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.,