6 How- ever, the element of power of choice is not nominally recog- nized in many jurisdictions, but in actual practice before juries there is but little difference in results. 7 Instructions that if the. jury believed that (a) at the time of committing the alleged offense, defendant was able to distinguish right from wrong with reference to the par- ticular act, and (b) capable of choosing to do or not to do the acts constituting such crime, he could not be acquitted on the ground of insanity, are proper. 8 Insane Delusion. Where a person is under an insane delusion or hallucination, but is rational on other subjects, the rule is that he is not responsible criminally for acts 6 Parsons v. State, 81 Ala., 596; State v. Lyons, 113 La., 998. 7 Smith v. State, 95 Miss., 786 ; 22 A. O., 23, 36. 8 Hornisch v. People, 142 111., 620. INSANITY CRIMINAL LAW. 221 committed under the influence of such delusion or halluci- nation, where the fact or state of facts existing in his imagination would, if actually existing, justify or excuse the act. Delirium Tremens. It is the consensus of medical opin- ion and a common observation of laymen that a person may voluntarily indulge in the excessive use of intoxicants to such an extent that he loses all power of control over the habit and his mind becomes so diseased that he cannot dis- tinguish between right and wrong, and that delusions and hallucinations are usual concomitants. Hence, when de- lirium tremens have seized upon the victim of reckless in- dulgence and he is unable to distinguish right from wrong, with reference to the particular act, or, knowing the act to be wrong, is impelled by an overpowering delusion or hal- lucination which dethrones reason, annihilates rational intent, and controls his power of choice between doing or refraining from doing the acts, he is not criminally respon- sible in the premises. 9 Somnambulism or Somnambulentia. Somnambulism and somnambulentia are included under the head of insanity, by alienists, and if the person afflicted with either is so far unconscious at the time that he does not comprehend the moral character of the act performed, or, if comprehending it, he cannot choose between right and wrong, or if his con- dition may be regarded as that of a person under an insane delusion, with reference to the act in question, he cannot be held criminally responsible for his act. 10 Drunkenness. Voluntary drunkenness is no excuse for crime. However, where a specific intent is necessary to constitute the offense charged, a person who is so far under the influence of liquor, at the time, as not to know what he 9 State v. Driggers, 84 S. 0., 526; 19 A. 0., 1166. 10 Fain v. Com., 78 Ky., 183; 39 Am. B., 213. 222 MEDICAL JURISPRUDENCE. is doing may be incapable of committing the offense. 11 If voluntary intoxication were permitted to excuse criminal acts, most premeditated offenses would become a matter of history, because the parties contemplating them would be sure to prepare their defense beforehand. Epilepsy. Epilepsy is not insanity, and proof of epi- lepsy is not sufficient to establish irresponsibility. 12 It must be shown that the trouble had so far progressed in weakening the mind that the subject was not conscious of the wrongful character of his act at the time, or was im- pelled by an overpowering insane delusion. 13 Degree of Proof Required. Where insanity is offered as a defense to a criminal act, and the evidence raises a rea- sonable doubt as to the sanity of the defendant, he is entitled to an acquittal. 14 If any evidence has been intro- duced rebutting the legal presumption of sanity, and tend- ing to raise a reasonable doubt of the sanity of the defend- ant, the burden shifts to the prosecution, which is then required to prove the defendant's sanity beyond a reason- able doubt. 15 The plea of insanity is merely a denial of one of the essential allegations of the indictment, and the burden is not upon the defendant to establish the same, but if a reasonable doubt exists upon the whole evidence as to defendant's sanity, he must be acquitted. 16 Moral Insanity is a morbid perversion, and sometimes accentuation, of the moral feelings. As a proposition of law, a mere perversion of the moral faculties unaccom- panied ~by mental delusion, will not invalidate a civil, nor excuse a criminal, act. Mere moral depravity is not in- sanity. 17 11 Chowning v. State, 91 Ark., 503; 18 A. C., 529. 12 Oborn v. State, 143 Wis., 249. 13 People v. Gambacorta, 197 N. Y., 181; 18 A. C., 425, 428. 14 Hopp v. People, 31 111., 385, 393. 15 Dacey v. People, 116 111., 555. 16 Montag v. People, 141 111., 75. 17 Goodwin v. State, 96 Ind., 550. INSANITY CEIMINAL LAW. 223 Irresistible Impulse must not be confounded with pas- sionate propensity or willful temper. No matter how hot the passion or how furious the frenzy, it is not insanity, and the question, in its ultimate analysis, becomes, Was there a disease of the brain? Excitement, anger, jealousy or passion which, for the time being, are permitted to overwhelm the judgment, is no defense to a charge of crime. 18 Emotional Insanity is a morbid derangement of the emo- tional powers, or inability to control the impulses. It is closely allied to irresistible impulse. The latter is intel- lectual, the former emotional. Emotional insanity is not an excuse from criminal responsibility. 19 Kleptomania does not exonerate from a charge of lar- ceny; but it should mitigate the penalty. Statute. A statute which provides that insanity shall not be a defense to a charge of crime violates the constitu- tional provisions against depriving a party of life, liberty, or property without due process of law and guaranteeing the right of trial by jury. 20 is Lynch v. Com., 77 Pa. St., 205; Guetig v. State, 66 Ind., 94. 19 David Dudley Field in Ga., Ala. L. J., 273. 20 State v. Strassburg, 60 Wash., 106. CHAPTER XXI. INSANITY. i In Civil Law. Contracts. Validity. The contracts of lunatics or persons non compos mentis are voidable, not void, and may be ratified or avoided when the disability is removed, or during dis- ability, by a conservator legally appointed and qualified. 1 This applies to a deed executed by an idiot before he has been adjudged to be such. 2 But a contract made with a lunatic during a lucid interval is binding on him. 3 Purpose. This provision of law is intended for the pro- tection of the incompetent against his own weakness and the avarice of the unscrupulous and, therefore, can be taken advantage of only by him or his representative. The com- petent party is bound by the agreement as he cannot have any legal grounds for complaint, except, of course, as in the case of all contracts, for fraud, duress, accident or mistake. Necessaries. An insane person is liable for necessaries supplied to him in good faith, and it is not necessary to prove a specific agreement, and in fact a specific agreement would not be enforced, because the law raises a contract by implication on the part of the insane person, by virtue of which the reasonable value of such necessaries becomes payable as a debt, but not for an amount in excess of the iMead v. Stegall, 77 111. App., 679. 2 Burnham v. Kidwell, 118 HI., 425. 8 Lilly v. Waggoner, 27 111., 395. 224 INSANITY CIVIL LAW. 225 agreed price, if any. 4 Where there is nothing in the ap- pearance of an alleged insane person to indicate his inca- pacity, and he purchases necessary goods at a fair and reasonable price, and the seller has no notice of his having been adjudged insane, he will be liable to pay for the price agreed therefor where no conservator has been appointed for him, and he is in the actual management and control of his own business. 5 Degree of Insanity Invalidating Contracts. The tests for insanity in civil matters is entirely different from that applied in the administration of the criminal laws. A party will be considered so insane as to justify an avoidance of his contracts when, from disease, senility or defective de- velopment, he is rendered incompetent, successfully to con- duct business. 6 Knowledge of right and wrong does not enter into the question, except as it relates to mental strength, and the mind need not be abnormal. In all civil matters, the question is one of mental strength rather than of mental derangement. The operations of the mind may be perfectly regular and rational, but if the mind is too weak to comprehend the nature and effect of ordinary busi- ness transactions, or the transaction in question, the court will not permit the party to bind himself by his financial engagements. 7 The question is usually complicated with questions of fraud, duress and undue influence. Where there is some evidence of the presence of any or either of these, the courts will not enforce the engagements of a party at the suit of his adversary if it shall appear that he was so inca- pacitated mentally as not fully to comprehend the nature and effect of the transaction. * Fruit v. Anderson, 12 111. App., 421. 6 McCormick v. Littler, 85 111., 62. 6 Burnham v. Kidwell, 113 111., 425, 429. 7 Greene v. Maxwell, 251 111., 335. 226 MEDICAL JURISPRUDENCE. Marriage. A marriage is void ab initio where the men- tal faculties of the husband at the time of the celebration were so impaired that he was unable to understand the nature and effect of his acts and, especially, where his con- dition was known to the wife and where he was subject to improper influences exerted to the end that the conspirators might profit by the marriage. 8 When unaccompanied by fraud, duress, or undue influence, mere weakness of mind will not invalidate a marriage unless the mental incapacity be such that the party could not comprehend the nature and effect of the transaction ; that is, the nature of the con- tract and the duties and responsibilities it entails. 9 A mar- riage which is the result of a delusion and without which it would not have been entered into, will be set aside as invalid. 10 In this case the alleged marriage was induced through the medium of spiritualism. Delirium Tremens. Insanity from delirium tremens, at the time of the marriage, will void the contract, but whether the party was really insane or only intoxicated is usually a question of fact for the jury to decide. 11 Drunkenness. Mere drunkenness will not be sufficient to release a party from his agreement, but he will be pro- tected against the improvidence of his own contracts, en- tered into by him while in a state of intoxication which drowns reason, memory and judgment, and impairs the mental faculties to such an extent, for the time being, as to render him non compos mentis. When the mind of a con- tracting party has been broken down by a long course of dissipation, continual drunkenness and debauchery, the feverish moments of a half-sober, or even sober, inter- val, cannot be called a lucid interval for the purpose of SPyott v. Pyott, 191 111., 280; 25 A. C., 1127. 9 Dunphy v. Dunphy, 161 Cal., 380; 27 A. C., 1230, 1236. 10 Orchardson v. Cofield, 171 111., 14. 11 Prine v. Prine, 36 Fla., 676; Gillett v. Gillett, 78 Mich., 184. INSANITY CIVIL LAW. 227 establishing a contract made during such interval. 12 Impaired Faculties. Though the mind of a party may, to some extent, be impaired by age or disease, still if he has capacity to comprehend the nature of the business and its effects, and to act rationally in the particular trans- action in which he is engaged, if he can understand the nature of his business and the effect of what he is doing, and can exercise his will with reference thereto, his acts will be valid and binding upon him and his representatives. 13 Wills. Mental Capacity. The possession of mind and memory sufficient to enable the testator to transact ordinary busi- ness, such as renting his real estate, settling accounts, buy- ing and selling property, and to know and understand the business he was engaged in, and the effect of the disposi- tion made by him of his property, at the time he made the will in dispute, is a proper test of testamentary capacity. 14 The usual test is that the party be capable of acting ration- ally in the ordinary affairs of life, and of understanding the effect and circumstances of his acts. 15 Capacity to transact ordinary business is too high a test of mental capacity for making a will, because cases may exist where a less degree of mental capacity is required intelligently to give effect to a purpose already formed in relation to the disposition of property by will, than is required in the transaction of ordinary business when dealing with others at arm's length. 16 The provisions of the will and the cir- cumstances of the testator should be considered, because a person may be competent to dispose of a small estate among a few persons, by simple gifts, and yet be incompetent to 12 Martin v. Harsh, 231 111., 384, 389. 13 Martin v. Harsh, 231 111., 384, 389. 14 Taylor v. Pegram, 151 111., 106 ; Campbell v. Campbell, 130 111., 466. 15 Meeker v. Meeker, 75 111., 260. 16 Sinnet v. Bowman, 151 111., 146; Taylor v. Cox, 153 111., 220. 228 MEDICAL JURISPRUDENCE. dispose of a large estate among a great number of persons by complex and involved conditions. 17 The capacity must be sufficient to comprehend the condition of the property and the provisions of the will, and to recall those who are the proper and natural objects of testator's bounty, and the memory must be sufficient to retain these with ability to form a judgment upon them. 18 But it need not be suffi- cient to validate a deed where he is dealing with an antago- nist, and must balance and compare considerations. 19 Insane Delusion. An insane delusion in regard to one who is a natural object of testator's bounty and affection, and which causes a disposal differing from what testator otherwise would have made, is sufficient to destroy capacity. The same rule applies if the delusion is in respect to a duty or moral obligation on the part of the testator towards a corporation, society or individual benefited by the will. 20 A delusion which is unconnected with the facts controlling disposition of the property does not incapacitate. 21 Undue Influence. In matters pertaining to the contest of wills on the ground of mental incapacity, insane delusion, etc., the question of undue influence or fraud is usually present and, quite frequently, is the controlling factor. The less the mutual capacity the less the improper influ- ence which will invalidate the will, hence the two must be considered together. Sound Mind and Memory. The meaning of the phrase "sound mind and memory," is that the testator shall pos- sess sufficient mental power and understanding to compre- hend what property he has -to dispose of, the natural ob- jects of his affection and bounty, and to understand the IT Taylor v. Pegram, 151 111., 106; Green v. Green, 145 111., 264. 18 Delafield v. Parrish, 25 N. Y., 9 ; 1 Redfield Surrog., 130. 19 Greene v. Maxwell, 251 111., 335, 340. 20 American Bible Society v. Price, 115 111., 623. 21 Stanton v. Wetherwax, 16 Barb., 259 ; Brace v. Block, 125 111., 33. INSANITY CIVIL LAW. 229 nature of his acts, and the effect his will will have upon the natural objects of his bounty and affection. 22 It is not necessary that testator retain all his vigor of mind and memory; impairment of mind and memory is not incom- patible with testamentary soundness and capacity. 23 Ca- pacity to transact ordinary business, ability to comprehend objects and subjects of bounty, and freedom from insane delusions, which especially affect the power of disposition, constitute testamentary capacity; that is, sound mind and memory, even though the mind is not perfectly balanced. 24 Torts. ->v Responsibility. Where a loss must be borne by one of two innocent parties, the law places the burden upon the party whose act or default occasioned the same. 25 Hence, an insane person or a lunatic even though incapable of har- boring a wrongful or malicious intent is liable in a civil action for torts committed by him. 26 But where ^an evil intent or express malice is an essential element of the wrong, an insane person or an imbecile without capacity to have such motives, is not liable for damages resulting from such act. Thus, he cannot be held liable for libel, slander, conspiracy or malicious prosecution. 27 Homicide. While an insane person is not liable crimi- nally for a homicide committed by him, he is liable civilly in compensatory damages to those who have suffered by the act; in other words, the gravity of the tort does not relieve or increase the liability. 28 Damages. In an action against an insane person to re- 22 Ring v. Lawless, 190 III., 520. 23Graybeal v. Gardner, 146 111., 336; Taylor v. Pegram, 151 111., 106. 24 Hutchinson v. Hutchinson, 153 111., 347; Freeman v. Easly, 117 111., 317. 25 B. Co. v. Hall, 124 Ga., 322. 26 Mclntyre v. Scholte, 121 111., 660. 27 Jewell v. Colby, 66 N. Y., 399; Williams v. Hays, 143 N. Y., 442 ; t 4 A. 0., 569. 28 Young v. Young, 141 Ky., 76; Ballinger v. Bader, 153 N. C., 488; 42 L. B. A., 84. 230 MEDICAL JURISPRUDENCE. cover damages for a tort committed, whether of misfeasance or nonfeasance, the measure of damages is mere compen- sation to the party for the injury sustained. Exemplary damages cannot be recovered. 29 29 Holdom v. A. O., W. W., 159 111., 619 ; 21 A. C., 1350-5. CHAPTER XXII. WOUNDS. Definition. A wound is any lesion of the body, and com- prises not only solution of continuity, but every kind of accident, such as bruises, contusions, fractures, dislocations and the like. 1 Surgically. A wound is a solution of continuity in the soft parts by some mechanical agent. 2 Wound implies force and violence. All wounds are ac- companied by some death of tissue, and usually by hemor- rhage. Character of Wounds: 1. According to depth. (a) Superficial, (b) penetrating, and (c) perforating. (a) A superficial wound is one which does not enter deeply into the tissue, the injury is of the surface. (b) A penetrating wound is onel which enters a cavity or part, but does not pass through it. (c) A perforating wound is one which both enters and emerges from a cavity or part. 2. According to presence or absence of infection. (a) Aseptic, (b) Septic, and (c) Poisoned. (a) An aseptic wound is one not contaminated by bacterial or poisonous infection. (b) Septic wound is one contaminated by bacterial or other f ermentive agents, causing suppuration and sloughing. 1 Bouvier's Law Dictionary. 2 Dunglison's Medical Dictionary. 231 232 MEDICAL JURISPRUDENCE. (c) A poisoned wound is one contaminated by poi- sonous infection. In common parlance we frequently speak of these wounds as clean, sloughing or poisoned, as the case may be. 3. According to the condition of soft parts. Incised, lacerated, contused, punctured, penetrating and gun- shot. Gun-shot wounds Facts to be considered : 1. Orifice of entrance. 2. Track of missile in the tissue. 3. Orifice of exit. Cause of Death from Wounds. 1. By direct violence and injury to a vital organ. 2. By pressure from hemorrhage interfering with the functions of a vital organ. 3. From severe hemorrhage, either external or into one of the cavities. Relation of Wound to Death. (a) No relation whatever of cause and effect; (b) Where such relation may exist; (c) Wound remote cause of death, and (d) Wound proximate cause of death. Shock. Definition. Shock is the result of powerful impressions made upon the nerve-centers; a sudden depression of the vital powers due (a) to injury, or (b) to profound mental emotion. When due to injury it is called surgical shock; when due to fright, grief or other powerful mental impres- sions, it is called mental shock. The latter is sometimes delayed for a considerable time after the occurrence of the violent emotion; it is then called deferred shock. Delusions, and in children, convulsions, are sometimes WOUNDS. 233 present. Through its depression of the nerve-centers, a circulatory paresis is induced, and this results in an accu- mulation of blood in the large abdominal vessels, with a corresponding loss to the cerebral and peripheral circula- tion, accompanied by disturbance of voluntary cerebration, and lowering of surface temperature. Shock may be of all degrees, from slight to fatal. Symptoms. A condition of shock is denoted by sub-nor- mal temperature, rapid and feeble pulse, pinched features, cold, pallid, clammy skin, profuse perspiration, shallow irregular respiration, diminution or loss of sensibility to pain, and a tendency to urinary suppression. If death results from a wound given in malice, not in its nature fatal, but which, being neglected or improperly treated, caused death, the assailant may be held guilty of murder unless it clearly appears that the neglect or im- proper treatment was the sole cause of the death. 3 Opinions of Physicians. When the facts sought to be elicited are material to an issue in court, the following are a few of the countless questions which physicians may be called upon to answer: Might specified symptoms be the result of certain in- juries'? To illustrate, might a miscarriage have been pro- duced by certain injuries received in a certain manner? Might a certain wound have been inflicted by a certain instrument? Are certain injuries permanent? What force was necessary o produce a certain wound? What was the nature of the instrument causing a given wound? Might a specified injury have been received in a speci- fied manner? Was a certain wound necessarily fatal? S Crum v. State, 64 Miss., 4. 234 MEDICAL JUKISPKUDENCE. How soon would death necessarily follow the infliction of the wound? Was the death the result of the wound or of the surgical operation? Did the shock following the wound have any relation to the shock following the surgical operation and the result- ing death? Was a certain wound the cause of death? Was the wound the immediate or remote cause of death? Was death caused by the wound or by disease? Where the deceased was afflicted with a mortal disease and was injured, death following, which was the cause of death? Was a certain wound accidental, suicidal or homicidal? Which wound was the primary cause of death? (a) Where more than one was necessarily fatal. (b) Where no one was necessarily fatal. Was a certain wound inflicted before or after death? What was the probable direction of the violence? If gun-shot wound, what was the probable distance of the weapon from the body at the time of the discharge? What was the caliber of the weapon? What was the character of the missile? Was a given wound accidental, suicidal or homicidal? Could a certain wound have been self-inflicted? Could two wounds, both of which are necessarily fatal, have been self-inflicted? CHAPTEE XXIII. BLOOD STAINS. Definition of Blood. Blood is the fluid which circulates in the arteries and veins of animals. Classification. From the standpoint of histology, it is usually classed as a tissue. Its inter-cellular substance is fluid, while in other tissues this substance is solid. Origin. It is developed from the middle layer of the embryo. Color of Blood. In vertebrates, except amphioxis, the blood is red ; in other animals, it is of various colors, red, colorless, bluish, greenish, milky, etc. In the human, and most craniota, venous blood is dark red, and arterial blood is bright scarlet. Weight, or Specific Gravity. Human blood has a spe- cific gravity of about 1.055. Quantity. In quantity, the blood of the healthy, normal human is about one-eighth the weight of the person. One author gives it at only one-thirteenth. Composition. The blood is primarily composed of a fluid known as liquor sanguinis, or plasma, in which float myriads of small semi-solid corpuscles and platelets. The proportion in bulk of the fluid to the solids varies from equality to about two to one. In a cubic millimeter of healthy normal human blood, there are about 5,000,000 of these corpuscles. KINDS OP CORPUSCLES. There are two kinds of corpuscles, red and white, and while the proportion varies through a wide range, in health and disease, there are about 350 times as many red as white corpuscles. 235 236 MEDICAL JURISPBUDENCE. Red Corpuscles. The blood derives its color from the innumerable corpuscles which it contains. These red cor- puscles are flat, bi-concave discs, non-nucleated and almost always round in mammals, and nucleated and almost always oval in other craniota. In man, their larger diameter averages about 7.5 micro-millimeters (1/3400 inch), while in amphiuma and tridactylum, the longer diameter is 67.22 micro-millimeters (1/363 inch). In their narrow diameter or thickness these discoid bodies are about one- fourth as large. The redness characteristic of these discoid cells is not manifest wjien examined singly, at which time they appear of a light straw color. The color is due to hemoglobin, which constitutes about ninety per cent of the dried substance of a cell. The red corpuscles are em- bryologically of mesoblastic origin, beginning their life history as nucleated cells, and as such, possessing amoeboid movement and reproductive powers. At birth, however, all nuclei have been lost by them, as well as all power of movement and reproduction. After birth, the production of new red corpuscles is believed to occur mainly in the marrow of the bones. White Corpuscles. The white corpuscles are slightly larger than the red and average about eight to ten micro- millimeters in their larger diameters. They are nucleated, and the proto-plasm of the cell-body is more or less gran- ular. Their shape varies, due largely from .their amoeboid movement. They accomplish some locomotion by the same movement. In this way they pass through the walls of the capillaries into the tissues, where they are known as wan- dering cells. Embryologically, the white corpuscles are derived from the mesoblast. New white cells are derived by reproduction, which seems to take place largely in the lymphatic organs, especially the spleen. PLASMA. This fluid portion of the blood consists of BLOOD STAINS. 237 water containing calcium salts, the chlorides of sodium, potassium, phosphates, albumen and other proteid sub- stances, as well as fatty and extractive substances. PLATELETS. The platelets are small, non-nucleated, round or oval bodies, about one-third the diameter of a red corpuscle. They are usually found in groups, and are prone to disintegration. Their function is unknown, but there is reason for believing that they are concerned in the process of coagulation when it occurs. Hcemoglobin. Haemoglobin is a very important substance found in the red corpuscles, and has the property of readily taking up oxygen from the lungs and as readily giving it up to the tissues of the body. Its known characteristics make it an important factor in the identification of blood and blood-stains. On exposure to the air, it quickly crystallizes. Crystalline haemoglobin is dark red in color, differing some- what with the direction from which the crystals are viewed, is readily soluble in cold water and imparts its color to the solution. The crystals combine freely, not only with oxy- gen, but also with nitric oxide, carbon monoxide and prob- ably carbon di-oxide. Hcematin. After long exposure to the air, haemoglobin is changed to hasmatin, a bluish-black substance, which is insoluble in water and in the ordinary organic solvents, but which dissolves readily in alkaline solutions. Haematin is extremely stable, chemically; the caustic alkalies, hydro- chloric and nitric acids have no effect on it and it does not decompose even at as high a temperature as 180 degrees Centigrade. Under ordinary conditions it retains its chemi- cal identity indefinitely. Oxy-hcemoglobin. Oxy-haemoglobin is a crystalline com- pound of oxygen and haemoglobin, and the crystals thereof have a bright scarlet color like that of arterial blood. Coagulation. If blood escapes from the body, coagula- 238 MEDICAL JUKISPRUDENCE. tion or clotting occurs. After standing awhile, the blood separates into a dark and semi-solid mass, the clot, and a thin red fluid, the serum. The clot is composed of red blood corpuscles matted together with fibrine. The process of clotting is accelerated by cold, and retarded by heat. It may occur in the blood vessels from obstruction or infec- tion, or in the neighboring tissues where a vessel has been ruptured. After death the blood remains fluid in the capil- laries, but clots in the veins. Clots are sometimes found in the cavities of the heart. Tests for Blood. There are several tests recognized and practiced to determine whether a certain substance or cer- tain stains are of blood origin. These tests are based upon ascertained characteristics of blood, or of some of its com- ponent parts. The tests may be classified as (1) Physical, (2) Chemical and (3) Biological. The physical test consists of several different experiments; such as (a) the heat test, (b) the microscopic test, (1) for corpuscles and (2) for ha}min crys- tals and (c) the spectroscopic test. There are three forms of the chemical test, namely, (a) the ammonia tests, (b) the potassium-hydrate tests, and (c) the guaiacum tests. These tests collectively will distinguish blood from other substances with great accuracy under favorable conditions, but do not with certainty differentiate between human blood and the blood of some animals. The value of the tests de- pends upon the skill of the experimenter. ACCURACY OF TESTS. Some of these tests are remarkably delicate, and their combined results and eliminations ap- proximate certainty. From as small a quantity as 1/1000 of a grain of dried blood, crystals of haematin hydro- chlorate have been obtained. Owing to the stability of haematin, it makes little difference as to the age of the stain. In 1819, Kotzebue was assassinated at his desk in his own BLOOD STAINS. 239 house by Sand, and the papers upon his desk were stained with his blood. In 1879, crystals of hasmatin hydrochlorate were obtained from these stains. Accurate as these tests may be for ascertaining the presence of blood stains, they are not infallible in practice. The person making the test may prove unskilled or negligent; he may even be biased or suborned. The difficulty of getting sufficient suspected material and of putting it in condition to make the test is often very great and may sometimes lead to precarious results. BIOLOGICAL TEST. The biological test is based upon the fact that when a sterilized solution of the blood of one animal is injected into the veins of a different species of animal haemolysis is induced, but if the animal treated be of the same species as the animal whose blood is used such disintegration will not take place. The difficulty in this test lies in the impracticability of finding the subject to be treated. This test has been so far experimented with that we have learned that the blood of the anthropoid ape gives the characteristic human reaction, but that the blood of the lower monkeys does not. A sterilized solution of human blood injected into the veins of the higher type of apes does not occasion disintegration or destruction of the corpuscles, but a different condition arises when the test is made with the lower types of monkeys. If future experiments bear out the results of present investigations along this line, it would seem that a party who has had the proper experience, with sufficient materials, could determine with great accu- racy the origin of a certain blood solution. Color of Blood Stains. The color of blood stains depends upon a variety of circumstances, among them being their age, their thickness, their origin, the material upon which they are found, etc. As BELATED TO CRIMINAL LAW. Blood stains have always 240 MEDICAL JUKISPEUDENCE. been recognized among the ordinary indicia of crime, and they frequently afford important evidence in homicide cases. 1 To determine whether such stains are human blood is often a vital question in a criminal case. Two questions are always presented for solution, namely, (1) Is the solu- tion in question blood, and (2) Is it human blood? A nega- tive answer to the first question also negatives the second, and the inquiry need go no further and any inference of guilt arising from the presence of the stain is completely refuted. Some of the evidence to establish the first condi- tion, that is, whether the given stain is blood, is a matter of common observation and every day experience, but by the aid of science many effective means of distinguishing the same are available to the investigator and, therefore, seized upon by the courts whenever the issue is involved. TESTIMONY. An ordinary witness who has observed a substance or stain and formed a conclusion from his obser- vation, may testify that it is or is not blood. Some courts, however, limit such witness to the statement that it " looked like blood," or " appeared to be blood." 2 In the latter case, an ordinary witness, having examined the blood under a microscope, based his conclusion partly upon such exami- nation. The opinion of a physician is competent evidence. He is always permitted to state that a certain stain is blood. 3 The testimony of a physician was admitted to show that, upon examination by means of the microscope, certain spots were found to be human, as distinguished from animal, blood. 4 Such testimony was admitted to show that of certain spots found on a board, some were human blood and some were hog's blood. 5 Again, the testimony 1 People v. Fernandez, 35 N. Y., 60; Com. v. Tolliver, 119 Mass., 312. 2 People v. Bell, 49 Cal., 485; State v. Robinson, 117 Mo., 649, 663; Com. v. Sturte- vant, 117 Mass., 122. 3 State v. Knight, 43 Me., 132; Lindsay v. People, 63 N. Y., 143. 4 Knoll v. State, 55 Wis., 249. 5 Lindsay v. People, 63 N. Y., 144. BLOOD STAINS. 241 of a physician was admitted to show that a stain on a shirt was occasioned by the blood flowing directly on the outer surface, as shown by the fact that the coloring matter of the blood remained on the outer surface. 6 In the latter case, the defense attempted to show by the testimony of physicians that the location and appearance of the blood marks on the shirt of the defendant demonstrated that the defendant was probably prostrate on the ground and de- ceased on top of him when the stains on the shirt were received. The court held that this was not a matter of medical testimony, as it merely involved a question of gravity. It has been said that the testimony of a chemist who has analyzed the stain, and that of a person who has merely observed it, belong to the same legal grade of evidence. 7 DEMONSTRATIVE EVIDENCE. Articles having spots on them resembling blood are competent evidence to go to the jury, when connected with the subject of the inquiry. 8 6 State v. Knight, 43 Me., 132 ; Dillard v. State, 58 Miss., 370. 7 People v. Fernandez, 35 N. Y., 61. SState v. Baker, 33 W. Va., 319; Thomas v. State, 67 Ga., 460. CHAPTER XXIV. CRIMES WITH MEDICAL ASPECTS. Introduction. While all offenses of violence against the person may involve medical evidence, there are some crimes in which the services of medical science are sometimes in- dispensable to the administration of justice. The essential element of the offense may rest entirely on medical evi- dence. There will be no attempt made to illustrate and detail the character of the medical evidence which may be present in special offenses and particular cases, and where such evidence is referred to, the reference is made in order to illustrate the legal principles involved, the importance of the medical evidence and its relation to the administra- tion of law. Most treatises on medical jurisprudence, espe- cially those prepared by medical men, discuss only the medical side of these cases, and to them the reader is re- ferred. Rape. Definition. Rape is the carnal knowledge of a female forcibly and against her will. Where the female is under the age of consent, there need not be any force and the act may meet with her approval, or even be brought about at her solicitation. Age of Consent. At common law the age of consent was ten years, but the subject is now generally regulated by statute and the age fixed varies from ten years, in some States, to eighteen years in other States. Punishment. Rape is regarded as a most brutal crime and the penalty in all civilized communities is justly severe. 242 CRIMES WITH MEDICAL ASPECTS. 243 On the high seas and in all places within the exclusive juris- diction of the United States, it is punishable by death. Physical Violence. Where physical violence is the means employed to perpetrate the crime, the female must resist her uttermost and to the last, and herein many delicate medical questions may arise and should be given proper consideration. 1 Force. The kind and degree of force used is not mate- rial, if it be sufficient to overcome resistance. It may be physical violence, fraud, deception, as by impersonating her husband, intimidation by threats and through fear of per- sonal injury or public scandal, the administration of drugs or gases producing anesthesia or exciting sexual passions, taking advantage of natural sleep, hypnotic influences, or any of the countless artificial means whereby a female's power or desire to resist may be overcome. The gist of the offense is the having sexual intercourse without her con- sent, or, what amounts to the same thing in law, at a time when, because of a natural or artificial, permanent or transient, mental condition she was incapable, in fact or in law, of giving consent. Since defloration of a female under the influence of an anesthetic is rape, and the grava- men of the offense is the violation of the person, the intent with which or the person by whom the anesthesia is induced is unimportant. Whether the stupefaction was brought about at her request to relieve the pain of an operation, or without her consent to excite her sexual passions, leading to voluntary submission, or to overcome her power of re- sistance to his assault, where intercourse occurs, the offense is rape. Previous Unchastity of the Woman. The previous un- chastity of the woman is immaterial, except as it affects her 1 Rahke v. State, 168 Ind., 615; Brown v. State, 127 Wis., 193; Adams v. People, 179 111., 638. 244 MEDICAL JURISPRUDENCE. credibility, where the act is denied, or bears upon the pre- sumption of consent, where the act is admitted. 2 Signs. The characteristic signs of rape are numerous and usually easy to discover. When called on a case in- volving a charge of defloration of a female the physician should take every available precaution to locate and verify the medical evidences of the offense. The condition of the woman's clothing, the appearance of her sexual organs, the presence of seminal fluid, and all other special facts indica- tive of sexual intercourse, with or without force, should be specially noted and classified. 3 It is needless to say that a thorough physical examination of the woman, and tests for spermatozoa, when possible, are indispensable to the ends of justice. 4 EUPTURE OF HYMEN. As a matter of law, the crime may be consummated without a rupture of the hymen, but all circumstances must be considered before forming an opin- ion. 5 Poisoning. Definition. Poison is any substance which, when intro- duced into the animal organism, produces morbid, noxious or deadly effects, or is injurious to health or life. 6 Poison imports, ex vi termini, a substance which has fatal proper- ties when introduced into the animal system. 7 Whether a given substance is poison is always a question of fact, and may involve a chemical analysis or other scientific demon- stration. 8 Malice. The intentional administration of a poison for any wrongful purpose implies malice. 9 2 Carney v. State, 118 Ind., 525; Maxey v. State, 66 Ark., 523. 3 Com. v. Lynes, 142 Mass., 577. 4 State v. Tuipner, 36 Minn., 535; State v. Murphy, 118 Mo., 7; State v. Perry, 41 W. Va., 641. 5 State v. Hargrove, 65 N. C., 467; Braner v. State, 25 Wis., 413. 6 State v. Baldwin, 36 Kan., 20 ; People v. Van Deleer, 53 Cal., 149. 7 State v. Slagle, 83 N. C., 130. 8 Com. v. Kennady, 170 Mass., 25. Siebert v. People, 143 111., 571. CRIMES WITH MEDICAL ASPECTS. 245 Common Law. At common law, administering poison was assault and battery with intent to kill and, if death re- sulted, the offense was murder. Post-mortem. If the evidence of the administration of a specific poison is positive and the symptoms established are characteristic, there may be a conviction without the aid of a post-mortem, 10 but wherever possible an autopsy should be held, and the investigation should go to the ex- tent of ascertaining, not only the presence of poison in the tissue, and the kind, but also as to whether there was suffi- cient, under the circumstances, to cause death. Where there is no direct evidence of the administration of the drug, its presence in the tissue after death, in sufficient quantities to occasion that event, is very essential to a con- viction of the offender. 11 In cases of poisoning, most ques- tions involving the science of medicine are purely medical, not legal, and for the medical evidence of death or injury by poisoning, the reader is referred to medical treatise on the subject. The symptoms of death from certain well- known poisons are so familiar to the profession that, in some jurisdictions, a general practitioner may testify that the given symptoms are those of a certain poison and, with sufficient other facts given to enable him to form an intelli- gent conclusion, he may state that in his opinion death was caused by such substance, even though he never had a case of such poisoning in his practice, because he is not confined to information derived from observation and experience, but may base his opinion on knowledge derived from medi- cal works and other sources. 12 Infanticide. Definition. Infanticide is the criminal destruction of a 10 Polk v. State, 36 Ark., 117. 11 Hatchett v. Com., 76 Va., 1030. 12 Siebert r. People, 143 111., 571, 579. 246 MEDICAL JURISPRUDENCE. new-born child. It is a term applied to the act of destroy- ing an infant at the time of birth, but after it has estab- lished an independent existence. The destruction of a foetus, even though partly delivered is not infanticide and, at common law, was only a misdemeanor, while, on the other hand, if the child has lived a sufficient length of time under circumstances to establish its independent existence by other evidence than that disclosed by the corpse itself, such as witnesses who saw and heard the child and other evi- dence of the presence of a living infant, its destruction would not be classified as infanticide, but as a plain case of homicide. Such prosecutions are usually directed against the mother, but any other person who is present may be guilty of the offense. The subject is of special interest to the physician because of the great number of medical ques- tions involved as essential elements of the crime. If the child has established an independent existence, the willful taking of its life will be murder, and will subject the offender to the penalties of such offense, but if it still de- pends upon its mother for life, its destruction will only be a misdemeanor, hence the importance of knowing and prov- ing to which class the act in question belongs. However, the killing of an unborn quick child is now generally de- clared a criminal homicide by statute. But in the absence of statute, such act is only a misdemeanor. 13 Duty of the Mother. What duty does a mother owe her unborn child? Does that duty increase or vary between the instant of conception and the moment of final parturition? These questions the law has wisely left, in a large measure, to the instincts of the race. Whatever may be the mother's obligations in the premises, the law has never undertaken to outline or classify them. Her sense of right and the instinct of self -preservation, have, in a great measure, been 13 Williams v. State, 34 Fla., 217; Evans v. People, 49 N. Y., 86. CBIMES WITH MEDICAL ASPECTS. 247 relied upon, without supervision or mandate, to protect society in so far as the public is interested in the subject. From the earliest time, however, she was held accountable for its willful destruction, after "quickening," it being sup- posed that at that time the child had life and power of mus- cular movement. Prevalence. The offense is apparently much less preva- lent than formerly. We should not, however, flatter our generation by inferring that such a fact is due to any great improvement or change in the morals of society in the meantime. The explanation is more likely to be found in the increased and more prevalent knowledge of means of preventing conception and of procuring the expulsion of the unwelcome intruder before maturity without positively jeopardizing the life of the mother. The human heart with its weaknesses and follies is, in all ages, the same. Intent. Intent to take the life of the infant must be proven. The evidences of intent are generally circumstan- tial and of a nature to be explained on the hypothesis of ignorance, accident or natural causes. Here is where the ingenuity of the medical man is taxed to find the true facts in the case. Mere voluntary exposure of herself by the mother at the time of the delivery, for the purpose of con- cealing her shame and which, without other fault on her part, results in the child's not surviving the ordeal, or mere failure on her part to get assistance at the time, would not be sufficient to establish intent. Independent Existence. What constitutes being born alive and having an independent existence is a question involved. All authorities agree that the offense cannot be predicated unless the child had completely proceeded in a living state from the body of the mother. At least two con- ditions of fact must also exist : (1) The child must have been alive; and 248 MEDICAL JURISPRUDENCE. (2) It must have had an independent circulation, and ac- cording to some authorities, (3) It must have breathed. But if these conditions existed, it makes no difference whether (1) It was still attached to the mother by the umbilical cord, or, according to some (and probably the better) au- thorities, (2) It had breathed or not. According to one authority, a child is born alive when, breathing and living by reason of breathing through its own lungs alone, it exists as a live being without deriving any of its living, or power of living, by or through any con- nection with its mother. 14 SEVERANCE OF UMBILICAL CORD. According to English authorities birth is complete when the child has been wholly expelled from the body of the mother, even though it is still connected with her by the umbilical cord. 15 However, it would ordinarily seem the more correct position that birth is not complete until the child has an independent circulation, and breathes through its own lungs. If circu- lation has been set up, the mere continuity of the funis is unimportant. Independent circulation should be one of the tests and as soon as that condition exists, with power to purify the blood in its own lungs, shown by respiration, the child may be said to have complete, independent existence. 16 Circulation and respiration are essential functions of ani- mate life and, until both have been established, there is not a complete self-sustaining organism. MEDICAL EVIDENCE OF INDEPENDENT EXISTENCE. The medical evidence that a child was born alive and had an independent existence is derived, i* Beg. v. Hindley, 13 Cox, 0. 0., 79 ; State v. Winthrop, 43 la., 519. 16 Reg. v. Trilloe, 41 E. C. L., 352. 16 State v. Winthrop, 43 la., 519. CRIMES WITH MEDICAL ASPECTS. 249 1. From an inspection of its general appearance and 2. From the conditions of (a) Respiratory Organs, (b) Circulatory System, and (c) Abdominal Organs. BESPIEATOKY ORGANS. Where breathing has occurred, the respiratory organs offer the most reliable proof of live birth. The thorax is higher or more vaulted in appearance than where the child has not breathed, and the diaphragm is more depressed after respiration than before. After breathing, the larynx is wider, and is not closed by the epiglottis. Hydrostatic Test. The hydrostatic test, celebrated in the history of infanticide, is based on the fact that the lungs in their foetal or unaerated condition sink when placed in water, while the lungs of a child that has breathed (or where they have been otherwise inflated) float in water. This test for infanticide was, for several centuries, regarded as de- cisive by men of distinction who had thoroughly experi- mented on the subject, but some writers of experience and authority are opposed to the test as fallacious, Baron Gar- row styling it " scientific humbug." 17 Breathing. It is a well recognized fact that some chil- dren breathe before complete expulsion and, on the other hand, instances are not wanting in which breathing does not commence until some time after complete parturition. Therefore, the fact that a child has breathed does not neces- sarily prove that it was born alive, 18 nor, on the other hand, does the fact that the child never breathed prove that it was not born alive. 19 CIRCULATORY ORGANS. The condition of the circulatory organs may assist in arriving at the fact of independent 17 Dole v. Johnson, 50 N. H., 452. 18 Bex. w. Wright, 9 0. & P., 754. IB State v. Winthrop, 43 la., 619. 250 MEDICAL JURISPRUDENCE. existence. The condition of the foramen ovale and the ducti arteriosus and venosus is probative of independent breathing and circulation, but their presence in the foetal condition does not conclusively negative independent exist- ence. ABDOMINAL ORGANS. In the foetus the liver is relatively enormously large and very vascular. If the child has par- taken of any food, the stomach and intestinal canal may afford proof thereof, by reason of the presence therein of food, milk or farinaceous or saccharine matters, from which life is necessarily inferred. Other medical facts will read- ily occur to the alert and skilled physician. Natural Causes of Death. The natural causes of death during birth and in new-born children is a subject of great importance in medical jurisprudence. The principal causes acting during birth and immediately subsequent thereto are, 1. Compression of the umbilical cord, 2. Strangulation by the umbilical cord, 3. Hemorrhage from the umbilical cord, 4. Suffocation by the amniotic membrane, 5. Malformation of the mother, 6. Protracted delivery, 7. Constitutional debility of the infant, and 8. Accidental fractures. The scar or mark left by strangulation by the umbilical cord can usually be readily distinguished from the mark left by strangulation by a rope or string, as the funis never leaves any mark of excoriation or cutting of the skin, the mark being broad, smooth, uniform and without break. Hemorrhage from the cord may occur from accidental rup- ture during the birth, or it may occur after severance. Of course, sometimes it occurs from the cutting of the cord with a criminal design. A child often dies of constitutional CEIMES WITH MEDICAL ASPECTS. 251 feebleness. An inspection of the body will frequently war- rant this judgment where there is no other apparent cause of death. In the case of Reg. v. Middleship, reported in Cox's Crim- inal Cases, 275, the evidence tended to show that the child had dropped from the mother while she was in a privy. Other similar instances are not wanting in the experience of medical men, and they show that in cases of concealed birth where there is a fracture of the skull, it may possibly be due to accident and not to a criminal act. Therefore, the medical man seeking to find out the right should, by his investigation, negative all possible accidents and natural causes. Identity of Mother. The identity of the mother may be an issue in the case. Where such fact is at issue, a phy- sician, from proven symptoms and history shown, or from his own examination of the defendant, where such has been made, may give his opinion as to whether the defendant had been delivered of a child and how recently. 20 When the other evidence of the identity of the mother is only circum- stantial, the medical evidence of pregnancy and delivery, or their absence, becomes very important in determining the right of the case. Burden of Proof. It has been stated by writers of author- ity that about one in every twenty legitimate children is born dead while, in illegitimates the proportion is about one in every ten. We may not agree on the proportions, but all persons of experience must agree on the fact that many chil- dren are born dead, even in the absence of any criminal act on the part of the mother or other person. This fact, there- fore, is an important consideration in determining the guilt in charges of infanticide. In all prosecutions for crime the defendant is presumed to be innocent until he is proven 20Echols v. State, 81 Ga., 696. 252 MEDICAL JURISPRUDENCE. guilty, and the jury must be satisfied beyond reasonable doubt. No man can honestly be satisfied beyond reasonable doubt where the chances are one in twenty that he is wrong. Therefore, in cases of infanticide, the prosecution has the burden of proving that the child was born alive. In prac- tice, this means that the prosecution is put to the necessity of producing some evidence that the child did have an inde- pendent existence. Statutes. During the reign of James I, a statute was enacted making concealment of the death of a bastard child prima facie evidence of murder by the mother, but she could overcome the presumption by the testimony of one reputable witness that the child was born dead. By a statute of Pennsylvania passed May 31, 1781, such conceal- ment was conclusive evidence against the mother. CHAPTER XXV. STATUTES OF LIMITATIONS. Policy of the Law. It is the policy of the law to discour- age the litigation of stale matters. Such policy was orig- inally adopted to discourage perjury by trying issues when the facts were fresh in the memory of the witnesses and the falsity of testimony could more readily be proved. Statutes of limitations are universally in effect whereby the time within which actions may be brought is designated with reference to the time the cause of action accrued. When Cause Accrues. The question of when a cause of action accrues is often difficult to determine, and has led to innumerable interpretations by the courts. At the time a party has a right to demand fulfillment of an obligation by another, his right of action is complete and is said to have accrued. When a cause of action accrues the statute is said to begin to run. In actions for personal injuries, the statute begins to run at the time the injuries are received. 1 Malpractice Cases. As a general proposition, in mal- practice cases, the cause of action accrues at the time the alleged improper services were rendered. Thus, where the negligence and unskillfulness of a surgeon in treating a frac- tured arm were the gist of the action, it was held that the statute began to run at the time of the discharge of the case after the setting of the arm, where the facts showed that the wrongful setting was the real and substantial cause of complaint. 2 Period of the Statutes. In some States actions in tort for 1 Fadden v. Satterlee, 43 Fed., 568. 2 Coady v. Reins, 1 Mont., 424. 253 254 MEDICAL JURISPRUDENCE. malpractice must be begun within one year from the accrual of the cause of action. In other States it is two years. Most statutes favor actions on contracts by giving them a longer period to run. Under such statutes, an action for breach of contract by malpractice may be maintained, after the statute has run against the tort action. Diligence. It is not the policy of the law to refuse redress to an injured party who has a just cause of complaint. Dil- igence in enforcing remedies is the purpose of the statutes under consideration. A party must not sleep on his rights. Reasonable promptness in appealing for redress is encour- aged and, in fact, demanded. However, a party cannot be said to sleep on his rights before he knows that he has suf- fered injury at the hands of another. Generally, in matters of malpractice, the time when the action accrues is always manifest and self-evident, as there can be no mistaking exactly when the wrong was done and the injury inflicted. The presence of the injury is a continual reminder of the wrongful conduct. But cases there are which are not free from doubt and uncertainty. Take the case of a course of treatment by a physician, which was clearly wrong from the beginning and resulted in injury to the patient. Should the statute begin to run with the first treatment or at the termination of the relation! Is not the wrong a continuous one? Is there not a breach of duty at the last as well as at the first, or at any intervening visit! So long as the im- proper treatment continues there is a continuing breach of the duty which the practitioner owes to his patient. Specified Services. Where there is an agreement for certain specified services, covering a period of time, the statutes should not begin to run until the services have been completed, or the relation terminated in some other manner. 3 It would appear that this proposition should 3 Gillett v. Tucker, 67 O. St., 106. STATUTES OF LIMITATIONS. 255 not apply where the ground of complaint was for some known improper conduct which, to the knowledge of the patient, could not be remedied by subsequent proper atten- tion and treatment. Thus, the wrongful amputation of a limb where such operation was clearly unnecessary and ill- advised, would create a cause of action at the time and the statute should begin to run at the time of the act regardless of subsequent conduct of the operator. Knowledge of Injury. It has been held that the breach of duty constitutes the ground of complaint and causes the action to accrue, not knowledge by the plaintiff of the fact of the wrong evidenced by the resulting injury. 4 The statute begins to run at the time the injury is inflicted, not- withstanding the results may not be fully developed until long after. 5 Thus, malpractice in the delivery of a woman, whereby the child is injured, dates from the time of the delivery, although the serious consequences of the negli- gence to the child are not apparent for several years there- after. 6 Latent Injuries. General laws cannot cover every pos- sible contingency. They are made with reference to usual experiences. Exceptional cases must be reached by inter- pretation, when within the purview of the act and by new legislation, when they are not. The statutes under discus- sion have been enacted with the unexpressed assumption that the party wronged knows of his injury at the time of its infliction. In most cases of malpractice this is not a violent presumption because, in fact, it is in harmony with the circumstances. The man with a deformity occasioned by an improper setting of the parts, by the surgeon, knows of the blunder at the time and is continually reminded of the 4 Frounce v. Nichols, 22 O. C. C., 539. 5 Fadden v. Satterlee, 43 Fed., 568. 6 Miller v. Ryerson, 22 Ont., 369. 256 MEDICAL JUBISPEUDENCB. wrong which was done him, and of the breach of duty by his surgeon. Cases there are, however, where the injury is inflicted and the patient does not know it, and from the very nature of things cannot know at the time that he has been wronged. The law is not intended to protect the wrong- doer who successfully covers up his misdeeds, nor the party whose negligence of omission is concealed by the nature of his dereliction. Thus, the patient in whose abdomen an operating surgeon has left a sponge, absorbent cotton, a pair of scissors or other foreign substance, may be ignorant of the fact until years after when, driven by excruciating pain to undergo another operation, the presence of the intruder is disclosed. There can be no reason for encouraging promptness of action where the party is ignorant of any wrong having been done him. Promptness presupposes knowledge of the matter to which it relates. Continuing Obligations. Where a physician operated upon a patient for what he pronounced to be appendicitis, and neglected to remove from her abdominal cavity a sponge which he had placed therein, in connection with the opera- tion, and this condition continued during his entire profes- sional relation to the case, it was held that the statute of lim- itations did not commence to run against the right to sue and recover on account of want of skill, care and attention, until the case had been abandoned or the professional relation otherwise terminated. There was an agreed consideration in this case for the operation itself, and also for such treat- ment as might be necessary thereafter, and the contract was regarded as an entirety. The obligation on the part of the physician to use due care and diligence, to the end that recovery might be had, existed, therefore, as long as the relation of physician and patient continued. "It was a constant and daily obligation to use ordinary skill and care and if, by omission or negligence he had left a foreign sub- STATUTES OF LIMITATIONS. 257 stance within the walls of the incision at the time of the operation, it behooved him to afford timely relief. Neglect of this duty, imposed by the continuance of obligation, was a continuous and daily breach of the same and, as the facts show, caused continuous increasing daily and uninterrupted injury." It will be observed that in this case there were two distinct grounds on which to base complaint against the surgeon: First: Negligently permitting the sponge to remain in the cavity when closing the incision, and Second: Negligently allowing it to remain there from day to day until he dismissed his patient from his attention. The neglect of the surgeon was inherent in the operation, and also in the subsequent treatment. 7 A Continuing Wrong. Sponge cases and others of that type are in reality continuing breaches of the obligation which the operator owes to his patient. If the surgeon knew of the presence of the foreign body and purposely, with or without malice but without sufficient reason, im- properly permitted it to remain, his conduct in that respect would amount to an assault. If he did it through negli- gence, the law would charge him with knowledge, for he should have known, and the legal consequences as to his liability would be the same. In either alternative the act amounts to a continuing assault, each recurring pain being a new breach of duty by the operator, and the statute should not begin to run until the discovery of the fact by the patient, or until, in the exercise of reasonable care and due diligence, under the circumstances, the patient should have discovered his real condition. If the object is removed by the offending surgeon, the statute should not begin to run until after such removal and the disclosure of such fact to the patient by the surgeon. 7 Gillett v. Tucker, 67 0. St., 106. 258 MEDICAL JURISPRUDENCE. Suit for Fee. When a physician delays action for his fee until after the statute of limitations has run against an action in tort by his patient for malpractice in reference to the same services, the patient may, nevertheless, show the malpractice as a defense to the physician's claim even though the fee had been agreed upon before the services were rendered. Under such circumstances, generally speak- ing, the patient is limited to a defeat of the physician's claim ; he cannot recover affirmatively against the physician. However, the decisions are not in harmony on this subject, and the reader is referred to the decisions of the State in which he is interested. Persons Under Disability. The statutes usually except minors, insane persons and others under disability, and give them a certain period, usually a year, after the removal of the disability in which to begin suit. Therefore, in case of malpractice on a minor, the possibility of litigation is not ended until a year or more after the patient attains his majority. CHAPTER XXVI. MISCELLANEOUS. Business, Contracts and Work on Sunday. Sunday. In contemplation of law Sunday is merely a day of rest. In this country there is no attempt by law to ingraft upon the day any religious aspect. While all religious faiths are regarded with respect, the law does not attempt to enforce any religious observance of the day nor to treat it as a religious institution. Sunday, as a Christian institution, is a development from the Jewish Sabbath, or day of rest. Duration of the Day. At common law, the natural and civil day consists of twenty-four hours, extending from midnight to midnight, while the artificial or solar day extends from sunrise to sunset. 1 Some statutes relating to work on Sunday have been construed to mean the solar day, from sunrise to sunset. 2 As used in such statutes, however, the more general interpretation of Sunday is that it means the civil day of twenty-four hours, extending from midnight Saturday to midnight Sunday. 3 At Common Law. For centuries Sunday has been consid- ered a non-judicial day. By a canon of the Church ingrafted on the common law all judicial proceedings which took place on that day were void ; however, all other business might lawfully be transacted on that day. Thus, a contract executed on Sunday is not void at common law, by reason of 1 Hiller v. English (S. C.), 4 Strob., 486. 2 Fox v. Abel, 2 Conn., 541. a State v. Green, 37 Mo., 466, 470; Schwab v. Mayforth, 1 City Ct. (N. Y.), 177, 179; State v. Heard, 107 La., 60; Shaw v. Dodge, 5 N. H., 462, 463. 259 260 MEDICAL JUEISPBUDENCE. having been entered into on that day. 4 The common law does not prohibit ordinary labor or secular work on Sunday. 5 Statutes. During the medieval period the authority of the Church was so universally recognized that secular leg- islation on the subject of Sunday observance appears to have been unnecessary. In fact the day appears to have been treated entirely as a religious institution. By the statute of 5 and 6, Edw. V., Chap. 3, it was provided that all secular labor on Sunday should be unlawful except in cases of necessity. This statute was greatly enlarged by the Act of 29 Chas. 2nd, Chap. 7, which prohibited all " worldly business" except when absolutely necessary or for charity. These statutes have been substantially enacted and fol- lowed in all the United States. Our courts have held that statutes prohibiting the execution of contracts, the transac- tion of business and the performance of secular labor on Sunday are a reasonable exercise of the police power for the protection, health and general welfare of society. A gen- eral law prohibiting the transaction of all business and the performance of all labor on Sunday, except work of neces- sity and charity is constitutional and enforcible. LIMITED TO CERTAIN CALLINGS. However, where such statutes or ordinances single out a particular occupation whose exercise does not necessarily disturb the peace and good order of society, they are regarded as class legislation and will not be enforced. 6 CONSTRUCTION. Where the statutes are limited to a pro- hibition of disturbances of the peace and good order of society by labor on Sunday, they are construed not to pro- hibit ordinary business transactions or professional work. WORK OF NECESSITY AND CHARITY. The statutes of the 4 Richmond v. Moore, 107 111., 429. 5 Eden v. People, 161 J1L, 296. 6 Eden v. People, 161 HI., 296. MISCELLANEOUS. 261 various States prohibiting labor and the transaction of busi- ness on Sunday, naturally and necessarily except work of necessity, great public convenience, and charity. What constitutes work of necessity and charity has often been before the courts and is not always easy to determine. The circumstances of each particular case must be taken into consideration. An act which would be considered a neces- sity under one set of circumstances, might be clearly pro- hibited under a different set of circumstances. MEANING OP NECESSITY. Necessity, within the meaning of the law, is generally considered a moral and social fitness or propriety of the work or labor under the circumstances of the particular case. 7 The necessity referred to in the statute need not be an absolutely unavoidable physical neces- sity; a mere moral emergency which will not reasonably admit of delay is a necessity within the contemplation of such statutes. 8 It has been said that it is impossible to lay down any general rule as to work of necessity and charity, and also that the exigencies of human life, which demand work of necessity and charity, are so numerous and diversi- fied by attending circumstances as to defy classification. 9 SEKVICES OF A PHYSICIAN. The usual services of a phy- sician are generally regarded as coming within the excep- tion as work of necessity, and he may collect the usual reasonable fee for medical and surgical attention on Sun- day. Coroners. Definition. A coroner is a municipal or county officer who, in modern times, is charged with the duty of holding inquests upon the bodies of persons who may be supposed to have died violent, unnatural or extraordinary deaths. 10 7 Flagg v. Mullbury, 4 Gush., 243 ; Johnston v. People, 81 111., 469. 8 Burns v. Moore, 76 Ala., 839, 342. 9 Johnston v. Com., 22 Pa. St., 102 ; Ungericht v. State, 119 Ind., 379. 10 Bouvier's Law Dictionary, 262 MEDICAL JURISPRUDENCE. Duties. At the present time the duties and powers of a coroner are both judicial and ministerial; formerly, at an early date, they were exclusively judicial. 11 Wherever the circumstances surrounding a death are of such a character as to sustain a reasonable belief that it resulted from unlaw- ful or violent means, an inquest should be held. The de- cision of the necessity therefor lies in the sound discretion of the coroner, which, ordinarily, will not be reviewed by the courts. 12 He cannot arbitrarily, capriciously, for an ulterior motive, and without any apparent reason, hold an inquest. 13 He has the power to summon witnesses and retain physicians to make examination and autopsy. He can compel the attendance of a physician who knows the facts or has inspected the body and require him to give his opinion of the cause of death, 14 but he can not compel him to perform an autopsy as a basis for his opinion. 15 Civil Liability. The coroner is not civilly liable for slander for any remarks or instructions he may give the jury on the facts of the case under consideration, even though alleged to have been uttered falsely and ma- liciously. 16 Boards of Health. Civil Liability. Where members of a board of health, in good faith, act in a judicial capacity, that is, in the exercise of a judicial power within their jurisdiction, they are not civilly liable personally to a party who claims to have been damaged by their decision or by the enforcement thereof. 17 In such cases there is no presumption in favor of jurisdic- 11 1 Bl. Com., 348 ; Yeargin v. Siler, 83 N. C., 348. 12 Boisliniere v. St. Louis Co., 32 Mo., 375. 13 Lancaster Co. v. Mishler, 100 Pa. St., 624; Clark Co. v. Galloway, 52 Ark., 361; State v. Marshall, 82 Mo., 484. 14 St. Francis Co. v. Cummings, 55 Ark., 421. 15 Allegheny Co. v. Watt, 3 Pa. St., 462. 16 Thomas v. Churton, 2 B. & S., 475. IT Underwood v. Green, 42 N. Y., 140; Salem v. Eastern R. Co., 98 Mass., 431; Ray- mond v. Fish, 51 Conn., 80. MISCELLANEOUS. 263 tion and the board has the burden of showing that the matter in question was within their cognizance. Medical Services Required by Law. Duty of Parent to Employ Medical Services for Minor Child. It is the duty of a parent, or of one in loco parentis, to procure necessary medical treatment for his minor child and for any gross, willful neglect herein, he may be held criminally liable. 18 The law is based upon the assumption that the medical services were a necessity and applies wherever the party sought to be held responsible is charged with the duty of supplying the minor with necessaries. Christian Science. Conscientious scruples generally against the employment of medical assistance in case of disease or accident will not avail the responsible party as an excuse for the failure to procure such services. In this respect, the law enforces contemporaneous, prevailing, par- amount public opinion and enlightenment. Whether the Christian Scientist be regarded as a survival of the primor- dial stages of human development, or as a projection from the mystic, ethereal regions of the millenial perfection yet to be, a camp-follower or a van-guard of progress, he is not in harmony with present notions of conditions and responsi- bilities, which is the basis of all law, and if he fails to respond to present requirements, he must suffer the conse- quences. "I entirely agree . . . that while the merits or demerits of the Christian Science or faith are things with which we have nothing to do as long as it does not transgress or lead to a transgression of the law, the law of the land is par- amount, and it is not for people to set themselves up in opposition to it; that the law of the land must be obeyed, and it must b'e obeyed even though there be something in the 18 Stehr v. State, 92 Neb., 755 ; 45 L. R. A., 559. 264 MEDICAL, JURISPRUDENCE. shape of belief in the conscience of the person which would lead them to obey what, in his state of mind, he may consider a higher power or higher authority. And especially must there be obedience where, as in this instance, the subject of the judgment to be exercised is a child of tender years, unable to exercise any judgment of his own. In one form or another it has been frequently said by able judges, and it cannot be too widely known or too often repeated, that where an offense consists of a positive act, which is know- ingly done, the offender cannot escape punishment because he holds a belief which impels him to think that the law which he has broken ought not to exist or ought never to have been made." 19 Religious Belief. Where a statute provides that "every parent of any child who wilfully omits, without lawful ex- cuse ... to furnish necessary . . . medical attendance for such child is guilty of a misdemeanor," a father who fails to call a physician and who refuses to permit a minor child to be treated by a physician for typhoid fever because of his religious scruples against such ministrations is liable to the penalty the law inflicts. 20 His religious conviction is not a lawful excuse. "A party's religious belief cannot be accepted as a justification for his commission of an overt act, made criminal by the law of the land. ' ' 21 Malingerers. Feigned Diseases. Diseases are often feigned so success- fully as to baffle the most skilled medical experts. This subject usually comes before the courts in attempts to mag- nify the results of injuries, in actions for damages, and to appear insane when charged with crime. The falsity of pretended results is often extremely difficult to demonstrate, 19 Rex v. Lewis, 6 Ont. L. Rep., 132, 1 B. R. C., 732. 20 Owens v. State, 6 Okl. (Mm., 110; 27 A. C., 1218, 1221. 21 Reynolds v. U. S., 98 U. S., 145, involving polygamous marriages. MISCELLANEOUS. 265 and the mere opinion of the medical expert is usually out- weighed by the apparently truthful assertion of the malingerer. Two medical questions are involved, (a) Is the party in fact suffering from the condition claimed, and (b) Could the pretended condition result from the in- juries claimed to have been received? In cases of fraud, real or apparent, the attention of the medical man should be directed to the solution of these two questions. Besides, where the relation of cause and effect are not apparent, the physician should always be on the alert for other causes of the trouble. As to pretended in- sanity, common observation and experience, testify that the affliction can be readily and skillfully simulated. 22 That insane persons should attempt to conceal their malady in certain stages, and even pretend to be rational, is to be expected, but the courts record but few cases where there was a well laid plan followed with any degree of intel- ligence by an insane person to simulate sanity. 23 Guiteau pretended to be sane notwithstanding the plea of his attor- ney, but his conduct at the trial cannot be regarded as an attempt to conceal insanity and to appear sane. Possibilities. Almost any disease or group of symptoms may be feigned. When a physician is called upon to give an opinion as to whether or not a certain alleged injury or disease is feigned, he must base his opinion upon the rela- tion between certain facts, rather than upon a positive knowledge that the conditions claimed are feigned. His de- cision must depend upon the relation between the character of the injury and the conditions claimed to result therefrom ; that is, 22 De Jarnette v. Com., 75 Va., 867 ; State v. Klinger, 43 Mo., 127 ; Ex partt Schnei- der, 21 D. C., 433. 23 Beg. v. Pearce, 9 C. & P., 667. 266 MEDICAL JURISPRUDENCE. (1) Whether or not the conditions claimed might reason- ably result from the accident as described ; (2) What is the relation between the conditions claimed and those which are found upon examination; (3) The relation between the alleged subjective symptoms and the injury or condition claimed, and could the former have been the result of the latter ; (4) Whether the subjective symptoms and conditions claimed are regular, well-defined, localized and character- istic ; (5) Are the subjective symptoms consistent with the ob- jective symptoms? Contracts in Restraint of Professional Activity. Not Favored in Law. Contracts in restraint of trade, in- dustry, employment, or personal or professional activity are not favored in law because they are considered as being against public policy. The law will not permit any one to restrain a person from doing what the public welfare and his own interest requires that he should do. 24 Prevalence. Probably the reports of every State in the Union contain adjudicated cases in which some physician sold the good will of his practice for a consideration, and ancillary thereto agreed not to engage in the practice of his profession within a certain distance of his former location, within a certain period of time. Validity. Where the restraint is partial and reasonable, in good faith, and founded upon good consideration, such contracts are valid and enforcible. 25 Ancillary to Employment. Agreements not to engage in the practice of the profession in a certain place for a definite 24 Homer v. Ashford, 3 Bing., 322. 25 Hedge v. Lowe, 47 la., 137; Boutelle v. Smith, 67 111., 75; Arnold v. Krutzer, 87 la., 214; Dwight v. Hamilton, 113 Mass., 175; Cook v. Johnson, 47 Conn., 175; Niles v. Penn, 33 N. Y. Supp., 857; Homer v. Graves, 7 Bing., 735; Butler v. Burleson, 16 Vt. 176. MISCELLANEOUS. 267 period of time, are frequently ancillary to contracts of em- ployment of the covenantor by the covenantee and, unless void for the want of consideration or mutuality, or for un- reasonableness or fraud, will be enforced by the courts, by enjoining the party from practicing in violation of his cove- nant. 26 Specific Performance. Courts of equity will enforce specific performance of such negative agreements by re- straining a breach thereof by injunction, prohibiting the covenantor from practicing in violation of his covenant. Reason for the Relief. The injunctional relief is based upon the theory that the covenantee does not have a complete and adequate remedy at law, since the latter action is for damages only and in which he can recover only what he can prove. The evidence to establish damages might not be available, and, ordinarily, would be purely speculative. 27 Contract in Writing. By all means such contracts should be in writing and the restriction should not be greater than absolutely necessary reasonably to protect the vendee and to insure him that he will get what he contracted for. PROVISIONS OF CONTRACT. (a) Time Limit. It is advis- able to incorporate a limitation as to time. While such limitation is not indispensable, it may become important if the limitation as to space might otherwise appear unreason- able. 28 (b) Assignees, etc. It is advisable to require the vendor to agree not to engage in the practice in the vicinity, nor enter the employ of any one there engaged in the practice, and the promise should run to the vendee and his assigns, so that the covenant may be enforced after the death of the covenantee. 26 Freudenthal v. Espey, 45 Colo., 488; 26 L. R. A., 961. 27 Hubbard v. Miller, 27 Mich., 15; Doty v. Martin, 32 Mich., 462; Parkinson's Appeal, 78 Pa. St., 196; Ellis v. Jones, 56 Ga., 504. 28 Ocean Steamer Navigation Co. v. Winsor, 20 Wall., 64 ; Boyce v. Watson, 52 111. App., 361; Feckelstein Bros. Co. v. Feckelstein, 76 N. J. L., 613; See L. B. A., 913, 927. 268 MEDICAL JURISPRUDENCE. RESTRICTION MUST BE SEASONABLE COURTS WILL NOT REFORM CONTRACT. The court will not attempt to make a new contract for the parties by fixing a reasonable limit within which it will enforce the covenant, though such reasonable limitation can readily be determined. The court will enforce or annul the contracts made, but will not under- take to make a new contract for the parties. 29 WHEN REASONABLE SUCH CONTRACTS WILL BE ENFORCED ACCORDING TO THEIR SPIRIT. In order to be entitled to relief it is not necessary that the covenantee prove that the consid- eration was adequate, or that the covenantor is insolvent, or that the damage will be irreparable. 80 Illustrations. Where a physician, for a consideration, agreed not to practice medicine in the village or vicinity for at least the term of five years, on attempting to violate the covenant he was restrained from practicing within ten miles of the village limits. 31 An agreement by a physician with the purchaser of his residence and practice in a country town, not to engage in the practice of medicine within six miles of his said residence, was considered reasonable. 32 Such agreement by physicians, when for a consideration, have been held binding when limited to twelve miles, fif- teen miles, 34 and twenty miles 35 of the then residence of the promisor. Injunctions. While courts of equity will restrain parties from affirmative acts in violation of their negative cove- nants, they will not usually enter mandatory injunctions which will require performance of acts on the part of the 2 Homer v. Graves, 7 Bing., 734. 30 Ryan v. Hamilton, 205 111., 191; Gordon v. Mansfield, 84 Mo. App., 367; Beatty v. Goble, 142 Ind., 329; McCurry v. Gibson, 108 Ala., 451; 22 Cyc., 869, 31 Timmerman v. Dever, 52 Mich., 34. 82 Linn v. Sigsbee, 67 111., 75. S3 McClurg's Appeal, 58 Pa. St., 51. 34 Miller v. Elliott, 1 Ind., 484. 85 Butler v. Burleson, 16 Vt., 176. MISCELLANEOUS. 269 covenantor. 38 Thus, where a prima donna agrees to sing at a certain theatre and promises not to engage with a rival house, the courts will not require her to appear as promised, but they will restrain her from warbling at a rival theatre in violation of her covenant. The reason for refusing the affirmative relief is because courts will not enter decrees where they cannot enforce substantial compliance there- with. 37 Asexualization and Sterilization. As a Punishment for Crime. Asexualization by vasec- tomy or sterilization by salpingectomy, as a penalty for crime whereof the party has been duly convicted, is not pro- hibited by the constitutional provision against the infliction of cruel and unusual punishment. To come within the con- stitutional inhibition the punishment must be both cruel and unusual. 38 " Cruel and unusual punishments are punish- ments of a barbarous character unknown to the common law. The word, when it first found place in the Bill of Bights, meant not a fine or imprisonment, or both, but such punish- ment as that inflicted by the whipping-post, the pillory, burning at the stake, breaking on the wheel and the like, or quartering the culprit, cutting off his nose, ears or limbs, or strangling him to death. ' ' 39 The practice of flogging for certain offenses has been upheld on the ground that, while cruel, it was not unusual at the time of the adoption of the constitution and was not unknown to the common law. Asexualization by vasectomy as a penalty for the crime of rape was sustained because, while unusual, it was not cruel. The evidence in the case showed that the operation is a minor one, easily performed, without pain to the patient, 30 Wollensak v. Briggs, 20 111. App., 50; Blanchard v. B. B. Co., 31 Mich., 48. 37 Lumley v. Wagner, 1 DeG., M. & G., 604 ; Webster t>. Dillon, 3 Jur. N. S., 432 ; M. E. Co. v. Ward, 9 N. Y. Supp., 779 ; 22 Cyc., 857. 38 State t'. Woodward, 68 W. Va., 66 ; 30 L. B. A., 1004. 89 In re O'Shea, 11 Gal. App., 575. 270 MEDICAL JURISPRUDENCE. and entailing no confinement to bed or even cessation from employment. 40 To Prevent Procreation. When applied to defectives, who have committed no offense, for the sole purpose of de- stroying their power of procreation, a different considera- tion arises and the conservatism of the law may be depended upon to prevent any radical measures in this direction. All citizens are entitled to the equal protection of the law, and no rights may be impaired except by procedure according to the law of the land. If such operation is permitted, the sanction will come under the guise of that most flexible doc- trine, the police power. The right of the State to sterilize by salpingectomy an epileptic, has just been denied by the Supreme Court of New Jersey. 41 The court calls attention to the fact that the operation of salpingectomy is a danger- ous one, requiring both sides to be operated upon under profound and prolonged anesthesia, and considered that it involved all the dangers to life incident to the anesthetic and to a serious surgical operation. The court said : ' ' The order with which we have to deal threatens possibly the life and certainly the liberty of the prosecutrix, in a manner forbidden by both the State and Federal Constitutions, un- less such order is a valid exercise of the police power. The question thus presented is, therefore, not one of those con- stitutional questions that are primarily addressed to the legislature, but purely a legal question as to the due exer- cise of the police power. This power is the exercise by the legislature of a State of its inherent sovereignty to enact and enforce whatever regulations are, in its judgment, for the welfare of society at large, in order to secure or to guard its order, safety, health or morals. The general limitation of such power, to which the prosecutrix must appeal, is, that 40 State v. Peilen, 70 Wash., 65 ; 41 L. R. A., 418. 41 Smith v. Board N. J. L. ; 88 Atl., 963. MISCELLANEOUS. 271 under our system of government, the artificial enhancement of the public welfare by the forcible suppression of the con- stitutional rights of the individual is inadmissible. Some- where between these two fundamental provisions the exer- cise of the police power in the present case must fall, and its assignment to the former rather than to the latter in- volves consequences of the greatest magnitude. For, while the case in hand raises the very important and novel ques- tion, whether it is one of the attributes of government to essay the theoretical improvement of society by destroying the function of procreation in certain of its members who are not malefactors against its laws, it is evident that the decision of that question carries with it certain legal con- sequences having far reaching results. The feeble-minded and epileptics are not the only persons in the community whose elimination as undesirable citizens would or might in the judgment of the legislature be a distinct benefit to society. If the enforced sterility of this class be a legiti- mate exercise of governmental power, a wide field of legis- lative activity and duty is thrown open, to which it would be difficult to assign a legal limit. ' ' The court held that the classification of those subject to the operation was of such a nature that the persons included within it are not afforded the equal protection of the laws, and announced the doctrine that the State statute which bears solely upon a class of persons, selected by it, must not only bear alike upon all the individuals of such class, but that the class as a whole must bear some reasonable relation to the legislation in question. The court does not, however, pretend to hold that the State does not have the right, under its police power, to order surgical operations upon its citizens whereby they shall be rendered incapable of procre- ation, if there is a proper basis for the classification adopted. 42 42 R. Co. v. Ellis, 165 U. S., 150. 272 MEDICAL JURISPRUDENCE. Vaccination. Police Power. The police power of the State may be exercised by the legislature wherever the application thereof will reasonably promote the public health, safety or welfare, subject only to constitutional limitations, and if the latter are not transgressed the courts will not interfere to prevent enforcement of the legislative will. 43 The police power is that inherent and plenary power in the State over persons and property, when expressed in the legislative will, which enables the people to prohibit all things inimical to the comfort, safety, health and welfare of society, and is sometimes spoken of as "the law of overruling neces- sity." 44 Statutory Provisions for Vaccination. Compulsory vac- cination has not been enforced in the United States. A re- quirement for vaccination is upheld as a valid exercise of the police power by the legislature but our laws do not go to the extent of requiring the authorities forcibly to perform the operation on the recalcitrant citizen but merely provide a penalty for failure to comply with such requirements. In some jurisdictions boards of health have authority con- ferred upon them by the legislature to order under penalty the vaccination of all citizens wherever it may be deemed necessary to public health and safety and the general wel- fare. 45 Necessity. The presence or reasonable apprehension of smallpox in the community is a sufficient necessity, under the law, for promulgating the requirement. 46 Vaccination a Preventative. The courts do not base their conclusions on a finding of fact that vaccination is a preventative of smallpox but they take judicial notice of the 43 Viemeister v. White, 179 N. Y., 235. 44 Town v. Cemetery Co., 70 111., 191, 194. 45 Commonwealth v. Jacobson, 183 Mass., 242; 197 U. S., 11; 17 L. R. A., 709. 46 Potts v. Breen, 167 111., 67. MISCELLANEOUS. 273 fact that it is the common belief of the people that vaccina- tion is a preventative. 47 Opposing Theories. The courts will take judicial notice of the fact that there are opposing theories with regard to the propriety and effect of vaccination, and they presume that the legislature when enacting such a law knew of the theory against vaccination and deliberately adopted the opposite theory, and the courts will not revise their dis- cretion in that respect. 48 Public Schools. The exclusion of a child from a public school by a local board by reason of a refusal to be vacci- nated is justified when such extremity is necessary or reasonably appears to be necessary, to prevent the spread of smallpox, because of an existing or actually threatened epi- demic of the disease, and conversely, a rule adopted by a State Board of Health compelling vaccination of all chil- dren as a prerequisite to their right to attend public schools is unreasonable when smallpox does not exist in the com- munity, and when there is no reasonable cause to apprehend its appearance. 49 In the case last cited the decision of the court was based upon the fact that the legislature had not clothed the board with any authority to promulgate such an order. Doubtless the legislature may provide for vacci- nation as a condition precedent to the right to attend public schools irrespective of the presence or threatened appear- ance of smallpox in the community or State, 50 and some courts have held that the legislature may delegate such power to local boards. 51 The enforcement of such requirement has frequently been restrained by the courts and the orders annulled be- 47 Viemeister v. White, 179 N. Y., 235; 1 A. 0., 334. 48 Com. v. Jacobson, 183 Mass., 242. 49 Potts v. Breen, 167 111., 67. GO Lawton v. Steele, 152 U. S., 136; Morris v. Columbus, 102 Ga., 792. 51 Bissell v. Davidson, 65 Conn., 183. 274 MEDICAL JURISPRUDENCE. cause of the want of authority in the particular board pro- mulgating the requirement. 52 Some courts have taken the position that a general grant of power, in broad and comprehensive terms, to do the acts and make all rules and regulations necessary for the preser- vation of the public health, carries with it, by necessary implication, the power to enforce in cases in which the neces- sity arises a regulation requiring children to be vaccinated as a condition to their admission or continued use of the public school. 53 Charitable Institutions. Liability for Negligence of Employes. Where due care is used in the selection of its employes, a private charitable hospital, conducted for benevolent and philanthropic pur- poses, is not responsible to a patient for damage received through the unskillfulness or carelessness of servants, at- tendants or physicians in charge, even though the patient paid for the services given. 54 The same rule applies to a school of instruction supported by charity, and where all fees for tuition and other income must be used for the ben- efit of the institution, and where no part of the same can be distributed to any one as profit. 55 A city, county or State does not possess power to operate a hospital for revenue and, therefore, cannot be made liable for the negligence of persons employed about the hospital, even though the au- thorities are unlawfully conducting the institution for revenue. 56 Where the hospital is a private institution and conducted for profit, the institution is liable for such negli- gence. 57 52 People v. Board, 234 111., 422. 53 Blue v. Beach, 155 Ind., 121. 54 Benton v. City Hospital, 140 Mass., 13 ; Duncan v. Neb. S. & B. Asso., 92 Neb., 162. 55 Parks v. N. W. University, 218 111., 381; 4 A. C., 103; Farrigan v. Pevear, 193 Mass., 147; 7 L. B. A., 48. 56Tollefson v. Ottawa, 228 111., 134; 4 L. B. A., 269. 57 Stanley v. Schumperl, 117 La., 255; 8 S. A. C., 1044. MISCELLANEOUS. 275 Inmates of Public Hospitals. Neither the State which operates an insane asylum, nor the superintendent who has control over the same is liable to a party who is injured by an inmate. 58 Jury Service. Exemption. The exemption, by statute, of physicians from jury duty is very general in the United States, and such laws are usually held to be constitutional ; 59 but a dif- ferent view has been taken in Tennessee, and sucn a statute was held to be class legislation. 60 Where such exemption is allowed, the courts construe it to be a personal privilege which must be claimed by the physician and which may be waived by him. Such privi- lege furnishes the parties to the litigation no ground for challenge of him as a juror, nor for objection to the verdict in which he participates. 61 Libel and Slander. The utterance of written or printed words which impute to a physician ignorance, incompetence or a general want of professional knowledge and skill is an actionable wrong, without proof of special damages. The language must refer to the physician in his professional capacity. 62 How- ever, a person who is practicing osteopathy without a license cannot recover as for a libel for being called a quack and charlatan. 63 Gifts and Legacies. The relation of a physician to his patient is one of trust and confidence and the former occupies the dominant posi- 58 Leavell v. W. Ky. A. I., 122 Ky., 213; Clough v. Worsham, 32 Tex. Civ. App., 187. 59 Dunne v. People, 94 111., 120. 60 Neeley v. State, 4 Lea. (Tenn.), 316. 61 People v. Owens, 123 Cal., 482. 62 Nelson v. Borchenius, 52 111., 236; 20 A. C., 482. 63 Lathrop v. Sundberg, 62 Wash., 136. 276 MEDICAL JURISPRUDENCE. tion. The general principles of law governing confidential relations apply. Courts will scrutinize with great care any transaction between a physician and his patient, favorable to the physician. The law regards the patient as being in a subordinate position easily susceptible to the wishes of the physician. The relation does not per se forbid the accept- ance by a physician of a gift or conveyance from his patient, but the burden is on the donee to prove that such gratuity was fairly and honestly obtained without any undue influ- ence and that the entire transaction was free from all fraud and above suspicion. The same rule applies where a patient makes a will in favor of the physician, and especially when made in the presence of the latter. 64 64 Unruh v. Lukens, 166 Pa. St., 324; Audenreid's Appeal, 89 Pa. St., 114. INDEX INDEX Abdominal organs, in infanticide, 250 Abortion, 183 advice of physician, 189 to procure, 185 attempt to procure, 185 burden of proof, 188 circumstantial evidence, 187 common law, 183 consent of woman, 184, 190 definition, 183 dying declaration, 49 evidence of pregnancy, 186 existence of pregnancy, 186 failure to procure, 185 intent, 184 knowledge of pregnancy, 185 means employed, 185 motive, 184 necessary, 188, 189 opinion evidence, 187 period of pregnancy, 186 pregnancy, 185, 186 proof of pregnancy, 186 quick with child, 183 res gestse, 187 save life of mother, 188 soliciting, 62 stage of pregnancy, 186 statutes, 188 Absorbent gauze cases, 129, 255 Accident, 149 death by, 20 definition, 149 liability, 149 negligence, 149, 150 Accrual of cause, 253 Act, independent, 180 Act, prohibited, 119 Actions : joint, 179 survival of, 181 Acts, civil rights, 158 Administering anesthetic, 206 Administrative law, 23 Adverse statements, 51 Advertisements, false, 75, 199 Affirmations, 32 Age of consent, 242 Agreement, 80, 109, 143, 181 279 280 INDEX. Agreement for operation, 109 action, form of, where no consent to operation, 113 agent, surgeon, 119 consent, 111 controlling facts, 115 damages, for unauthorized operation, 123 departure, 118 different methods, 116 discretion of surgeon, 110 elements, 109 emergency, 91, 115 good faith, 117 illustration, 119 implied consent, 111 implied stipulations, 109 motive, 111 nature, 109 patient controls, 117 patient's request, 117 presumptions, 113 prohibited act, 119 question of fact, 118 stipulations, 109 surgeon's discretion, 110 unconscious patient, 91, 115 whose consent, 112 Agreement not to sue, 181 Anesthetic, 205 administering, 206, 209 cold, 205 definition, 205 duty, 209 effects, 205 general, 205 legal responsibility, 208 local, 205 malpractice, 208 presumptions, 207 rape, 243 responsibility, 208 right to administer, 206 selection, 207 testimony, 209 Arbitrary refusal to take case, 156 Asexualization, 269 Assignee of contract, 267 Attempt to procure abortion, 185 Autopsy, 60, 108, 245 disclosing information, 60 fee for holding, 108 poisoning cases, 245 Bad character of physician, 99 Bankrupts, 22 Beliefs, medical care, 263 Beliefs, penalizing, 21 Best judgment, 140 Biological tests for blood, 239 INDEX. 281 Blood, 235 accuracy of tests, 238 biological tests, 239 chemical tests, 238 classification, 235 color, 235 composition, 235 corpuscles, 235 criminal law, 239 definition, 235 demonstrative evidence, 241 hsematin, 237 haemoglobin, 237 origin, 235 oxy-hsemoglobin, 237 physical tests, 238 plasma, 235, 236 platelets, 235, 237 quantity, 235 red corpuscles, 236 specific gravity, 235 testimony, 240 tests, 238 weight, 235 white corpuscles, 236 Blood stains, 235 color, 239 criminal law, 239 testimony, 240 Boards of health, 67, 262 Books, medical, as evidence, 45 Breach of contract, 96 Breathing, infanticide, 249 Burden of proof: abortion, 186, 188 contributory negligence, 166 infanticide, 251 insanity, 222 malpractice, 146, 160, 164 Business on Sunday, 259 Calcareous degeneration of the heart, 129 Calls, frequency of, 97 Care, 132, 138 agreement waiving, 143 burden of proof, 160 carelessness, 139 definition, 138 degree, 138 established mode, 145 experimentation, 145 failure to cure, 142 gratuitous services, 146 highest, 139 implied, 132 misconduct, 139 non-professional, 146 ordinary, 139 INDEX. presumption, 142 relative term, 138 results, 142 specialists, 144 tests, 139 unlicensed practitioner, 147 usual, 139 volunteer, 146 Carelessness, never excused, 139 Case, refusal to take, 156 Cases on fraud, 199 Cause and effect, 124 Certainty of proof, 202 Causes of death, infanticide, 250 Character, license, 67 Character of physician, 74, 99 Charge for services (see compensation), 93 Charges to revoke license, 76 Charitable institutions, 274 Chastity in rape cases, 243 Christian Science, 167, 263 Choice, 212, 218 City license, 67 Circulatory organs, infanticide, 249 Civil law, 21 Civil malpractice, 148 Civil rights acts, 158 Coagulation, 237 Cold as anesthetic, 205 Color of blood, 235, 239 Communication of infectious diseases, 98 Communications, privileged, 55 Compensation, 93 agency of minor, 104 agreement, 93 agreement to cure, 96 bad character, 99 benefit to patient, 86, 94 bill, differing, etc., 99 character, 96 charge to other patients, 99 charge for previous services, 98 charge by other physicians, 99 consultant, 105 defenses, 104 detriment to physician, 86, 95 different bill, 99 emergency, 91, 115 expert witness, 105 extra for extra services, 107 family expenses, 103 financial standing, 100 frequency of visits, 97 history, 93 husband and wife, 102 husband selects physician, 102 income of physician, 99 income of patient, 100 infectious disease, 98 judgment for fee, effect, 105 INDEX. 283 license presumed, 100 limitations, 258 malpractice, 94, 104, 258 mother liable, 104 nature of remedies disclosed, 101 necessaries, 102 no agreement, 94 opinions, 101 parent and child, 103 pecuniary circumstances, 99 post-mortem, 108 previous charges, 98 professional standing, 98 proper treatment, 94 proof, 98, 101 ratification, 104 remedies disclosed, 101 results, as affecting, 94 special agreement, 96 special preparation, 107 treatment, proper, 94 unconscious patient, 91, 115 unlicensed practitioner, 100 value, 94 value, question of fact, 98 visits, frequency, 97 what shown, 98 what not shown, 99 witness fees, 105 Competency of evidence, 32 Competent to practice, 67 Conditions of the relation imposed by law, 132 Confidence, 195 Confidential relation, 194, 196 Consent, age of, 242 Consent to abortion, 184, 190 Consent to operation, 111 implied, 111 necessary. 111 whose, 112 Consideration, contract, 85 Contagious disease, carrying, 98 Contracts, 80 agreement for surgical operation, 109 assignee, 267 benefit to promisor, 86, 94 breach, 94 compensation, 93 consideration, 85 constitutional right, 87 definition, 80 delivery, 83 detriment to promisee, 86 duty, compared, 81 equivalence, 85 express, 81, 83 guaranty, 88 illustrations, 81 implied, 81, 109 infants, 84, 85 284 INDEX. injunctions, 268 kinds, 81, 84 minors, 84 mutuality, 84 non compi menti, 84 not to sue, 181 nudum pactum, 86, 88 operation, 109 parties, 84 promise for promise, 86 ratification, 104 receipt, 88 release, 89 restraint of practice, 266 right to contract, 87 signing written contract, 87 specific performance, 267 Sunday, 259 surgical operation, 109 validity, 87, 266 written, 83 Contractual relations, 80 Contributory negligence, 151 assistant, 154 burden of proof, 165, 166 classification, 152 definition, 151 effect, 151 inevitable results, 153 patient's negligence, 152 reason for rule, 151 relation, 152 temperament, 154 Contribution, 180 Corpuscles, 235 Coroner, 261 civil liability, 262 definition, 261 duties, 262 slander, 262 Courts, 27 Courts and physician, 25 Crime, 18 Criminal action and civil suit, 23 Criminal law, 18 insanity defense, 217 Criminal malpractice, 182, 190 Cross-examination of expert, 44 Cruel punishments, 21, 269 Cure: failure to, 95, 160 no cure, no pay, 96 Damages, 123, 154, 172, 179, 204, 229 assessment, 174 compensatory, 172, 229 contingencies, 176 death, 178, 179 INDEX. 285 elements, 174 excessive, 176 exemplary, 172 false pretenses, 204 future loss, 176 insane persons, 229 measure, 174 mistakes of physician, 175 mitigation, 176 nominal, 172 operation, wrong, 123 original injury, 176 patient's poor health, 176 presumptions, 173 punitive, 172 temperament, 154 torts by insane, 229 unauthorized operation, 123 vindictive, 172 Death: accident, 20 malpractice, 178 natural causes, 250 wounds, 232 Debt: imprisonment for, 21, 22 Declarations : against interest, 51 dying, 46 to physician, 52 Defectives, asexualization of, 270 Defenses to malpractice suit, 171 Definitions : abortion, 183 accident, 149 care, 138 contract, 80 courts, 27 crime, 18 dying declaration, 46, 48 evidence, 32 expert, 39 fraud, 191 hypothetical question, 43 infanticide, 245 insanity, 214, 217 jurisdiction, 27 law, 17 legal right, 27 malpractice, 148 medical jurisprudence, 26 negligence, 149 opinion evidence, 36 poison, 244 police power, 272 presumption, 125 privileged communication, 55 rape, 242 res ipsa loquitur, 127 testimony, 32 286 INDEX. trial, 30 wound, 231 Delirium tremens, 221, 226 Demonstrative evidence, 241 Dentist, 130 Dentistry, physician practicing, 72 Departure from agreed operation, 118 Detriment to physician, 95 Diagnosis, 160, 161 Diligence, 254 Discretion, delegating, 72 Discretion of surgeon, 110 Disease : contagious, 98 feigned, 264 Druggist, 155, 180 Drunkenness (see intoxication), 156, 221, 226 Due process of law, 73 Dying declaration, 46 abortions, 49 E Effect: and cause, 124 opinion evidence, 36 signing contract, 87 testimony, 39 Emergency operation, 91, 115 Employment, 91 accepting services, 91 by third party, 91 master for servant, 92 unconscious patient, 91 Epilepsy, 222, 270 Equivalence, 85 Established treatment, 145 Evidence, 32 abortion, 186 books, 45 circumstantial, 187, 247 competency, 32 demonstrative, 241 hearsay, 46 hypothetical question, 43 infanticide, 247, 248 malpractice, 160 medical, 242, 248, 251 medical books, 45 opinion, 33 rape, 244 rules, 33 Exemption from jury duty, 275 Exhibiting injury to jury, 168 Expense, family, 103 Experimentation, 145 Express contract, 81, 83 Expert testimony, weight and effect, 39 Expert witnesses, 39 basis of opinion, 40 INDEX. 287 conduct, 40 cross-examination, 44 definition, 39 history, 40 physicians, 25, 40 preliminary inquiry, 39 qualifications, 39 special knowledge, 40 subjects of inquiry, 41 weight of testimony, 39 Failure to cure, 160 Failure to relieve, 95 Fair dealing, 198 False advertisements, 75, 199 False representations, 191 actionable, 194 advertisements, 75, 199 caveat emptor, 193 certainty of proof, 202 confidence, 195 corrupt motive, 192 damages, 204 definition, 191 effect, 191 elements, 203 fair dealing, 198 false pretenses, 197 fraud, 191 good faith, 198 illustrations, 199 improvement, 198 intent, 191 knowledge, 196 materiality, 193 measure of damages, 204 misstating improvement, 198 motive, 192 opinion, 193 pretenses, 197 proof, 202 relation of parties, 194 remedies, 204 special knowledge, 196 trust, 195 Family expense, 103 Fee (see Compensation), 91 Feigned diseases, 264 Former judgment, 171, 172 Fraud, 191 Free services, malpractice, 146 Frequency of visits, 97 Gauze, surgical operation, 129, 255 Gestation, 41, 186 Gifts, 275 288 INDEX. Good faith, 34, 62, 149 Gratuitous services, 146 Guarantor, physician not, 95, 96, 156 Guaranty, 88 Hsematin, 237 Haemoglobin, 237 Hearing to revoke license, 78 Hearsay evidence, 46 Homicide, 217, 229 Hospitals, 274 Hydrostatic test, 249 Hymen, rupture of in rape, 244 Hypnotism, rape, 243 Hypothetical question, 43 Identity of mother, 251 Ignorance, 132 Immorality, license, 74, 75 Implied conditions, 109, 132 Implied contract, 81, 109 Imposing on privacy, 58 Imprisonment for debt, 22 Improper treatment, 94, 148 Improvement, misstating, 198 Independent acts, 180 Independent existence, 248 Infanticide, 245 abdominal organs, 250 breathing, 249 burden of proof, 251 causes of death, 250 circulatory organs, 249 definition, 245 duty of mother, 246 funis, 248 hydrostatic test, 249 identity of mother, 251 independent existence, 248 intent, 247 medical evidence, 248 natural causes of death, 250 prevalence, 247 proof, burden of, 251 respiratory organs, 249 statutes, 252 still-born, 251 umbilical cord, 248 Infants (see Minors), 84, 102, 263 Infection, 131, 165 Infectious disease, 98 Injunction, 268 Injurious results, 142 Injury in malpractice, 148 Inquisition of sanity, 162 Insanity : INDEX. 289 absence of motive, 216 anger, 223 burden of proof, 222 cerebral cortex, 211 choice, 212, 218 civil liability, 229 common law, 217 continuity, 215 compensatory damages, 230 contracts, 224 control, 212, 218 criminal intent, 217 criminal law, 217 damages, 229 deeds, 227 definition, 214, 217 degree of proof, 222 delirium tremens, 221, 226 delusion, 213, 220, 228 depravity, 222 drunkenness, 221, 226 emotional, 223 epilepsy, 222 evidence, 215 exemplary damages, 230 expert, 216 functional disturbances, 213 general practitioner, 216 hallucination, 213 homicide, 229 illusion, 213 impaired faculties, 227 impulse, 223 insane delusion, 220, 228 intellect, 211 intent, 217 intoxication, 221, 226 irresistible impulse, 223 kleptomania, 223 knowledge of right, 218 law, 214 marriage, 226 memory, 211, 228 mental capacity, 227 mental faculties, 211 moral, 222 moral depravity, 222 motive, 216 murder, 217, 229 necessaries, 224 particular act, 218 passion, 223 perversion, 222 power of control, 218 presumption of sanity, 215 progress of law, 213 proof required, 222 reason, 217 reasonable doubt, 222 right and wrong, 218 290 INDEX. sensibility, 211 somnambulism, 221 sound mind and memory, 228 subjects of inquiry, 219 suicide, 216 temper, 223 tests, 217 torts, 229 tremens, 221, 226 undue influence, 228 wild beast test, 218 will, 211 wills, 227 Intellect, 211 Intoxication, 156, 221, 226 contracts, 226 crimes, 221 delirium tremens, 221, 226 malpractice, 156 marriage, 226 Itinerant patients, 71 Itinerant physicians, 66 Itinerant vendors, 66 Joint tort feasors, 179 agreement not to sue, 181 contribution, 180 independent acts, 180 purchase of peace, 181 satisfaction, 180 survival of action, 181 Judgment, 140 agreement waiving, 143 best, 140 correct, 141 different methods, 141 mistake, 142 presumption, 142 rule, 140 Judgment of court, 171, 172 Jurisprudence : medical, definition, 26 Jurisdiction, 27 Jury, 31, 275 Jury service, 275 Jury trial, 30, 31 revocation of license, 78 right, 30 Kleptomania, 223 Knowledge of injury, 255 Knowledge of pregnancy, 185 Knowledge of right, 218 Latent injuries, 255 Law, 17 INDEX. 291 administrative, 23 civil, 18, 21 classes, 18 criminal, 18 definition, 18 municipal, 18 prevalence, 17 substantive, 23 Law of the land, 73 Legacies, 275 Legal rights, 27 Liability for independent act, 180 Libel, 275 License, 63 boards, 67 calling, liberty to pursue, 63 Christian Science, 69 city license, 67 common law right, 63 control by state, 64 delegating discretion, 72 dentistry, physician practicing, 72 due process, 73 grounds for revoking, 74 how regulated, 67 itinerant physicians, 66 itinerant vendors, 66 optician, 72 practice, not property, 64 practicing medicine, what is, 69 practicing medicine, without, 69 public welfare, 64 requirements, 67, 68 reserved rights, 72 resident practitioner, 72 revocation, 72 rights to practice, 63 soliciting patients, 65 state may control, 64 statutes, 67 vested rights, 73 Limb, fractured, shorter, 143 Limitations, 253 accrual of cause, 253 continuing obligation, 256 continuing wrong, 257 diligence, 254 disability, 258 fee, 258 knowledge of injury, 255 latent injuries, 255 license, 79 malpractice cases, 253 minors, 258 period, 253 persons under disability, 258 policy of the law, 253 specified service, 254 statutes of, 253 suit for fee, 258 292 INDEX. Lord Campbell's Act, 178 M Malingerers, 264 Malpractice, 94, 104, 148, 258 accident, 149 accident and negligence, 150 action, survival of, 181 agreement excusing, 143 anesthetic, 129, 160, 208 assistance, 154 assistants, 155, 180 burden of proof, 164 Campbell's act, 178 carelessness, 139 causes, more than one, 165 Christian Science, 167 civil, 148, 190 civil rights acts, 158 communication of disease, 98 compensation, 94, 104, 256 contingencies, 176 contribution, 180 contributory negligence, 151 criminal liability, 182, 190 damages, 172 death from, 178 defenses, 171 definition, 148 dentist, 130 diagnosis, 160, 161 different schools, 166 druggist, 155, 180 established mode, 145 excused, never, 139 exhibiting injury, 168 experimentation, 145 failure to cure, 156 failure to obey, 154 good faith, 149 gratuitous services, 146 guarantor, 156 guess at liability, 165 how proven, 163 illustrations, 161. improper treatment and injury, 148 independent acts, 154, 180 independent treatment, 154 infection, 165 infectious disease, 98 injurious results, 156 injury, 148 inquisition of sanity, 162 intent, 149 instructions, 154 intoxication, 156 joint tort feasors, 179 law, a question of, 169 matron, 155 INDEX. 293 mistake by patient, 172 mistake in diagnosis, 160 mitigation, 176 negligence, 149 nurses, 155 obey instructions, 154 other causes, 165, 171 other vocations, 156 partners, 155 patient, negligence of, 152, 172 preponderance of evidence, 164 presumptions, 173 probable causes, 165 prompt response, 169 proof necessary, 160 refusal to treat, 156 relation begins, 168 relation ends, 169 relation to injury, 148 response to call, 169 rule, reason for, 151 sanitary, inquisition, 162 satisfaction of claim, 180 schools of medicine, 166 services free, 146 specialists, 144 substitute, 156 suit in tort, 177 suit, only one, 172 survival of action, 181 temperament, 154 tort, 177, 229 unlicensed practitioner, 147 usual results, 163 usual treatment, 145 vocations, other, 156 volunteer, 146 wrong diagnosis, 160 X-ray, failure to take, 163, 167 Materiality of representations, 193 Matron, 155 Medical jurisprudence, definition, 26. Medical books as evidence, 45 Medical services, 102, 263 beliefs, 264 Christian Science, 263 duty to employ, 263 necessaries, 102 religious belief, 264 Medical testimony, subjects of, 41 Mental faculties, 211 Minors, 84, 102, 263 agent of parent, 104 duty of parent, 263 medical services, 102 necessaries, 102 Miscellaneous practitioners, 70 Misconduct, 139 Mistake in diagnosis, 160 Mitigation of damages, 176 294 INDEX. Moral character, license, 67 Moral qualities, 19 Morality, license, 67 Municipal law, 18 civil, 18 classes, 18 conforms to civilization, 18 crime, 18 criminal, 18 definition, 18 Murder,; 2 17, 229 N Natural causes of death in infanticide cases, 250 Necessaries, 102, 263 definition, 102 husband and wife, 102 husband selects physician, 102 medical services, 102, 263 minors, 103 mother liable for, 103 value, 102 Necessary to save mother's life, 188, 189 Necessity, 188, 189, 260 Negligence (see Malpractice), 149 Negligence, never excused, 139 No cure, no pay, 96 Notice, 28, 77 jurisdictional, 28 to revoke, 77 Nudum pactum, 86 Nurse, negligence of, 155 Oath, 32 Objective symptoms, 44 Obligations imposed by law, 132 Obligations, liability, 133 Operation, 109 agreement, 109 consent, 111, 112 controlling facts, 115 departure, 118 emergent, 91, 115 presumptions, 113 prohibited act, 119 request of patient, 117 unauthorized, 111, 119 Operator's duty, 114 Opinion evidence, 33 Opinions, 33 basis, 40 effect, 36 expert witness, 36 not favored, 36 ordinary witness, 33 reasons for admitting, 34 special knowledge, 40 INDEX. 295 subject-matter, 36 weight, 34 Optician, 72 Ordeal, trial by, 30 Ordinary witness, 33 Oxy-hsemoglobin, 237 Pain, statement of, 53 Parent and child, 102, 263 Particular mode of treatment, 145 Patient's negligence, 152 Patient's right, 117 Pay (see Compensation), 91 Peace, purchase of, 181 Pecuniary circumstances : of patient, 100 of physician, 99, 100 Penalties, 20 Penalizing beliefs, 21 Period of pregnancy, 41, 186 Physicians and courts, 25, 48 Physicians as experts, 48 Plasma, 235, 236 Platelets, 235, 237 Poisoning, 244 common law, 245 definition, 244 malice, 244 post-mortem, 245 Police power, 64, 270, 272 Policy of the law, 253 Post-mortem, 60, 245 Practice is not property, 64 Practicing medicine, what is, 69 Pregnancy, 41, 186 Preponderance of evidence, 129, 164 Presumption of good faith, 62 Presumptions : absorbent gauze cases, 130 broken jaw, 130 brooch in tooth, 130 care, 142 cause and effect, 124 definition, 125 different causes, 128 fact, 125 failure to cure, 142 failure to discover rupture, 143 gauze cases, 129 illustrations, 128 infection, 131 injurious results, 142 judgment, 142 kinds, 125 law, 125 license, when, 100 life, continuing, 186 negligence, 142 296 INDEX. other causes, 128 results injurious, 142 skill, 142 sponge cases, 129 strength of, 125 surgical operations, 113 tooth down throat, 131, 143 upon presumption, 126 Prevalence of infanticide, 247 Prevalence of law, 17 Preventing procreation, 270 Privacy, imposing upon, 58 Privileged communications, 55 at common law, 55 autopsy, 60 criminal purpose, 61 criminals, 61 definition, 55 duty of physician, 60 entirety, 59 good faith, 62 incidentals, 57 interpretation of statutes, 56 party to suit, 58 physician to patient, 58 presumption of good faith, 62 privacy, 58 provisions of statutes, 55 publishing operation, 58 purpose of statutes, 56 statutes, 55 waiver of privilege, 59 Procedure, 29 Proceedings to revoke license, 76 Process, due, 73 Procreation, 270 Professional character, 99 Professional standing, 98 Progress, 144 Proper treatment required, 94 Property, practice is not, 64 Public necessity, 64 Public policy, 132 Public schools, vaccination, 273 Public welfare, 64 Punishments, 20, 21, 242, 269 Purchase of peace, 181 Qualification : expert, 39 license, 67 Qualities of acts, 19 Question, hypothetical, 43 Quick with child, 183 Rape, 242 age of consent, 242 anesthetic, 243 INDEX. 297 chastity, 243 consent, 242 definition, 242 force, 243 fraud, 243 hymen, 244 hypnotic influence, 243 physical violence, 243 punishment, 242 rupture of hymen, 244 signs of, 244 threats, 243 violence, 243 Ratification, 104 Receipt, 88, 90 Red corpuscles, 236 Refusal to take case, 156 Release, 89 Relief, 95, 160 Religious belief, 264 Representations, false, (see False Representations), 191 Requirements for license, 67 Res gestse, 51, 187 Res ipsa loquitur, 124 applicable, when, 127 applicable, when not, 131 application, 127 basis, 124 broken jaw, 130 brooch in tooth, 130 cause and effect, 124 convictions, 126 definition, 124 dentists, 130 different causes, 128 effect and cause, 124 gauze cases, 129 history, 128 illustrations, 128 infection, 131 jaw broken, 130 maxim, 124 mental convictions, 126 operations, 113 other causes, 128 physicians, 129 presumptions, 125 probable causes, 128 reason, 127 several causes, 128 sponge cases, 129 submaxillary, broken, 130 when applicable, 127 when not applicable, 131 X-ray cases, 129 Restraint of practice, 266 ancillary, 266 assignees, 267 employment, 266 illustrations, 268 298 injunctions, 268 not favored, 266 prevalence, 266 provisions, 267 reasonable, 268 relief, 267 space limit, 266. 268 specific performance, 267 time, 267 validity, 87, 266 written contract, 267 Results, 95. 142 Revocation of license, 72 charges, 76 criminal prosecution, 79 decision, effect of, 78 due process, 73 grounds, 74 hearing, 78 jury trial, 78 limitations, statutes of, 79 notice, 77 proceedings, 76 record, 78 reserved right, 72 statutes of limitations, 79 trial by jury, 78 vested right, 73 Right and wrong, 19 Right, legal, 27 Right to contract, 87 Rights: constitutional, 87 in courtesy, 27 in personam, 27 in rem, 27 in trust, 27 vested, 73 Rules of evidence, 33 Rupture of hymen, in rape, 244 Salpingectomy, 270 Satisfaction, 180 Schools of medicine, 166 Schools, public, vaccination, 273 Sensibility, 211 Services during life of patient, 97 Services, free, 146 Shock, 232 Skill, 132 agreement excusing, 143 ailment treated, 137 average, 135 best, 135 burden of proof, 160 competent considered, 136 definition, 134 degree, 134 INDEX. 299 disease treated, 137 educated physicians, 135 established mode, 145 experimentation, 145 failure to cure, 142 generality of requirement, 133 gratuitous services, 146 highest, 135 implied, 132 injurious results, 142 liability, 133 locality, 136 non-professional, 146 obligations, 132 ordinary, 135 presumption, 142 proofs, 137, 142 progress, 144 public policy, 132 reasonable, 134 relative term, 134 results, 142 special agreement, 144 special claims, 144 specialists, 144 test, 134 time, 136, 138 unlicensed practitioner, 147 usual, 135 volunteer, 146 when, 138 Slander, 262. 275 Soliciting patients, 65 Somnambulism, 221 Sound mind and memory, 228 Special agreement, 96, 144 Specialists, 144 Specific performance, 267 Specified services, 254 Sponge case, surgical operation, 129, 255 Stain, 235 Standing of physician, 98 Statements : adverse, 51, 55 against interest, 51, 55 confidential, 97 in presence, 51 pain, 53 privileged, 55 res gestae, 51, 54 suffering, 53 by physician, 58 to physician, 52 Statutes of limitations, 253 Still born, 251 Subjective symptoms, 44 Subjects of medical testimony, 41 Substantive law, 23 Suffering, statement of, 53 Sunday, 259 300 INDEX. Surgeon, 109 Surgical operation, 109 Survival of action, 181 Symptoms, 44 objective, 44 shock, 232 subjective, 44 Temperament, as affecting malpractice, 154 Testimony, 32, 41, 209 Testimony, subjects of medical, 41 Tests: blood, 238 care, 139 judgment, 140 skill, 134 Torts of insane persons, 229 Tort feasors, 179 Treatment, one mode, 145 Tremens, 221, 226 Trial, 30 jury, 31 ordeal, 30 witches, 41 Trust, 194, 195 U Unauthorized operation, 111, 119 Unchastity, in rape cases, 243 Unconscious patient, 91, 115 fee for services, 91 operation, 115 Unlicensed physician: compensation, 100 malpractice, 147 qualification, 69 Unreasonable requirements for license, 68 Unusual punishment, 269 Usual results, not sufficient, 163 Vaccination, 272 Validity of contracts, 87, 143, 266 Value of services, 94, 98 Vasectomy, 269 Vendors of medicines, 66 Vested rights, 73 Violence, in rape, 243 Visits, frequency of, 97 Volunteer, 146 W Waiver of privilege, 59 White corpuscles, 234 Will, a mental faculty, 212 INDEX. 301 Wills, 227 Witches, 41 Witness, 32 Witness fees, 105 Work on Sunday, 259 Wounds, 231 Written contract, 83 Wrong, 19 Wrong, continuing, 257 Wrong diagnosis, 160 X-ray cases, 129, 163, 167 X-ray in diagnosis, 164 l -QJ