UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 'if.
 
 MEDICAL JURISPRUDENCE
 
 A STATEMENT OF THE LAW 
 
 OF 
 
 FORENSIC MEDICINE 
 
 BY 
 
 ELMER D. BROTHERS, B.S., LL.B. 
 
 
 
 Member of the Chicago Bar; Lecturer on Jurisprudence in the 
 
 Medical and Dental Departments of the University of 
 
 Illinois, and in John Marshall Law School 
 
 ST. LOUIS 
 
 C. V. MOSBY CO. 
 
 1914
 
 T 
 
 COPYRIGHT, 1914, BY C. V. MOSBY COMPANY 
 
 A - 3 '6 
 
 Press of 
 
 O. V. Mosby Company 
 St. Louis
 
 PREFACE 
 
 For the last twenty years, the writer has been delivering 
 a course of lectures on the subjects involved in this pro- 
 duction, but during that time he has not been able to find a 
 satisfactory text on the legal phase of the subject for rec- 
 ommendation to medical students. The medical features 
 have been thoroughly discussed by many writers. What- 
 ever the merit of this effort in supplying the desideratum, 
 it embodies a brief explanation of those phases of the sub- 
 ject which he found most interesting and instructive to the 
 student. No effort has been made to exhaust the subject 
 but rather to abridge and condense wherever possible with- 
 out sacrifice to completeness of exposition and accuracy in 
 elucidation of fundamental principles. 
 
 Liberal reference has been made to the authorities sus- 
 taining or justifying the propositions set forth and, while 
 seldom quoting from decisions, the writer, wherever ex- 
 pedient and appropriate, has not hesitated to adopt the 
 language of the courts in announcing and illustrating 
 principles. References on important subjects are made to 
 annotated cases where the student will find fuller illustra- 
 tions of the application of the law to facts in adjudicated 
 cases, the reference to L.R.A. being to the new series unless 
 otherwise indicated, and to American and English An- 
 notated Cases, being as A.C. 
 
 Medical subjects are not discussed except where consid- 
 ered necessary to an exposition of the legal subjects or to 
 illustrate the application of the legal principles announced. 
 
 ELMER D. BROTHERS.
 
 CONTENTS. 
 
 CHAPTER I. 
 INTRODUCTION. 
 
 Law. Municipal Law. Criminal Law. Civil Law. 
 Criminal Action and Civil Suit. Substantive Law. 
 
 Administrative Law. Development of Medical Sci- 
 ence. The Physician and the Courts. Definition of 
 Medical Jurisprudence 17-26 
 
 CHAPTER II. 
 COUETS AND PROCEDURE. 
 
 Courts. Jurisdiction. Notice. Procedure. Trial. 
 
 Trial by Ordeal. Jury 27-31 
 
 CHAPTER III. 
 EVIDENCE. 
 
 Definition. Testimony. Witness. Oath or Affirmation. 
 
 Competency of Evidence. Rules. Subjects of 
 Testimony 32-38 
 
 CHAPTER IV. 
 EXPERT WITNESS. 
 
 Definition. Preliminary Inquiry as to Qualifications. 
 Conduct. Basis of Opinion. Confined to Special 
 Knowledge. Physicians as Experts. Subjects of 
 Inquiry. Hypothetical Question. Objective and 
 Subjective Symptoms. Cross-Examination of Ex- 
 pert. Medical Books 39^45 
 
 CHAPTER V. 
 HEARSAY. 
 
 Dying Declarations. Res Gestae. Adverse Statements in 
 the Presence of a Party. Statements against Inter- 
 est. Statements by Patient to Physician .... 46-54
 
 CONTENTS. 
 
 CHAPTER VI. 
 PRIVILEGED COMMUNICATIONS. 
 
 Admissibility of Adverse Statements. Confidential Com- 
 munications. Incidental Information. Patient Need 
 Not be Party to Suit. Statement by Physician to 
 Patient. Publishing Operation. Imposing on Pri- 
 vacy. Waiver of Privilege. Privilege is an En- 
 tirety. Autopsy. Duty of the Physician. The 
 Privilege is Not to Protect Criminals. Criminal Pur- 
 poses. Presumption of Good Faith 55-62 
 
 CHAPTER VII. 
 LICENSE. 
 
 Common Law Right to Practice Medicine. Liberty to 
 Pursue Calling. Professional Practice is Not Prop- 
 erty. Public Welfare. Right of State to Control. 
 Soliciting Patients. Itinerant Vendors of Medicines. 
 
 Itinerant Physicians. How Regulated. Require- 
 ments. Construction of License Statutes. Practic- 
 ing Without License. Practicing Medicine. Right 
 of Physician to Practice Dentistry. Exemption of 
 Resident Practitioners. Board Cannot Delegate Dis- 
 cretion. Reserved Right of State. Vested Rights. 
 
 Due Process of Law. The Law of the Land. 
 Revocation Not a Judicial Function. Grounds for 
 Revoking. Proceedings to Revoke. Effect of Deci- 
 sion by Board. Statutes of Limitation. Revoca- 
 tion and Criminal Prosecution 63-79 
 
 CHAPTER VIII. 
 CONTRACTUAL RELATIONS. 
 
 General Observations. Contract. Delivery. Other 
 Classes. Mutuality. Parties. Contracts by In- 
 fants. Persons Under Legal Disability. Considera- 
 tion. Effect of Signing Contract. Validity of 
 Contracts. Constitutional Right to Contract. 
 Guaranty. Receipt. Release 80-90 
 
 CHAPTER IX. 
 EMPLOYMENT AND COMPENSATION. 
 
 Accepting Service. Unconscious Patient. Employment 
 by Third Person. History. Agreement as to Fee.
 
 CONTENTS. 
 
 No Agreement as to Fee. Special Agreement as 
 to Result. Services During Life of Patient. Fre- 
 quency of Visits. Value of Services is a Question of 
 Fact. What May be Shown. What May Not be 
 Shown. License Presumed. Unlicensed Practition- 
 ers. Nature of Remedies Must be Disclosed if 
 Sought. What Physician Must Prove. Husband 
 and Wife. Parent and Child. Guardian and 
 Ward. Malpractice. Consultant. Witness Fees. 
 Expert Witness Fees 91-108 
 
 CHAPTER X. 
 AGREEMENT FOR SURGICAL OPERATION. 
 
 Elements of the Agreement. Nature of Agreement. 
 Surgeon 's Discretion. Consent Necessary. Form 
 of Action. Presumptions. Controlling Facts. 
 Emergency. More than One Method Affecting the 
 Patient Differently. Patient's Conclusion Para- 
 mount. Operating at Patient's Request. Good 
 Faith of Operator. Departure from Agreed Opera- 
 tion. Prohibited Act, or Operation. Damages for 
 Unauthorized Operation 109-123 
 
 CHAPTER XI. 
 RES IPSA LOQUITUR. 
 
 The Maxim. Basis of the Maxim. Presumptions. 
 Presumption Upon Presumption. Mental Convic- 
 tions. Application of the Maxim. The Reason for 
 the Rule. When Maxim is Applicable. History 
 and Illustrations. Effect from More than One 
 Cause. As Applied to Physicians and Surgeons. 
 As Applied to Dentists. Where Not Applicable. 
 Infection 124-131 
 
 CHAPTER XII. 
 CIVIL MALPRACTICE. 
 
 Obligations Imposed by Law. Implied Conditions of the 
 Relation. Public Policy. Statement of the Obliga- 
 tions. Obligations Measured by Liability. Re- 
 quirement is General. Skill. Care. Degree of 
 Care Required. Judgment. Nature of Judgment 
 Required. Presumptions of Skill, Care and Judg-
 
 CONTENTS. 
 
 ment. Agreement Waiving These Requirements. 
 Agreement for Special Skill. Specialists. Practi- 
 tioner Must Keep Pace with the Times. Experimen- 
 tation. Established Treatment. Gratuitous Serv- 
 ices. Non-Professional Volunteer. Unlicensed 
 Practitioner 132^147 
 
 CHAPTER XIII. 
 CIVIL MALPRACTICE. 
 
 Elements of Breach. Essentials of Liability. Negli- 
 gence. Intent. Good Faith. Accident. Liabil- 
 ity in Case of Accident. Accident and Negligence. 
 Contributory Negligence. Effect of Contributory 
 Negligence. Reasons for the Rule. Relation Be- 
 tween the Physician's and the Patient's Negligence 
 and the Patient 's Injury. Independent Services. 
 Nurse's Negligence. Negligence of Druggist. Neg- 
 ligence of Assistant or Apprentice. Partners. Prac- 
 titioner Not a Guarantor of Beneficial Results. 
 Intoxication. Physician Engaged in Other Avoca- 
 tions. Arbitrary Refusal to Take Case. Statutes 
 Do Not Require Licentiates to Practice. Civil Rights 
 Acts 148-159 
 
 CHAPTER XIV. 
 CIVIL MALPRACTICE. 
 
 Enforcement of Liability. Proof Necessary to Establish 
 Malpractice. Anesthetic, Refusal to Give. Mistake 
 in Diagnosis. Usual Results Not the Test of Duty. 
 How Proven. Burden of Proof. Different Schools 
 of Medicine. Failure to Present Bill No Admission 
 of Wrong. Exhibiting Injury. When the Relation 
 Begins. When the Relation Ends. What Consti- 
 tutes Malpractice, Is a Question of Law .... 160-170 
 
 CHAPTER XV. 
 CIVIL MALPRACTICE. 
 
 Defenses. Proper Treatment. Former Judgment for 
 Physician. Injury from Other Causes. One Suit, 
 One Recovery. Mistake by Patient. Damages. 
 Kinds of Damages. Presumptions. Elements of 
 Damages. Patient's Duty to Prevent Aggravation
 
 CONTENTS. 
 
 of Injury. Mere Contingencies. Cannot Recover 
 for Original Injury or Disease. Mitigation. Exces- 
 sive Damages. Form of Action. Death from Mal- 
 practice. Joint Tort Feasors. Joint and Several 
 Actions. Survival of Action 171-181 
 
 CHAPTER XVI. 
 CRIMINAL MALPRACTICE. 
 
 Definition. Negligence. Criminal Liability. Abortion. 
 
 Criminal Abortion. At Common Law. Attempt 
 to Abort. Intent. Without the Woman's Consent. 
 
 Knowledge of Pregnancy. Pregnancy Not Nec- 
 essary to Attempt to Abort. Means Employed. 
 Failure to Produce Abortion. Advice to Procure 
 Abortion. Proof of Pregnancy. Stage of Preg- 
 nancy. Period of Pregnancy. Existence of Preg- 
 nancy. Evidence. Statutes. Necessary to Save 
 the Mother's Life. Distinction Between Civil and 
 Criminal Malpractice 182-190 
 
 CHAPTER XVII. 
 FALSE REPRESENTATIONS. 
 
 Fraud. Definition. Effect. Intent. Corrupt Motive. 
 
 Materiality. Opinions. Caveat Emptor. Ac- 
 tionable Misrepresentation. Peculiarity of the Re- 
 lation. Trust and Confidence. Confidential Rela- 
 tions and Special Knowledge. False Pretenses. 
 Fair Dealing. False Advertisements. As to Third 
 Party. Illustrations of the Principle. Illustration. 
 
 Certainty of Proof. Elements of the Tort. 
 Remedies. Damages 191-204 
 
 CHAPTER XVIII. 
 ANESTHETICS. 
 
 Definition. Kinds of Anesthetics. Effects of Anesthetic. 
 
 Right to Administer. Selection of Anesthetic. 
 Duty to Administer Anesthetic. Legal Responsibil- 
 ity in Administering Anesthetics. Extreme Respon- 
 sibility in Fact. Value of Testimony 205-210
 
 CONTENTS. 
 
 CHAPTER XIX. 
 INSANITY. MENTAL FACULTIES. 
 
 Mental Processes. Cerebral Cortex. Classification. 
 Functional Disturbances and Mental Phenomena. 
 Progress of the Law. Insanity in Law. Presenta- 
 tion. Definition. Presumption of Sanity. Pre- 
 sumption of Continuity of Insanity. Evidence as 
 to Insanity. General Practitioner is an Expert on 
 Insanity 211-216 
 
 CHAPTER XX. 
 INSANITY. IN CRIMINAL LAW. 
 
 Intent. At Common Law. Homicide. Tests. Sub- 
 jects of Inquiry. Insane Delusion. Delirium Tre- 
 mens. Somnambulism or Somnambulentia. Drunk- 
 enness. Epilepsy. Degree of Proof Required. 
 Moral Insanity. Irresistible Impulse. Emotional 
 Insanity. Kleptomania. Statute 217-223 
 
 CHAPTER XXI. 
 INSANITY. IN CIVIL LAW. 
 
 Contracts. Validity. Purpose. Necessaries. Degree 
 of Insanity Invalidating Contracts. Marriage. 
 Delirium Tremens. Drunkenness. Impaired Fac- 
 ulties. Wills. Mental Capacity. Insane Delusion. 
 Undue Influence. Sound Mind and Memory. 
 Torts. Responsibility. Homicide. Damages . . 224-230 
 
 CHAPTER XXII. 
 WOUNDS. 
 
 Definition. Surgically. Character of Wounds. Cause 
 of Death from Wounds. Relation of Wound to 
 Death. Shock. Definition. Symptoms. Opin- 
 ions of Physicians 231-234 
 
 CHAPTER XXIII. 
 BLOOD STAINS. 
 
 Definition of Blood. Classification. Origin. Color of 
 Blood. Weight, or Specific Gravity. Quantity.
 
 CONTENTS. 
 
 Composition. Coagulation. Tests for Blood. 
 
 Color of Blood Stains 235-241 
 
 CHAPTER XXIV. 
 CRIMES WITH MEDICAL ASPECTS. 
 
 Introduction. Rape. Definition. Age of Consent. 
 Punishment. Physical Violence. Force. Previous 
 Unchastity of the Women. Signs. Poisoning. 
 Definition. Malice. Common Law. Post-mortem. 
 Infanticide. Definition. Duty of the Mother. 
 Prevalence. Intent. Independent Existence. 
 Natural Causes of Death. Identity of Mother. 
 Burden of Proof. Statutes 242-252 
 
 CHAPTER XXV. 
 STATUTES OF LIMITATIONS. 
 
 Policy of the Law. When Cause Accrues. Malprac- 
 tice Cases. Period of the Statutes. Diligence. 
 Specified Services. Knowledge of Injury. Latent 
 Injuries. Continuing Obligations. A Continuing 
 Wrong. Suit for Fee. Persons Under Disability . 253-258 
 
 CHAPTER XXVI. 
 MISCELLANEOUS. 
 
 Business, Contracts and Work on Sunday. Coroners. 
 Boards of Health. Medical Services Required by 
 Law. Malingerers. Contracts in Restraint of Pro- 
 fessional Activity. Asexualization and Steriliza- 
 tion. Vaccination. Charitable Institutions. In- 
 mates of Public Hospitals. Jury Service. Libel 
 and Slander. Gifts and Legacies 259-276 
 
 Index . . 277-301
 
 MEDICAL JURISPRUDENCE 
 
 CHAPTER I. 
 
 INTRODUCTION. 
 
 Law. 
 
 Definition. In its broadest sense, Law is a mode of exist- 
 ence or an order of sequence. 1 Law exists and controls 
 without reference to our knowledge. There is a limit to 
 human ken, a boundary to effort which, like rocks in the 
 sea, wash but slowly away. " Canst thou by searching find 
 out God? Canst thou find out the Almighty unto perfec- 
 tion? It is as high as heaven; what canst thou do? 
 Deeper than hell; what canst thou know? The measure 
 thereof is longer than the earth and broader than the sea." 
 
 Prevalence of Law. Law is ubiquitous. We cannot es- 
 cape its rule nor emancipate ourselves from its influence. 
 It follows us from the cradle to the grave, to protect, ad- 
 monish, restrain, compel. It anticipates nativity and 
 guards our tongueless silence long after we have mouldered 
 into dreamless dust. The attempts to explain the rights 
 and duties of men in society, by supposing them to have ad- 
 vanced from a state of nature, may be accounted for on the 
 ground of fiction and excused on the score of entertainment, 
 but they are barren of any practical application and en- 
 tirely destitute of any useful suggestion. Society was not 
 a mutual compact; but a categorical necessity. 
 
 iWayland: Moral Science, p. 25. 
 
 17
 
 18 MEDICAL JURISPRUDENCE. 
 
 Municipal Law. 
 
 But we are to discuss law as instituted and enforced 
 among men for their protection and guidance, and we call 
 it municipal law. 
 
 Definition. " Municipal Law is a rule of civil conduct 
 prescribed by the supreme power in a state, commanding 
 what is right and prohibiting what is wrong." By this defi- 
 nition, the author (Blackstone) must be taken to mean 
 what the "supreme power" believes right or wrong* under 
 the circumstances, at the particular time. Cicero first an- 
 nounced this idea and it is repeated by Justinian. Doubt- 
 less many things that are wrong are not prohibited, and 
 much that, at various periods, was prohibited, is not wrong. 
 Primitive law was fragmentary and imperfect. The status 
 of society, the moral instincts of the people, must be re- 
 garded in framing a code of laws. The person who ob- 
 jects to this proposition either must impugn the wisdom of 
 God or must deny the claims of the Pentateuch to divine 
 origin. Upon being asked whether he had prepared the 
 best laws for the Athenians, Solon replied: "The best 
 they were capable of receiving." As the patient's condi- 
 tion determines the appropriate medicine to be adminis- 
 tered and influences its effect, so the state of society affects 
 the nature and operation of municipal law. 
 
 Classes. Municipal law is classified as 
 
 (a) Criminal. 
 
 (b) Civil. 
 
 Criminal Law. Criminal law deals with those offenses 
 against the individual, or the community, which the state 
 recognizes as wrongs to society. 
 
 DEFINITION. "Crime is an act committed or omitted in 
 violation of a public law either forbidding or commanding
 
 INTRODUCTION. 19 
 
 it." 2 A wrong which is punished by the sovereign power 
 is a crime. Courts redress such wrongs by punishing the 
 offender, but in criminal procedure they do not grant relief 
 to the person who suffers from the offense. Crime and 
 wrong are not interchangeable, because not all wrongs are 
 crimes and the crimes of the past may become the virtues 
 of the future. 
 
 EIGHT AND WRONG. Every act is endowed with many 
 qualities, according to the purpose of the classification; 
 such as right or wrong, legal or illegal, moral or immoral, 
 rational or irrational. Eight and wrong are inherent ele- 
 ments of human actions fixed by the Creator at the founda- 
 tion of the world. They are as essential to our ideas of 
 conduct as time to our conceptions of existence or space to 
 our understanding of matter. The common instincts of 
 man suggest them, reason recognizes their potency in 
 shaping men's course of action, and the experience of ages 
 has almost crystallized them into material substance. They 
 are controlling factors in all men's calculations and modify 
 the course of human life. "Cast your eyes over all the 
 nations of the world and all the history of nations," says 
 Eousseau; "and amid so many and absurd superstitions, 
 amid that prodigious diversity of manners and character, 
 you will find everywhere the same principles and distinc- 
 tions of moral good and evil. The paganism of the ancient 
 world produced, indeed, abominable gods who on earth 
 would have been shunned or punished as monsters, and 
 who offered as a picture of supreme happiness only crimes 
 to commit and passions to satiate. But, armed with this 
 sacred authority, vice descended in vain from the eternal 
 abode. She found in the heart of man a moral instinct to 
 repel her. The continence of Xenocrates was admired by 
 those who celebrated the debaucheries of Jupiter. The 
 
 2 4 Blackstone, 5.
 
 20 MEDICAL JURISPRUDENCE. 
 
 chaste Lucretia adored the unchaste Venus. The most in- 
 trepid Roman sacrificed to fear, invoked the god who de- 
 throned his father and died without a murmur at the hand 
 of his own. The most contemptible divinities were served 
 by the greatest men. The holy voice of nature, stronger 
 than that of the gods, made herself heard and respected 
 and obeyed on earth, and seemed to banish to the confines 
 of heaven guilt and the guilty." Moral qualities cannot 
 be eliminated from conduct without remodeling human 
 nature. 
 
 PENALTIES. Criminal law seeks merely the infliction of 
 a penalty on the guilty party. The right to inflict and the 
 purpose of the penalty will not be discussed. The tendency 
 of enlightenment has been to lessen the number of penalties 
 and to ameliorate their severity, and the purpose is grad- 
 ually changing from vindictive to remedial. 
 
 DEATH BY ACCIDENT. Owing to the difficulty sometimes 
 experienced in distinguishing between occurrences which 
 happen by pure accident and those which spring from con- 
 cealed design, there was a time when accident did not re- 
 lieve a party from punishment for untoward results. 
 Among the Israelites, the person who, accidentally, with- 
 out fault or negligence, in the reasonable prosecution of a 
 lawful pursuit, caused the death of another, was not held 
 entirely guiltless; for his life might lawfully be taken by 
 the avenger of blood. Cities of refuge were appointed 
 unto which such offenders must flee for safety nor depart 
 thence upon pain of being slain by the prowling avenger 
 until the death of the high priest or acquittal before the 
 whole congregation. Voluntary expatriation for a year 
 was the Athenian penalty in such cases. "If an ox gore 
 a man or a woman that they die; then the ox shall be 
 surely stoned, and his flesh shall not be eaten. ' ' The last 
 clause seems to imply that the animal was guilty of wrong.
 
 INTRODUCTION. 21 
 
 Only a few years ago there was abolished in England a law 
 providing that an inanimate object which without fault or 
 negligence of its possessor, caused the death of a human 
 being, should be forfeited. Similar laws prevailed in 
 Greece, Eome and~other nations of antiquity. 
 
 PENALIZING BELIEFS. Nor did the criminal law confine 
 itself to overt acts capable of demonstration, but even be- 
 liefs, especially when of a religious character, were sub- 
 ject to control. 
 
 Superstition rummaged heaven and hell to lay her pal- 
 sied hands on offenders against prevailing beliefs. She 
 was seized with paroxysms of hate, miscalled piety, in the 
 presence of heretics and witches. For five hundred years, 
 the laws from which our jurisprudence is derived were 
 blasted by bigotry and mildewed by fanaticism. Punish- 
 ments that would shock the sensibilities of cannibals were 
 ordered in the name of the Prince of Peace and adminis- 
 tered in the name of humanity. Intelligent conviction was 
 prima facie heresy. Genius might mimic; it must not 
 create. Mind was permitted to imitate but not to think. 
 All the issues of life were directed into the narrow chan- 
 nels of the past, so that wise men were made the disciples 
 of fools. Intelligence was hounded to the gates of the 
 grave. Eational investigation was the greatest crime and 
 an original idea was banished to the regions of chaos and 
 night. Only in hypocrisy was there safety. 
 
 Civil Law. Civil law deals with disputes between indi- 
 viduals and usually aims at recompensing a party for the 
 damage he has sustained by the act or default of another. 
 This branch of the law has two divisions, (a) common law, 
 and (b) equity. A judgment at law is usually for a speci- 
 fied sum of money payable to the adversary party to the 
 suit, and in default of payment the goods of the judgment 
 debtor may be seized and, in most states, where the action
 
 22 MEDICAL JURISPRUDENCE. 
 
 was founded upon tort, the debtor himself may be impris- 
 oned in default of payment. The term civil law, as used 
 in this classification, must not be confounded with the 
 great system of jurisprudence that came down to us through 
 the Romans and is still prevalent on the continent of Eu- 
 rope, and which we designate as the civil law, to distinguish 
 it from the English system of jurisprudence which is de- 
 nominated the common law. 
 
 IMPRISONMENT FOR DEBT. Imprisonment for debt has 
 been abandoned by the advancing columns of civilization. 
 America took the lead in the humane reform among Eng- 
 lish-speaking nations. "There shall be no imprisonment 
 for debt, except in case of fraud" is a general constitu- 
 tional provision. Formerly, debtors were commonly liable 
 to punishment, forfeiture of right or ignoble servitude. 
 Among the Athenians, prior to the statutes of Solon, this 
 unfortunate class were subjected to penal servitude in the 
 interest of the creditor or exiled for life. The laws of 
 Eome entitled the creditor to the services of the debtor 
 during a time sufficient to satisfy his claims. They some- 
 times imprisoned and bound in chains the debtor's person 
 and subjected him to whipping at the instance and discre- 
 tion of the merciless creditor, and permitted himself, his 
 wife and children to be sold into perpetual foreign slavery. 
 Some maintain that the law of the twelve tables authorized 
 the creditors to cut the debtor's body into pieces and take 
 their proportional parts determined by their respective 
 claims. Blackstone tells us that, among certain people of 
 India, the creditor might violate with impunity the chastity 
 of his debtor's wife in satisfaction of his claim. Legis- 
 lators, prompted by the cupidity and malice of creditors, 
 exhausted ingenuity in deriving methods of persecution 
 and means of extortion. Bankrupts in England were 
 treated as criminals by early statutes. The merchant who,
 
 INTEODUCTION. 23 
 
 hoping to retrieve his losses by a propitious turn of for- 
 tune, concealed his insolvency was pursued by the sleuth- 
 hounds of malice until the tomb, more charitable than man, 
 opened to receive him. Taking a risk in commercial indus- 
 try was facing the debtor's prison and the felon's disgrace. 
 Criminal Action and Civil Suit. A criminal action and 
 a civil suit at law may grow out of the same facts ; thus, if 
 A assaults and beats B he will be liable in a criminal action 
 for assault and battery, at the suit of the state, and if 
 found guilty he may be fined or imprisoned, or both, and 
 he will also be liable in a civil suit at law for damages to 
 B, and if found guilty a money judgment will be entered 
 against him which, if not paid, is in most states a basis for 
 a capias on which he may be imprisoned. A thief may be 
 proceeded against criminally by the State, and also civilly 
 by the owner of the property converted to recover the value 
 thereof. 
 
 Substantive Law. 
 
 Substantive law is based upon the prevailing notions 
 of right and wrong and develops with our ideas of justice. 
 It is the expression of permanent, prevalent, persistent 
 public opinion, fortified by the composite conscience of the 
 race, hence the similarity in laws of all civilized peoples. 
 
 Administrative Law. 
 
 Administrative law grows out of custom. What at one 
 time was practice, developed into custom and finally crys- 
 tallized into law. 
 
 Development of Medical Science. 
 
 The study of human ailments has always challenged th-3 
 attention and absorbed the best thought of mankind. Be- 
 cause of the early association of disease with the idea of 
 punishment for offenses against the deities it is not surpris-
 
 24 MEDICAL JUKISPKUDENCE. 
 
 ing that in the earlier ages the treatment of maladies should 
 have taken on a religious aspect. As disease was supposed 
 to be a punishment by the gods for the sins of those who 
 were afflicted, the rational course of treatment was to ap- 
 pease the wrath of the offended deities by appropriate ex- 
 piatory incantations. This notion is still entertained in 
 modified forms, and the old treatments, also modified, are 
 still believed by some to be efficacious. But it was early 
 discovered that this hypothesis of the origin of disease did 
 not harmonize with all cases; that afflictions were visited 
 alike on the just and the unjust, and, therefore, a belief 
 arose that human ailments were the manifestations of the 
 possession of the afflicted by evil spirits. In fact it was be- 
 lieved that man and the world he lives in were the field of 
 contest between the evil and the good. Then, to be ill was 
 to be possessed of malignant and wicked spirits. In such 
 frame of mind the rational treatment for sickness would 
 naturally consist in the unrelenting exorcism of these de- 
 mons of hate. Often the remedy was worse than the dis- 
 ease, but if the patient recovered he sang the praises of his 
 deliverers; if he died well he was gathered to his 
 fathers. 
 
 During these stages of the healing art, but little atten- 
 tion was paid to the study of the real causes of disease and 
 the means of its amelioration. But gradually enlighten- 
 ment dawns on a prejudiced and biased world and one by 
 one, by slow degrees, by more and more, the eternal veri- 
 ties are revealed. Some one had the temerity to think 
 that somehow the human organism itself might have some- 
 thing to do with the subject of sickness, and the study of 
 anatomy began. It finally dawned upon the more intelli- 
 gent that possibly the various organs, parts and tissues of 
 the body had some function, some purpose in the economy 
 of life, and the beginning of physiology dawned.
 
 INTRODUCTION. 25 
 
 For the purposes of this volume it is unnecessary to 
 trace minutely the development of the science of medicine 
 and surgery and its allied fields of investigation. Suffice it 
 to say that medical knowledge kept pace with the develop- 
 ment of other inductive sciences and, as law is the expres- 
 sion and interpretation of the enlightenment of the time, 
 the medical fraternity has, step by step, shaped our juris- 
 prudence in matters pertaining to medical subjects. What- 
 ever the state of knowledge at the time, that was the condi- 
 tion which prevailed and was enforced in the courts. The 
 latter turned to the medical profession for enlightenment 
 and guidance on medical subjects and, of course, accepted 
 the prevailing sentiments on the subjects involved. As 
 late as the latter half of the 17th Century the courts ac- 
 cepted the opinions of doctors and learned men that persons 
 on trial were bewitched. All the vagaries of the profession 
 have at one time or another prevailed in the administra- 
 tion of the law. In all ages the medical profession was 
 looked to for the last word on what was right and what was 
 wrong within its domain. 
 
 The Physician and the Courts. 
 
 Courts have always tried to enforce the laws in the 
 spirit of the enlightenment of the time and have never 
 hesitated to impress the services of men of science and 
 skill to enable them to arrive at a correct conclusion on the 
 issues presented for consideration. They never lead but 
 should keep pace with public opinion. Where the science 
 of medicine is involved, the physician is appealed to for 
 enlightenment in the administration of the law and the set- 
 tlement of the matters in dispute. The scenes enacted in 
 courts are always intensely human. Questions with a medi- 
 cal significance are always being pressed for answer and 
 the ingenuity of the specialist is taxed to keep pace with
 
 26 MEDICAL JURISPRUDENCE. 
 
 the exacting demands of the issues raised. The distinctly 
 medical subjects involved are not only intricate and diversi- 
 fied but also incapable of exact classification, while the 
 legal aspect thereof includes both substantive and admin- 
 istrative law. Some of the earliest questions raised were 
 the legitimacy of claimants to inheritances and put in issue 
 matters of impotency, sterility, period of gestation in 
 women and other sexual subjects, and the courts sought the 
 assistance of medical men for information and guidance. 
 The tremendous development of industry and transporta- 
 tion has its corresponding concomitant in injuries to the 
 person, and its inevitable attendant, death by violence 
 through negligence and accident, and as a result our courts 
 are flooded with litigation between the injured and those 
 alleged to be legally responsible for the misfortune, and in 
 turn this fact has given a like prominence to the medical 
 significance of personal injuries, their causes, cures and 
 effects. Every branch of medical knowledge, in one form 
 or another, may be needed to settle disputes between liti- 
 gants. 
 
 Definition of Medical Jurisprudence. 
 
 Medical jurisprudence is the science which treats of the 
 application of medical and surgical knowledge and skill to 
 the principles and administration of the law. It comprises 
 all legal subjects which have a medical aspect. 
 
 The author has confined himself to the legal phase of the 
 subject and the reader is referred to standard medical 
 works for the medical side.
 
 CHAPTER II. 
 
 COUETS AND PROCEDURE. 
 Courts. 
 
 Every civilized community establishes tribunals charged 
 with the duty of doing justice between disputants, of inter- 
 preting laws and settling legal disputes between its mem- 
 bers and places at their disposal the supreme power in the 
 State, to enforce their judgments and commands. Hence 
 
 Definition. A court is a judicial tribunal constituted by 
 the supreme power of a State to interpret and apply its 
 laws and to enforce certain rights and redress certain 
 wrongs in accordance with established usage or prescribed 
 rules of procedure. 
 
 Legal Right. A legal right is a claim enforcible in a 
 judicial tribunal ; a capacity residing in one person to con- 
 trol or restrain, with the assent and assistance of the State, 
 the actions of another. With reference to their applica- 
 tion and origin, legal rights in common law, are divided 
 into two classes, (a) rights in personam and (b) rights in 
 rem. The former are exercisable over persons, the latter 
 over things. Rights, in the civil law, have been classified 
 as (a) rights in law, enforcible in the courts; (b) rights in 
 trust, enforcible in conscience, that is to say, in equity, 
 and (c) rights in courtesy, enforcible only by persuasion, 
 entreaty, etc. 
 
 Jurisdiction. 
 
 Definition. Jurisdiction is the power to hear and deter- 
 mine. In this connection, two things must be considered, 
 
 27
 
 28 MEDICAL JURISPRUDENCE. 
 
 (a) the subject-matter of the controversy, and (b) the per- 
 son of the litigants. Jurisdiction of the subject-matter is 
 derived expressly or impliedly from the authority which 
 creates the court, while jurisdiction of the person is ac- 
 quired by notice in accordance with the provisions of law 
 or established usage. 
 
 Notice. Some form of notice to the party whose rights 
 are to be affected is indispensable to the right of the court 
 to proceed against him; in fact such course is inherent in 
 human ideas of justice. The notice given a party in a civil 
 suit is known as a summons, and must be served in time to 
 give the party a reasonable opportunity to be heard. 
 Granting that the court has jurisdiction over the subject- 
 matter of the controversy, then jurisdiction of the person 
 attaches with service of the summons. 
 
 When a court has a right to try and to determine a cause, 
 it is said to have jurisdiction thereof, and its orders and 
 judgments are binding upon all parties to the suit and their 
 privies, and even upon the court itself in all subsequent 
 litigation involving the same points and parties. How- 
 ever, if a court does not have jurisdiction its decrees are 
 an absolute nullity and are binding upon no one. In civil 
 matters the actual presence of the defendant is not essen- 
 tial to the power of the court to proceed, when it appears 
 that the defendant has been given due notice according to 
 law. Under certain circumstances, courts may proceed 
 against property within their territorial jurisdiction, even 
 though they cannot reach the owner personally by their 
 processes. The property which is protected by the law of 
 a state must be subject to its laws for the enforcement of 
 rights with reference to the property itself and also with 
 reference to claims against its owner. In this connection 
 jurisdiction may be (a) in rent, or (b) in personam.
 
 COURTS AND PROCEDURE. 29 
 
 Procedure. 
 
 Court procedure is a development from custom, while 
 customs have their origin in the habits, mode of life and 
 special circumstances of the people among whom they pre- 
 vail. The chief merit of any system of procedure lies in 
 the generality of its application, the uniformity of its rules 
 and the certainty of its course. Courts must adhere to 
 established modes of procedure, otherwise the administra- 
 tion of justice would fall into chaos. There is great di- 
 versity in the procedure of the courts of different countries 
 and yet all arrive in the end at substantial justice. In some 
 systems of jurisprudence the lawyer has but little influence 
 on the course of inquiry, while on the other hand wherever 
 English jurisprudence prevails, the interrogating lawyer 
 can determine in a large measure the course of the testi- 
 mony. The witness may be confined to a categorical an- 
 swer to a specific, limited question propounded to him. 
 He may even be required to answer a specific question by 
 either "yes" or "no," according to the circumstances, and 
 if he says he cannot so answer, his testimony thereon in 
 that examination may be limited to that admission. The 
 object of rules of procedure, relating to the introduction 
 of evidence, is to enable the court to control the character 
 of evidence introduced and confine it to the point at issue. 
 All answers to direct interrogatories must be responsive to 
 their respective questions, and confined to the purview of 
 the questions to which they respond. Any answer or part 
 of answer which does not meet these requirements, either 
 by not being responsive or by volunteering more than the 
 question called for, will be stricken from the record, on 
 motion. This is in sharp contrast to some systems of juris- 
 prudence. In certain actions in some jurisdictions it ap- 
 pears that the witnesses are permitted to harangue the 
 court and jury without any power or right on the part of
 
 30 MEDICAL JURISPRUDENCE. 
 
 counsel to interfere with their tirade. They may comment 
 upon the effect of testimony, may boast of the prominence 
 of themselves, the superiority of their intellect and experi- 
 ence, the importance of their statements and conclusions, 
 may give their opinion on the guilt of the accused, may 
 berate the defendant from the witness chair, and even refer 
 to matters of hearsay of several persons removed. 
 
 Trial. A trial is a regular and formal examination by a 
 competent court or judicial officer into the material facts 
 of a controversy in issue, in order to determine and enforce 
 the respective rights of the contestants. Some trials may 
 be conducted by the judge alone, and others with the as- 
 sistance of a jury. By the Federal Constitution a party 
 charged with crime has a right to a trial by a jury, which 
 shall determine all controverted questions of fact. In 
 courts of equity the trial is had before the chancellor. 
 However, he may call a jury to pass upon issues of fact, 
 but the finding of the jury is usually only advisory and not 
 binding upon him. 
 
 Trial by Ordeal. Sometimes the accused was given the 
 right of trial by ordeal. According to the beliefs of the 
 time, an innocent person accused of crime, could walk, 
 hoodwinked, unharmed over red-hot irons placed on the 
 ground at irregular intervals; could drink with impunity 
 the most deadly poisons; could put his hands in boiling 
 water or hold a hot iron without injury, and would sink if 
 thrown into water. 
 
 Formerly, but few trial privileges were given to persons 
 accused of crime. They were not permitted to have coun- 
 sel and were debarred the right to make a defense. Pre- 
 sumption of guilt and burden of proof were against them. 
 The trial was purely an ex parte proceeding, and in many 
 cases all that remained to be done after the indictment was 
 found was to inflict the penalty. The accused might not
 
 COURTS AND PROCEDURE. 31 
 
 see or know who were the witnesses against him nor know 
 the nature of their testimony. In this country these sub- 
 jects are controlled by constitutional provisions. 
 
 "In all criminal prosecutions, the accused shall enjoy the 
 right to a speedy and public trial, by an impartial jury . . . 
 and to be informed of the nature and cause of the accusa- 
 tion; to be confronted with the witnesses against him; to 
 have compulsory process for obtaining witnesses in his 
 favor, and to have the assistance of counsel for his de- 
 fense." i 
 
 Jury. 
 
 Since the time when his rebellious subjects wrung Magna 
 Charta from the reluctant hands of King John in 1215, it 
 has been a cardinal principle of civil liberty among Eng- 
 lish speaking people that no person may be seized or im- 
 prisoned or disseized of his free-hold or estate; or exiled 
 or condemned or deprived of life, liberty or property except 
 by the law of the land or the judgment of his peers. "No 
 freeman, ' ' runs that great proclamation of the rights of the 
 common people, "shall be seized or imprisoned, or dis- 
 possessed or outlawed, or in any way brought to ruin; we 
 will not go against any man nor send against him, save by 
 legal judgment of his peers or by the law of the land." 
 
 In all criminal prosecutions, and in civil suits in Illinois, 
 where the value in controversy exceeds twenty dollars, 
 questions of fact are to be decided by jury. All States have 
 similar provisions, constitutional or statutory. 
 
 i Const. U. S., Amdmt. 6.
 
 CHAPTER III. 
 EVIDENCE. 
 
 Definition. Evidence is a general term and means that 
 which demonstrates or tends to establish or make clear or 
 certain the truth or falsity of a fact in issue. In law evi- 
 dence is any matter of fact, the effect, tendency or design 
 of which is to produce in the mind a persuasion, an inclina- 
 tion, affirmative or negative, of the existence of some other 
 matter of fact which is the subject of inquiry and includes 
 all the means, whether of fact or opinion, by which an al- 
 leged fact, the truth of which is submitted for investigation, 
 is established or disproved. 
 
 Testimony. Testimony is the statement or declaration 
 of a witness before a court for the purpose of establishing 
 or refuting some fact in issue. It is a branch of evidence 
 and is the means by which certain facts, within the knowl- 
 edge of persons, are brought before the court when the 
 same are material to the issues in the case. 
 
 Witness. A witness is one who gives testimony in a case 
 before a court, and includes every person from whom testi- 
 mony is received to be used in a judicial proceeding. 1 
 
 Oath or Affirmation. Before testifying a witness must 
 be sworn or affirmed to tell the truth. 
 
 Competency of Evidence. The question of the compe- 
 tency of evidence is addressed to the court but, its compe- 
 tency admitted, its weight and effect are exclusively for 
 the jury. 
 
 "The competency of witnesses has been greatly extended 
 in modern times by legislation. The tendency of courts 
 
 1 Baker v. Coit, 1 Root, 225; Bliss v. Scheman, 47 Me., 252. 
 
 32
 
 EVIDENCE. 33 
 
 has been in the same direction of liberality. More and 
 more has been left to be determined upon the credibility of 
 the witness, but there has not been any relaxation of the 
 rule against hearsay evidence. Nor has the scope allotted 
 to the field of opinion evidence been materially enlarged. 
 Hearsay evidence has been always regarded as generally 
 untrustworthy, while opinion evidence is placed low in the 
 scale and receivable at all only because there seems no 
 other practicable way to establish the fact. ' ' 2 
 
 Rules. A knowledge of the rules for the introduction of 
 evidence is practically indispensable to efficient testimony 
 as an expert, and it is highly to be desired even when testi- 
 fying as an ordinary witness. A few of the more important 
 rules are, 
 
 1. The answer must be responsive to the question. 
 
 2. The answer should not go beyond the purview of the 
 question. 
 
 3. Ordinarily the witness should not volunteer informa- 
 tion. 
 
 4. A witness who speaks English, must testify in that 
 language. 
 
 Subjects of Testimony. 
 
 A. Facts. Generally speaking, a witness may testify 
 only to facts, circumstances and conditions which have been 
 brought to his knowledge by means of one or more of the 
 senses, but he may not state inferences or conclusions 
 drawn by him from such observations or from admitted 
 facts. 
 
 B. Opinion Evidence. BY OBDINAEY WITNESSES. In ac- 
 tual practice, however, there are a great variety of subjects 
 in which ordinary testimony savors of opinion evidence. 
 
 Illustrations. Thus, an ordinary witness may state his 
 opinion concerning the age of a person whom he has seen ; 
 
 2 0. & O. By. Co. v. Wiley, 134 Ky., 461.
 
 34 MEDICAL JUEISPEUDENCE. 
 
 on matters of color, size, weight, quantity, value, distance, 
 speed, time, etc. ; relative to the identity of persons, places 
 or things ; whether a person appeared angry, sad, nervous, 
 excited, sick, in poor health, well, ill, attached to another, 
 sober or intoxicated ; whether a person appeared to be suf- 
 fering pain, showed fear, manifested grief, was formerly 
 in good health, was rational or irrational, sane or insane, 
 had failed mentally in a given time, looked bad, was of in- 
 temperate habits, acted strangely or in a childish manner, 
 was "short" in answering questions, eccentric, or of a fickle 
 mind; whether the mind of a person was clear, etc. 
 
 Weight of Such Evidence. The confidence to which such 
 opinion is entitled depends upon the character of the exami- 
 nation made by the witness, the nature of the subject-mat- 
 ter to which it refers, and the intelligence and good faith 
 of the witness. 3 
 
 Reason for Admission. These exceptions to the general 
 rule that ordinary witnesses can testify only to facts which 
 come to their knowledge through some of the senses, are 
 made to promote justice and are founded upon necessity. 
 Circumstances there are in which, because of the imperfec- 
 tion and limitations of language and the instability of men- 
 tal impressions, the witness can express a condition or 
 state of facts more clearly by giving his inferences at the 
 time, from the impressions made on his mind, than by at- 
 tempting a detailed enumeration of those impressions. 
 Often facts of personal observation, especially of conver- 
 sations, are remembered only by the mental conclusions 
 which they produce at the time. Thus, it may be difficult 
 or even impossible, to describe in detail a person's condi- 
 tion or conduct at a given time, when the observer may 
 disclose the key to the whole matter by merely stating his 
 own impression at the time; such as, that the person was 
 
 3 Hopt. v. Utah, 120 U. S., 437.
 
 EVIDENCE. 35 
 
 angry, or excited, or intoxicated, or sad, etc. Whenever 
 the condition sought to be established is such that it cannot 
 be reproduced and made palpable in the concrete to the 
 court or jury, or when language is inadequate to make the 
 court or jury see it and know it as the witness saw it and 
 knew it, then the ordinary witness may describe the condi- 
 tion by its effect upon his own mind at the time, even 
 though such method savors of an opinion. 4 Such evidence 
 has been said to be competent from necessity, on the same 
 ground as the testimony of an expert, as being the only 
 method of proving certain facts essential to the proper ad- 
 ministration of justice. It has been said that it is not a 
 mere opinion which is thus given by the witness, but a 
 conclusion of fact to which his judgment, observation and 
 common knowledge have led him. The admission of the 
 opinion is an exception to the general rule, which does not 
 permit opinions, in regard to a subject-matter which re- 
 quires no special learning or experience, and which is 
 within the knowledge of men in general. 5 
 
 ' 'Argument in support of the objections to all these 
 answers is comprehended within the general rule that a 
 witness, not an expert, is not competent to testify to an 
 opinion. Where a previous habit of study is essential to 
 the formation of an opinion sought to be put in evidence, 
 only such persons are competent to express an opinion as 
 have, by experience, special learning or training, gained a 
 knowledge of the subject-matter upon which an opinion is 
 to be given, superior to that of an ordinary person. Wit- 
 nesses, not experts, are, however, allowed to express opin- 
 ions when the subject-matter to which the testimony relates 
 is such in its nature that it cannot be reproduced and de- 
 scribed to the jury precisely as it appeared at the time. 
 
 4 Whittier v. Franklin, 46 N. H., 23 ; Knoll v. State, 55 Wis., 249. 
 
 5 Com. v. Sturtevant, 117 Mass., 122.
 
 36 MEDICAL JURISPRUDENCE. 
 
 Opinions may be given by non-expert witnesses as to the 
 state of health, hearing or eye-sight of another, or the 
 ability of another to work, or walk, or use his arms or legs 
 naturally, or whether such other person is apparently suf- 
 fering pain, or is unconscious, or in possession of his or her 
 mental faculties, intoxicated, excited, calm, etc. ' ' 6 
 
 Not Favored. The law does not look with favor upon 
 the introduction of opinion evidence, whether ordinary or 
 expert. As a rule, witnesses are required to testify to facts 
 directly within their knowledge; it is for the court or jury 
 to draw conclusions and form opinions of ultimate facts 
 from the probative facts thus brought before them. 
 
 BY EXPERT WITNESSES. Opinion evidence is testimony in 
 the form of an opinion based upon facts proved or assumed, 
 concerning a matter involving scientific or technical knowl- 
 edge not within the experience of the ordinary witness. 7 
 
 Subject-Matter of Expert Testimony. The test of the 
 admissibility of expert testimony is, Is the question upon 
 which the evidence is offered, one of science, skill or special 
 experience or occupation? The subject must be one which 
 the courts recognize, as a matter of judicial notice, as being 
 a matter of special study, experience or occupation, either 
 for professional or other purposes, and it must relate to 
 some particular department of human knowledge or activ- 
 ity. The subjects to which this kind of evidence is appli- 
 cable are not necessarily confined to classified and specific 
 professions. It is applicable wherever particular skill, 
 experience and judgment, applied to particular subjects, 
 are required to explain results or trace them to their causes, 
 and in which, as a matter of business, recreation or study, 
 there are persons who are specially informed. 
 
 Effect of Opinion Evidence. The jury cannot disregard 
 
 6W. C. 8. R. Co. v. Fishman, 169 111., 196, 198; Greinke v. Chicago City Ry. Co., 
 234 111., 564, 571. 
 
 7 W. C. S. R. Co. v. Fishman, 169 111., 196.
 
 EVIDENCE. 37 
 
 the testimony of experts where it refers to facts pertaining 
 to the profession, but when it comes to the mere opinion of 
 witnesses, however skillful, as in cases of insanity, the jury 
 have a right to disregard the opinions and substitute their 
 own conclusions from their ordinary intelligence and infor- 
 mation. Opinion evidence is only advisory. It may be 
 followed or disregarded by the jury. Experts are per- 
 mitted to testify with a view of assisting the jury to draw 
 the right conclusions but they do not take the place of the 
 jury. After all the experts have spoken, the jury must 
 draw its own conclusions of legal responsibility. 8 
 
 The following charge to the jury was held to be a cor- 
 rect statement of the law: "You are necessarily bound, 
 independent of every other consideration, to adopt the tes- 
 timony of the physicians and surgeons when you come to 
 determine whether, on the facts in this case, these defend- 
 ants have treated the case in a proper form and by the use 
 of proper appliances. ' ' 9 
 
 But the opinion of experts as to the customary charge 
 for services, the reasonableness of a fee or the value of 
 professional services are not considered binding on court 
 or jury, but they cannot be arbitrarily disregarded without 
 reason appearing in the evidence.. 10 
 
 The opinion of a physician is entitled to such weight and 
 consideration as his experience, skill and knowledge, in the 
 special subject of inquiry justify. 11 It is the duty of the 
 jury to consider, as affecting credibility, that a physician 
 who testified as an expert was specially compensated by 
 the party in whose favor he testified. 12 At the present 
 time, the force of expert testimony is greatly weakened by 
 
 8 Rolater v. Strain (Okl.), 137 Pac., 96, 99; Oborn v. State, 143 Wis., 249. 
 
 9 Spaulding v. Bliss, 83 Mich., 311. 
 
 10 Spaulding v. Bliss, 83 Mich., 811; Ladd v. Witte, 116 Wis., 35; In re Smith, 41 
 N. Y. Supp., 1093. 
 
 11 U. S. v. Prendergast, 32 Fed., 198. 
 
 18 Ware v. Starkey, 80 Va., 204 ; Harvey v. Packet Co., 8 Miss., 99.
 
 38 MEDICAL JUEISPKUDENCE. 
 
 a prevailing conviction that the expert is a special pleader 
 who presents at best only one side of the case and whose 
 opinion is regulated according to the size and source of 
 Ms fee.
 
 CHAPTER IV. 
 EXPERT WITNESS. 
 
 Definition. An expert witness is one who has made the 
 subject upon which he gives his opinion, a matter of par- 
 ticular study, practice or observation, and who has a par- 
 ticular knowledge on the subject which must be recognized 
 in law as a distinct department of human knowledge and 
 endeavor. 
 
 An expert is one who, in regard to a particular subject 
 or department of human activity, possesses knowledge not 
 possessed by ordinary persons. 1 
 
 An expert is a person instructed by a specially acquired 
 information, knowledge and experience upon subjects pre- 
 sumably not within the range of ordinary intelligence and 
 observation. 2 
 
 Preliminary Inquiry as to Qualifications. Whether a 
 person who has been called as an expert has the requisite 
 qualifications in the particular subject-matter involved to 
 enable him to testify as an expert, is a preliminary ques- 
 tion to be determined by the court, and the decision of the 
 court is conclusive, unless it appears from the evidence to 
 be clearly erroneous or to have been founded upon some 
 error in law. 3 After a witness has been permitted to tes- 
 tify as an expert, the weight and effect of his testimony is 
 a question exclusively for the jury, and is entitled to such 
 weight and consideration as his skill and experience in the 
 special subject of inquiry justify. 4 In determining the 
 
 1 Sievert v. People, 145 111., 571; Jones v. Tucker, 41 N. H., 546. 
 
 2 Page v. Parker, 40 N. H., 47, 59; Hyde . Woolfolk, 1 la., 167. 
 
 3 Parkins v. Stickney, 132 Mass., 218 ; Congress Co. v. Edgar, 99 U. S., 657. 
 
 4 Davis v. State, 35 Ind., 496; U. S. v. Prendergast, 33 Fed., 198, 
 
 39
 
 40 MEDICAL JUKISPBUDENCE. 
 
 weight to be given to the testimony of an expert, it is proper 
 for the jury to take into consideration the fact that he was 
 specially compensated by the party in whose favor he tes- 
 tified. 5 
 
 Conduct. The expert witness should endeavor to make 
 his statements clear and intelligible to the ordinary lis- 
 tener. He must not forget that he is called upon to testify 
 because the subject is not within the field of knowledge of 
 the person to whom his testimony is directed and for whose 
 benefit he is called as a witness. He should avoid as much 
 as possible the use of technical terms and language sug- 
 gestive of pedantry, subterfuge or display. He should shun 
 even the suggestion of advertising himself or parading his 
 accomplishments and speak with becoming modesty on all 
 matters pertaining to his qualifications, experience and 
 achievements. Able testimony may lose its convincing 
 force by being preceded and introduced by a spirit of brag- 
 gadocio. It is important to the expert to be familiar with 
 rules and practices of courts relating to the examination 
 of witnesses, as it may save conflict with the attorneys and, 
 possibly, even reprimand from the judge. 
 
 Basis of Opinion. An expert may base his opinion upon 
 information (a) obtained by his own examination of the 
 party and testified to by him in court, or (b) gained by him 
 from testimony which he heard in the case in court, or (c) 
 assumed in a hypothetical question propounded to him. 
 
 Confined to Special Knowledge. When testifying an ex- 
 pert must be strictly confined to the limits of the special 
 knowledge of his profession or occupation. 6 
 
 Physicians as Experts. The earliest recognition of ex- 
 pert opinion evidence was in the admission by the courts 
 of opinions of physicians in matters pertaining to their 
 
 5 Ware v. Starkey, 80 Vs., 204. 
 
 6 Milwaukee Co. v. Kellogg, 94 U. S., 472 ; Page v. Parker, 40 N. H., 47, 59 ; People v. 
 Lehr, 196 111., 361,
 
 EXPERT WITNESS. 41 
 
 profession. The acceptance of this class of witnesses as 
 experts is now so general that their opinions are taken in 
 all matters pertaining to their profession. 
 
 In 1619, an ejectment case turned on the question of the 
 legitimacy of a posthumous child, and the court, having 
 first received "the testimony of two doctors of physic," 
 held as a matter of law "that it might well be, as the phy- 
 sicians had affirmed, that ten months may be said properly 
 to be the time of gestation." The record in this case 
 closes by reciting, "So the court delivered to the jury that 
 the said Elizabeth, who was born forty weeks and more 
 after the death of the said Edmund Andrews, might well 
 be the daughter of the said Edmund. " 7 At a famous trial 
 for witch-craft, at Bury St. Edmund's, in 1665, Dr. Thomas 
 Browne, who testified as a "person of great knowledge," 
 after viewing the accused, "was desired to give his opinion 
 what he had conceived of them, and that he was clearly of 
 opinion that the persons were bewitched. ' ' 8 The case does 
 not disclose why a doctor should be any more competent to 
 testify on that subject than a layman. 
 
 In 1678, the testimony of medical men was admitted be- 
 fore the jury regarding the cause of blood in a certain por- 
 tion of the body of a person supposed to have been mur- 
 dered, and in the following year similar testimony was 
 introduced before a jury concerning the cause of death. 9 
 
 Subjects of Inquiry. In an action for malpractice against 
 a physician, on a charge of negligence, a practitioner in 
 the profession, or one who is skilled therein, may give his 
 opinion, if material, as to whether the treatment complained 
 of was proper and in accordance with the usual and cus- 
 tomary practice, under the circumstances, and, if not, 
 
 7 Alsop v. Bowtrell, Cro., Jac., 541. 
 
 8 Trial of Witches, 6 How. St. Tr., 687, 697. 
 
 9 Trial of the Earl of Pembroke, 6 How. St. Tr. 1310, 1337; Rex v. Green, 7 How. 
 St. Tr., 159,
 
 42 MEDICAL JUKISPKUDENCE. 
 
 wherein it was not; whether the given operation was skill- 
 fully performed ; whether the defendant, whom he has seen 
 operate, is a skillful operator; whether the specified condi- 
 tion could have resulted from the specified treatment, or 
 course of treatment; whether under the given conditions 
 the specific methods, treatments, appliances or devices 
 adopted were practical or approved by the profession; 
 whether a given infection could have been induced at the 
 time or in the manner alleged ; whether the given condition 
 was curable or incurable ; whether the recovery was a fair, 
 usual recovery; whether certain adverse results can, with 
 proper skill and care, always be anticipated and avoided; 
 whether an amputation was skillfully performed, and in 
 fact on any subject of inquiry at issue coming within the 
 range of his special skill, knowledge and experience. His 
 opinion may be based (a) on facts assumed in a hypo- 
 thetical question, or (b) on the stated results of his own 
 investigation, or (c) on all the evidence in the case, assum- 
 ing it to be true. 
 
 When the fact is material to an issue in court a physician 
 may give his opinion whether the given effects upon the 
 sexual organs of a female might have resulted from her 
 ravishment in the manner stated; whether pregnancy is 
 likely to occur as a result of rape ; whether penetration con- 
 stituting rape has occurred ; whether an infant was prema- 
 turely born and its age, or both ; whether a person was sane 
 or insane at a given time; whether fright caused by being 
 put off a train would produce heart disease in a young 
 child; whether a condition was the result of previous 
 wounds or injuries; whether death was caused by drown- 
 ing ; whether certain wounds were sufficient to cause death ; 
 whether a certain clot of blood could have existed twelve 
 hours without causing death ; and also the effects of wounds 
 and injuries; the permanence of an injury; the cause of
 
 EXPERT WITNESS. 43 
 
 death; the probable results of disease and injuries; the 
 effect on a person of a certain quantity of a particular drug, 
 and the different effects from different quantities ; the cause 
 of a miscarriage ; the effects of a nervous shock ; the gen- 
 eral cause of an injury or disease; from symptoms, how 
 long a disease has been running; where there are several 
 concurrent causes which might have produced death, that 
 one cause operated to the exclusion of the others and, gen- 
 erally in all medical and surgical matters where an expert 
 may be able to form an opinion, or draw a rational con- 
 clusion. 
 
 Physicians may testify as medical experts, from given 
 symptoms or from examination, whether or not an abortion 
 has been committed on a woman, and, in case of death of 
 the woman, whether or not death was the result of an abor- 
 tion. These are matters peculiarly within the range of the 
 expert knowledge of physicians. 10 
 
 Hypothetical Question. A hypothetical question is one 
 which states and assumes as true certain probative facts 
 appearing in evidence, and asks the opinion of the witness 
 thereon as to some ultimate fact in issue. 11 
 
 It is well settled that when the testimony of experts is 
 proper, counsel may assume the existence of any state of 
 facts which the evidence fairly tends to justify, according 
 to the theory of examining counsel, for the purpose of 
 eliciting an opinion therefrom. A hypothetical question 
 need not embrace all the evidence in the case, but may be 
 addressed to any reasonable theory which may be taken of 
 the facts. 12 Of course, the facts are assumed for the pur- 
 pose of the question and the opinion thereon. 13 The value 
 of the opinion will depend somewhat on the completeness 
 
 10 Com. v. Leach, 156 Mass., 99; Com. v. Thompson, 159 Mass., 56; Slattery v. 
 People, 76 HI., 217. 
 
 11 Cent. Diet. 
 
 12 R. Co. v. Wallace, 202 111., 129; Howard v. People, 185 111., 552. 
 
 13 Stearns v. Field, 90 N. Y., 640.
 
 44 MEDICAL JURISPRUDENCE. 
 
 with which the question contains all the facts in evidence, 
 whether for or against the theory of examining counsel. 
 Besides, the expert is entitled to know all the facts before 
 being called on to express an opinion. But the opinion 
 must be based upon the facts assumed in the question re- 
 gardless of what other facts may be known to the witness 
 at the time, and where the facts stated are not sufficient to 
 enable the witness to form an intelligent opinion, he should 
 so answer. Witness has a right to explain that he cannot 
 form an opinion without information on certain other essen- 
 tial elements. 
 
 A hypothetical question may assume such facts, covering 
 an entire situation, as are reasonably warranted by the evi- 
 dence. As in the case of all other questions, its competency 
 must be finally determined by the court. 14 
 
 Objective and Subjective Symptoms. A physician who 
 has not treated an injured party but has examined him 
 solely as a basis on which to found an opinion to be given 
 in a trial to recover damages for injuries sustained by him, 
 when called as a witness, cannot testify to the statements 
 made by the injured party to him or in his presence, during 
 such examination ; nor base an opinion upon the statements 
 of the injured party. In other words, an expert who has 
 examined the patient for the sole purpose of testifying 
 must base his opinion on objective symptoms, in so far as 
 it is based upon his examination, and purely subjective 
 symptoms must be disregarded. 15 
 
 Cross-Examination of Expert. In the direct examination 
 of an expert witness, the facts assumed in a hypothetical 
 question should be such as are fairly within the scope or 
 range of the testimony, or necessarily inferable therefrom. 
 However, upon cross-examination, any fact which, in the 
 
 14 Oborn v. State, 143 Wis., 249. 
 is Eckels v. Mutschall, 230 111., 462.
 
 EXPEET WITNESS. 45 
 
 sound discretion of the court, is pertinent to the inquiry, 
 whether testified to by any one or not, may be assumed in a 
 hypothetical question with a view of testing the skill, learn- 
 ing or accuracy of information of the expert, or to ascer- 
 tain the reasonableness or expose the falsity of the opinion 
 he has expressed. Although a question goes beyond the 
 scope of the evidence it may be propounded upon cross- 
 examination if its purpose is to elicit the reason upon which 
 the expert bases an opinion expressed by him in his exami- 
 nation in chief, or to ascertain the extent of his skill and 
 learning in the particular subject upon which he assumes 
 to be an expert. 16 While medical works are not admissible 
 in evidence to prove the things contained in them, still 
 where a medical expert says he bases his opinion upon 
 what a certain text-writer says on the subject, the text may 
 be read from on cross-examination to show the witness that 
 the author does not sustain the contention of the witness. 17 
 
 Medical Books. Ordinarily medical works, or treatises 
 on any other inductive science, cannot be introduced in evi- 
 dence nor read from by either party, or by the physician 
 witness for the purpose of showing the opinion of the au- 
 thors. 18 
 
 However, where a physician says, either on direct or 
 cross-examination, that he bases his opinion upon what a 
 certain text-writer says, counsel, on cross-examination, may 
 show that the author does not sustain the witness. 19 
 
 16 W. C. S. Ry. v. Fishman, 169 111., 196, 200. 
 
 17 Bloomington v. Schrock, 110 111., 219. 
 
 isYoe v. People, 49 111., 410; N. C. B. M. Co. v. Monka, 107 111., 340; Com. v. 
 Brown, 121 Mass., 69. 
 
 19 Bloomington v. Schrock, 110 111., 219 (Dicta).
 
 CHAPTEE V. 
 HEARSAY. 
 
 Dying Declarations. A dying declaration is a statement 
 of material facts concerning the cause and circumstances 
 of a homicide, made by the victim under a solemn convic- 
 tion of impending death. 
 
 HEARSAY. Under the rules of evidence in our jurispru- 
 dence, hearsay testimony is excluded. It comes clothed in 
 too much uncertainty to give it any probative force, and 
 except in rare cases it is not admissible for any purpose. 
 This rule of law is based upon our habit of reasoning and, 
 therefore, the law indulges no presumption or inference of 
 the truth of an issue merely because a witness states that 
 some one, not before the court, asserted its existence medi- 
 ately or immediately to the witness. It is the policy of the 
 law to exclude from the evidence the statements of a party 
 who is not before the court to be put under oath, cross- 
 examined, and the source and credibility of his information 
 inquired into. 1 
 
 It is a rule of common law, in criminal cases, to which 
 there are but few exceptions, that witnesses must (a) be 
 produced in open court, (b) confront the defendant, and 
 (c) give their testimony under oath or on affirmation. It 
 will be observed that the admission of dying declarations 
 violates these rules ; the defendant is not in court or under 
 oath and, usually, the statement is not made in the presence 
 of the accused. 
 
 REASONS FOB THE EXCEPTION. This well recognized ex- 
 ception to the rule excluding hearsay evidence is made (a) 
 
 i Grubey v. National Bank, 133 111., 79 ; Kent v. Mason, 79 111., 540. 
 
 46
 
 HEARSAY. 47 
 
 because of the necessity of the situation and (b) because of 
 the strong probability that, under the circumstances, the 
 declaration is true. The Supreme Court of Illinois gives 
 a concise and able statement of the reason of the rule, as 
 follows : 
 
 "The statements of the deceased as to the cause of the 
 injury from which death finally results, when dying decla- 
 rations, within the meaning of the law, are admitted in evi- 
 dence on the ground of necessity, and the rule under which 
 they are admitted forms an exception in the law of evidence. 
 The accused, under the rule, has not the benefit of * meeting 
 the witnesses against him face to face'; a constitutional 
 right in all criminal trials, with this solitary exception. 
 He is deprived of the security of an oath, attended with 
 consequences of temporal punishment for perjury. He is 
 deprived of the great safeguard against misrepresentation 
 and misapprehension, the power of cross-examination. 
 The evidence is hearsay in its character ; the statements are 
 liable to be misunderstood and to be misrepeated upon the 
 trial, and the evidence goes to the jury with surroundings 
 tending to produce upon the mind emotions of deep sym- 
 pathy for the deceased and of involuntary resentment 
 against the accused. It is vain to attempt to disguise the 
 infirmities and imperfections of the human mind and its 
 susceptibilities to false impressions under circumstances 
 touching the heart and exciting the sympathies, and the law 
 has wisely, in case of dying declarations, required all the 
 guaranties of truth the nature of the case admits of. The 
 principle upon which such declarations are admitted is, that 
 they are made in a condition so solemn and awful as to 
 exclude the supposition that the party making them could 
 have been influenced by malice, revenge or any conceivable 
 motive to misrepresent, and when every inducement, emo- 
 tion and motive is to speak the truth. In other words, in
 
 48 MEDICAL JURISPRUDENCE. 
 
 view of impending death, and under the sanctions of a moral 
 sense of certain and just retribution. A dying declaration, 
 therefore, is a statement made by a party, relating to the 
 cause of the injury of which he afterwards dies, under the 
 fixed belief and moral conviction that his death is impend- 
 ing and certain to follow almost immediately, without oppor- 
 tunity for repentance, and in the absence of all hope of 
 avoidance; when he has despaired of life, and looks to death 
 as inevitable and at hand." 2 
 
 ESSENTIAL CONDITIONS TO THE ADMISSIBILITY 
 OF SUCH STATEMENT: 
 
 1. The statement must be made in the immediate pros- 
 pect of death, and death must be imminent both as a matter 
 of fact and of declarant's impressions. 
 
 2. The cause of death must be the subject of judicial 
 inquiry; it cannot be used on a trial for robbery, 3 nor for 
 perjury, 4 nor for abortion, 5 nor for rape. 6 
 
 3. The declaration must refer to the circumstances of the 
 injury. 
 
 4. Death must have resulted without delay from the in- 
 jury. 
 
 5. The declarant must have been competent to testify to 
 the facts in the statement, if he were living. 
 
 6. The statement is admissible only to the extent the 
 declarant could testify. 
 
 7. The declaration must have been complete in itself. 
 
 8. The declarant must have been rational at the time of 
 making the statement. 
 
 9. The declaration may have been by signs, in response to 
 questions, or otherwise. 
 
 2 Starkey v. People, 17 ID., 17, 20. 
 
 3 Rex v. Lloyd, 4 C. & P., 233. 
 
 4 Rex v. Mead, 2 B. & C., 605. 
 
 5 Rex v. Hutchinson, 2 B. & C., 608 note. 
 
 6 Johnson v. State, 50 Ala., 456.
 
 HEARSAY. 49 
 
 10. The competency of such statements is a matter to be 
 first determined by the court, but when once admitted the 
 weight of the same is for the jury. 
 
 If the statement is in writing the instrument should be 
 produced, if possible; if the statement was oral, witnesses 
 may repeat the same, though they are able to give only the 
 substance. 
 
 ADMISSIBILITY. The question of the admissibility of a 
 statement offered as a dying declaration is addressed to the 
 sound discretion of the court, whose duty it is to inquire 
 into the circumstances of the statement, the condition of the 
 declarant's health and mind at the time, the time of death 
 with relation to the injury, the nature of the declaration 
 itself, the relation of the injury to the death, the persons 
 who were present, the means by which it was communicated, 
 and from all these facts and circumstances determine 
 whether the declaration shall be admitted. Once admitted, 
 its weight and probative force are matters exclusively for 
 the jury. 
 
 Medical men are frequently in positions where statements 
 of this character are made to them. The entire statement 
 of the deceased, and what was said to him or in his presence 
 at the time should be reduced to writing without delay in 
 order to preserve the statement for court, should the matter 
 at any time become the subject of judicial inquiry. 
 
 Physicians are frequently called (frequently is used ad- 
 visedly) to attend women who are suffering from the results 
 of criminal abortions. In such a case the patient sometimes 
 discloses to the physician the circumstances of the opera- 
 tion. When made for the purpose of treatment, while the 
 patient has hopes of recovery, such statements do not 
 amount to dying declarations and the physician, after the 
 death of his patient, as the result of the illegal act, will not 
 be permitted to repeat them from the witness stand in the
 
 50 MEDICAL JURISPRUDENCE. 
 
 prosecution for murder of the person supposed to have per- 
 formed the operation. In these cases, the medical profes- 
 sion owes it to the public to secure, wherever possible, state- 
 ments from such patients after they are thoroughly im- 
 pressed with the idea that they cannot live and that death 
 is certain and at hand, as to the nature and circumstances 
 of the operation, and the names of the parties who were 
 active in the performance thereof. Often a dying declara- 
 tion is the only direct evidence of the relation of the defend- 
 ant to the crime. Of course, the physician should first 
 satisfy himself of the good faith of the patient and that she 
 is not actuated by malice or any ulterior motives. The 
 statement should be sufficiently explicit to connect the sup- 
 posed offender with the intent to produce an abortion. The 
 mere statement that the defendant treated her, or even that 
 he used instruments on her, unless corroborated by other 
 incriminating evidence, would not be sufficient to sustain a 
 conviction. What the defendant did may have been for the 
 purpose of relieving a condition inevitably tending to pro- 
 duce a miscarriage. Granting that the crime exists, the 
 statement should disclose facts and circumstances inconsist- 
 ent with the innocence of the accused, and should character- 
 ize his conduct as criminal and improper on any hypothesis 
 of good faith. When called on a case where abortion or 
 attempted abortion is suspected, a physician should imme- 
 diately take every available precaution which will have a 
 tendency to show that he was not the party responsible for 
 the unnatural condition. A very good course is to call in 
 another physician in consultation and together get as much 
 of the history of the case as the patient can be induced to 
 disclose. Of course the physician can always refuse to take 
 the case, but even then the circumstances of his visit or of 
 the would-be patient's call may be such as to cast suspicion 
 on him or give excuse for the tongue of gossip to wag and,
 
 HEAESAY. 51 
 
 therefore, wherever possible, this result should be guarded 
 against at the time. 
 
 Res Gestae. Spontaneous exclamations and statements 
 made at the time of the occurrence of an event which is the 
 subject of judicial inquiry, are called res gesta and are ad- 
 missible in evidence as being a part of the incident under 
 consideration. These statements cover a much broader 
 field than dying declarations. Some courts have admitted 
 statements made to physicians, including exclamations of 
 pain and suffering, by patients in the course of professional 
 examination on the ground that they were a part of the res 
 gestce, in a case where the physical condition of the patient 
 was the subject of inquiry. When an expert is called upon 
 to give his opinion as to the cause of his patient's condition 
 at a particular time, he may state what his patient said to 
 him in describing his bodily condition, if said under circum- 
 stances which free it; from all suspicion of being spoken with 
 reference to future litigation and which give it the character 
 of res gestcB. 1 
 
 Adverse Statements in the Presence of a Party. If state- 
 ments against a party's interest are made in his presence 
 and hearing, under circumstances that he ought to refute 
 then, but does not, the incident naturally raises an inference 
 adverse to his interest or contention. In the administra- 
 tion of justice courts recognize this rule of logic and when 
 the person whose interest has been assailed is a party to the 
 suit, the statements may be introduced in evidence, together 
 with the fact of his silence or other attitude denoting 
 acquiescence or admission. Thus, the failure of a physician 
 to reply to the charge of his patient that he caused her to 
 abort may be shown. 8 
 
 Statements .Against Interest. Where a party makes 
 
 7 I. C. R. B. Co. v. Button, 42 111., 438, 441. 
 S Com. v. Brown, 121 Mass., 69.
 
 52 MEDICAL JUKISPKUDENCE. 
 
 statements or admissions against his interests, and the mat- 
 ter thereafter becomes a subject of inquiry in court in a case 
 to which he is a party, his statements or admissions are 
 competent evidence for the purpose of establishing the fact 
 in accordance with the statements or admissions. Of 
 course, no such evidence is conclusive and the party is not 
 precluded from making an explanation. 
 
 Statements by Patient to Physician. Statements by a 
 patient to his physician are divided into two classes, (a) 
 when made to assist the physician in diagnosing his case for 
 purposes of testimony in court or other purposes not re- 
 lated to the treatment of the patient, and (b) those state- 
 ments which are made during the progress of diagnosis to 
 enable the physician properly to treat the patient. It has 
 been held that the statements of the patient to his physician 
 relative to his condition and the cause and circumstances 
 thereof, made in good faith, for the purposes of profes- 
 sional treatment of such condition, are not hearsay if they 
 should later become relevant to an issue of a suit in court. 
 Even though such statements are favorable to the conten- 
 tion of the patient in a suit to which he is a party, it has 
 been considered that the practitioner may testify thereto 
 and repeat them from the witness stand. 9 
 
 Relative to this general subject Chief Justice Bigelow 
 said that the admissibility of such statements, when made 
 for the purpose of receiving medical advice, "is an excep- 
 tion to the general rule of evidence which has its origin in 
 the necessity of the case. To the argument against their 
 competency founded on the danger of deception and fraud, 
 the answer is that such representations are competent only 
 when made to a person of science and medical knowledge, 
 who has the means and opportunity of observing and ascer- 
 taining whether the statements and declarations correspond 
 
 9 Shearer v. Buckley, 31 Wash., 370; 72 Pac., 76.
 
 HEARSAY. 53 
 
 with the condition and appearance of the person making 
 them, and the present existing symptoms which the eye of 
 experience and skill may discover. Nor is it to be forgotten 
 that statements made to a physician for the purpose of med- 
 ical advice and treatment are less open to suspicion than the 
 ordinary declarations of a party. They are made with a 
 view to be acted on in a matter of grave personal concern- 
 ment, in relation to which the party has a strong and direct 
 interest to adhere to the truth." 10 
 
 PAIN AND SUFFERING. Some courts limit such statement 
 to questions of pain and suffering. In Illinois, it has been 
 held that declarations made by an injured party to his at- 
 tending physician are admissible in evidence when they 
 relate to the part of his body injured, his sufferings, symp- 
 toms and the like, but not if they relate to the cause of his 
 injury. 11 
 
 Such statements are admissible, (a) when made to a 
 physician during treatment or upon an examination, not 
 for purpose of testifying in litigation then pending, (b) 
 when they refer to pains immediately connected with the 
 injury, and (c) when they are in the nature of res gesta. 12 
 
 When not made for professional treatment, as when made 
 during an examination of the patient with a view of quali- 
 fying the physician to testify in a pending suit, statements 
 of pain and suffering to a physician by his patient are not 
 admissible. 13 
 
 A physician, when asked to give his opinion as to the cause 
 of the patient's condition at a particular time, must neces- 
 sarily in forming his opinion be to some extent guided by 
 what the sick person may have told him in detailing his 
 pains and sufferings. This is inevitable, and not only the 
 
 10 Barber v. Merriam, 11 Allen, 322. 
 
 11 Globe Ace. Ins. Co. v. Gerisch, 163 111., 625. 
 
 12 \V. C. S. R. Co. v. Carr, 170 111., 478. 
 
 13 R. Co. v. Carr, 170 111., 478, 483.
 
 54 MEDICAL JURISPRUDENCE. 
 
 opinion of the expert, founded in part upon such data, is 
 receivable in evidence, but he may state what his patient said 
 in describing his bodily condition, if said under circum- 
 stances which free it from all suspicion of being spoken 
 with reference to future litigation, and which give it the 
 character of res gestce. 1 * 
 
 141. C. R. Co. v. Sutton, 42 111., 438, 441.
 
 CHAPTER VI. 
 PRIVILEGED COMMUNICATIONS. 
 
 Admissibility of Adverse Statements. It is a rule of evi- 
 dence that incriminating or adverse statements freely made, 
 out of court, by a party to a suit, may be introduced against 
 him by his adversary if they are pertinent to the issue. The 
 statements may be pertinent by being an admission of the 
 fact in controversy, or of some collateral fact tending to 
 prove the issue, or by being in contradiction of statements 
 by the witness on the witness stand and, therefore, tending 
 to impeach his testimony. From motives of public policy, 
 certain exceptions to the rule have been introduced for the 
 benefit of the party making the disclosures. 
 
 Confidential Communications. Confidential communica- 
 tions between attorney and client, priest and penitent, 
 physician and patient and husband and wife, sometimes 
 relate to matters which then are, or subsequently become, 
 the subject of judicial inquiry. When, by law, these com- 
 munications are excluded from disclosure in evidence they 
 are termed privileged communications. When the disclo- 
 sure of such communications is forbidden by the law, it is 
 upon grounds of public policy on the presumption that 
 * ' greater mischief would probably result from requiring or 
 permitting their admission than from wholly rejecting 
 them." 1 
 
 AT COMMON LAW. Under the common law this privilege 
 extended only to attorney and client. 
 
 STATUTES. The exemption has been enlarged by statutes 
 
 1 1 Greenleaf on Evidence, Sec. 236. 
 
 55
 
 56 MEDICAL JURISPRUDENCE. 
 
 in many states and countries to include communications be- 
 tween physician and patient, priest and penitent and hus- 
 band and wife. 
 
 PROVISIONS. The statutes referring to physicians usually 
 designate the parties, disclosures to whom shall be privi- 
 leged, as "physicians and surgeons in the practice of their 
 profession," those "practicing physic and surgery," and 
 other similar expressions. The student is referred to the 
 statutes in which he is interested for their special pro- 
 visions. 
 
 PURPOSES. The purpose of these statutes is to throw 
 around such disclosures as the patient is required to make 
 for the necessary information of his attending physician 
 the cloak of secrecy; the prime object being to invite confi- 
 dence in respect to ailments and the causes thereof, in order 
 that the patient may get the fullest measure of benefit from 
 the professional services. Where the relation is such that 
 no public necessity or propriety exists for encouraging the 
 reposing of confidence the reason for the privilege fails and 
 the law does not apply. If there is no justification for dis- 
 closing secret maladies and their history and causes, there 
 is no confidence to be abused and there is no privilege. 
 
 INTERPRETATION. In spirit, such statutes do not usually 
 include cases where the malady is apparent to every one on 
 inspection, but in their application they are generally con- 
 strued to apply to all information necessarily disclosed or 
 discovered upon any investigation which was necessary to 
 the proper treatment of the patient. They protect with the 
 mantle of privilege whatever, in order to enable the 
 physician properly to prescribe, was disclosed to any of his 
 senses and which was in any way brought to his knowledge 
 for that purpose ; that is to say, any information which was 
 necessary to enable the physician to prescribe for the 
 patient as a physician, or to perform any surgical operation
 
 PRIVILEGED COMMUNICATIONS. 57 
 
 for him as a surgeon, is privileged. 2 Under such statutes 
 any information disclosed to a physician by a patient to 
 enable him properly to prescribe for the patient, or discov- 
 eries made by the physician in the course of his examination 
 therefor, cannot be revealed on the witness stand by the 
 physician, and the privilege usually extends to persons 
 present during the interview. 3 Where no proof appears 
 to the contrary, the court will presume that the communica- 
 tion of a physical condition and of all matters pertaining 
 thereto, was necessary to enable the physician properly to 
 treat the patient. Since the examination is with the consent 
 of the patient, any knowledge obtained thereby is construed 
 to be a communication. 4 
 
 Incidental Information. Knowledge which was not ac- 
 quired for the purpose of treatment, but is obtained inci- 
 dentally without special reference to the relation, is not 
 usually exempt from disclosure. Thus, a physician is 
 called to treat a party soon after an injury, and by his own 
 observation or the admission of the patient, discovers that 
 the patient is under the influence of liquor, it has been held 
 that the knowledge of such fact is not protected from dis- 
 closure because the disclosure was not necessary to the 
 proper treatment of the injury and the physician was not 
 required to make an investigation as to intoxication in order 
 properly to diagnose the trouble and dress the wound. 
 Such discovery or disclosure is a mere incident to the treat- 
 ment. 5 Where the disclosure is purely voluntary and man- 
 ifestly not necessary for the purpose of the employment, the 
 privilege will not apply. Thus, where a woman about to 
 be delivered of a bastard child, said to her physician: 
 ' ' The father of my child never promised to marry me, ' ' the 
 
 2 Campau v. North, 39 Mich., 606, 609 ; Dittrich v. Detroit, 98 Mich., 245. 
 
 3 Campau v. North, 39 Mich., 606 ; Edington v. Insurance Co., 67 N. Y., 185. 
 
 4 Williams v. Johnson, 112 Ind., 273; Prader v. Ace. Assn., 95 la., 149. 
 
 5 Note to Dittrich v. Detroit, 98 Mich., 245.
 
 58 MEDICAL JUKISPKUDENCE. 
 
 statement was held not to come within the privilege. 6 
 
 Patient Need Not be Party to Suit. The purpose of the 
 privilege does not relate to the nature or circumstances of 
 the litigation and therefore the privilege prevails whether 
 the patient is or is not a party to the suit. 
 
 Statement by Physician to Patient. A statement of fact 
 or opinion by a physician to his patient in the course of pro- 
 fessional treatment based upon a narration of facts by the 
 patient for the purpose of treatment, or upon a physical 
 examination of the patient by the physician for that purpose 
 is privileged. If the physician were permitted to disclose 
 what he told the patient as to the character of his ailment, 
 the protection contemplated by the statute would often be 
 defeated, for, otherwise, by indirection, a disclosure of the 
 nature of the disease could readily be effected. 7 For the 
 same reason the privilege attaches to statements by one 
 physician to another in the presence of the patient during a 
 consultation. 8 
 
 Publishing Operation. A physician is not justified in 
 publishing or causing to be published, without the consent 
 of his patient, an article describing a surgical operation 
 wherein he names or otherwise identifies the patient. 9 In 
 Michigan, at the time of this opinion, there was a statute 
 making a communication from patient to physician priv- 
 ileged from disclosure in court, but the inhibition will be 
 equally true if there is anything in the article which will 
 tend to humiliate the patient or bring her into public 
 ignominy or disgrace. If there is anything in the operation 
 of interest to the public or benefit to the profession, it cer- 
 tainly can be presented without identifying the patient. 
 
 Imposing on Privacy. A physician took with him a non- 
 
 e Collins v. Mack, 31 Ark., 684. 
 
 7 Bryant v. M. W. A., 86 Neb., 372, 378; 21 A. 0., 365. 
 
 8 Prader v. N. M. Ace. Ass'n, 95 la., 149. 
 
 9 Dictum by James V. Campbell, in Sailings v. Shakespear, 46 Mich., 408, 412.
 
 PKIVILEGED COMMUNICATIONS. 59 
 
 professional unmarried man when attending a woman in 
 confinement, there being no real need of his services to assist 
 the physician either in making the trip or the delivery. The 
 patient and her husband thinking him to be a medical asso- 
 ciate of the physician made no objection to his presence in 
 the room. In an action by the patient for the deceit, it was 
 considered that both the physician and the intruder were 
 liable. 10 
 
 Waiver of Privilege. The courts usually construe these 
 privileges as being for the benefit of the patient and that 
 the patient can waive the privilege if he desires ; but unless 
 he waives it, the lips of the physician are forever sealed, 
 ( ' the seal of the law once fixed upon them, remains forever, 
 unless removed by the party himself in whose favor it was 
 there placed." In some jurisdictions the courts hold that, 
 as it is a personal privilege, it must be claimed by the 
 patient, otherwise the courts will enforce disclosure 
 thereof. 11 
 
 Where the patient sues the physician for malpractice or 
 defends a suit by the physician for his fee, on the ground of 
 malpractice, the rule of privilege does not lie as to all mat- 
 ters connected with the treatment or operation in reference 
 to which malpractice is alleged, because by raising the issue 
 of improper treatment or operation, he is conclusively pre- 
 sumed to waive the privilege. The patient will not be per- 
 mitted to raise an issue and at the same time bar the phy- 
 sician's defense thereto. But where the defense to a suit 
 by a physician for his services is the general issue, that is, 
 a general denial of the services and of their value, the char- 
 acter and propriety of the treatment are not in issue and 
 the privilege will apply. 
 
 Privilege is an Entirety. The privilege is an entirety 
 
 10 DeMay v. Roberts, 46 Mich., 160. 
 
 11 Railroad Co. v. Martin, 41 Mich., 667.
 
 60 MEDICAL JURISPRUDENCE. 
 
 and a waiver of the benefit of a protecting statute is a 
 waiver of the disqualification of the physician as to the 
 entire course of treatment or transaction. 12 
 
 Autopsy. (A) BY ATTENDING PHYSICIAN. Where the 
 attending physician performs an autopsy on his late patient, 
 at the instance of the defendant charged with negligence 
 causing the death, and over the objection of the plaintiff 
 in the case, he will not be permitted to disclose on the trial, 
 either the results of the autopsy, or his conclusions there- 
 from, as to the cause of death. 13 
 
 As to the opinion, at least, it would necessarily be founded 
 in part upon information disclosed by the relation of phy- 
 sician and patient during the life of the latter and, there- 
 fore, should be privileged from disclosure. 
 
 (B) BY STRANGER. Where the autopsy was held by a 
 physician who had not attended the deceased during his life- 
 time and where the cause of death was the subject of inquiry, 
 the physician was permitted to testify to the results of the 
 autopsical examination and to give his opinion as to the 
 cause of death. 14 This decision is based, in part, upon the 
 wording of the statute and, apparently, the ruling would 
 have been the same had the deceased in his lifetime been 
 the patient of the physician at the time covered by the 
 inquiry. The court says : 
 
 "A dead man is not a patient capable of sustaining the 
 relation of confidence toward his physician which is the 
 foundation of the rule given in the statute, but is a mere 
 piece of senseless clay which has passed beyond the reach of 
 human prescription, medical or otherwise. ' ' 
 
 Duty of the Physician. When called upon to make a dis- 
 closure which may be in violation of the confidence of his 
 patient, the physician should claim the privilege and give 
 
 12 Bryant v. M. W. A., 86 Neb., 372, 378. 
 
 13 Thomas v. Bryan, 168 Mich., 593. 
 
 14 Harrison v. Sutter St. R. R. Co., 116 Cal., 156.
 
 PBIVILEGED COMMUNICATIONS. 61 
 
 the opinion only when the court orders him to answer; 
 otherwise he would be justly subjected to criticism. In 
 passing upon a case involving this question, the able Judge 
 Cooley observed: 
 
 "This evidence ought not to be passed over without re- 
 mark. It is surprising evidence for many reasons. One 
 of these is that the physician had no business to give 
 it. ... Every reputable physician must know of the exist- 
 ence of this statute and he must know from its very terms, 
 as well as from the obvious reasons underlying it, that it 
 is not at his option to disclose professional secrets. A rule 
 is prescribed which he is not to be allowed to violate; a 
 privilege is created which does not belong to him but to 
 his patient, and which continued indefinitely and can be 
 waived by no one but the patient himself." 15 
 
 The Privilege is Not to Protect Criminals. According to 
 the great weight of authority, the defendant in a criminal 
 prosecution has no right to object to the testimony of a 
 physician in reference to the victim of the crime on the 
 ground that the information is privileged. 16 Also while 
 the statute protects with the mantle of privilege, communi- 
 cations by one physician to another, in the presence of the 
 patient during a consultation, still, where such statement 
 incriminates the speaker with reference to an abortion 
 which had been performed on the patient, and the speaker 
 is subsequently a defendant to a suit relating to the abor- 
 tion, the privilege of the statute will not avail. 17 But in a 
 trial for abortion, where the woman survives, a physician 
 who treated her will not be permitted to disclose her com- 
 munications. 18 
 
 Criminal Purposes. If communications are made to a 
 
 15 Storrs v. Scougale, 48 Mich., 387. 
 
 16 People v. West, 106 Cal., 89; Pierson v. People 79 N. Y., 424; Siefert v. State, 160 
 Ind., 464; State v. Law, 150 Wis., 313. 
 
 IT State v. Smith, 99 la., 29. 
 
 18 People v. Murphy, 101 N. Y., 126.
 
 62 MEDICAL JURISPRUDENCE. 
 
 physician for the purpose of furthering some criminal de- 
 sign or conspiracy, or some other violation of law, they 
 would not be privileged. 19 
 
 The solicitation by a woman of a physician to perform 
 an abortion on her, or to give her medicine for that purpose, 
 would not be privileged and, should the fact ever become 
 material to an issue in court, he would be a competent wit- 
 ness to testify thereto. 
 
 Presumption of Good Faith. In the absence of evidence 
 to the contrary, the court will presume that the communica- 
 tion was for a lawful purpose. 
 
 19 Hewitt v. Prime, 21 Wend., 79.
 
 CHAPTER VII. 
 
 LICENSE. 
 
 Issuance. 
 
 Common Law Right to Practice Medicine. At common 
 law any one might practice medicine or perform surgical 
 operations. As a matter of law no preliminary prepara- 
 tion and no license to practice were required. This condi- 
 tion was also true within the jurisdiction of the civil law. 
 Of course the practitioner was responsible to his patient 
 for the exercise of an ordinary and reasonable degree of 
 skill and knowledge, as measured by the standards of pro- 
 ficiency and professional learning at the time ; but the State 
 did not then attempt to prohibit incompetent persons from 
 practicing nor to regulate the standard of proficiency by 
 establishing a minimum qualification. The common law 
 left it to natural selection as it were, to eliminate the in- 
 competent. But such method of elimination did not always 
 protect the weak and confiding and the incompetence was 
 often not discovered until the patient was in his grave. 
 The experience of the ages was that civil and even criminal 
 responsibility for injurious consequences was not sufficient 
 to deter the adventurer, the parasite, the ignoramus, the 
 impostor, from attempting the practice of medicine, and 
 governmental control became indispensable. 
 
 Liberty to Pursue Calling. To adopt and follow such 
 lawful pursuit as he may see fit when not injurious to the 
 community, is a fundamental right and privilege of every 
 American citizen. 1 It is undoubtedly the right of every 
 
 i Frorer v. People, 141 111., 171. 
 
 63
 
 64 MEDICAL JURISPRUDENCE. 
 
 citizen of the United States to follow any lawful calling 
 he may choose, subject only to such restrictions as are im- 
 posed upon all persons of like age, sex and condition. This 
 right may, in many respects, be considered as a distinguish- 
 ing feature of our Eepublican institutions. Here, all voca- 
 tions are open to every one on like condition, but no one 
 has a right to practice any profession, without the requisite 
 knowledge and skill. 2 
 
 Professional Practice Is Not Property. The right to 
 continue the practice of a profession is often of great value 
 and cannot be arbitrarily taken away any more than you 
 can take away real or personal property, still such right 
 is not property, within the strict meaning of the term, and 
 does not amount to a contract with the State, within the 
 meaning of these constitutional terms. 
 
 Public Welfare. There is no arbitrary deprivation of 
 such right, where its exercise is not permitted because of 
 a failure to comply with conditions imposed by the State 
 for the protection of society. While such laws are an 
 invasion of the common law right of the individual, they 
 are justified on the ground of public necessity. Ordinarily 
 the law cannot interfere with freedom of private contract. 
 Why should the citizen not be permitted to engage whomso- 
 ever he pleases to administer to him when he is sick? The 
 answer is, The public must protect itself against impostors, 
 fakers, charlatans, empirics, ignoramuses and quacks. 
 
 Right of State to Control. " The power of the State to 
 provide for the general welfare of its people authorizes it to 
 prescribe all such regulations as may be and are necessary 
 to secure the people against the consequences of ignorance 
 and incapacity as well as deception and fraud." 3 The 
 right of the States to regulate the practice of medicine and 
 
 2 Dent v. W. Va., 129 U. S., 114. 
 
 3 Dent v. W. Va., 129 U. S., 114, 121.
 
 LICENSE. 65 
 
 surgery by fixing a reasonable and uniform standard of 
 requirement is universally recognized by the courts and has 
 passed out of the realm of discussion. The courts uni- 
 formly hold that States may regulate the practice of med- 
 icine, and, for that purpose, may establish a standard of 
 requirements, or may constitute a board of examiners with 
 power to fix reasonable regulations for examination and 
 standards of proficiency and fitness required on the part 
 of applicants for license. Generally speaking, the legis- 
 lative power of the State may prescribe the conditions on 
 which any avocation or calling, affecting the public welfare, 
 shall be pursued. It has been uniformly held that reason- 
 able license statutes are lawful exercise of the police power ; 
 are not an unlawful abridgment of the rights and privileges 
 of citizens; are not an infringement on the right of con- 
 tract ; do not deny a citizen the equal protection of the law ; 
 are not an unwarranted interference with vested rights and 
 are not an unlawful delegation of legislative or judicial 
 power. 
 
 Soliciting Patients. The State may impose on the prac- 
 tice of the profession any conditions which are reasonably 
 promotive of the public welfare and those who are in au- 
 thority for the time being are clothed with the discretion of 
 determining whether a certain requirement meets the test. 
 Experience demonstrates that in the medical profession at 
 least, competition is not confined to efforts to excel in skill 
 but frequently degenerates into a scramble for fees. Free 
 competition sounds all right as a theory, but the test is, 
 What is the result of its practice! Herbert Spencer's 
 philosophy as announced in Social Statics, does not give 
 sufficient consideration to certain human factors in the 
 problem. "It is best," says he, "to let the foolish man 
 suffer the penalty of his foolishness. For the pain, he 
 must bear it as he can; for the experience, he must treasure
 
 66 MEDICAL JURISPRUDENCE. 
 
 it up and act more rationally in the future. ' ' 4 The lame- 
 ness of this moralizing, when applied to the medical pro- 
 fession, lies in the fact that it is frequently addressed 
 to the victim who has been sent to his grave by the empiric. 
 Self-reliance is highly essential, but it is only foolhardiness 
 which will not adapt means to ends. We can swim; but 
 we don't swim the ocean. We use boats. By experience 
 we have learned to recognize, and been taught to avoid, 
 the deadly rattle-snake, but we don't rely upon this wisdom 
 alone for protection, as we have also learned that a more 
 complete safeguard is to kill him. Children are under the 
 special protection of the law until they arrive at an age of 
 sound discretion and the wisdom of the policy is attested by 
 the approval of the ages. The policy of the law is to pro- 
 tect the weak, decrepit and helpless against the evil designs 
 of the wicked, the crafty, the self-serving. Therefore, a 
 law prohibiting licensed physicians from soliciting patients 
 through paid agents has been held to be a valid exercise of 
 the police power. 5 
 
 Itinerant Vendors of Medicines. This power of the 
 State extends to the control of the practice of vending 
 drugs, medicines and nostrums by itinerant physicians, 
 peddlers and fakers. 6 
 
 Itinerant Physicians. Statutes regulating the sale and 
 administration of drugs, nostrums and medicines by itiner- 
 ant physicians and vendors have been generally enacted 
 and, except on occasions of mere technical defects, have 
 been uniformly enforced. 7 Such statutes are passed to 
 protect the health and promote the welfare of society, and 
 to safeguard the people against imposition, chicanery and 
 fraud, and bring the profession of medicine under the con- 
 
 4 Spencer : Social Statics, 205. 
 
 5 Thompson . Van Lear, 77 Ark., 506. 
 
 6 Kirk v. State, 126 Tenn., 7. 
 
 7 People v. Blue Mountain Joe, 129 111., 370; State v. Wheelock 95 la., 577; 29 A. 0., 
 1239, 1242.
 
 LICENSE. 67 
 
 trol of the law and thus exclude the ignorant and unscien- 
 tific from the practice. 
 
 CITY LICENSE. A city ordinance which requires itinerant 
 physicians to take out a license to sell their nostrums in the 
 city, and which is not expressly limited to non-residents, is 
 not void on the ground of unreasonable discrimination in 
 favor of residents. 8 
 
 How Regulated. BY STATUTE. The legislature may fix, 
 by statute, reasonable standards for determining the com- 
 petency and fitness of applicants for license to practice 
 medicine and surgery. 9 
 
 BY BOARD. The legislature may provide for a Board of 
 Examiners and invest it with power to establish standards 
 of competency and fitness. 10 Statutes usually provide for 
 a medical board, or board of health, and leave the matter of 
 fixing a standard of qualification to such board, and it has 
 been held that such provision is not a delegation of either 
 legislative or judicial power to an inferior body. 
 
 Requirements. The only proper test is, 7s the party com- 
 petent, worthy and fit to practice the profession? Of course, 
 the nature and extent of the qualifications required must de- 
 pend primarily on the state of the science at the time, but 
 they should cover every field of the profession. If the 
 standard is attainable by reasonable study and application, 
 within a reasonable period of time, no valid objection can be 
 successfully urged even though it is difficult to accomplish ; 
 but it must be reasonable in the light of present advance- 
 ment and the requirements of the profession. 11 
 
 MORALITY. The public welfare requires not only compe- 
 tence in the practitioner but also morality, general upright- 
 ness, respectable appearance and reasonable obedience to 
 
 8 Fairfleld v. Shallenberger, 135 la., 615. 
 
 9 Williams v. People, 121 111., 84; 1 A. C., 18. 
 
 10 In re Thompson, 36 Wash., 377; 2 A. 0., 149; State v. Rosenkrans, 30 R. I., 374; 
 19 A. 0., 824. 
 
 11 Dent v. W. Va., 129 U. S., 114.
 
 68 MEDICAL JUKISPKUDENCE. 
 
 law. A grossly immoral or criminal practitioner is more 
 dangerous to society than one who is merely incompetent 
 and, therefore, good moral character and a record free 
 from crime are universally required of applicants, and the 
 courts have uniformly held such provisions constitutional. 
 The same body which is empowered to determine the com- 
 petency of persons may also pass upon the other qualifica- 
 tions required, and reject those who do not fulfill reason- 
 able demands in this behalf. Good moral character is a 
 prerequisite to the practice of any profession. Such re- 
 quirement has become a settled policy of all the states and 
 has been held to be indispensable to the exercise of the right 
 under a license. 
 
 EEQUIREMENTS MUST BE REASONABLE. Public welfare and 
 interest are safeguarded when proper qualifications and 
 fitness are assured. When that object is accomplished, 
 interference should cease. A restriction should have some 
 reasonable relation to the purpose to be attained. 12 The 
 restrictive and classifying provisions of such statutes are 
 uniformly considered void unless they are in fact in good 
 faith reasonably within the necessities of the public pro- 
 tection and promotive of the public welfare. 13 A statute 
 which requires that an applicant for license to practice 
 shall have a diploma from some college in good standing, 
 and shall pass an examination by a Board of Examiners, 
 has been held not unreasonable, even when there is no col- 
 lege in the State. 14 Also a statute which permits the Board 
 of Examiners to determine whether an applicant for a cer- 
 tificate has graduated from a reputable college has been 
 held not a delegation of judicial power to an inferior board, 
 and the requirement not unreasonable but enforcible. 15 
 
 12 Almond v. Nugent, 34 la., 300. 
 
 1 3 Railway Company v. Jacksonville, 67 111., 37; Lakeview v. Cemetery Co., 70 111., 
 192; Babcock v. Buffalo, 56 N. Y., 268; Evarts v. Council Bluffs, 46 la., 46. 
 
 14 State v. Littooy, 52 Wash., 87 ; 17 A. C., 292. 
 
 15 Ex Porte Whitely, 144 Cal., 167.
 
 LICENSE. 69 
 
 However, there must be no unreasonable classification with 
 extra burdens on some, not on others. 16 
 
 Construction of License Statutes. Though, in a measure, 
 in derogation of the common law, such statutes and regu- 
 lations should be liberally construed to promote and accom- 
 plish the object of their creation. 17 To bring such statute 
 within constitutional requirements, "or" will be construed 
 to mean ' ' and, ' ' on the ground that the legislature did not 
 intend to pass an unconstitutional act, and also because, 
 when a statute is reasonably susceptible to either of two 
 constructions, that meaning must be adopted which will 
 render it constitutional. 18 
 
 Practicing Without License. In a prosecution for prac- 
 ticing without a license, it is immaterial that the defendant 
 is entitled to a license, or that the Board unlawfully with- 
 holds the same from him. 19 It is no defense to such pros- 
 ecution that the complaining witness who was in the em- 
 ploy of the Board went to the office of the physician, so- 
 licited treatment and paid him for the services with the 
 view of testifying against him. 20 
 
 Practicing Medicine. Parties charged with practicing 
 medicine without procuring a license have frequently de- 
 fended on the ground that their conduct did not amount to 
 practicing medicine within the meaning of the law, and 
 therefore the courts have frequently been called upon to 
 decide whether certain conduct amounted to practicing 
 medicine. 21 
 
 CHKISTIAN SCIENCE. The practice of Christian Science 
 healing for a fee was held to come within the provisions of 
 
 16 State v. Gravett, 65 Ohio St., 289. 
 
 17 Smith v. People, 51 Colo. 270, 36 L. R. A., 158; State v. Yegge, 19 S. D., 234; 9 
 A. C., 202. 
 
 18 Kirk v. State, 126 Term., 137. 
 
 19 State v. Mosher, 78 la., 321. 
 
 20 State v. Littooy, 52 Wash., 87 ; State v. Smith, 152 N. C., 798 ; 30 L. R. A., 946, 
 954; 25 L. R. A., 341 et seq. and 349 et seq. 
 
 ?i State v. Pavis, J94 Mo., 485; 4 L. R. A., 1023.
 
 70 MEDICAL JURISPRUDENCE. 
 
 a license statute of Ohio, the court holding that the intent 
 of the legislature was to bring within its provisions every 
 person who for a fee prescribes or recommends a cure for 
 disease, even though the cure is to come, not through him- 
 self, but, through his intercedence, from God. 22 It was 
 also held that the act was not void because it did not make 
 special provisions for licensing such healers on examina- 
 tion in accordance with their standards and professions. 
 Another court, however, has said that " prayer for those 
 suffering from disease, or words of encouragement or the 
 teaching that disease will disappear and physical perfec- 
 tion be obtained as a result of prayer, or that humanity 
 will be brought into harmony with God by right thinking 
 and a fixed determination to look on the bright side of life, 
 does not constitute the practice of medicine in the popular 
 sense. ' ' 23 Where the statute includes the treatment, heal- 
 ing or prescribing for any mental or physical ailment with- 
 out words of limitation, it will include Science practitioners, 
 faith healers and others of that type of ministration. 24 
 The policy of the law is to exclude the incompetent and un- 
 worthy from attempting to cure disease or heal injuries 
 in whatever school or line he may practice, and it is asking 
 too much to assume that all Scientist healers, or would-be 
 healers, are competent, and therefore, all should be pro- 
 hibited from practicing as a profession for a fee until they 
 have devised a reasonable and practical means of elim- 
 inating the incompetent from among them. 
 
 MISCELLANEOUS PRACTITIONERS. One who diagnoses dis- 
 ease by alleged microscopic examination of the blood and 
 proposes to cure disease by an application of light comes 
 within the provisions of a statute requiring license of any 
 person who shall profess to treat or prescribe for any phys- 
 
 22 State v. Marble, 72 O. St., 21. 
 
 23 State v. Mylod, 20 B. I., 637. 
 2* State v. Bus-well, 40 Neb., 158.
 
 LICENSE. 71 
 
 ical ailment, and he does not come within the provision 
 exempting opticians. 25 The giving of electric treatment 
 for disease is practicing medicine. 26 Offering and trying 
 to cure the opium habit by one who styled himself a doctor, 
 is practicing medicine, for which he must procure a li- 
 cense. 27 One who, for a fee, professes to cure disease by 
 dieting his patients, regulating their exercise and using 
 spectacles, must be licensed as a physician. 28 One who 
 professes to treat disease and injuries by Christian Science 
 is required to procure a license to practice medicine or 
 desist from his practice. 29 Where a person calls himself 
 professor and pretends to be a magnetic healer and publicly 
 professes to cure disease and heal injuries, comes within 
 the law requiring license. 30 The practice of osteopathy is 
 the practice of medicine. 31 A party who publicly an- 
 nounces his ability to cure cancer by a preparation pre- 
 pared by himself from herbs and vegetables, and under- 
 takes for reward to cure persons so afflicted is practicing 
 medicine, though he makes no pretense of being a doctor. 32 
 One who claims to cure diseases and prescribes and fur- 
 nishes what he calls tissue food must take out a license. 33 
 ITINERANT PATIENT. A physician who is regularly li- 
 censed in the State of his domicil may go with his patient, 
 who is also a resident of said state, into any other state in 
 search of health or recreation, and there continue to treat 
 the patient without being amenable to the license laws of the 
 state of temporary residence, and he may recover his fee 
 for services in the latter state. As long as he confines him- 
 
 25 O'Neil v. State, 115 Tenn., 427. 
 
 26 Davidson v. Bohlman, 37 Mo. App., 576. 
 
 27 Benham v. State, 116 Ind., 112. 
 
 28 State v. Edmunds, 127 la., 333. 
 
 29 State v. Buswell, 40 Neb., 158. 
 
 30 Parks v. State, 159 Ind., 211; State v. Heath, 125 la., 585. 
 
 si Little v. State, 60 Neb., 749 ; State v. Gravett, 65 O. St., 289 ; Jones v. People, 84 
 111. App., 453; Bragg v. State, 134 Ala., 165; 3 L. B. A., 762. 
 
 32 State v. Huff, 75 Kan., 585 ; 12 L. B. A., 1094. 
 
 33 State v. Breese, 137 la., 673 ; 24 L. R. A., 103.
 
 72 MEDICAL JURISPRUDENCE. 
 
 self to his transient patient he will not be considered as 
 practicing medicine in the state of temporary residence. 33 * 
 
 OPTICIAN. An itinerant optician who announces that he 
 does not give medical or surgical treatment, and who tests 
 eyes and sells glasses to correct errors in refraction is not 
 a practitioner of medicine, nor a vendor of "appliances 
 
 intended for the treatment of disease. ' ' 34 
 
 * 
 
 Right of Physician to Practice Dentistry. In a State 
 which requires dentists to procure a license before engaging 
 in the practice of the profession, and fixes a penalty for 
 practicing without a license, a regularly licensed physician 
 will not be permitted to practice dentistry. 35 
 
 Exemption of Resident Practitioners. The statutes usu- 
 ally excuse from examination physicians who are practicing 
 in the state at the time the law takes effect. Such exemp- 
 tion is legal and does not render the act void. 36 
 
 Board Cannot Delegate Discretion. The Board provided 
 by license statutes for administering the same cannot dele- 
 gate its right to determine the qualification and fitness of 
 an applicant for leave to practice, to another organization 
 or body. An attempt to do so is treated as a refusal to 
 exercise the discretion, and courts will interfere to compel 
 action. 37 
 
 Revocation. 
 
 Reserved Right of State. The power to grant a license 
 for competency and fitness, or refuse a license for incompe- 
 tency or unworthiness implies the power to revoke, for 
 cause, a license which has already been issued. The causes 
 which will justify refusing a license will ordinarily justify 
 revoking the same. The issuing of a license for supposed 
 
 33a Zeigler v. C. T. & S. Bank, 245 111., 180. 
 
 34 People v. Smith, 208 HI., 31. 
 
 35 State v. Taylor, 106 Minn., 218; 16 A. 0., 487. 
 
 36 State v. Green, 112 Ind., 462; Ex Parte Spinney, 10 Nev., 323. 
 
 37 Board v. Cooper, 123 111., 227.
 
 LICENSE. 73 
 
 merit must necessarily imply the reservation of the right 
 to revoke the same if it shall subsequently appear that it 
 was obtained by fraud or through mistake by one not en- 
 titled thereto, or in event the licensee shall subsequently 
 prove incompetent or unworthy. From the very nature of 
 things, a license can be held only during good behavior. 
 The purpose of the law, the protection of society, demands 
 this interpretation. 
 
 Vested Rights. A license is not a vested right, nor an 
 irrevocable franchise, but is at all times subject to the 
 police power and the policy of the State in the protection 
 of its citizens. A person cannot acquire an absolute vested 
 right under a license for any definite period beyond the 
 control of the police power of the State. A license to prac- 
 tice a profession confers no vested right or privilege above 
 legislative control. A licensee takes the license subject to 
 all the conditions and restrictions imposed by the law un- 
 der which the same was issued or granted, including the 
 reservation by the State of the right to revoke for cause, on 
 proper notice and reasonable opportunity to be heard and 
 to amendment of the law. The party accepting a license, 
 takes the same subject to the right of the State to make 
 further restrictions, requirements and regulations at any 
 time the public welfare demands, and where such new re- 
 strictions and increased requirements are reasonable and 
 fairly promotive of public health and weal, they will be sus- 
 tained even though, in their enforcement, they have the 
 effect of prohibiting some physicians from further engaging 
 in the profession under a license previously issued. 38 
 The State has a right to require physicians to furnish evi- 
 dence of continuing qualifications and fitness. 39 
 
 Due Process of Law The Law of the Land. Due process 
 
 38 Eeetz v. Michigan, 188 U. S., 505; 127 Mich., 87. 
 
 39 State v. Webster, 150 Ind., 607; 8 L. B. A., 1272; Ex parte Garland, 4 Wall., 333.
 
 74 MEDICAL JURISPEUDENCE. 
 
 of law, or the law of the land means such an exercise of the 
 powers of government as the settled maxims of law permit 
 and sanction, under such safeguards as those maxims pre- 
 scribe for the class of cases to which the one in question 
 belongs. They do not necessarily refer to judicial pro- 
 ceedings. Private rights and enjoyment of property may 
 be interfered with by the legislative or executive, as well 
 as the judicial, department of the government. 40 
 
 Revocation Not a Judicial Function. The revocation of 
 a license to practice a profession is not necessarily the exer- 
 cise of a judicial function, where all the formalities of 
 courts of justice must be observed, and the action of a 
 board invested with such power, in revoking a license, for 
 justifiable cause, is not the deprivation of the practitioner 
 of property without due process of law, in violation of sec- 
 tion 8, Article 2 of the Federal Constitution. 41 Such act 
 is only an exercise of administrative discretion, an en- 
 forcement of the police power of the State, by the executive 
 department. Investing an examining board with power 
 to issue and revoke license for cause, is not, generally speak- 
 ing, clothing it with judicial power, but rather investing it 
 with administrative discretion. 42 
 
 Grounds for Revoking. A board has the power to re- 
 voke certificates issued to individuals for the same reasons 
 it may refuse to issue such certificates. But the right of 
 the citizen to practice his profession is too important to be 
 taken away from him without some reasonable cause. The 
 revocation must be based upon some act or conduct that 
 would, in common judgment, be deemed immoral, unworthy, 
 dishonorable or clearly unprofessional. Procuring a li- 
 cense by one who is grossly immoral, without disclosing his 
 unfitness, is a fraud upon the public and will justify a 
 
 40 Chapman v. State, 34 Minn., 387. 
 
 41 Wilkins v. State, 113 Ind., 514. 
 
 42 France v. State, 57 O. St., 1.
 
 LICENSE. 75 
 
 rescission of the license, within a reasonable time, on proper 
 notice and hearing. Thus, a license may be revoked for 
 immorality, even though the only evidence offered, or speci- 
 fications given, are of acts prior to the time the license was 
 issued, or even prior to the passage of the law under which 
 the license was granted. The law which permits such revo- 
 cation is not ex post facto. The real ground of revocation 
 is want of good moral character at the time of complaint 
 or hearing. Of necessity, this want can be proven only by 
 past conduct, sufficiently recent to leave an inference of 
 present delinquency. Character is built by a course of con- 
 duct. Acts are the cause; character the effect. In such 
 case the party is not being tried for past offenses, but for 
 the present deficiency which the prior conduct tends to 
 prove. If, in the meantime, a reformation has taken place, 
 it should be susceptible of proof, and such fact must be 
 within the knowledge, and the means of proof, therefore, 
 must always be at the command, of the accused. 43 But a 
 license cannot be revoked from mere caprice and without 
 cause, when fairly issued upon sufficient evidence of the 
 applicant's fitness and qualifications. 44 
 
 ILLUSTBATIONS. A license may be revoked for immoral- 
 ity ; 45 for fraud in procuring the same, 46 such as present- 
 ing a fraudulent diploma, 47 or one issued to another per- 
 son ; 48 for false statements in advertising, to the effect that 
 the advertiser can cure all diseases, or statements which 
 are calculated to deceive and defraud the public ; 49 for sale 
 of intoxicating liquors without a license therefor and with- 
 out prescription ; 50 for criminal abortion ; 51 for maintain- 
 
 43 Meffett v. Packer, 66 Kan., 710. 
 
 44 People v. McCoy, 125 111., 289. 
 
 45 Meffert v. Packer, 66 Kan., 710. 
 
 46 Curryer v. Oliver, 27 Ind. App., 424. 
 
 47 Cully v. Territory, 19 Okl., 189. 
 
 48 State v. Roy, 22 B. I., 532. 
 
 49 State v. Examiners, 34 Minn., 387; State v. McCreary, 95 Ark., 511. 
 
 50 State v. Goodier, 105 Mo., 551. 
 
 51 Matthews v. HedtilK 82 Neb., 825; Munk v. Frink, 81 Neb., 631.
 
 76 MEDICAL JURISPRUDENCE. 
 
 ing two offices under different names, with the intent 
 thereby to perpetrate a fraud upon the public ; 52 for an 
 advertisement relating to venereal diseases, in violation of 
 law ; 53 for commission of a felony ; 54 for accepting money 
 from persons in the last stages of consumption, under the 
 representation that they were suffering from catarrhal 
 bronchitis, when he must have known the truth ; 55 for ad- 
 vertising to cure incurable diseases, where a statute pro- 
 hibits the same ; 56 and for conviction of an offense involv- 
 ing moral turpitude. 
 
 The making of statements and promises by a physician 
 with reference to the treatment and cure of the sick and 
 afflicted, which were calculated to deceive and defraud the 
 public, were held unprofessional and dishonorable, and 
 should properly subject the offender to a revocation of his 
 license, when proceeded against in a legal manner. 57 
 
 Proceedings to Revoke. CHARGES. Written charges set- 
 ting forth the nature of the complaints need not be filed 
 with nor prepared by the Board unless the statutes or the 
 rules of the Board so require. In the absence of such re- 
 quirement, the body charged with the duty of supervising 
 practitioners may act upon an informal oral complaint. 
 However, even in the absence of statutory requirement, it 
 is desirable to require written charges signed by the party 
 making them, specifying the nature of the offenses with 
 which the licensee is charged. The complaint need not be 
 drafted with the accuracy of an information or an indict- 
 ment in criminal law; the allegations are sufficient if they 
 challenge the attention of the Board and notify the licensee 
 of the nature of the accusations made against him. 58 The 
 
 52 Rose v. Backster, 7 Ohio N. P. N. S., 132. 
 
 53 Kennedy v. State, 145 Mich., 241. 
 
 54 Spurgeon v. Rhodes, 167 Ind., 1. 
 
 55 In re Washington, 23 Ont. Rep., 299. 
 
 56 State v. McCreary, 95 Ark., 511. 
 
 57 People v. McCoy, 125 HI., 289. 
 
 58 Meffert v. Packer, 66 Kan., 710.
 
 LICENSE. 77 
 
 complaint must set forth facts which constitute an offense 
 and justify a revocation. 59 
 
 Where written complaint is not necessary, but neverthe- 
 less one is filed, the evidence need not be confined to the 
 written charges, but the record should show that the re- 
 spondent was given a reasonable opportunity to explain or 
 refute all the evidence adduced against him, and the records 
 should show the consideration by the Board of all such 
 matters and its conclusions thereon. 
 
 NOTICE. Notice to the person whose rights are involved 
 is indispensable to the right to proceed against him. Be- 
 fore a license to practice medicine can be revoked by a 
 board of examiners, the licentiate must be given due notice 
 and a reasonable opportunity to be heard. Nothing is pre- 
 sumed in favor of the jurisdiction of such a body, and the 
 particular facts necessary to confer jurisdiction must be 
 made to appear from the record of its proceedings. If the 
 records do not show such jurisdictional facts, the judgment 
 will be void. 60 Whether the right to practice a profession 
 is property in the technical sense, it is a valuable franchise 
 and one of which a person cannot be deprived without an 
 opportunity, by timely notice, to refute the charges pre- 
 ferred against him. Where a practitioner had a charge 
 made against him of making statements and promises cal- 
 culated to deceive and defraud the public, of which charges 
 he had no notice, and of which he was never found guilty 
 upon any evidence of their truth, an order of the Board 
 revoking his certificate was unauthorized and void, and was 
 set aside by the court. 61 In the absence of statutory re- 
 quirement, or rule of the Board, any form of notice, oral 
 or written, will be sufficient, but the advisability of written 
 
 59 State v. Kellogg, 14 Mont., 426. 
 
 60 Swearengen v. Gulick, 67 111., 208; Foster v. Glazenor, 27 Ala., 391; Harney v. 
 Tyler, 2 Wall., 342 ; Freeman on Judgments, Sec. 123. 
 
 01 People v. McCoy, 125 111., 289.
 
 78 MEDICAL JURISPRUDENCE. 
 
 notice personally served is so manifestly preferable as not 
 to require recommendation. The notice should specify the 
 general nature of the complaint, the time and place of the 
 hearing, and be signed by the proper members or officers 
 of the investigating body. 
 
 HEARING. When hearing complaints, such Board is not 
 a judicial body, and it is not required to adhere strictly to 
 rules of procedure in court in the conduct of the hearing or 
 in the introduction of evidence. 
 
 JURY TRIAL. In an action to revoke a license, the de- 
 fendant is not entitled to a trial by jury, and it is not nec- 
 essary that the proceedings shall be conducted with that 
 degree of exactness required upon a trial for a criminal 
 offense, in an ordinary judicial tribunal. 62 
 
 RECORD. A record should be kept showing in detail the 
 complete proceedings from the complaint to the finding 
 and order. The revocation of a certificate cannot be sus- 
 tained when it does not appear from the record of the pro- 
 ceedings that the Board, from evidence submitted to it, or 
 otherwise, ever found the holder of the certificate guilty of 
 any act or conduct that was unprofessional or dishonor- 
 able. 63 
 
 Effect of Decision by Board. Its decisions, made in good 
 faith, after due notice and reasonable opportunity to be 
 heard, are binding on the courts unless clearly and mani- 
 festly wrong and oppressive. Such bodies are a depart- 
 ment of the administrative affairs of government, not cor- 
 porate bodies, and may not be interfered with by the courts, 
 except for arbitrary refusal to act, for oppressiveness or 
 for unauthorized, unjust or arbitrary conduct. 64 The 
 courts are not concerned in the right or wrong of such de- 
 
 B2 Munk v. Frink, 81 Neb., 631. 
 
 63 People v. McCoy, 125 111., 289. 
 
 6* Iowa E. M. 0. A. v. Schrader, 87 la., 659; State v. Fliescher, 41 Minn., 69; U. S. 
 v. Hitchcock, 190 U. S., 324; Harding v. People, 10 Colo., 109; State v. Examiners, 34 
 Minn., 387.
 
 LICENSE. 79 
 
 cisions unless an appeal to the courts is expressly provided 
 by statute. However, this is a government of laws, not of 
 men, and our courts must be the final arbiters where any 
 oppressive or illegal element is involved. 65 
 
 Statutes of Limitation. The object of a revocation of 
 license is the future protection of society, not the punish- 
 ment of the licensee. Therefore, the usual statutes of limi- 
 tations do not apply to such proceedings, and a party may 
 have his license revoked for an offense for which he cannot 
 be prosecuted criminally, owing to the statute having run 
 against the offense. 66 
 
 Revocation and Criminal Prosecution. A license may be 
 revoked for a criminal offense before the party has been 
 prosecuted for the crime, as the criminal prosecution and 
 the revocation of the license are absolutely independent 
 proceedings. 67 
 
 65 Boyd v. U. S., 116 U. S., 616. 
 
 66 State v. Stewart, 46 Wash., 79; 11 L. R. A., 557; in re Lowenthal, 78 Cal., 427; 
 Ex parte Tyler, 107 Cal., 78; State v. Schaeffer, 129 Wis., 459; People v. Hooper, 218 
 111., 313. 
 
 67 Munk v. Frink, 91 Neb., 631.
 
 CHAPTER VIII. 
 CONTRACTUAL RELATIONS. 
 
 General Observations. The relation of patient and phy- 
 sician is contractual in character, two consenting minds 
 being necessary to create the same. In other words, it is 
 voluntarily assumed, not imposed by law as a matter of 
 duty and public policy. In fact most relations in life are 
 voluntary in nature, and when voluntary a party may avoid 
 their responsibilities by refraining from entering into them, 
 but, generally speaking, he cannot enjoy their benefits and 
 emoluments without incurring the obligations which the 
 law, as a matter of public policy, imposes thereon. The 
 marriage relation is a good illustration of the extent to 
 which public policy ingrafts responsibilities on the contract 
 between the parties, even irrespective of their intentions 
 or wishes. The relation of physician and patient creates 
 rights and obligations which the parties may not have dis- 
 cussed and of which they may have been ignorant at the 
 time. 
 
 Contract. Not only is the relation in question founded 
 on agreement of the parties, express or implied, but also 
 all transactions between a physician and his patient are 
 based upon contract and, therefore, the general principles 
 of the law of contracts apply. 
 
 In its widest acceptation, contract is the basis of social 
 and political organization. In this meaning of the term all 
 obligations of the individual to society or to government 
 result from his implied agreement. Here, contract is 
 synonymous with duty. The individual has contracted to 
 
 80
 
 CONTBACTUAL RELATIONS. 81 
 
 do and to refrain from doing all that which, in the then 
 conception of right and wrong, it becomes his duty to do 
 or not to do. But, according to the use of the term in law, 
 contract has a more definite meaning. " Jurisprudence is 
 concerned with such rights only as are recognized by law 
 and enforced by the power of the State." A right which 
 cannot be enforced in law is an imperfect obligation. 
 
 DEFINITION. "A contract is an agreement between two 
 or more competent persons, upon sufficient consideration, 
 to do or not to do some lawful thing. ' ' 1 
 
 KINDS OF CONTRACTS. Contracts may be said to be (1) 
 express or (2) implied, and the latter may be again divided 
 into (a) those in which the agreement is a natural and rea- 
 sonable inference from the facts and circumstances of the 
 transaction, and (b) those in which the law imposes the 
 duty as a matter of public policy irrespective of the real 
 intention of the parties. The latter are sometimes called 
 constructive contracts. 2 
 
 An express contract is one in which the parties have de- 
 clared orally or in writing the terms of their agreement. 
 
 An implied contract is one in which the terms of the 
 agreement are (a) an inference of fact or law deduced from 
 the conduct of the parties in relation to its subject matter, 
 or are (b) imposed by law as a matter of duty. 
 
 CONTRACT AND DUTY. In the latter sense, contract is 
 conterminous with legal duty. It is a well recognized 
 maxim, though not of universal application, that whatso- 
 ever a man ought to do the law supposes he has promised 
 to do. "Implied contracts are such as reason and justice 
 dictate and which, therefore, the law presumes that every 
 man undertakes to perform. ' ' 3 
 
 ILLUSTRATIONS. In the first class of implied contracts 
 
 1 2 Bl. Com., 446. 
 
 2 Hertzog v. Hertzog, 29 Pa. St., 465, 468. 
 
 3 2 Bl. Com., 443.
 
 82 MEDICAL JURISPRUDENCE. 
 
 above referred to, the agreement or promise is signified by 
 some other means or symbols than words; thus, where a 
 person orders and accepts goods at a store and says noth- 
 ing further, there is an implied promise, from the order 
 and acceptance, to pay for them. Such is the usual course 
 of conduct. There is an inference that the person who re- 
 ceives the benefit of labor expended or professional serv- 
 ices rendered, promises to pay the reasonable and custom- 
 ary charges therefor. Thus, a sick patient impliedly agrees 
 to pay a consulting physician for his services, even though, 
 as between the physicians, or as between the patient and 
 the attending physician, the attending physician agreed to 
 pay him. 4 The same inference applies in the case of the 
 employment of an assistant or consulting attorney; in the 
 absence of other understanding, the client who knowingly 
 accepts the services is liable therefor. 5 
 
 In the second class of implied contracts, it will be ob- 
 served that the inference of an agreement or promise is a 
 pure fiction. The duty is imposed by law, not only (a) in 
 the absence of, but also (b) sometimes in direct conflict 
 with, the real intention of the obligor. The absence of in- 
 tention is illustrated in the case of treasure-trove which 
 the finder converts to his own use in the belief that the 
 owner is unknown. If the owner appears, and claims and 
 proves his ownership, the law raises a promise on the part 
 of the finder to compensate him for the value of the prop- 
 erty converted. Where the responsibility under the law 
 is in opposition to the real intention of the obligor appears 
 in the case of a thief taking and appropriating to his own 
 use the property of another. Here the law raises a prom- 
 ise on the part of the thief to pay the value of the property 
 on demand, and in an action by the owner to recover for 
 
 4 Shelton v, Johnson, 40 la., 84; Garry v. Stadler, 67 Wis., 512. 
 6 McCrary v. Ruddick, 33 la., 521.
 
 CONTRACTUAL RELATIONS. 83 
 
 the goods thus wrongfully taken, the thief will not be per- 
 mitted to show that he did not intend to pay for them. 
 
 EXPRESS EXCLUDES IMPLIED. A contract may be partly 
 express and partly implied, partly oral and partly written ; 
 but, where there is a complete express contract there can- 
 not be an implied contract inconsistent therewith. An ex- 
 press and an implied contract cannot both exist in the same 
 part of a transaction, or touching the same right or obliga- 
 tion. Where an express contract is shown, there cannot 
 be maintained an action based upon an implied agreement 
 as to the same matter, neither against a party nor against 
 a third person. 6 An express agreement necessarily ex- 
 cludes an implied one. 7 What is implied in an express 
 contract is as much a part of it as what is expressed. 8 
 
 WRITTEN CONTRACTS. A written contract is one which, 
 in all its terms, is reduced to some form of written lan- 
 guage. 9 All prior propositions are superseded by the writ- 
 ten agreement, and all prior and contemporaneous stipu- 
 lations, material to the contract, are merged in it. 10 The 
 written contract is presumed to contain all the agreement 
 and when it appears to be complete the burden of proof is 
 upon the party who seeks to establish the contrary. 
 
 PARTLY WRITTEN, PARTLY ORAL. But where only part of 
 an agreement has been reduced to writing, extrinsic evi- 
 dence is admissible to show the complete contract. 11 When 
 a written contract is so incomplete as to require resort to 
 extrinsic evidence to make it enforcible, it may be treated 
 as an oral agreement. 12 
 
 Delivery. A written contract takes effect, if at all, upon 
 
 6 Shaw v. Graves, 79 Maine, 166 ; Ford v. McVay, 55 111., 119. 
 ^ Bamming v. Oaldwell, 43 111. App., 175. 
 
 8 Hart v. Otis, 41 111. App., 432. 
 
 9 Memory v. Niepert, 131 111., 630. 
 
 10 School Dist. v. Stilley, 36 111. App., 135; Covel v. Benjamin, 35 111. App., 299; Caa- 
 selberry v. Warren, 40 111. App., 627. 
 
 11 Covel v. Benjamin, 35 111. App., 299. 
 
 12 Plumb v. Campbell, 129 111., 106; Wood v. Williams, 40 111. App., 117.
 
 84 MEDICAL JURISPRUDENCE. 
 
 delivery, unconditional and as a contract. Where there is 
 no delivery there is no contract. 13 If delivery is condi- 
 tional, the condition must be performed before the contract 
 will become effective. 14 
 
 Other Classes. Executed and executory is also a classi- 
 fication of agreements. In an executed contract both par- 
 ties did all that they were required to do under the agree- 
 ment, at the time it was entered into. It creates rights 
 in rem; it gives title to property at the time of its execu- 
 tion. Technically this is not a contract at all. When the 
 agreement is reached, all acts are performed and, in the 
 absence of fraud, accident or mistake, that is the end of it. 
 Each has received something as an equivalent for what he 
 gave. 
 
 In an executory contract something remains to be done 
 by one or both parties after the execution of the agreement. 
 It contemplates something in the future, and creates rights 
 in personam and in rem. 
 
 Mutuality. Executory contracts must have the quality 
 of mutuality; if one of the parties is bound the other must 
 be bound also; if one is at liberty to refuse performance the 
 other cannot be compelled to discharge his promises. 15 
 
 Parties. Two competent parties are essential to the mak- 
 ing of a contract. A person cannot contract with himself. 16 
 
 Any person not under legal disability is competent to 
 contract. Infants and persons of unsound mind do not 
 have full legal capacity to become parties to binding obli- 
 gations, and courts will set aside contracts which are not 
 manifestly to their advantage. However, to justify the 
 setting aside of a contract on the ground of mental inca- 
 
 13 Bierdeman v. O'Connor, 117 111., 493. 
 
 14 Jordan v. Davis, 108 111., 336. 
 
 15 Weaver v. Weaver, 109 111., 225. 
 
 16 Nelson v. Hayner, 66 HI., 487.
 
 CONTRACTUAL RELATIONS. 85 
 
 pacity of one of the parties to it, the mental debility must 
 be such as, in law, renders the person incapable. 17 
 
 Contracts by Infants. Infants may make binding obli- 
 gations for necessaries actually furnished them by accept- 
 ing the same, but not for money loaned them, though subse- 
 quently invested in necessaries. Necessary medical or 
 surgical treatment is a legal necessity, within reasonable 
 limits, for which a minor will be held liable. 18 
 
 Persons Under Legal Disability. The foregoing propo- 
 sitions relative to minors apply to all persons under legal 
 disability. 
 
 Consideration. The law of contract is a natural con- 
 comitant of the private ownership of property and the nec- 
 essary exchange thereof occasioned by diversification of 
 industry and the wants and desires of men. In a business 
 sense, contract may be considered as having its origin in 
 the transfer of private property. Even a contract for serv- 
 ices, while not immediately referring to property, usually 
 contemplates, in its ultimate analysis, the production of 
 values as the result of the services. The parties have in 
 view this fact at the time of the agreement. The effect of 
 labor expended in value produced, or wants satisfied, is the 
 basis of the negotiations. How much value or satisfaction 
 will the exertion of muscle or brain create, is the question 
 upon which the contract depends. 
 
 EQUIVALENCE. The idea of equivalence enters into every 
 business transaction. In matters of business a man does 
 not part with his right to an article which is capable of 
 satisfying some want without receiving therefor the satis- 
 faction of some desire or some other article equally and 
 similarly potent. Therefore, two things of value, and only 
 
 IT Perry v. Pearson, 135 111., 224, 230. 
 
 18 People v. Pierson, 176 N. Y., 201, 203; See Oilman v. Andrus, 28 Vt., 241; Strong 
 v. Poote, 42 Conn., 203, 205.
 
 86 MEDICAL JURISPRUDENCE. 
 
 two, are essential to every contract, namely (a) the thing 
 given, and (b) the thing received. These are called the 
 consideration. In the preliminary stage of a contract, the 
 minds of the parties weigh and compare these two things. 
 When they agree as to the equality of their values, the ex- 
 change of the right therein is made and the contract is 
 complete. This comparison of values is a matter entirely 
 for the parties to the contract, and when, in the absence of 
 fraud or undue influence, they have agreed upon their 
 equivalence, the question will not be investigated by legal 
 tribunals. Courts will not revise the judgments of the par- 
 ties to a transaction in the matter of the equality of the 
 respective considerations, except for fraud or undue influ- 
 ence. The inference is that, on entering into a contract, 
 every man intends at least to acquire an equivalent for 
 what he gives. Where nothing is to be received, the infer- 
 ence is that there has been no agreement. Courts will not 
 enforce performance of a promise for which there has been 
 no consideration. This was the case in the civil law, in 
 which such an agreement is called a nudum pactum. In 
 such cases the obligee did not change his position and is in 
 no worse situation by reason of the promise having been 
 made and, therefore, has no standing in court when he seeks 
 to enforce performance of a promised gratuity. 
 
 PROMISE FOR PROMISE. One promise is sufficient consid- 
 eration to support another promise. 19 
 
 BENEFIT OR DETRIMENT. Any benefit to the promisor or 
 detriment to the promisee is sufficient consideration for a 
 promise. 20 Thus, medical services rendered by A to B 
 or to C, at the request of B, are sufficient to support B's 
 promise to pay A therefor. The consideration must con- 
 
 19 Bishop v. Busse, 69 111., 403. 
 
 20 Buchanan v. International Bank, 78 111., 500.
 
 CONTRACTUAL RELATIONS. 87 
 
 sist of a present act or of a future act promised. The act 
 cannot be in the past. 21 
 
 While the acceptance of the services of a physician raises 
 an implied promise to pay what those services are reason- 
 ably worth, the mere fact that such services are beneficial 
 to the patient does not justify such inference ; thus, it may 
 be of lasting benefit to the patient to have had a certain 
 operation performed, but the operator cannot recover for 
 his services in performing the operation if it was done over 
 the objection or without the consent of the patient. 
 
 Effect of Signing Contract. Where a party, adult, of 
 sound mind and able to read and write, and who has had 
 full opportunity to read a contract, signs it without read- 
 ing, he is bound by its terms and provisions, in the absence 
 of fraud or other equitable considerations. 22 
 
 Validity of Contracts. As a general proposition, a con- 
 tract which is valid at the place where it is executed, is 
 valid any place in the world. 23 
 
 Constitutional Right to Contract. The right to enter into 
 contracts is as sacred as life, liberty or the pursuit of hap- 
 piness. The inviolability of the obligations growing out of 
 contract, equally sacred as the right of contract itself, is 
 a matter of supreme moment to industrial prosperity. The 
 enforcement of such obligations is a duty imposed upon 
 legal tribunals wherever governments assume to protect 
 business affairs. Impressed with the importance of main- 
 taining inviolate the right to demand fulfillment of prom- 
 ises according to their terms, the framers of the Federal 
 Constitution provided therein that no State shall pass any 
 ''law impairing the obligation of contract." This obliga- 
 tion may not be impaired by a State through its Legisla- 
 
 21 Johnson v. Johnson, 31 Pa. St., 450; Curry v. Shelby, 90 Ala., 277. 
 
 22 Seymour v. Mackay, 126 111., 350. 
 
 23 Pecks v. Mayo, 14 Vt., 33; Roundtree v. Baker, 52 111., 241; 9 Cyc., 672.
 
 88 MEDICAL JURISPRUDENCE. 
 
 ture ; 24 nor by its courts ; 25 nor by the people of the State. 26 
 This inhibition applies to contracts to which a State is a 
 party, and to cases where the contract is in the form of a 
 statute, or grant. 27 Both executed and executory contracts 
 are included in this constitutional provision. 28 
 
 Guaranty. If work be done for a person on the guaranty 
 of another that the services will be paid for by the guaran- 
 tor, if needs be, the guaranty should be in writing; but if 
 the services be rendered upon an unconditional promise of 
 a third person to pay for them, the promise need not be in 
 writing, but the credit should be given to the promisor, and 
 not to the party for whom the services were rendered. 
 The test is, Was the whole credit given to the third person ? 
 If the undertaking of a person who agrees to answer for 
 another is collateral or conditional, it must be in writing, 
 but if direct and original it need not be. 29 Where the guar- 
 anty is in writing, the account may be kept in the name of 
 the patient; but if the third person is to be held as an 
 original obligor, the account should be entered in his name. 
 Doing the work at his request is sufficient consideration for 
 his promise to pay whether direct or collateral, regardless 
 of his relation to the beneficiary of the services. In other 
 words, the consideration for a promise may be either a 
 benefit to the promisor or a detriment to the promisee. 30 
 Courts will not enforce promises for which there has been 
 no consideration. Such promises are imperfect obligations 
 and are called naked promises. 
 
 Receipt. A receipt in writing is not conclusive, but is 
 open to explanation, correction or contradiction by oral 
 testimony or other evidence. It is regarded as evidence of 
 
 24 People v. Canal Trustees, 14 111., 420. 
 
 25 Harmon v. Auditor, 123 111., 122. 
 
 26 Railroad Company v. Hoyt, 1 HI. App., 374. 
 
 27 Bruce v. Schuyler, 4 Gilm., 221. 
 
 28 Dartmouth College v. Woodward, 4 Wheat., 518. 
 
 29 Smith v. Hyde, 19 Vt., 54. 
 
 so Morgan v. Park National Bank, 44 111. App., 582.
 
 CONTRACTUAL RELATIONS. 89 
 
 a high character and, to overcome it, the evidence should 
 be clear and convincing. 31 A receipt in full of a liquidated 
 claim is not conclusive evidence of payment in full, and is 
 subject to contradiction and explanation. In the absence 
 of other proof it establishes payment in full. 32 Payment 
 in part of an undisputed claim, which is due, is no consid- 
 eration for an agreement that the payment shall be in full, 
 because the debtor has done only what he was legally bound 
 to do, and, after such partial payment, the creditor may 
 proceed to collect the balance, but a partial payment before 
 due may be a sufficient consideration for an agreement to 
 release the balance. 33 
 
 The compromise and settlement, for any reasonable con- 
 sideration, of a doubtful or speculative claim, is a sufficient 
 consideration when made with knowledge and without 
 fraud, and receipt in full, in connection with such compro- 
 mise, is binding on the party giving it. A receipt in full 
 for an unliquidated or honestly disputed claim, accepted in 
 good faith and obtained without fraud, is binding on the 
 party who issues it. Thus, where a physician has no agree- 
 ment as to his charge for services, his claim would be said 
 to be unliquidated, and if the patient, honestly and in good 
 faith misunderstood the terms and conditions or honestly 
 disputed the value of the services, the acceptance of pay- 
 ment and the giving of a receipt in full, as a condition 
 thereof, would be binding on the physician. A written in- 
 strument which operates both as a contract and a receipt, 
 may be enforced as a contract and be corrected or contra- 
 dicted as a receipt. 34 
 
 Release. A release is a quittance, remission or discharge 
 
 31 Walrath v. Norton, 5 Gilm., 437; Cunningham v. Baars, 36 Minn., 350, 353; Win- 
 chester v. Grosvenor, 44 111., 425; Rockford R. Co., v. Rose, 72 111., 183. 
 
 82 Lyons v. Williams, 15 111. App., 27; Neal v. Handley, 116 111., 421. 
 
 BSWolford v. Powers, 85 Ind., 294, 304; Smith v. Bartholomew, 1 Mete. (Mass.) 276; 
 Smith v. Phillips, 77 Va., 548; Shepard v. Rhodes, 7 R. I., 470. 
 
 3* Hossack v. Moody, 39 111. App., 17.
 
 90 MEDICAL JURISPRUDENCE. 
 
 of a right of action. It is a unilateral contract. As in the 
 case of all other contracts, a release must be supported by 
 a consideration. The agreement may be oral but it is ad- 
 visable to reduce the same to writing and have it executed 
 under seal. In fact, the term release implies a writing 
 under seal. 35 At common law a seal imports consideration 
 and obviates the necessity of introducing any other evidence 
 of that fact. A written release, like any other written con- 
 tract, cannot be contradicted, varied or modified by parol 
 evidence. 
 
 KELEASE AND RECEIPT COMPARED. A receipt is not a con- 
 tract, it is only an admission of payment and may be con- 
 tradicted, modified or impeached. 36 A receipt is merely 
 evidence of the fact of payment, while a release extinguishes 
 a pre-existing right; and, while a receipt in full may be 
 explained or modified or contradicted, a release under seal 
 forever estops and concludes the party. 37 
 
 35 I. C. R. B. Co. v. Read, 37 111., 484, 511. 
 
 36 Gillett v. Wiley, 126 111., 310. 
 
 37 Frink v. Bolton, 15 111., 343 ; Crane v. Ailing, 15 N. J. L., 423 ; Equitable Security 
 Co. v. Talbert, 49 La. Ann., 1393.
 
 CHAPTEE IX. 
 
 EMPLOYMENT AND COMPENSATION. 
 Employment. 
 
 Accepting Service. Knowingly accepting the services of 
 a physician is usually prima facie evidence of employment, 
 whether raised in an action for malpractice or for a fee. 
 
 Unconscious Patient. Where a party receives an injury 
 which results in unconsciousness, and from which he dies 
 without regaining consciousness, and a surgeon is sum- 
 moned by a spectator and renders professional services in 
 a bona fide endeavor to save the victim's life, a claim for 
 services against the patient's estate, by the surgeon, is sus- 
 tained on the legal fiction of a contract in order to afford a 
 remedy which the justice of the case requires. 1 Such serv- 
 ices are regarded as a necessity and the law places the 
 patient in the same category as infants and others incapa- 
 ble of entering into contracts. The reasons upon which this 
 fiction rests are too broad and humane to be overborne by 
 any deduction which a refined logic may make from the 
 circumstances that in such cases there can be no meeting 
 of the minds of the parties. 2 
 
 Employment by Third Person. A mere request by a 
 third person, of a physician, to render services to another, 
 does not constitute an employment by such party nor raise 
 an implied promise on the part of the person making the 
 request, to pay for the services. 3 
 
 Where medical services were rendered by the plaintiff 
 
 1 Cotnam v. Wisdom, 83 Ark., 601. 
 
 2 Sceva v. True, 53 N. H., 627 ; Sherman's estate, 6 Pa. Co. Ot., 225. 
 8 Starrett v. Miley, 79 111. App., 656. 
 
 91
 
 92 MEDICAL JURISPRUDENCE. 
 
 to a third person upon request of the defendant, the liabil- 
 ity was held to be established by proof that the services 
 were rendered at the instance and request of the defendant 
 and that when the plaintiff proposed to discontinue his 
 visits, the defendant requested him to continue them and 
 that when the plaintiff presented his bill to the defendant, 
 the latter did not deny his liability, though he disputed its 
 amount. 4 
 
 Where a person called at the office of a physician in a 
 hotel and, on being informed that the physician was out, 
 wrote on a card, having his name and address printed 
 thereon, the words "Call on Mrs. Day at No. 769 Broadway" 
 and handed it to the hotel clerk with the request to give 
 it to the physician and tell him to go as soon as possible, 
 and where it did not appear that credit was originally given 
 to the patient, and where a jury found for the physician 
 under all the circumstances, the court held that such person 
 became liable to pay for the physician's attendance and 
 services upon Mrs. Day. 5 It must appear from the evi- 
 dence that the physician understood that the party calling 
 him was to be responsible and this understanding must 
 have been either by direct statement or reasonably deduced 
 from all the evidence and circumstances in the case, and it 
 must also appear that the physician extended the credit in 
 the first instance to the third person. 6 
 
 Ordinarily a master is not liable for the services of a 
 physician summoned in his temporary absence by his man- 
 ager to attend an employe, who was injured in an accident 
 in the course of his employment. 7 Also a railroad or other 
 transportation company is not liable for the services of a 
 
 4 Curry v. Shelby, 90 Ala., 277. 
 
 5 Bradley v. Dodge, 45 How. Pr., 57 ; Clark v. Watterman, 7 Vt., 76. 
 
 6 Starrett v. Miley, 78 111. App., 658; Morrell v. Lawrence, 203 Mo., 363. 
 
 7 Holmes v. McAllister, 123 Mich., 493; Sevier v. R. Co., 92 Ala., 258; Clark v. B. 
 Co., 48 Kan., 654; Qodshaw v. Struck, 109 Ky., 285.
 
 EMPLOYMENT AND COMPENSATION. 93 
 
 physician called by a by-stander to attend a passenger who 
 was injured, whether the accident was the fault of the com- 
 pany or otherwise. Of course, where a custom of the com- 
 pany of paying for such services, can be shown, a promise 
 might be implied, and, where the party calling the phy- 
 sician is an employe of the company, the nature of his 
 duties may be such as to imply authority to bind his em- 
 ployer in that behalf. 8 Even though the master personally 
 summons the physician where the patient is unable to do 
 so, he will not be liable for the services. Other facts must 
 be shown, before he can be held. 9 
 
 Compensation. 
 
 History. At common law, professional men could not 
 sue and recover for services rendered, nor even contract 
 beforehand for pay for such services. This grew out of a 
 supposed analogy with the legal profession, the law having 
 its origin at a time when the lawyer was an official of the 
 court in fact. The patient might pay the physician if he 
 chose to do so, and it was always lawful for the latter to 
 accept such remuneration, but the question of pay was en- 
 tirely within the discretion of the patient. The law on this 
 subject has undergone a complete revolution and, at the 
 present time, professional services stand upon the same 
 footing, as to compensation, as all other services. 
 
 Agreement as to Fee. Where the charge is agreed upon, 
 such agreement, if reasonable, will control, in the absence 
 of fraud or undue influence. 10 In the absence of fraud or 
 duress, a physician may stipulate any price for his serv- 
 ices, and when once rendered, he can recover the contract 
 price therefor. This presumes that the contract is made 
 before the relation of physician and patient is created. 
 
 8 Hanscom v. Minn. St. B. Co., 53 Minn., 119 ; B. Go. v. Davis, 126 Ind., 99. 
 
 8 Norton v. Bourke, 130 Ga. 600, 18 L. R. A., 173. 
 
 10 Doyle v. Edwards, 15 S. D., 648 ; Burgoon v. Johnson, 194 Pa. St., 61.
 
 94 MEDICAL JURISPRUDENCE. 
 
 Where such relation exists, the fiduciary nature thereof 
 prevents the physician contracting for more than a fair 
 and reasonable price for his services. 
 
 No Agreement as to Fee. One who, without previous 
 agreement, knowingly accepts services from another is 
 bound in law to render compensation to the extent of the 
 reasonable value thereof. The law presumes that he agreed 
 to do so, and that such understanding was in the minds of 
 both parties at the time the work was done. It is based 
 upon the broad principle that the law will require a party 
 to do what he apparently promised to do, or what he ought 
 to do, regardless of his real undisclosed intention in the 
 premises. In the absence of previous agreement, a phy- 
 sician is entitled in law to a reasonable compensation for 
 his services and the medicines and materials furnished by 
 him. The basis of the obligation to pay may be either (a) 
 a benefit to the patient, or (b) a detriment to the prac- 
 titioner, or (c) the two combined. 
 
 BENEFIT TO PATIENT. Both in fact and in law the origin 
 and foundation of the relation of patient and physician is 
 a supposed benefit to be derived by the patient. Eliminate 
 this idea from the minds of the people and the profession 
 will cease. It is absurd, therefore, to suppose that the re- 
 sult of the treatment should in all cases be entirely ignored 
 in questions of the reasonable value of the services. 
 
 PROPER TREATMENT KEQUIRED. The physician must be 
 prepared to show that his treatment was proper, if that be 
 disputed, in order to prove that he is entitled to his reward ; 
 otherwise he has not performed what he undertook to do 
 and the consideration fails. 11 
 
 A practitioner is employed to treat his patient properly, 
 and a departure therefrom is a change of the employment. 
 Where the fault of the practitioner is an element in the final 
 
 11 Basten v. Butter, 7 East, 479.
 
 EMPLOYMENT AND COMPENSATION. 95 
 
 result he can recover only the value to the patient of his 
 services. If, by such test, they had no value, he can recover 
 nothing and, if the patient was damaged thereby, the obli- 
 gation may rest on the practitioner to respond therefor. 
 If the patient in fact received no benefit from the treatment 
 sued for, and this result was due to the lack of ordinary 
 professional skill and care of the practitioner, or was be- 
 cause of his failure to exercise such skill and care to dis- 
 cover or treat the case, there could be no right on his part 
 to recover from the patient for his services. Where the 
 practitioner is guilty of a breach of duty, failure to relieve 
 may be taken into consideration in determining the amount 
 to which the practitioner is entitled, since the basis of the 
 claim then becomes the benefit derived by the patient from 
 the services, when the same is susceptible of demonstra- 
 tion. 12 If the value is affected by the fault of the servant 
 in the performance of his duty, a different question arises. 
 He did not do what he was employed to do but, in reality, 
 departed therefrom and is held responsible for results. 
 Therefore he is entitled to compensation only as he bene- 
 fited his employer. 
 
 DETRIMENT TO PHYSICIAN. The event of the treatment so 
 generally lies with the forces of nature that all intelligent 
 men know and understand that the physician is seldom re- 
 sponsible therefor, hence, where the services were properly 
 performed, benefit to the patient, in the absence of special 
 agreement, is not essential to the right of recovery for such 
 services. 13 
 
 Since a physician is not an insurer of the success of his 
 treatment he is entitled to the reasonable value of his serv- 
 ices, whether he succeeds in curing his patient or not, pro- 
 vided he acts in good faith, uses the skill and care of an 
 
 12 Ely v. Wilbur, 49 N. J. L., 684; Gallaher v. Thompson, 1 Wright (Ohio) 466; 
 Kanna v. McMullen, 1 Peake, 83 ; Hupe v. Phelps, 2 Stark, 424. 
 isLadd v. Witte, 116 Wis., 35; Cotnam v. Wisdom, 83 Ark., 601.
 
 96 MEDICAL JUKISPBUDENCE. 
 
 ordinarily skillful and careful physician, and exercises his 
 best judgment. 14 It cannot always be determined before- 
 hand whether he can be of any benefit to his patient; in 
 fact he may respond promptly to a call and, on his arrival, 
 may find his patient dead. Having attempted to discharge 
 his duty to his patient and being prevented by no fault of 
 his own he is entitled to be reimbursed for his efforts made 
 in good faith. It is a general law of service that so long as 
 the servant does his duty faithfully, promptly and properly, 
 he is not concerned in the real value of his efforts to his 
 master. The determination of that question is exclusively 
 with the latter and, so long as he continues to accept the 
 services, he must pay for them, regardless of their real 
 value to him. 
 
 Suppose, in the last illustration, that the physician de- 
 layed unnecessarily, and without reasonable cause or ex- 
 cuse to respond to the call, a different and probably con- 
 trolling element would be injected into the problem. By 
 delay he breached the contract. He departed from the im- 
 plied agreement. He was not employed for that purpose. 
 If he did his patient no good, and if such result was due 
 to his own fault, then he should not be entitled to any com- 
 pensation. 
 
 Special Agreement as to Result. Where a professional 
 man makes a special agreement to afford relief to his pa- 
 tient, or to accomplish any other specific result, he cannot 
 recover either for services rendered or material supplied, 
 unless he reasonably accomplishes what he promises. 15 An 
 agreement to do work to the satisfaction of another, means 
 to do such work as the party should be satisfied with. He 
 cannot object to it from mere caprice or to avoid his obli- 
 gation. 16 
 
 i4Yunker v. Marshall, 65 111. App., 667; Logan v. Field, 75 Mo. App., 594. 
 16 Smith v. Hyde, 19 Vt., 54 ; Hupe v. Phelps, 3 Stark, 480 ; Mock v. Kelley, 3 Ala., 
 387. 
 
 16 Keeler v. Clifford, 165 111., 544, 548.
 
 EMPLOYMENT AND COMPENSATION. 97 
 
 Services During Life of Patient. An agreement to render 
 medical services to a patient as long as he lives, for a stipu- 
 lated sum to be paid by the estate of the patient, has been 
 held by some courts to be against public policy on the ground 
 (a) that it gives the physician a distinct benefit in the death 
 of his patient, whereas his interest and desire ought to be 
 to prolong the life of the person under his professional 
 care, and (b) that it is a wagering contract. 1611 However, 
 some courts have not adopted this reasoning, and it is man- 
 ifestly advisable for a physician never to put himself in a 
 position where he will apparently profit by the death of his 
 patient. 165 Where the consideration of such a contract is 
 dependent upon the number of visits or the time consumed 
 by the physician, or the time the patient survives, the reason 
 for the holding does not apply and the consideration can be 
 recovered from the estate of the patient, provided it is not 
 fraudulent. All agreements must be interpreted in the light 
 of public policy, which forbids that contracts shall receive 
 such interpretation as will encourage crime or make their 
 enforcement a reward therefor. Wager policies of insur- 
 ance were held void at common law because of the obvious 
 temptation presented by them to the commission of crime. 
 A physician should avoid a contract whose enforcement 
 might appear to be an award for crime. 
 
 Frequency of Visits. The physician must determine the 
 frequency of calls required by the condition of his patient, 
 and if the patient accepts such services he cannot escape 
 liability for services actually rendered, on the ground that 
 calls were more frequent than necessary, unless he can 
 show fraud or other improper motive on the part of the 
 practitioner. 17 Where the services are admitted, but an 
 alleged special contract as to fee denied by the patient, the 
 
 I6a Dent v. Bennett, 4 M. & C., 269. 
 
 leb Zeigler v. Illinois Trust & Savings Bank, 245 111., 180. 
 
 17 Ebner v. McKay, 166 111., 297 ; Todd v. Myers, 40 Cal., 355.
 
 98 MEDICAL JURISPRUDENCE. 
 
 
 
 physician can recover at least what his services were rea- 
 sonably worth. 18 
 
 Value of Services is a Question of Fact. Where he has 
 no previous understanding with the patient, the amount to 
 which the practitioner is entitled, is a question of fact for 
 the jury, and is said to be what the services were reason- 
 ably worth, under the circumstances. In determining the 
 value of the services the jury should take into consideration 
 the time consumed, the delicacy and difficulty of the oper- 
 ation, the usual and customary fees for the same or similar 
 services in the locality, and the success or failure of the 
 efforts, where improper treatment is shown. 19 
 
 What May Be Shown. The practitioner may show the 
 number of his visits or treatments, the time consumed, the 
 distance traveled, the medicines and materials furnished. 
 The implied agreement is to pay what the services are rea- 
 sonably worth in the market, as it were, and all matters 
 bearing upon that fact are admissible in evidence by either 
 party. 20 
 
 PREVIOUS CHARGES. Charges for similar services previ- 
 ously rendered to the same patient are regarded as ad- 
 missible, as presumably being in the minds of the parties 
 at the time the services in question were rendered, and espe- 
 cially when offered on behalf of the patient. 21 
 
 PROFESSIONAL STANDING. A practitioner may show his 
 high professional standing as affecting reasonable value of 
 the services he performed. 22 
 
 COMMUNICATION OF INFECTIOUS DISEASES. In reduction or 
 defeat of a fee the patient may show that the physician 
 communicated to him, or his family, the smallpox while 
 
 18 Henderson v. Hall, 87 Ark., 1. 
 
 19 Adams v. Stevens, 26 Wend., 451; Smith v. Watson, 14 Vt., 332; Wheaton r. 
 Johnson, 55 111. App., 53. 
 
 20 Starrett v. Miley, 79 111. App., 658. 
 
 21 Sidener v. Fetter, 19 Ind. App., 310. 
 
 22 Lange v. Kearney, 51 Hun, 640; 127 N. T., 676; Heintz v. Cooper, 47 Pac., 360; 
 Morrell v. Lawrence, 203 Mo., 363.
 
 EMPLOYMENT AND COMPENSATION. 99 
 
 on the professional visits for which he is seeking to re- 
 cover. 23 
 
 BILL DIFFERING FROM PRESENT CLAIM. The fact that a 
 practitioner in an action to recover the value of profes- 
 sional services, presented a bill for an amount less than he 
 is suing for, is competent evidence on the question of the 
 value of his services, as it is in the nature of an admission 
 that the amount thereof is the fair and reasonable value 
 of the same. Some courts hold that his right of recovery 
 is limited to that sum, but others hold that, while his own 
 estimate of the value of his services is evidence against him 
 of a high character, it is by no means conclusive, and that 
 he still has the right to show that his services were in fact 
 worth more, and that the bill was rendered for a less amount 
 by mistake, or for some other satisfactory reason. 24 
 
 What May Not Be Shown. CHARGE TO OTHER PA- 
 TIENTS. The reasonableness of a charge is not shown by 
 testimony of what the practitioner charged another patient 
 in a similar case. 25 
 
 PROFESSIONAL INCOME OF THE PHYSICIAN. The profes- 
 sional income of the physician can have no bearing on the 
 value of his services, regardless of the issues. 26 
 
 PROBABLE CHARGE BY OTHER PHYSICIANS. The patient will 
 not be permitted to show for what he could have procured 
 other practitioners to render the services in question. 27 
 
 BAD CHARACTER OF PHYSICIAN. Neither can he show, in 
 defense, the practitioner's bad character or bad reputation 
 generally. 28 
 
 PROFESSIONAL CHARACTER OF PHYSICIAN. In such an 
 action the professional character of the practitioner is not 
 
 23 Piper v. Manifee, 12 B. Mon., (Ky.) 465. 
 
 24 Heath v. Kyles, 1 N. Y., <Supp., 770; Williams v. Glenney, 16 N. Y., 389. 
 
 25 Collins . Fowler, 4 Atl., 647. 
 
 26 Marion County v. Chambers, 75 Ind., 409 ; Thomas v. Caulkett, 57 Mich., 392. 
 
 27 Marion Co. v. Chambers, 75 Ind., 409. 
 
 28 Jeffries v. Harris, 10 N. C., 105.
 
 100 MEDICAL JURISPRUDENCE. 
 
 involved, and evidence on that subject is immaterial and 
 cannot be introduced. 29 
 
 FINANCIAL CIRCUMSTANCES OF PATIENT OB PHYSICIAN. 
 The pecuniary circumstances of the patient or practitioner 
 are not an element in determining the value of the services, 
 as the value whether considered as a benefit to the one, or a 
 detriment to the other, cannot be affected by the ability of 
 the obligor to pay, nor by the necessities of the obligee. 30 
 
 The reason for holding (as some courts hold) that the 
 financial standing of the patient may be shown is based 
 upon the fact that there was evidence in the case showing 
 that there was at the time and place of service a general 
 custom, known to the public, among physicians and sur- 
 geons to graduate their fees according to the financial 
 standing of their patients. But in any event the charges 
 must be reasonable, whether considered from the viewpoint 
 of benefit to the patient or detriment to the physician. 31 
 
 License Presumed. In an action for fee, in the absence 
 of any evidence, it will be presumed that the practitioner 
 had a license in a State where a penalty attaches for prac- 
 ticing without a license. 32 
 
 Unlicensed Practitioners. An unlicensed practitioner 
 cannot recover for his services in a State where the statutes 
 in force at the time the services were rendered require a 
 license, and especially if the statutes bar recovery or fix a 
 penalty for practicing without a license. 33 
 
 Money paid to an unlicensed physician for services can- 
 
 29 Jeffries v. Harris, 3 Hawks, 105. 
 
 30 Wheaton v. Johnson, 55 111. App., 53; Cotnam v. Wisdom, 83 Ark., 601; Hess v. 
 Lowrey, 122 Ind., 225; Robinson v. Campbell, 47 la., 625; Morrell v. Lawrence, 203 
 Mo., 363; Marrisett v. Wood, 123 Ala., 384; Apparently contra, Succession of Haly, 50 
 La. Ann., 840; Lange v. Kearney, 127 N. Y., 676. 
 
 31 Morrell v. Lawrence, 203 Mo., 363; 11 A. C., 655. 
 
 32 Good v. Lascher, 99 111. App., 653 ; Williams v. People, 20 111. App., 92. 
 
 33 Patrick v. Ferryman, 52 111. App., 514; Chicago v. Honey, 10 111. App., 535; War- 
 ren v. Saxby, 12 Vt., 146; Oscanyan v. Winchester Co., 103 U. S., 261; Harrison v. 
 Jones, 80 Ala., 412; Orr v. Meek, 111 Ind., 40.
 
 EMPLOYMENT AND COMPENSATION. 101 
 
 not be recovered by suit at law, and it has been held that 
 the amount of a note, given under such circumstances, may 
 be recovered by a bona fide holder for value, notwithstand- 
 ing the provisions of a statute prohibiting the practice of 
 medicine without a license and fixing a penalty for its vio- 
 lation. 34 
 
 Nature of Remedies Must be Disclosed if Sought. In an 
 action for his fee, wherein the patient defends on the ground 
 that services were useless by reason of the fault of the 
 physician and the worthlessness of the medicines, the phy- 
 sician may be required to disclose the nature of remedies 
 used by him, even though he claims a secret formula, and 
 the patient may show that such remedies have no efficacy 
 towards the result sought to be attained, or that they are, 
 in fact, injurious when so used. 35 
 
 What Physician Must Prove. A physician must estab- 
 lish the contract of employment, that he rendered the serv- 
 ices in question and, where there was no agreement as to 
 fee, that they were of the value claimed. 36 
 
 How PROVEN. The usual and customary fee for like serv- 
 ices, and the reasonableness of the charges made, must be 
 shown by the testimony of other practitioners. 37 In such 
 cases the testimony of the witness is ordinary in so far as 
 it goes to the usual and customary fee, 38 and opinion evi- 
 dence, in so far as it assumes to state what is a reasonable 
 fee, or what is the reasonable value of the services. 39 
 
 EFFECT OF OPINIONS. These opinions as to reasonable- 
 ness of a fee and value of services, while not binding on 
 the court and jury must not be disregarded, and a value 
 
 84 Citizens State Bank v. Nore, 67 Neb., 69. 
 
 35 Jones v. King, 81 Ala., 285. 
 
 36 Styles v. Tyler, 64 Conn., 432; Robinson v. Campbell, 47 la., 625. 
 
 37 Chicago v. Wood, 24 111. App., 40 ; Wood v. Ohio R. Co., 53 S. 0., 10 ; MacEvitt v. 
 Maass, 72 N. Y, Supp., 158. 
 
 38 Walker v. Cook, 33 111. App., 561-3. 
 
 39 Marion Co. v. Chambers, 75 Ind., 409 ; MacEvitt v. Maass, 72 N. Y. Supp., 158.
 
 102 MEDICAL JURISPRUDENCE. 
 
 fixed by them upon their judgment, based upon their own 
 observation and experience. 40 
 
 Husband and Wife; Parent and Child; Guardian and 
 Ward. NECESSARIES. A husband is liable for necessaries 
 furnished his wife. This liability attaches even though 
 they are supplied her over his objection, when he fails or 
 refuses to provide the same. Under the law a minor is 
 liable for necessaries furnished him to the extent of their 
 reasonable value at the time. A special contract with the 
 minor relative to the consideration is disregarded. The 
 estate of an insane person is liable to the party who sup- 
 plies him with necessaries. 
 
 Necessaries Explained. The question of what are neces- 
 saries has often been adjudicated by the courts. Like most 
 cases coming before the courts, the answer is not always 
 self-evident. A necessity to one might be a luxury to an- 
 other, while a luxury today may be a necessity tomorrow. 
 With reference to husband and wife necessaries embrace 
 the usual provisions for maintenance of the wife's health 
 and comfort appropriate to their mode of life, in view of 
 their social standing and station, and his financial ability. 41 
 
 MEDICAL SERVICES ARE NECESSARIES. As a general propo- 
 sition, the estate of any person under legal disability, for 
 any cause, will be liable for medical and surgical attention 
 and services reasonably necessary for the health, comfort, 
 convenience or appearance of the patient, and the measure 
 of the liability is the fair, reasonable value of the services 
 and materials at the time and place. 42 
 
 HUSBAND SELECTS PHYSICIAN. Ordinarily the husband 
 has the right to select the physician who performs work 
 for the wife, and it is the wife's duty to go where the hus- 
 
 40 In re Smith, 41 N. Y. Supp., 1093; Ladd v. Witte, 116 Wis., 35; Wood v. Baker, 
 49 Mich., 295; Spalding v. Bliss, 83 Mich., 311. 
 
 41 McMahon v Sankey, 133 111., 636; Clark v. Tenneson, 146 Wis., 65. 
 
 42 McCreery & Co., v. Martin, 84 N. J. L. 626, 47 L. R. A., 279.
 
 EMPLOYMENT AND COMPENSATION. 103 
 
 band determines. Therefore, if a husband specifically ob- 
 jects to a certain practitioner and provides for his wife a 
 reasonably competent person to do the work for her, the 
 physician objected to cannot, with knowledge thereof, ren- 
 der the services and hold the husband liable therefor. In 
 such case he could look alone to the wife, and should make 
 a contract of special agreement with her to that effect. 
 The same rule applies to guardian and ward and similar 
 relations. 
 
 FAMILY EXPENSE. Medical treatment for husband or 
 wife, or any minor member of the family, are reasonably 
 within the intent of those statutes which make both hus- 
 Band and wife liable for family expenses. 
 
 Parent and Child. At common law the liability of a 
 father for the support, maintenance and education of his 
 minor child, while recognized, was not well defined and 
 amounted to little more than an imperfect unenforcible 
 obligation. The duty was always conceded, but the man- 
 ner of its discharge was exclusively within the discretion 
 of the parent. The party who voluntarily supplied the 
 wants of a minor had no legal claims against the parent, 
 and all that he did in this respect was at his own risk, 
 unless he had the express promise of the father to re- 
 munerate him, or the circumstances were such that a prom- 
 ise of that character would reasonably be implied. In the 
 absence of special legislation, this obligation remains the 
 same as at common law, and the general rule prevails that 
 where a person furnishes necessaries to a minor without 
 authority from the parent, he does so at his peril and, in 
 order to recover from the parent, he must show by a pre- 
 ponderance of the evidence, either an express authority or 
 circumstances from which such authority may be implied. 
 The parent is to be the judge of the wants of his child and 
 of his ability to supply them, and the extent to which he
 
 104 MEDICAL JURISPRUDENCE. 
 
 shall respond to this obligation, and, when no express au- 
 thority has been given to the child to bind the parent, it 
 devolves upon the party supplying such necessities to show 
 the neglect or refusal of the parent to provide the same. 
 
 CHILD SPECIAL AGENT OF PARENT. If the child has au- 
 thority to bind the parent it is usually in the nature of a 
 special agency, and the party dealing with the minor is 
 bound to know the extent of that authority. 43 
 
 LIABILITY OP MOTHER. In States where married women 
 have complete control of their separate estate, a mother 
 may bind herself to pay for medical attention and services 
 rendered to her minor children, notwithstanding the father 
 is living and able to pay. 
 
 KATIFICATION. Where, without the knowledge of the par- 
 ent, a physician prescribes for a minor by giving him a pre- 
 scription or medicine, and the parent, with knowledge of 
 the facts, or of such facts as to put him on inquiry, permits 
 the prescription to be compounded and the medicine to be 
 taken, he is considered in law as having ratified the act of 
 the child in engaging the physician and will be held liable 
 for the reasonable value of the services. 
 
 Malpractice. The evidence that will sustain an action 
 against a physician for malpractice will be sufficient to de- 
 feat his recovery in an action for compensation in such 
 case. In fact less negligence is necessary to defeat a right 
 to compensation than is requisite to sustain an action of 
 malpractice for the injury. 44 If the services of the phy- 
 sician were of no value, and if the remedies used in the 
 treatment of the patient were worthless and possessed no 
 efficacy in producing a cure, and these facts were known to 
 the practitioner or ought to have been known to him, at the 
 
 43 Dumser v. Underwood, 68 111. App., 121. 
 
 44 Mixon v. Phelps, 29 Vt., 198 ; Loan etc., v. Friedley, 133 Ind., 143 ; Hill v. Feather- 
 stoneaugh, 8 Bing., (Eng.) 572.
 
 EMPLOYMENT AND COMPENSATION. 105 
 
 time of the treatment, no recovery can be had for the serv- 
 ices. 45 
 
 MALPRACTICE AS A DEFENSE TO AN ACTION FOE SERVICES. 
 Malpractice by a physician resulting in injury to his patient 
 may be pleaded by the patient as a defense to an action by 
 the physician for the value of his services or for an agreed 
 fee, or to recoup his damages. 46 
 
 EFFECT OF JUDGMENT FOR FEES. The courts are not 
 agreed as to the effect of a judgment for the services in 
 barring a subsequent action for malpractice, in reference 
 to the same services. Some courts distinguish between 
 cases where the suit for the fee is defended and cases where 
 the judgment is by default. 47 
 
 Consultant. In the absence of an agreement to the con- 
 trary, a patient is liable to a consulting physician for the 
 reasonable value of his services, even though as between the 
 patient and attending physician, the latter agreed to assume 
 the bills, 48 or as between the physicians, the one in attend- 
 ance on the case guaranteed the consultant his usual fees. 49 
 Where the patient is unconscious or insane and knows 
 nothing of the conference or consultation, and never regains 
 consciousness or sanity, his estate will be liable for the 
 services of those who are called into the conference by the 
 attending physician, presuming all acted in good faith. 
 
 Witness Fees. A witness subpoanaed to appear and tes- 
 tify in a civil case is entitled to compensation, to be de- 
 termined by the number of day's attendance and the dis- 
 tance necessarily traveled in going to and returning from 
 court. The law does not recognize difference in the earn- 
 
 45 Logan v. Field, 75 Mo. App., 594, 603. 
 
 46 McLure v. Hart, 19 Ark., 119; Howell v. Goodrich, 69 111., 556; Hyles v. Tyler, 64 
 Conn., 432; McKleroy v. Sewell, 73 Ga., 657; Holmes v. McKennan, 120 111. App., 320. 
 
 47 Jordahl v. Berry, 72 Minn. 119; 45 L. R. A., (O. S.) 541 note| Barton v. South- 
 wick, 258 111., 515. 
 
 48 Shelton v. Johnson, 40 la., 84. 
 
 49 Garry v. Stadler, 67 Wis., 512.
 
 106 MEDICAL JURISPRUDENCE. 
 
 ing capacity of witnesses. The professional or business 
 man is entitled to no more than the most unskillful laborer 
 out of employment. 
 
 Expert Witness Fees. ''There is a distinction between 
 the case of a man who sees or hears a fact and is called to 
 prove it in a court of justice and the case of a man who is 
 selected by a party to give his opinion on a matter with 
 which he is particularly conversant from the nature of his 
 study, experience or employment in life. The former is 
 bound, as a matter of public duty, to testify to a fact which 
 happens to have fallen within his knowledge. Without 
 such testimony the course of justice must be stopped. The 
 latter, however, is under no such obligation. There is no 
 such necessity for his evidence and the party who selects 
 him must pay him." 50 However, in most States the courts 
 hold squarely that an expert who knows nothing whatever 
 of the facts in a case may be subpo3naed and required to 
 give his opinion on a hypothetical question without any 
 compensation other than the usual witness fee, and he can- 
 not refuse to testify when interrogated as an expert only, 
 upon the ground that no compensation greater than that 
 allowed ordinary witnesses has been paid or promised to 
 him. 51 "It is to be regretted that a member of a profes- 
 sion so distinguished for liberal culture and high sense of 
 honor and duty, should refuse to testify in a case pending 
 before the courts of his country, involving the life or 
 liberty of a fellow being and the rightful administration of 
 the laws of a common country. ' ' 52 The court has a right 
 to compel a physician to give expert testimony in answer 
 to a hypothetical question calling for his opinion in suits 
 between individuals, and is not confined to criminal prose- 
 
 so Maule, J., in Webb v. Page, 1 C. & K., 23. 
 
 51 Philler v. Waukesha Co., 139 Wis., 211; Dixon v. People, 168 111., 179, 186, 
 
 52 Summers v. City, 5 Tex. App., 365.
 
 EMPLOYMENT AND COMPENSATION. 107 
 
 cutions, since in either case the object is to promote public 
 justice and insure the peace and good order of society. 
 Refusal of a physician, who has been regularly subpanaed 
 and placed upon the witness stand to answer a hypothetical 
 question calling for his opinion, for the reason that special 
 compensation has not been paid or assured to him, justifies 
 the trial court in fining him for contempt. 53 By a divided 
 court a different conclusion was reached in Indiana. 54 
 
 SPECIAL PREPARATION. Courts will not require a phy- 
 sician to make a special preparation in order to qualify 
 himself as a witness in a case ; hence, he cannot be punished 
 for a contempt for refusing to make a post-mortem exami- 
 nation, unless paid therefor, nor can he be required to pre- 
 pare himself in advance for testifying in court by making 
 an examination or performing an operation or resorting 
 to a certain amount of study, without being paid therefor. 55 
 
 WHEN NOT SUBPOENAED. If no subpoana is served upon 
 an expert and he attends as a witness under a specific 
 agreement for special compensation made with the party 
 calling him and not in pursuance of the process of the 
 court, he may be enabled to enforce such an agreement in 
 court and compel payment for his services in accordance 
 with the terms thereof, as a condition of his being sworn 
 as a witness. 56 
 
 EXTRA FEES FOR EXTRA SERVICES. If a physician at the 
 request of a party to a suit, performs extra services, such 
 as assisting the attorney, it is entirely proper and legal for 
 him to receive pay therefor, and to make an agreement 
 whereby he is to receive such payment. 57 If he testifies 
 without an express agreement as to the amount of his com- 
 
 53 Ex parte Dement, 53 Ala., 389; Dixon v. People, 168 111., 179. 
 5t Buchman v. State, 59 Ind., 10. 
 
 55 Dixon v. People, 168 111., 179. 
 
 56 Walker v. Cook, 33 111. App., 561, 565. 
 
 57 Lewis v. Blye, 79 111. App., 256.
 
 108 MEDICAL JURISPRUDENCE. 
 
 pensation, he cannot afterwards recover more than the 
 statutory fee. 58 
 
 POST-MORTEM FOR CORONER. Where there is no law mak- 
 ing the county liable for services of a physician employed 
 by the coroner of the county to make an examination of a 
 dead body and hold a post-mortem thereon for the purpose 
 of enabling him to give expert testimony at an inquest, the 
 physician must look to the coroner for his compensation, 
 and unless a previous arrangement was made with the 
 coroner as to the amount of his fee he doubtless would be 
 entitled only to the usual witness fee. 59 
 
 58 Ex parts Dement, 53 Ala., 389; Sumner v. State, 5 Tex. App., 365. 
 
 59 Piatt v. Knott, 99 111. App., 420.
 
 CHAPTER X. 
 AGREEMENT FOR SURGICAL OPERATION. 
 
 Elements of the Agreement. The question is purely one 
 of contract, and we must look to that subject for the prin- 
 ciples to be applied. Whatever right or authority the 
 surgeon has in the premises he derives by agreement, ex- 
 press and implied, with his patient. 
 
 IMPLIED STIPULATIONS. Express executory agreements 
 seldom contain everything which was in the contemplation 
 of the parties at the time. Some terms may be unexpressed 
 because considered self-evident. Some elements may be 
 omitted by oversight. What is implied in an express execu- 
 tory contract is as much a part of the agreement as what 
 is expressed. 1 The rule of reason is inherent in mental 
 processes and must always be applied in human trans- 
 actions. 2 To the express stipulations of an executory con- 
 tract the law ingrafts, 
 
 (1) Those elements which are essential to complete the 
 contract as the parties must have intended it, and which 
 (a) are reasonable and necessary inferences from the ex- 
 press stipulations and the circumstances, or (b) were rea- 
 sonably in the minds of the parties at the time, and 
 
 (2) Those elements which, although not manifestly in 
 the contemplation of the parties at the time, are essential 
 (a) to a rational execution of the agreement, or (b) to the 
 attainment of the general purposes of the agreement. 3 
 
 Nature of Agreement. Usually the express stipulations 
 
 1 Hart v. Otis, 41 111. App., 431, 432. 
 
 2 Holy Trinity Church v. United States, 143 U. S., 457. 
 
 3 See Hadley v. Baxendale, 2 0. L. B., 517. 
 
 109
 
 110 MEDICAL JUKISPKUDENCE. 
 
 for a surgical operation are very meagre and are clothed 
 in the most general terms. Often the essential features 
 are not discussed. Details are almost never referred to. 
 We must look to the purpose of the operation and the other 
 circumstances to find, by inference, the terms of the agree- 
 ment. Where the facts are not disputed and only one con- 
 clusion can be reasonably drawn therefrom, such inference 
 may be a conclusive presumption of fact and, therefore, 
 become a part of the contract, as a matter of law; that is, 
 where the only reasonable inference from the facts and cir- 
 cumstances is in favor of the exercise by the surgeon of 
 certain authority, such authority should be considered as 
 being within the purview of the original contract of em- 
 ployment, as a matter of law. Where the only reasonable 
 inference from the stipulations and the circumstances neg- 
 atives the right of the operator to exercise a certain dis- 
 cretion, the exercise of such right by the operator should 
 be considered, as a matter of law, to be no part of the con- 
 tract. However, if the legitimate inference to be drawn 
 from the stipulations and the circumstances would either 
 affirm or deny the right to perform a certain act, then the 
 question of the authority of the operator to perform such 
 act should be left to the jury to be determined as a matter 
 of fact ; in other words, where reasonable men, uninfluenced 
 by ulterior motives, might arrive at different conclusions 
 as to the authority for the act, under the stipulations and 
 the circumstances, then the question of authority should be 
 left to the jury as one of fact. 
 
 Surgeon's Discretion. The surgeon cannot go beyond the 
 authority given him by the patient. To this proposition 
 there can be no exception. The difficulty lies in determin- 
 ing the extent of his authority. Generally it must be in- 
 ferred in great measure from the circumstances. Not his 
 wish, but the patient's welfare must control when stipula-
 
 AGREEMENT FOB SURGICAL OPERATION. Ill 
 
 tions do not cover the point; but even his notion of the 
 patient's welfare must give way to the expressed wish of 
 the latter. Where the patient has decided, there is no occa- 
 sion for the exercise of the surgeon's discretion. He is 
 bound by his patient's conclusion. Where there is an 
 express stipulation there cannot be an implied one inconsist- 
 ent therewith. Where a specific operation has been agreed 
 upon and the attending circumstances are such as to neg- 
 ative the idea of an intention on the part of the patient to 
 lodge a discretion in the operator, any departure from the 
 specified operation by the latter, would be a trespass, for 
 which he may be required to respond in damages. What 
 was fairly within the mind of the patient? That was im- 
 plied. What does the welfare of the patient require? In 
 the absence of inconsistent stipulations, the patient will be 
 presumed to have intended and authorized what was for his 
 best welfare. Anything which, within the discretion of the 
 practitioner, was reasonably necessary to accomplish the 
 general purpose of the operation, will also be presumed to 
 have been intended by the patient. 
 
 Consent Necessary. Consent of the patient is indis- 
 pensable to the justification of a surgical operation. It is 
 an absolute right of the patient to determine what he wants 
 done, and his will must prevail. Without consent, such an 
 operation is a trespass. 4 
 
 MOTIVE. An unauthorized operation is a trespass regard- 
 less of the motive which prompted the operator. The basis 
 of the liability is the wrongful invasion of the person, and 
 proper motive is neither justification nor excuse for the 
 assault. The only relation of motive to the offense is its 
 effect on the damages to be recovered. Where the motive 
 was good and the act performed free from negligence, the 
 law allows only compensatory damages, but never less than 
 
 * Pratt v. Davis, 224 111., 300.
 
 112 MEDICAL JURISPRUDENCE. 
 
 nominal, while in a case involving evil motive or reckless 
 disregard of the wishes of the patient, the injured party 
 may recover punitive damages in addition to his actual loss. 
 
 CONSENT MAY BE IMPLIED. Knowingly submitting to a 
 particular operation or course of treatment, by an adult, 
 implies consent thereto. Where a patient, without objec- 
 tion, voluntarily submits to an operation, or a course of 
 treatment, his specific consent will be presumed as such 
 conduct is prima facie evidence of his consenting mind. 4a 
 When a person has selected a surgeon to operate upon him, 
 and has appointed no other person to represent him during 
 the period of unconsciousness which constitutes a part of 
 such operation, the laiv casts upon the operator the responsi- 
 bility of so acting, in good faith, in the interest of his patient, 
 within the reasonable scope of his employment and the gen- 
 eral purpose of the relief sought, that the latter shall receive 
 the fullest benefit of that professional judgment and skill 
 to which he is legally entitled. 5 
 
 WHOSE CONSENT is NECESSARY. In case of an adult, not 
 under mental disability, his consent alone is sufficient to 
 justify a practitioner in performing any reasonable opera- 
 tion within the scope of his profession and employment. 
 Consent of the parent is usually necessary to authorize work 
 of a radical nature on a minor who has not arrived at the 
 age of mature discretion. A person standing in the rela- 
 tion of a parent would be qualified to authorize the services 
 and relieve the practitioner of a charge of trespass for per- 
 forming the operation. When the minor resides with his 
 parents, an adult sister could not be said to stand in loco 
 parentis and, therefore, her consent would not be sufficient 
 authority. 6 In the case last cited, the patient was a minor 
 about ten years of age. While on a visit with an adult 
 
 4a State v. Housekeeper, 70 Md., 162. 
 
 5 Brennan v. Parsonett, 83 N. J. L., 20 ; 83 Atl., 948. 
 
 6 Rishworth v. Moss., Tex., ; 159 S. W., 122.
 
 AGREEMENT FOR SURGICAL OPERATION. 113 
 
 sister, she was taken by tlie sister to the surgeon for exam- 
 ination for adenoids. After examination, the surgeon rec- 
 ommended an operation to which the adult sister consented, 
 and the child acquiesced therein. The child died under the 
 influence of the anesthetic without any fault on the part of 
 the operator. 
 
 It has been held that failure to get the consent of the 
 father before administering a general anesthetic to a youth 
 17 years old who, in company with adult relatives, applied 
 to a surgeon to be relieved of a small tumor on the ear, 
 will not render the surgeon liable to the father for the death 
 of the boy while under its influence, where it appears that 
 the son left the home of the father for the express pur- 
 pose of consulting a specialist about his affliction, returned 
 to the home to await the report of an analysis, and there- 
 after again went to the office of the surgeon with his adult 
 relatives to get the surgeon's final report and recommenda- 
 tion, and gave his consent to the administration of an anes- 
 thetic and the performance of the operation. Here consent 
 may reasonably be implied ; the father apparently gave the 
 boy authority to consent for him. 7 
 
 Form of Action. Where there was no consent on the part 
 of the parent, and the minor dies notwithstanding there is 
 no negligence, the father would not have a right of action 
 under a statute based on Lord Campbell's Act, because the 
 want of consent did not cause the death. Where the only 
 cause of complaint is want of consent by the parent, the right 
 of action would be in the parent for loss of services whether 
 from disability or death resulting from the anesthetic or 
 operation. In case of death, the question of the survival 
 of the right of action may be an important factor under 
 some statutes. 
 
 Presumptions. FROM CONSENT AND CIRCUMSTANCES. 
 
 7 Baker v. Welsh, 144 Mich., 632.
 
 114 MEDICAL JURISPRUDENCE. 
 
 Mere consent to an operation does not extend the agreement 
 beyond the reasonable limits of the specific relief stipulated 
 at the time the patient goes under the influence of the drug. 
 An agreement with reference to the performance of an 
 operation does not imply consent to an entirely different or 
 more extensive invasion of the body. In fact, under the 
 doctrine that the specification of one is the exclusion of 
 others, the right to perform a distinctly different operation 
 would apparently be specifically prohibited. The mere em- 
 ployment of a surgeon to perform an operation does not 
 give him implied authority to do whatever, in his discretion, 
 he may deem necessary or expedient without consulting the 
 wishes of his patient. Great though his responsibilities 
 are, they do not confer upon him unlimited, arbitrary and 
 absolute power to treat his patient in accordance with his 
 own judgment without reference to the wishes of the latter. 
 Surgical operations cannot be performed as you erect a 
 house, build a city, or construct a machine, according to 
 plans and specifications. Plans and procedure must be 
 varied to meet emergencies. The welfare of the patient 
 demands that the operator shall have implied power to deal 
 with unforeseen incidents and unexpected conditions as they 
 arise in the progress of the stipulated operation, in such 
 manner as he shall consider proper, and a reasonable depart- 
 ure from the exact purpose and scope of the original opera- 
 tion, for the benefit of the patient, ought not and, as a mat- 
 ter of law, does not make the operator liable for malprac- 
 tice. 8 
 
 FROM SURGEON'S DUTY. The implication of authority 
 must necessarily be as great as the implication of the re- 
 sponsibility of the surgeon in the premises. In fact there 
 should be some latitude for the exercise of the operator's 
 discretion and, doubtless, such right must have been con- 
 
 8 Pratt v. Davis, 224 HI., 300, 309.
 
 AGREEMENT FOE SURGICAL OPERATION. 115 
 
 templated by the parties. The implied consent of the 
 patient must be broader than the operator's duty, for there 
 must be a field within which the latter may use his dis- 
 cretion. There can be no duty on the part of the surgeon 
 without an implication of consent in reference thereto on 
 the part of the patient. 
 
 Controlling Facts. When a person agrees in general 
 terms, with a surgeon, for an operation for specific relief 
 and, in pursuance thereof, takes a general anesthetic without 
 giving any special instructions to the operator, he impliedly 
 gives the latter authority to do any act reasonably neces- 
 sary to accomplish the general purpose of his specific em- 
 ployment, or clearly incident thereto, and, in his discretion, 
 to depart from the specific operation originally contem- 
 plated, so far as to give the patient the fullest measure of 
 benefit from his skill, judgment and observation, within the 
 purview of the relief sought. Thus, in the Mohr case, 
 infra, if the general employment had been to relieve the 
 patient of defective hearing, and had such relief been the 
 specific purpose of the operation agreed upon, the mere 
 fact that the surgeon made a wrong operative diagnosis re- 
 sulting in recommending an operation on the wrong ear, 
 should not have limited his authority to an operation on the 
 ear mentioned, because the patient was entitled to have the 
 benefit of his skill and best judgment at all times. Neither 
 party should be bound by the mistake. On the other hand, 
 if the relative conditions of the ears changed between the 
 examination and the operation, the surgeon should be con- 
 sidered as having the implied authority to deal with condi- 
 tions as he found them at the time, keeping in view the gen- 
 eral purpose of his employment to relieve defective hear- 
 ing. 
 
 Emergency. The surgeon is sometimes confronted with 
 an emergency requiring immediate operation, under circum-
 
 116 MEDICAL JURISPRUDENCE. 
 
 stances where express consent is impossible, as in case where 
 a party is unconscious from an injury, where no one is 
 present who, in law, might be presumed to have authority to 
 speak for him. In such case the consent of the patient, if 
 an adult, or of the parent, if the patient is a minor, is 
 presumed. Here the constructive consent, presumed by 
 law from the necessity of the situation, goes only to the per- 
 formance of the usual and ordinary operation to relieve the 
 particular injury and meet the emergency, and no farther, 
 and, therefore, would not include an operation for some 
 chronic ailment with which the injured party was suffering 
 at the time, unless the same were practically necessary to 
 the skillful performance of or recovery from the traumatic 
 operation. Thus, an injury necessitating entering the ab- 
 dominal cavity for proper treatment and relief, would excuse 
 the operator for so doing and, in case the patient is un- 
 conscious and the necessity of operation imperative, consent 
 therefor will be presumed, ex necessitate; but the circum- 
 stances would not carry therewith authority to remove a 
 diseased ovary, an inflamed appendix, a calcined gall blad- 
 der, a tumor or other chronic affliction, unless such organ 
 was involved in the injury, or such operation were reason- 
 ably necessary to a successful recovery from the emergent 
 operation. 9 
 
 More Than One Method Affecting the Patient Differently. 
 Where either of two or more courses may with equal pro- 
 priety be pursued, but affecting the patiently differently, 
 the surgeon should counsel and recommend to the patient 
 what should be done, and how, but should finally adopt the 
 method selected by the patient. If the latter refers the 
 question back to the operator he should follow the course 
 which in his best judgment is preferable, under all the cir- 
 
 e Cotnam v. Wisdom, 83 Ark., 601.
 
 AGREEMENT FOR SURGICAL OPERATION. 117 
 
 cumstances, and will be liable in damages only in case of 
 negligence, even though another practitioner would have 
 recommended a different course. 
 
 Patient's Conclusion Paramount. It is for the prac- 
 titioner to examine, consider and recommend; it is for the 
 patient to decide. His final determination must be re- 
 spected even though it be clearly wrong. The only alterna- 
 tive to obeying that conclusion, when expressed, is to refuse 
 to operate at all and discharge the patient. Usually the 
 patient will accept and follow the advice of his surgeon, 
 given in good faith after proper diagnosis and considera- 
 tion ; but when he will not do so, his wishes must control in 
 all operations undertaken. Merely because the prac- 
 titioner's judgment ought to be better than the judgment of 
 his patient is no sufficient reason why the judgment of the 
 former should prevail. This applies with special force 
 where major operations are involved. 
 
 Operating at Patient's Request. A surgeon, however, is 
 not always justified in performing a surgical operation 
 merely because the patient requests it. Still, having in 
 good faith given proper advice, which the patient refuses 
 to adopt, the surgeon will not be liable in damages for doing, 
 in a proper manner, what he was requested to do, provided 
 always the patient was, in law, competent at the time to 
 determine for himself, and the character of the operation 
 was not such as to negative the idea of good faith and proper 
 consideration for the welfare of the patient. 
 
 Good Faith of Operator. The surgeon is bound to exer- 
 cise the utmost good faith and fair dealing towards his 
 patient in respect to the operation to be performed and any 
 material deception will convert his efforts into an assault 
 justifying punitive damages, regardless of his real motives. 
 He dare not falsely pretend that only a slight operation is
 
 118 MEDICAL JURISPRUDENCE. 
 
 necessary and contemplated and then, after his patient is 
 under the influence of an anesthetic, perform a more exten- 
 sive and serious operation. 10 
 
 Departure from Agreed Operation. A surgeon may not 
 materially depart from the operation originally stipulated 
 without the consent of his patient. This question does not 
 arise in cases where the surgeon, during the progress of the 
 operation, discovers unexpected conditions necessitating a 
 greater invasion of the body and the removal of more tissue 
 than at first contemplated. In such case he performs the 
 operation specified but is required to do more than orig- 
 inally supposed. Perhaps he intended to amputate a limb 
 just above the knee, but finds that he can save only a few 
 inches of femur. Perhaps he operates for a tumor and in 
 addition removes several smaller offenders; or in excising 
 a gall bladder he discovers and closes a perforation in the 
 stomach. These are fairly within the purview of the 
 agreed undertaking; but an agreement to operate on the 
 right ear may not be an agreement to operate on the left 
 instead, even though for the same cause. Consent to close 
 a hernia on the left side of the abdomen may not imply the 
 right to substitute therefor an operation on the right groin, 
 although the latter is more imperatively needed. Consent 
 to curettage could scarcely be regarded as including permis- 
 sion to remove the uterus and corelated organs. 
 
 QUESTION OF FACT. What will constitute a departure may 
 be a question of fact. 11 It is impossible to lay down any 
 strict rule for determining what constitutes an improper 
 departure from the specific agreement between patient and 
 operator, since each case must depend upon its own special 
 facts. Whether there was such a substantial departure 
 from the scope and purpose of his employment as to neg- 
 
 10 Pratt v. Davis, 224 .111., 300. 
 
 11 Mohr v. Williams, 95 Minn., 261; Rolater v. Strain, 39 Okl., 572. 137 Pac., 96.
 
 AGREEMENT FOB SURGICAL OPERATION. 119 
 
 ative the idea of consent must be determined from a consid- 
 eration of all the circumstances in the case, including the 
 general purpose of the employment, the character of the 
 operation specified and of the one actually performed, their 
 relation to the relief sought, the exigency of the situation, 
 the general welfare of the patient, the good faith and fair 
 dealing of the operator. 
 
 SURGEON, AGENT FOR PATIENT. The suggested fiction that 
 the surgeon becomes the agent of the patient under an anes- 
 thetic only complicates matters, since the same questions 
 arise in determining his authority as agent, and must be 
 answered on the same state of facts. 
 
 Prohibited Act, or Operation. In no event is the operator 
 justified in performing an operation which the patient has 
 expressly forbidden. Even though he may consider that the 
 health and welfare of the patient demand immediate opera- 
 tion, he has no right to disregard the prohibition of the 
 latter. 
 
 ILLUSTRATIONS. About sixty days after stepping on a nail, 
 a patient, still suffering from an inflamed and open wound 
 at the first joint of the great toe of her right foot, consulted 
 a surgeon with reference to an operation. He advised her 
 that an operation was necessary to effect a cure, and that 
 the operation would consist in making an incision in the foot 
 or toe so as to drain the joint and remove any foreign mat- 
 ter that might be found therein. The patient agreed to such 
 operation. She was taken to a hospital and an anesthetic 
 administered, and the operation performed. In performing 
 the operation a sesamoid bone was removed, and the cause 
 of action was based on this removal. There was no claim 
 that the operation was unskillfully performed, but the pa- 
 tient alleged that she consented to the operation upon the 
 express condition that no bone should be removed from 
 her foot, and that by reason of the removal the foot had been
 
 120 MEDICAL JURISPRUDENCE. 
 
 permanently injured and she had suffered great pain and 
 distress of body and mind. The surgeon claimed that he 
 was employed as her physician to drain the wound ; that in 
 compliance with said employment he made an incision into 
 the toe; that before reaching the joint, so as to drain the 
 same, he found it covered with a sesamoid bone which ren- 
 dered it impossible to drain the joint without the removal 
 of said bone ; that said bone was in an unusual place on the 
 side of the toe and its presence could not be ascertained by 
 an examination ; that had the bone not been removed and the 
 joint properly drained, serious results would have followed ; 
 that the removal was necessary to effect a cure; that said 
 bone is not considered one of the bones of the human anat- 
 omy and was not within the contemplation of the parties at 
 the time the surgeon consented to operate. The issues were 
 submitted to a jury which found for the plaintiff and gave 
 her $1000 damages, on which judgment was rendered. 
 Held- 
 
 (a) That the plaintiff in error had no authority to remove 
 a sesamoid bone from the patient's foot without her consent, 
 either express or implied. 
 
 (b) That she did not expressly consent, and whether or 
 not her consent was implied, from the circumstances, was a 
 question for the jury to determine under all the evidence. 
 
 (c) That the inhibition to remove any bone from her foot 
 might, as a matter of fact, include a sesamoid bone, even 
 though such bones are not usually contemplated by surgeons 
 when speaking of the bones of the body. 
 
 (d) That if the patient did not consent, the removal of 
 the sesamoid bone was wrongful and unlawful and consti- 
 tuted in law a trespass upon her person and a technical 
 assault and battery. 12 
 
 In a certain English case, 13 a young lady consulted an 
 
 12 Rolater v. Strain, 89 Old., 572, 137 Pac., 96. 
 
 13 Baty v. Cullingworth, decided in London in 1896.
 
 AGREEMENT FOB SURGICAL OPERATION. 121 
 
 eminent surgeon relative to some ovarian trouble, and before 
 consenting to an operation told him that if he found only 
 one ovary diseased he should remove it, but if both were in- 
 volved he must not remove either. To this express inhibition 
 the surgeon claims to have replied: "You must leave that 
 to me." The patient claims that she did not hear such re- 
 mark. Upon opening up the cavity both organs were found 
 to be badly diseased and the surgeon removed them. The 
 patient brought action for damages for operating in viola- 
 tion of instructions. There was evidence to the effect that 
 her health and, possibly, her life required the excision of the 
 organs. There was no claim of unskillfulness or careless- 
 ness. The court instructed the jury to find for the surgeon ; 
 thus holding, as a matter of law, that the patient had con- 
 sented. Such holding is clearly wrong, as the jury should 
 have passed upon the question as to whether, under the cir- 
 cumstances, the patient did in fact leave the entire matter 
 to the discretion of the surgeon. In view of her express 
 prohibition, if she did not hear his alleged reply, and if she 
 did not withdraw her instructions, he was a trespasser ab 
 initio, whatever may have been his motives and regardless 
 of what he thought her health and welfare required. 
 
 In an action for assault and battery, brought against a 
 surgeon by a patient, the facts were as follows : The patient 
 had been operated upon a couple of years before for a rup- 
 ture on the left side, and it was causing him some trouble. 
 He consulted with the surgeon with reference to the same 
 and, apparently, the surgeon's diagnosis was limited to an 
 examination of the specific rupture. The defendant advised 
 an operation but it appears that while such operation was 
 advisable it was not imperative. After the anesthetic had 
 been administered the surgeon discovered on the right side 
 a hernia which was a serious menace to the patient, and of a 
 character to cause his death should strangulation occur, and
 
 122 MEDICAL JURISPRUDENCE. 
 
 operated for the latter trouble without first procuring the 
 patient's consent. The trial court correctly stated the law, 
 to the effect that the patient must be the final arbiter to 
 decide whether or not he will take the chances of an opera- 
 tion, and that his consent, express or implied, must be given 
 before a surgeon can lawfully operate; but the court held 
 that the consent to operate for one hernia, under the circum- 
 stances, was not, as a matter of law, an implied consent to 
 operate for the other and left the question of consent to the 
 jury, as one of fact. The jury found that the patient did not 
 consent and rendered a verdict of one thousand dollars 
 against the surgeon. On appeal, the upper court ostensibly 
 rejecting this rule as being unsuited to modern operations, 
 held that under the circumstances consent was reasonably 
 implied. 14 
 
 In a widely quoted case, the patient was taken by her fam- 
 ily physician to a specialist for examination of her hearing. 
 After examining both ears the expert decided an operation 
 on the right ear was necessary. Later, the patient sub- 
 mitted to an operation for that purpose, and after she was 
 under the influence of a general anesthetic and the surgeon 
 examined the right ear, he found that such operation was 
 not imperative at that time, but, upon examination of the 
 left ear, he found it in such condition as to demand im- 
 mediate attention. Without waiting for the patient to re- 
 cover from the anesthetic and getting her consent, he aban- 
 doned the operation on the right ear and operated on the 
 left. It may be inferred from the opinion that the opera- 
 tion was upon the middle ear, through the drum, from the 
 outside. The operation originally contemplated would 
 apparently have required a similar invasion of the body on 
 the right side of the head. After leaving the hospital the 
 patient brought an action for assault and battery against the 
 
 14 Brennan v. Parsonett, 83 N. J. L., 20 ; 83 Atl., 948.
 
 AGREEMENT FOB SURGICAL OPERATION. 123 
 
 surgeon. She was successful before the jury and obtained 
 a verdict for $14,322.50. The defendant moved for a new 
 trial and also for judgment against the plaintiff dismissing 
 the suit, notwithstanding the verdict, on the grounds (a) 
 that the patient's consent was not necessary; (b) that the 
 patient did, in fact, consent to the operation as performed ; 
 and (c) that the consent of the patient was implied under 
 the circumstances. The motion for a new trial was allowed 
 on the ground that the verdict was excessive, and the plain- 
 tiff appealed therefrom, but the motion to dismiss the suit 
 was denied and the defendant appealed from that part of 
 the order. The court found that the operation was success- 
 fully and skillfully performed, and was of a generally ben- 
 eficial nature to the patient. There was no bad faith shown 
 on the part of the operator. This case appears to be quite 
 generally misunderstood. The opinion shows a thorough 
 consideration of the subject by the court and is in perfect 
 consonance with the rights of all parties concerned, though 
 it is barely possible that the defendant's motion to dismiss 
 should have been sustained on the ground that the consent 
 of the patient was implied. 15 
 
 Damages for Unauthorized Operation. In determining 
 the amount of damage for an operation beyond the purpose 
 and scope authorized, the jury should take into consideration 
 the character of the injury inflicted, the good faith of the 
 operator, the reasonableness of what he did, in view of the 
 general purpose of his employment, the nature and exigency 
 of the malady which was the subject of the engagement and 
 of the disorder actually treated, and the beneficial nature 
 of the operation performed. 16 Even though the services 
 were actually beneficial to the patient, still he should recover 
 nominal damages for the technical trespass, and the opera- 
 tor cannot recover a fee for his services in that behalf. 
 
 15 Mohr v. Williams, 95 Minn., 261. 
 
 16 Mohr v. Williams, 95 Minn., 261.
 
 CHAPTER XL 
 RES IPSA LOQUITUR. 
 
 The Maxim. The maxim, res ipsa loquitur, is a well rec- 
 ognized principle in the law of evidence as applied to negli- 
 gence cases. Literally translated, the expression means 
 the thing itself speaks, or the thing speaks for itself. 
 
 Basis of the Maxim. Like most rules of evidence it has 
 its basis in the nature of our mental processes. Thanks to 
 our faculty of reason, our knowledge is not confined to 
 information which conies to us through the senses. We 
 early learn the relation of cause and effect, and that certain 
 causes always (or usually or sometimes) produce certain 
 effects, so that when either is brought to the mental 
 consciousness through the senses the other is deduced by a 
 mental process which, where the relation always exists, be- 
 comes so natural as to be almost, if not entirely, without 
 conscious effort. The man who passes through a tropical 
 hurricane, when it is over, admittedly has, by memory, the 
 observation of his senses at the time of the fact of such an 
 event and knows as a matter of memory of causes and effects 
 that such disturbance of the elements occurred. The man 
 who views the devastated forests, the raging torrents and 
 the spreading floods, with their usual concomitants, by a 
 simple process of reasoning, based upon past experiences, 
 knows that nature has experienced one of her periodic con- 
 vulsions and thereafter, the event to him becomes a memory 
 of effects. In our mental processes we go so readily from 
 cause to effect and vice versa, as often to confuse them in 
 thought and speech. Our minds are so constituted that any 
 
 124
 
 RES IPSA LOQUITUR. 125 
 
 given fact presupposes other facts in corelation therewith, 
 both prior and subsequent thereto. Every effect is the 
 result of some prior cause, and in its turn becomes the cause 
 of some subsequent effect. 
 
 When in the universal experience of mankind, a certain 
 familiar effect has but one known cause, the presence of 
 the effect is a conclusive demonstration of the existence of 
 the prior cause, even though the specific effect does not 
 always result from the given cause. Thus, the fact that a 
 woman is pregnant is unanswerable proof of prior sexual 
 intercourse, and hence, of sexual contact with some man. 1 
 
 Presumptions. A presumption is a hypothetical or in- 
 ductive inference; something that is supposed to be true 
 upon grounds of probability. Presumption is an inference 
 as to the existence of a fact from the existence of some other 
 fact or facts based upon previous experience of that connec- 
 tion, implying relation or association, or dictated by the 
 policy of administrative law. Presumptions are inferences 
 in accordance with the common experience of mankind and 
 the established principles of logic. The strength of a pre- 
 sumption is dependent on the closeness or uniformity of 
 association of the given fact or facts with the fact inferred. 
 Thus, from the fact that the ground is wet, the presumption 
 that it has rained will be strengthened according to the 
 appearance of the ground, the extent of the wet area and 
 other incidents exclude other causes for the condition. 
 
 KINDS OF PRESUMPTIONS. Writers on legal topics speak 
 of presumptions of fact and presumptions of law, and divide 
 the latter into disputable and indisputable presumptions. 
 Presumptions of law are only strong presumptions of fact. 
 Where public policy or welfare are involved, these strong 
 presumptions of fact are usually indisputable presumptions 
 of law. Thus, rational men usually intend the reasonable 
 
 i Thrasher v. State, 92 Neb., 110.
 
 126 MEDICAL JURISPRUDENCE. 
 
 and probable consequences of their conscious acts and, there- 
 fore, where the act is wrongful, the law conclusively pre- 
 sumes such intent. A party will not be permitted to show 
 that he really intended otherwise. In criminal law an act 
 is inevitably characterized by its consequences, when reason- 
 able and probable, regardless of the real intent of the actor. 
 In this connection we are interested only in certain pre- 
 sumptions of fact in which no questions of the policy of the 
 law are involved. They are only the application of the 
 principles of logic to the ascertainment of facts which are 
 the subject of inquiry in judicial tribunals. 
 
 Presumption Upon Presumption. As a matter of evi- 
 dence a presumption cannot be based upon a presumption. 
 Thus, it is too remote to presume an accidental injury from 
 lifting a box, when the fact of lifting the box must be pre- 
 sumed from facts and circumstances. 2 Here there was suf- 
 ficient evidence to justify the inference that the patient did 
 lift and carry the box in question, and also that he was in- 
 jured by force or violence, but there was no evidence to con- 
 nect the injury with the handling of the box. Other causes 
 of the injury were not excluded. 
 
 Mental Convictions. To produce a given mental convic- 
 tion some fact or state of facts having a probative tendency 
 in that direction, must be adduced. Evidence precedes 
 rational conviction. Hence the law naturally places upon 
 the party who asserts a certain proposition the burden of 
 introducing some evidence to establish his contention. If 
 he alleges that his adversary was negligent whereby he was 
 injured, he must show by some evidence both the negligence 
 and the injury. In the law of evidence nothing is taken on 
 faith, and what cannot be proven, either directly or from 
 inference from which the possibility of mistake is sub- 
 stantially eliminated, is treated as though it did not exist. 
 
 2 Globe Ace. Ins. Co. v. Gerisch, 163 111., 625.
 
 RES IPSA LOQUITUR. 127 
 
 The law always requires the best evidence. Juries in de- 
 termining ultimate facts may draw any rational, reasonable 
 conclusions from the facts in evidence before them. 
 
 Application of the Maxim. Now, it sometimes happens 
 that the party complaining cannot produce direct evidence 
 of the negligent act, the proof thereof being entirely within 
 the control of his opponent ; but he may be able to produce 
 abundant facts from which, unexplained, reasonable minds 
 would naturally draw the conclusion that the party against 
 whom he complains was in the wrong. Therefore, 
 
 The Reason for the Rule. The necessity of the case con- 
 stitutes the reason for the departure from the usual rules 
 of evidence in such cases. If the general rule were to be 
 applied justice might sometimes be defeated under circum- 
 stances from which all rational, unbiased minds would not 
 hesitate to draw a conclusion of wrongful conduct on the 
 part of the person sought to be charged. The maxim is a 
 departure from the harshness of the common law, in that it 
 shifts the burden of explanation from the party complain- 
 ing to the party who naturally is in the best position to know 
 the facts. 
 
 When Maxim Is Applicable. (a) The party against 
 whom it operates must owe the injured party some general 
 or special duty of protection or care, and that duty must 
 have been violated, and (b) the fact must be such as, in the 
 absence of explanation, naturally raises an inference of neg- 
 ligence on the part of some one, in which event the party 
 owing the duty is charged with the burden of showing that 
 the occurrence was without his fault. It has been said that 
 this phrase is often used in actions for injury by negligence 
 when no proof of negligence is required beyond the occur- 
 rence itself, "which is such as necessarily to involve negli- 
 gence." 3 
 
 3 Bouvier Law Dictionary.
 
 128 MEDICAL JURISPRUDENCE. 
 
 History and Illustrations. The doctrine was first applied 
 to a case where a traveler on a public highway, while passing 
 in front of a building adjoining the same, was injured by a 
 barrel rolling out of a second-story door. Barrels, when 
 properly placed, do not, of their own volition, change their 
 position. Hence negligence of the party in charge of the 
 barrel was properly inferred, and, as the owner of property 
 adjoining the highway owed a person, rightfully using the 
 same, the special duty of so using his property as not to 
 injure the other, the court said that the burden of explain- 
 ing, the circumstances under which the barrel fell, should 
 be upon the owner in possession of the property and the 
 barrel, as he was in the best position to know the circum- 
 stances leading up to the accident and injury, in other 
 words, why the barrel fell. 4 As stated by one authority, 
 * ' the occurrence itself is evidence of negligence. ' * 5 The 
 doctrine has also been applied to a case where a pedestrian 
 on a sidewalk in a city was injured by a hammer falling from 
 a swinging scaffold which was being used by workmen in 
 front of the building. 6 
 
 Effect From More Than One Cause. The inference would 
 not have arisen in the original case if the evidence had left 
 it uncertain from which of two doors, on different premises, 
 under different control and ownership, the barrel fell. If, 
 from the evidence, the hammer might have fallen indiffer- 
 ently, either from a scaffold under the control of A, or from 
 a scaffold under the control of B, there can be no presump- 
 tion that either A or B specifically was negligent. There 
 must be at least a preponderance of the evidence that it came 
 from one rather than the other. 
 
 Where the death of a patient might have been caused by 
 
 4 Byrne v. Boadle, 2 H. & 0., 722. 
 
 5 Cunningham v. Dady, 191 N. Y , 152, 155; Ennis v. Gray, 87 Hun (N. Y.), 355, 
 361. 
 
 6 Hunt v. Hoyt, 20 111., 544.
 
 BBS IPSA LOQUITUR. 129 
 
 the improper administration of an anesthetic by the prac- 
 titioner or by calcareous degeneration of the heart, the 
 practitioner is not liable unless it is made to appear by a 
 preponderance of all the evidence that death resulted either 
 wholly or in part from the improper use or negligent admin- 
 istration of the anesthetic. 7 Where a result may be ex- 
 plained by either of several causes its presence does not 
 establish either, and the greater the number of probable 
 causes the weaker the inference of any one cause. 8 
 
 As Applied to Physicians and Surgeons. X-RAY. Burn- 
 ing a patient by X-ray is prima facie evidence of negligence, 
 that is to say, the result, unexplained, condemns the operator 
 and casts upon him the burden of showing how it happened 
 without his fault, and if he fails he is liable. 9 
 
 SPONGE CASES. This doctrine is illustrated in cases where 
 absorbent gauze or sponges, or other foreign bodies, are 
 left in the abdominal cavity after operations. The pres- 
 ence of the intruder, left without purpose, impels the un- 
 biased mind to the inference that the surgeon in charge 
 failed to do his whole duty and, because of that inference 
 and the fact that he owed the patient a special duty of care 
 and skill, the law casts on him the burden of showing that 
 he was without fault. Of all persons, he ought to know why 
 the foreign substance was left there. The broad equities 
 of the case and common conscience demand that he be called 
 upon to explain the occurrence and show, if he can, that he 
 did all that could be done, or should have been done, under 
 the circumstances to find and remove all foreign objects. 
 An explanation that merely shifts the blame on others will 
 not suffice. In the language of one of our courts 
 
 "Why was there left in the parts a foreign substance 
 which the operating surgeon should have removed? It 
 
 TYaggle v. Allen, 48 N. Y. Supp., 827. 
 
 8 Ewing v. Goode, 78 Fed., 442. 
 
 9 Shockley v. Tucker, 127 Is., 456.
 
 130 MEDICAL JURISPRUDENCE. 
 
 was for him to acquit himself of negligence with respect to 
 it. The sponge escaped his observation. Why? Was it 
 so hidden and concealed that reasonable care on his part 
 would not have disclosed it, or were conditions such that, in 
 his professional judgment, further exploration by him for 
 sponges would have endangered the safety of the patient? 
 In a word, did he do all that reasonable care and skill would 
 require ? Except as one or the other of these questions can 
 be answered affirmatively, from the evidence, the law will 
 presume to the contrary and attribute the unfortunate con- 
 sequences to his contributing negligence. Neither does the 
 defendant, nor a single witness in his behalf, undertake to 
 give any explanation of the fact that a sponge, which the 
 defendant should have removed, was allowed to remain, 
 except to say that the nurses failed to keep accurate count. 
 From all that appears in the case, the retained sponge might 
 readily have been discovered by the surgeon, and reasonable 
 prudence and care on his part would have avoided the acci- 
 dent. If this were so, clearly his negligence contributed 
 with that of the nurses and responsibility therefor, in law, 
 attached." 10 
 
 As Applied to Dentists. Leaving part of a brooch in a 
 tooth and closing up the cavity, should trouble afterwards 
 result therefrom, would cast upon the operator the burden 
 of showing that he was without fault in the premises. The 
 presence of the broken end of the brooch requires an ex- 
 planation from the person responsible for its presence, and 
 a failure in this respect rightfully fixes his responsibility. 11 
 A complete fracture of the submaxillary, while extracting a 
 tooth, is of such rare occurrence, where proper care is exer- 
 cised, as to raise a presumption of negligence on the part of 
 the extractor, and the law should impose upon him the bur- 
 
 10 Davis v. Kerr, 239 Pa. St., 351. See Palmer v. Humiston, 87 Ohio St., 351; Gil- 
 lett v. Tucker, 67 O. St., 106. 
 
 11 Van Skike v. Potter, 53 Neb., 28.
 
 RES IPSA LOQUITUR. 131 
 
 den of showing that he exercised due and reasonable care 
 and skill under the circumstances. It has been held, how- 
 ever, that dislocating the jaw in extracting teeth does not 
 raise a presumption of negligence. 12 Leaving a tooth go 
 down the windpipe of a patient who is under the influence of 
 an anesthetic raises a presumption of negligence on the part 
 of the operating dentist and casts upon him the burden of 
 showing that the incident occurred without his fault. 13 
 
 Where Not Applicable. Where the inference is uncertain 
 and doubtful the maxim does not apply. Thus, where the 
 evidence is uncertain whether the foreign body was left in 
 the cavity by the operating surgeon at the time of closing the 
 incision from the original operation, or was put in after- 
 wards by others, independent of the operator, in the course 
 of drainage, the doctrine would not apply. 14 In the Harris 
 case last cited there was evidence tending to show that the 
 surgeon should have discovered the gauze during his course 
 of treatment after the operation and before the termination 
 of the relation. 
 
 Infection. Ordinarily the sequence of an aggravated 
 condition, does not raise any presumption of improper treat- 
 ment. Where a condition can be explained by either of 
 several causes, its presence proves neither. Thus, the 
 presence of infection following treatment does not of itself 
 prove that the practitioner was at fault, because the trouble 
 may have been introduced by other means, either before or 
 after the services. 15 Evidence must be produced to connect 
 the treatment with the untoward result. 
 
 12 Donoghue v. Shane, 170 Mich., 544; 136 N. W., 367. 
 
 13 Keily v. Colton, 1 City Ct. (N. Y.), 439; See McGehee v. Shiftman, 4 Cal. App., 50. 
 
 14 Harris v. Pall, 177 Fed., 79; 27 L. B. A., 1174; Holmes v. McKennan, 120 111. 
 App., 320. 
 
 15 Friend v. Kramer, 236 Pa. St., 618 ; Ewing v. Goode, 78 Fed., 442.
 
 CHAPTER XII. 
 
 CIVIL MALPRACTICE. 
 
 Obligations Imposed by Law. 
 
 Implied Conditions of the Relation. Skill, care and 
 judgment are required in the performance of every duty. 
 They are inherent in our ideas of proper conduct, and are an 
 implied stipulation of every undertaking. Their degree 
 varies with the character of the act in question, and is pro- 
 portionate to the nature of the calling involved and the pur- 
 poses and aims of the efforts. They have a direct relation 
 to the risk involved. 
 
 Public Policy. These requirements are elementary, and 
 the law is merely declarative of the basic principles of our 
 notions of right and justice. They have their foundation 
 in most persuasive considerations of logic, equity and public 
 policy. The purpose of the law in incorporating these im- 
 plied stipulations as binding obligations of the relation is 
 to protect the health and lives of the public from the unskill- 
 fulness, carelessness and bad judgment of practitioners by 
 holding them liable to respond in damages for injuries re- 
 sulting from default in these respects. 1 Therefore, ques- 
 tions of skill, care and judgment are always raised in actions 
 of malpractice. The untoward result complained of may 
 have happened because of the ignorance, carelessness or bad 
 judgment of the party sought to be charged. 
 
 Statement of the Obligations. A person who offers his 
 services for employment in any profession, as a practitioner 
 in that profession, by implication contracts with his em- 
 ployer, and by positive requirement the law demands 
 
 i Nelson v. Harrington, 72 Wis., 591. 
 
 132
 
 OBLIGATIONS IMPOSED BY LAW. 133 
 
 FIRST. That he possess that reasonable degree of learn- 
 ing, skill and experience which is usually possessed by mem- 
 bers of the profession at the time and place, and which is 
 ordinarily regarded by the community, and by those con- 
 versant with that profession, as necessary and sufficient 
 reasonably to qualify him for such employment : 
 
 SECOND. That he shall exercise reasonable and ordinary 
 care and diligence in the exertion of his skill and the applica- 
 tion of his knowledge to accomplish the purpose for which 
 he is retained, and 
 
 THIRD. That in the exertion of his skill and the applica- 
 tion of his care and diligence, he shall use his best judg- 
 ment. 2 
 
 Obligations Measured by Liability. The implied obliga- 
 tion of a practitioner, retained to treat a person profession- 
 ally, extends no further, in the absence of special agreement, 
 than that he will indemnify his patient against any injurious 
 consequences resulting from his want of the proper degree 
 of skill, and from his failure to exercise due care, under the 
 circumstances, or to use his best judgment in the premises in 
 the execution of his employment. 3 
 
 Requirement Is General. The same obligation rests upon 
 the practitioner of any profession. Persons who offer 
 themselves to the public as practitioners of any profession 
 thereby impliedly promise the persons employing them that 
 they possess the requisite skill and knowledge to enable 
 them to handle or treat with reasonable success such cases as 
 they undertake. This rule does not require the possession 
 of the highest, or even the average, skill but only such as 
 will enable the practitioner to treat the cases undertaken 
 safely and understandingly. " Every person who enters a 
 learned profession undertakes to bring to the exercise of it 
 
 2 Leighton v. Sargent, 27 N. H., 460; Kuhn v. Brownfield, 34 W. Va., 252; Coombs v. 
 King, 107 Me., 376; Whitesell v. Hill, 101 la., 629; 37 L. B. A. (O. S.), 830, n. 
 
 3 Craig v. Chambers, 17 O. St., 253 ; 9 Cyc. Ev., 851.
 
 134 MEDICAL JURISPRUDENCE. 
 
 a reasonable degree of skill. If he is an attorney, he does 
 not undertake at all events to gain the case; nor does a 
 surgeon undertake that he will perform a cure, nor does the 
 latter undertake to use the highest degree of skill, as there 
 may be persons of higher education and greater advantages 
 than himself. However, he does undertake to bring a fair, 
 reasonable and competent degree of skill. ' ' 4 
 
 Skill. 
 
 Degree of Skill Required. In this connection the word 
 skill is used in the broadest sense and means knowledge, 
 qualification, ability, dexterity. The degree of skill re- 
 quired is not capable of exact determination. It can be 
 stated only in relative terms, which are necessarily variable 
 in their nature. Each generation each moment takes 
 care of itself. 
 
 THE TEST. The test is, Does the practitioner possess the 
 reasonable knowledge and skill ordinarily possessed by 
 members of the profession in average localities similarly 
 situated at the time? 
 
 When a person assumes the profession of medicine and 
 surgery but makes no special representations as to his skill, 
 the law implies that he thereby represents that he has an 
 ordinary degree of skill, knowledge, qualification and ability 
 in that respect, and holds him accountable to his patient 
 therefor. 5 The presumption and obligation extend to the 
 positive requirement that such skill shall be applied to the 
 particular case in order that the patient may have the benefit 
 thereof. 6 The law implies an undertaking on the part of 
 the practitioner that he will use reasonable and ordinary 
 skill in the professional treatment of his patients. 7 
 
 * Lamphier v. Phipos, 8 Car. & P., 478. 
 
 5 Ritchie v. West, 23 111., 329, 330. 
 
 6 Barnes v. Means, 82 111., 379, 384, 
 
 7 Cnitty on Contracts, 553.
 
 OBLIGATIONS IMPOSED BY LAW. 135 
 
 ORDINARY SKILL. By ordinary skill is meant such skill as 
 is commonly possessed by men engaged in the profession in 
 similar localities at the time. 8 The standard of ordinary 
 skill may vary even in the same State according to the 
 greater or less opportunities afforded by the locality for 
 observation and practice. 9 
 
 The reasonable and ordinary skill which is required of 
 practitioners of any profession is such as those in the same 
 general lines of practice at the time and in similarly situated 
 localities, ordinarily have and exercise. 10 
 
 BEST SKILL. A practitioner is not chargeable with neg- 
 ligence for failure to use his own best skill, if he uses the 
 skill which is exercised generally by practitioners of ordi- 
 nary skill in similar localities at the time, provided his con- 
 duct is consistent with due care and good judgment under 
 the circumstances. 11 
 
 HIGHEST SKILL. The law does not require that a physician 
 shall have the highest degree of knowledge and skill. 12 He 
 is not bound to possess the highest degree of art and skill 
 possessed by eminent surgeons practicing in large cities. 13 
 
 AVERAGE SKILL NOT REQUIRED. The standard of require- 
 ment in this respect is not even as high as the average skill 
 of the competent members of the profession in similarly 
 situated communities generally, at the time, because average 
 means midway between two extremes and, therefore, there 
 must be some competent practitioners on both sides of the 
 line. In its ultimate analysis the standard of capacity is the 
 lowest qualification tolerated by law. 14 
 
 NOT THE SKILL OF THE EDUCATED ONLY. The skill re- 
 
 8 Heath v. Glisan, 3 Ore., 64; Dashiell v. Griffith, 84 Md., 363. 
 
 9 Smothers v. Hanks, 34 la., 289. 
 
 10 Carpenter v. Walker, 170 Ala., 659. 
 
 11 Dorris v. Warford, 124 Ky., 768; 9 L. R. A., 1090. 
 
 i2McNevins v. Lowe, 40 HI., 209, 210; Ritchie v. West, 23 111., 329, 330. 
 
 is Small v. Howard, 128 Mass., 131. 
 
 14 Holtzmnn v. Hoy, 118 111. App., 534.
 
 136 MEDICAL JURISPRUDENCE. 
 
 quired need not be that of thoroughly educated practitioners 
 only, but must be that of the average, having regard to the 
 improvement and advanced state of the profession at the 
 time of the treatment. 15 
 
 ONLY THE COMPETENT CONSIDERED. While the law does 
 not exact the highest degree of skill and proficiency obtain- 
 able in a profession, still it does not, on the other hand, con- 
 template mere average merit, including the skillful and un- 
 skillful. 16 In order to determine who will come up to the 
 legal standard, we are not permitted to aggregate into a 
 common class the quacks, the charlatans, the empirics, the 
 new men who have had no practice, the old ones who have 
 dropped out of the practice, the skilled and the unskilled, 
 the good and the very best, and then strike an average 
 between them, as such method would place the standard too 
 low. In fixing a standard and striking an average only the 
 ordinarily and reasonably skillful should be considered. 
 
 LOCALITY AND TIME AFFECT SKILL REQUIRED. A physician 
 practicing in a small village who undertakes to perform a 
 difficult operation, is bound to possess that skill and ability 
 only which physicians and surgeons of ordinary ability and 
 skill practicing in similar localities at the time, with oppor- 
 tunities for no large experience, ordinarily possess. 17 In 
 determining what constitutes the reasonable and ordinary 
 skill and diligence which it is the duty of a physician to 
 possess and exercise, the test is the degree of skill and 
 diligence which other physicians in the same general neigh- 
 borhood, and in the same general line of practice, at the 
 time, ordinarily have and practice. 18 In other words, a 
 physician must have such skill as physicians in the same 
 general neighborhood in the same general line of practice 
 
 15 Peck v. Hutchinson, 88 la., 320. 
 
 16 Holtzman v. Hoy, 118 HI. App., 534. 
 IT Small v. Howard, 128 Mass., 131. 
 18 Force v. Gregory, 63 Conn., 167.
 
 OBLIGATIONS IMPOSED BY LAW. 137 
 
 ordinarily have and exercise in like cases. 19 A physician 
 is required to use no more skill than that of the physicians 
 of his neighborhood, if there are other physicians there pre- 
 sumably of average ability when compared with similar 
 localities. 
 
 In its ultimate analysis the rule means that the practi- 
 tioner must exercise the average degree of skill possessed 
 by ordinarily and reasonably skillful members of the pro- 
 fession in such localities generally, at the time, and not a 
 standard determined by the average skill in his own lo- 
 cality. 20 
 
 DEGREE OF SKILL AILMENT TREATED. The degree of skill 
 required has no relation to the character of the services to 
 be performed in the particular case. The standard of 
 knowledge and skill fixed by the law for the practice of any 
 profession has no relation to the condition or disease 
 treated, is not in proportion to the severity of the injury, 
 nor the nature of the operation, nor is it dependent upon 
 the circumstances of the case. 21 
 
 PROOF OF SKILL. A license is prima facie evidence of the 
 possession of skill and, in the absence of evidence to the 
 contrary, is sufficient to establish that fact. 
 
 INFERENCE OF WANT OF SKILL. If the ground of com- 
 plaint be stated as want of skill, the evidence must have 
 reference to lack of that qualification as displayed in the 
 particular case. It is quite clear that the treatment might 
 show such gross ignorance of the business of the practi- 
 tioner as to put it beyond all doubt that he has not the 
 amount of skill usually possessed by members of the pro- 
 fession or even, in fact, that he had no knowledge of his 
 profession at all. 22 It might appear that the course pur- 
 
 19 Gates v. Fleisher, 67 Wis., 504 ; Nelson v. Harrington, 72 Wis., 591. 
 
 20 Oramm v. Boener, 56 Ind., 407 ; Kelsey v. Hay, 84 Ind., 189. 
 
 21 Utely v. Burns, 70 111., 162, 164. 
 
 22 Com. v. Thompson, 6 Mass., 134.
 
 138 MEDICAL JURISPRUDENCE. 
 
 sued was wholly unknown to the profession and that it re- 
 sulted, as it necessarily must, in detriment to the patient. 
 Certainly nothing further would need to be shown to render 
 answerable for an injury done, one who should offer his 
 services as a skillful practitioner. 23 
 
 SKILL AT TIME OF SERVICE. The inquiry as to skill must 
 be directed to the time of the alleged malpractice, not to 
 a period long subsequent thereto. Possession of skill to- 
 day does not tend to establish skill two years ago. 24 
 
 Care. 
 
 Degree of Care Required. DEFINITION. Care is atten- 
 tion with a view to safety or protection; or oversight or 
 watchful regard, implying concern or a sense of personal 
 responsibility, in an endeavor to promote an aim or accom- 
 plish a purpose. It is a relative term and varies accord- 
 ing to the danger involved in the want of vigilance. 
 
 Due care means attention according to circumstances. 
 All the circumstances must be taken into consideration in 
 determining what is due care. 
 
 As a general rule, he who undertakes for reward to per- 
 form any work, is bound to use a degree of care, diligence 
 and attention adequate to the performance of his under- 
 taking, according to the rules of the particular art involved. 
 Care must be proportionate to the extremities of the situ- 
 ation. The degree of care, like the degree of skill, is not 
 capable of exact determination or statement. Here again, 
 we are forced to resort to relatives. Ordinary care and 
 diligence, under the special circumstances, constitutes the 
 measure of duty and responsibility of the practitioner in 
 the application of his skill and knowledge in the treatment 
 
 23 Leighton v. Sargent, 31 N. H., 119. 
 
 24 Leighton v. Sargent, 31 N. H., 119.
 
 OBLIGATIONS IMPOSED BY LAW. 139 
 
 of his patients. He must act with the reasonable care and 
 diligence ordinarily and reasonably used by ordinary prac- 
 titioners of the profession in average localities similarly 
 situated at the time. 25 
 
 THE TEST. The test is, What would an ordinarily skill- 
 ful, careful and prudent practitioner have done under the 
 circumstances^ 
 
 ORDINARY CARE. The reasonable and ordinary care which 
 is required of practitioners of a profession, is such care as 
 those in the same general neighborhood, in the same gen- 
 eral lines of practice, at the time, ordinarily exercise in 
 like cases. 26 
 
 HIGHEST CARE. A practitioner is not required, as a mat- 
 ter of law, to use the highest degree of care of which he is 
 capable, if the care which he does exercise is that degree 
 which is exercised generally by practitioners of usual and 
 ordinary skill and care in similar localities, under the same 
 or similar circumstances, provided his conduct is consist- 
 ent with ordinary skill, having reference to the state of the 
 science in the locality at the time. 
 
 CARELESSNESS MISCONDUCT. Carelessness is an act of 
 omission and involves an abuse of discretion under a defi- 
 nite obligation; misconduct is an act of commission by vio- 
 lating a definite law or duty. Misconduct is a forbidden 
 act and is, necessarily indefinite, depending upon the cir- 
 cumstances. 27 
 
 CARELESSNESSS NEVER EXCUSED IN LAW. That others have 
 been similarly careless is no defense to an action for mal- 
 practice. The fact that all men are sometimes careless, 
 does not excuse any man for being careless at any time. 28 
 
 25 Ritchie v. West, 23 111., 329, 330; McNevins v. Lowe, 40 111., 209, 210; Beck v. 
 German Klinik, 78 la., 696. 
 
 26 Carpenter v. Walker, 170 Ala., 650. 
 
 27 Citizens Ins. Co. v. Marsh, 41 Pa. St., 386, 394. 
 
 28 Samuels v. Willis, 133 Ky., 459; 19 A. C., 188. (A sponge case.)
 
 140 MEDICAL JURISPRUDENCE. 
 
 Judgment. 
 
 Nature of Judgment Required. GENERALITY OF APPLICA- 
 TION. In the discharge of every mandate there is involved 
 the exercise of more or less judgment. However menial 
 the service may be, a certain latitude of discretion is neces- 
 sarily incident to its performance. You cannot eliminate 
 this human element from any conscious effort. From the 
 laborer who digs in the ditch to the surgeon who holds a 
 life in his hands, the element of judgment in the discharge 
 of his duties is an essential part of the undertaking. In 
 employing a person for any task, the employer knows that 
 the exercise of that person's judgment will be involved in 
 the performance of the services, and it is that person's 
 judgment which is being paid for. "We do not expect om- 
 niscience nor infallibility, and the law does not require that 
 standard. A man's judgment may be good, bad or indif- 
 ferent and, whichever it is, the employer engages that and 
 nothing more, and the servant has discharged his whole 
 duty when he has given his employer his best judgment. 29 
 
 REQUIREMENT STATED. In every contract of service the 
 law injects the stipulation that the servant must use his 
 best judgment in the discharge of his duties. 
 
 LATITUDE OF DISCRETION. In all professional services, 
 there is a wide latitude for the exercise of discretion, and 
 the practitioner fulfills his obligation in this respect when, 
 in good faith in the exercise of due skill and care, after rea- 
 sonably informing himself, he determines the course to 
 pursue. The medical and surgical practitioner is contin- 
 ually required to exercise his discretion as to the course 
 of treatment, or method of operation to be pursued. 
 Herein, he owes his patient his best judgment and nothing 
 more. 30 Of course, as a basis for the exercise of that judg- 
 
 29 Gramm v. Boener, 56 Ind., 497. 
 so McKee t>. Allen, 94 111. App., 147.
 
 OBLIGATIONS IMPOSED BY LAW. 141 
 
 ment he owes his patient the obligation carefully to diag- 
 nose the case, and reasonably to inform himself of condi- 
 tions and circumstances. 
 
 No GUARANTY THAT JUDGMENT IS CORRECT. A physician 
 
 does not guarantee that his judgment is correct, nor that it 
 is as good as the judgment of some other practitioner. 
 When in the exercise of reasonable and ordinary skill and 
 due care he gives his patient the benefit of the exercise of 
 his best discretion, he has done all that the law requires 
 and he is not liable in damages, even though his judgment 
 is wrong and his patient is injured thereby. 31 Of course 
 reasonable information must precede the exercise of good 
 judgment. Good faith requires that the practitioner un- 
 derstands before he decides. If he makes a skillful and 
 careful investigation, in good faith, he is not liable even 
 though his diagnosis is wrong, and, on the other hand, as- 
 suming that his diagnosis is correct and that, in the exer- 
 cise of his best judgment, he arrives at a wrong conclusion, 
 still he is not liable for the inconvenience or damage which 
 his patient may suffer. 32 
 
 DIFFERENT METHODS. Where, under the usual practice 
 of the profession, different courses of treatment or pro- 
 cedure may properly and reasonably be applied, and the 
 patient does not limit the practitioner to any particular 
 treatment or procedure, the latter has a right to use his 
 best judgment as to the manner and means of treatment 
 and procedure, and he will not be liable in an action for 
 malpractice so long as his conduct is not inconsistent with 
 ordinary skill and due care under the circumstances. If a 
 practitioner uses his best judgment in all respects he is not 
 liable in damages to his patient for malpractice, provided 
 his conduct was not inconsistent with the possession and 
 
 31 Wilkins v. Ferrell, 10 Tex. Civ. App., 231. ' 
 
 32 Patten v. Wiggins, 51 Me., 594; Williams v. Peppleton, 3 Ore., 139; Fisher v. 
 Niccolls, 2 111. App., 484.
 
 142 MEDICAL JURISPRUDENCE. 
 
 use of ordinary skill and due care under the circumstances, 
 even though some other practitioner would have pursued a 
 different course, and the results show that the former was 
 mistaken. 33 
 
 Presumptions of Skill, Care and Judgment. In the ab- 
 sence of evidence the law indulges no presumption of want 
 of skill, care or good judgment; neither does it infer the 
 presence of these qualities. 34 It is not enough to render a 
 practitioner liable to show that he has a less degree of skill 
 than some other practitioner might have shown, or that he 
 exercised a less degree of care than he himself might have 
 been able to bestow; or that he made a mistake in judg- 
 ment; nor is it enough that he even acknowledges some 
 want of care or some error in judgment : There must have 
 been a want of ordinary skill and care to such a degree as 
 to have led to the bad results. 35 The manner in which the 
 services were performed is the true test of their charac- 
 ter. 36 In the absence of proof, the courts presume that the 
 work was skillfully and carefully done and that the prac- 
 titioner used his best judgment, or rather, at least, the bur- 
 den is on the patient to establish the contrary, and in the 
 absence of any proof there would be no basis for a claim 
 for liability. 37 
 
 INFERENCES FROM INJURIOUS RESULTS. Ordinarily the 
 fact that injurious results followed treatment does not jus- 
 tify an inference of want of skill, care or good judgment. 
 The consequences complained of may be the result of the 
 patient's condition, and in no respects due to the conduct 
 of the practitioner. Generally speaking, the fact that a 
 patient is suffering from some abnormal condition after 
 the services, or that he received no benefit from the treat- 
 
 33 Luka v. Lowrie, Mich., ; 41 I. R. A., 290. 
 
 34 Davis v. Kerr, 239 Pa. St., 351. 
 
 35 Rich v. Pierpont, 3 Foster & F., 35. 
 
 36 Bute v. Potts, 76 Cal., 304. 
 
 37 State v. Housekeeper, 70 Md., 162.
 
 OBLIGATIONS IMPOSED BY LAW. 143 
 
 ment, or that the practitioner failed to accomplish satis- 
 factory results, does not raise any presumption of want of 
 skill, care or good judgment. 38 Default in these respects 
 must be established from all the facts and circumstances in 
 the case. The result of treatment is often only a minor 
 consideration. 
 
 That a fractured limb is shorter than the other after the 
 recovery of the patient, is not evidence that the practitioner 
 was negligent, as such condition might result from the 
 nature of the fracture or the condition of health and age 
 of the patient. 39 The burden of explaining the fact is on 
 the patient and he must show that the treatment of the case 
 was the primary cause for the shortening. 
 
 However, leaving a tooth go down the windpipe of a pa- 
 tient who is under the influence of an anesthetic raises a 
 presumption of negligence on the part of the operating 
 dentist and casts upon him the burden of showing that the 
 incident occurred without his fault. 40 
 
 Also, it has been held that failure of a physician to 
 discover a serious rupture of the perineum, after repeated 
 examinations for that purpose, is actionable negligence. 41 
 In the case cited, the condition must have been such as to 
 make the failure to discover the ailment inconsistent with 
 reasonable skill or ordinary care. The jury may find that 
 it is negligence for an attending physician to fail to dis- 
 cover and remove a detached portion of the placenta after 
 a miscarriage. 42 
 
 Agreement Waiving These Requirements. A practi- 
 tioner cannot contract with his patient against his responsi- 
 bility for negligence growing out of his want of skill or 
 
 38 Friend v. Kramer, 236 Pa. St., 618. 
 
 39 Piles v. Hughes, 10 la., 579. 
 
 40Keily f. Colton, 1 City Ct. (N. Y.), 439; flee McGehee v. Shiftman, 4 Cal. App., 50. 
 For full discussion see chapter on Res Ipsa Loquitur. 
 
 41 Lewis v. Dwinell, 84 Maine, 487. 
 
 42 Moratzky v. Wirth, 67 Minn., 46 ; See Langford v. Jones, 18 Ore., 407.
 
 144 MEDICAL JURISPRUDENCE. 
 
 care, or Ms failure to exercise his best judgment in his 
 services to his patient, as such an agreement is against 
 public policy and, therefore, void. 43 
 
 Agreement for Special Skill. A practitioner may agree 
 to bring to the aid of his patient a higher degree of skill 
 and to exercise a higher degree of care than the law im- 
 poses on the relation, and he will be required to fulfill his 
 special promise. If the practitioner defaults, the patient 
 will have a right of action for breach of contract. If the 
 patient relies on specific representations of extraordinary 
 skill and ability on the part of the practitioner, he must 
 allege such facts in his declaration, because the law does 
 not imply them from the relation. 44 
 
 Specialists. Where a person holds himself out as a spe- 
 cialist in the treatment of a certain organ, anatomical part, 
 physiological function, injury or disease, he is bound to 
 bring to the aid of the one employing him as such, both in 
 diagnosis and treatment, that degree of skill and knowledge 
 which is ordinarily possessed by those who devote special 
 study and attention to that particular organ, part, func- 
 tion, injury or disease, in the same general locality, having 
 regard to the state of scientific knowledge at the time. 45 
 Thus, one who undertakes to treat an eye as a specialist, 
 must have that degree of care and skill which is ordinarily 
 possessed by physicians who devote special attention and 
 study to the treatment of that organ. 46 The physician who 
 makes a specialty of surgery, the oculist, the aurist, the 
 rhinologist, must give to his patient that degree of knowl- 
 edge and skill which is ordinarily possessed by such spe- 
 cialists in the general locality at the time. 47 
 
 Practitioner Must Keep Pace with the Times. Medical 
 
 43 Hales v. Raines, 162 Mo. App., 46. 
 
 44 Goodwin v. Hersam, 65 Minn., 233. 
 
 45 Rann. v. Twitchell, 82 Vt., 79 ; 20 L. R. A., 1030. 
 
 46 Feeney v. Spalding, 89 Me., 111. 
 
 4T Baker v. Hancock, 29 Ind. App., 456 ; 20 L. R. A., 1030.
 
 OBLIGATIONS IMPOSED BY LAW. 145 
 
 science is moving forward with rapid strides. What is 
 proper practice today may be questioned tomorrow, be 
 abandoned during the week, be antiquated before the close 
 of the month and become all but criminal before the lapse 
 of the year. 
 
 Practitioners must progress with their profession. They 
 cannot cling to antiquated and abandoned methods, prac- 
 tices, remedies and appliances and escape liability for in- 
 juries resulting therefrom. They should not resort to 
 every new-fangled theory, nor always test the latest fad, 
 but the best generally approved improvements should be 
 resorted to when the proper occasion arises, having respect 
 to the locality and time. What was proper a few years 
 ago may be malpractice today. Eesponsibilities are based 
 on present enlightenment and experience. 48 
 
 Experimentation. The policy of the law is very strict 
 against practitioners trying experiments. In other words, 
 a physician cannot experiment with his patients to their 
 injury. 49 
 
 Established Treatment. Generally speaking, where there 
 is an established treatment, it must be followed substan- 
 tially. 50 If the ordinary and established practice of the 
 profession is to treat an ailment in a particular manner, it 
 is the practitioner's duty substantially to follow such prac- 
 tice, and if he adopts some other mode which proves in- 
 jurious, he is guilty of negligence. Where a particular 
 mode of treatment, to the exclusion of others, is upheld by 
 the consensus of opinion among the reasonably skillful and 
 careful members of the profession, and sustained by the 
 general experience of practitioners, it must be substantially 
 followed by the practitioner and, if he sees fit to experiment 
 
 48 McOandless v. McWha, 22 Pa. St., 261; Van Hooser v. Berghoff, 90 Mo., 487; 
 Gramm v. Boener, 56 Ind., 497. 
 
 49 Hasse v. Knippel, 1 Mich. N. P., 102. 
 
 50 Carpenter v. Blake, 60 Barb., 488.
 
 146 MEDICAL JURISPRUDENCE. 
 
 with other modes, he does so at his peril. 51 The burden is 
 upon the patient, however, to show that the departure from 
 the established practice was the cause of the injury. 52 
 
 ESTABLISHED TREATMENT INAPPLICABLE. The rule does 
 not apply where, for any reason, the established mode of 
 treatment cannot be adopted, or is impracticable. 53 
 
 Gratuitous Services. Kesponsibility is not dependent 
 upon nor related to the size or source of the fee. Where 
 the relation exists, the liability attaches. When a profes- 
 sional man undertakes to render professional services to 
 a patient, the law, from necessity, imposes upon him the 
 duty to exercise the skill, care and judgment heretofore 
 explained, and default therein, resulting in damage to the 
 patient, constitutes a cause of action. Therefore, the fact 
 that the services were rendered gratuitously or were paid 
 for by a third party is no defense to an action for malprac- 
 tice. 54 
 
 Non-Professional Volunteer. These requirements of 
 skill, care and judgment are implied by law from the rela- 
 tion of practitioner and patient, and therefore do not apply 
 where the relation does not exist. If a person does not 
 profess to be a physician or to practice as such, and is 
 merely asked his advice as a friend or neighbor, he does 
 not incur any professional responsibility in attempting to 
 give relief, and in the absence of malice on the part of the 
 volunteer the person following his advice would have to 
 bear the consequences. Thus, the friend who, in case of 
 neuralgia, cold, indigestion or other infirmity, volunteers 
 advice and assistance to relieve the distress, does not 
 thereby undertake to possess the qualifications of a phy- 
 sician, and where there is no such implied representation 
 
 51 Jackson v. Burnham, 20 Col., 532. 
 
 52 Winner v. Lathrop, 67 Hun, 511. 
 
 53 Hallam v. Means, 82 111., 379. 
 
 54 Peck v. Hutchinson, 88 la., 320; Pippin v. Sheppard, 11 Price, 400-; Becker v. 
 Janinski, 15 N. Y. Supp., 675 ; DuBois v. Decker, 130 N. Y., 325.
 
 OBLIGATIONS IMPOSED BY LAW. 147 
 
 the want of such qualifications does not create a liability, 
 even though injury results to the recipient of the services 
 by reason of default in this respect. 55 
 
 Where the sufferer, however, in good faith, understands 
 that the party rendering the assistance is a physician and 
 accepts the services in the belief that he is a member of 
 the profession, and where the circumstances of the case 
 and the conduct of the party are such as to justify him in 
 entertaining such belief, the party rendering the assistance 
 may be chargeable with the responsibility, as to skill, care 
 and judgment, of a member of the profession and be re- 
 quired to respond in damages for any injury resulting by 
 reason of his lack of such qualifications, or application. 56 
 
 Unlicensed Practitioner. The requirements of law as to 
 skill, care and judgment apply to unlicensed as well as to 
 licensed practitioners and the same tests should be applied. 
 No greater obligations in this respect rest upon the party 
 by reason of the fact that he does not have a license ; neither 
 are they less even though the patient knows the want of 
 sanction. 57 But, in an action for malpractice against an 
 unlicensed physician, the burden of showing ordinary skill 
 is on the physician. 58 
 
 55 McNevins v. Lowe, 40 111. 209; Higgins t>. McCabe, 120 Mass., 13; Shields v. Black- 
 burn, 1 H. Bl., 158; Beardslee v. Richardson, 11 Wend., 25. 
 
 56 Matthei v. Wooley, 69 111. App., 654. 
 
 57 Nelson v. Harrington, 72 Wis., 591. 
 
 58 Cf. Nations v. Lumber Co., La. ; 48 L. R. A., 531
 
 CHAPTER XIII. 
 
 CIVIL MALPRACTICE. 
 
 Elements of Breach. 
 
 Definition. Civil malpractice is improper treatment of a 
 patient by a practitioner, whereby the patient is injured. 
 It means default in some one or more of the legal require- 
 ments of skill, care and judgment, as discussed in the pre- 
 ceding chapter. The fault may be an act of either omis- 
 sion or commission, and may result from ignorance, care- 
 lessness or poor judgment. Besides, there is the case where 
 the patient is operated upon without his consent or over 
 his objection and, though the operation may be skillfully 
 performed, the act is in the nature of a trespass and con- 
 stitutes an assault for which an action will lie. This action 
 is in the nature of an action for malpractice. 
 
 Essentials of Liability. In order to maintain an action 
 for malpractice against a physician, a patient must prove 
 by competent evidence, 
 
 (a) Improper treatment and 
 
 (b) Injury from such treatment. 
 
 Improper treatment without injury, or injury not shown 
 to be the result of improper treatment, is not enough to 
 make a case of malpractice in law. Unless both exist in 
 the relation of cause and effect, and not as a mere coinci- 
 dence, the patient has no reason for complaint, but, if, be- 
 cause of default shown, the service did the patient no good, 
 the practitioner would not be entitled to receive any fee, in 
 the absence of a special agreement for a fee in any event. 
 Malpractice is a branch of the general law of negligence. 
 
 148
 
 ELEMENTS OF BREACH. 149 
 
 Negligence. 
 
 Definition. Negligence is the absence of care according 
 to circumstances. 1 " Negligence is the failure to observe, 
 for the protection of the interests of another person, that 
 degree of care, precaution and vigilance which the circum- 
 stances justly demand, whereby such other person suffers 
 injury. ' ' 2 The physician who fails to do what a reason- 
 ably prudent practitioner would have done under the cir- 
 cumstances, or does what a reasonably prudent practitioner 
 would not have done under the circumstances, whereby the 
 patient is injured, is considered guilty of negligence and is 
 liable for the damages sustained by his patient. 3 Negli- 
 gence may be the result of either ignorance, carelessness or 
 poor judgment, and in either event, the practitioner will be 
 liable to the patient for the consequent damages ; but if poor 
 judgment is relied upon as the basis of liability the error 
 must be so gross as to establish either ignorance or care- 
 lessness, or that the party did not, in good faith, use his 
 own best judgment. 
 
 Intent. Intention to injure is not an essential element 
 in an action for malpractice; in fact, the term negligence 
 excludes the idea of intent. 4 
 
 Good Faith. Although the practitioner acted in the ut- 
 most good faith, believing his treatment proper and safe, 
 still, if he was not sufficiently qualified under the law, or if 
 he omitted some duty or performed some negligent act, 
 whereby his patient was injured, he will be liable for the 
 consequences. 
 
 Accident. 
 
 Definition. The Century Dictionary defines accident as 
 
 1 Turnpike Co. v. R. Co., 54 Pa. St., 219, 225; Barker v. Essex, 27 Vt., 62; C. B & 
 Q. R. Co. v. Johnson, 103 111., 512, 518 et seq. 
 
 2 Cooley on Torts, 630. 
 
 3 Alderson, B., in Blythe v. Birmingham Water Works Co., 11 Exch., 784. 
 
 4 Bindbental v. Street Rd. Co., 43 Mo. App., 463.
 
 150 MEDICAL, JURISPRUDENCE. 
 
 "anything that happens or begins to be without design, or 
 as an unforeseen effect; that which falls out by chance; a 
 fortuitous event or circumstance." 
 
 Where an event takes place, the real cause of which can- 
 not be traced or is, at least, not apparent, it ordinarily be- 
 longs to that class of occurrences which are designated as 
 purely accidental. 5 
 
 Even though accident and negligence be not opposites, 
 they cannot be regarded as identical, without confounding 
 cause and effect. Accident and its synonyms, casualty and 
 misfortune, may proceed or result from negligence or other 
 causes known or unknown. 6 
 
 Liability in Case of Accident. For injuries resulting 
 from mere accident, no liability attaches. For a purely 
 accidental occurrence causing damage, without the fault of 
 the person to whom it is attributed, no action will lie; for, 
 though there is damage, the thing amiss, the injuria is 
 wanting. 7 A patient may be injured under circumstances 
 which, in law, are considered purely accidental. In such 
 cases the practitioner is not liable for the damages sustained 
 by the patient from the injury. 
 
 Accident and Negligence. The term accident, as above 
 used, necessarily excludes the idea of negligence on the 
 part of the practitioner. Merely calling an act, which re- 
 sulted in injury to another, an accident will not relieve the 
 party of responsibility for his negligence. The untoward 
 result must have been what, in law, is recognized as an 
 accident. Where the negligence of the operator contributed 
 to the untoward result, it was not, as to him, an accident 
 within the meaning of the law of negligence. There must 
 be an entire absence of negligence on the part of the party 
 sought to be charged. 8 An occurrence which, to the pa- 
 
 6 Wabash, etc., B. Co. v. Rocke, 112 Ind., 404. 
 
 6 McCarthy v. N. Y., etc., R. Co., 30 Pa. St., 347, 351. 
 
 ^ Cooley on Torts, 80. 
 
 8 Button v. Bonnett, 114 Ind., 243.
 
 ELEMENTS OF BREACH. 151 
 
 tient, may properly be spoken of as an accident, is not neces- 
 sarily an accident from the viewpoint of the responsibility 
 of the practitioner. If the latter was at fault, the occur- 
 rence as to him was not an accident. Where an accident 
 combined with the negligence of the practitioner to produce 
 the injury to the patient, and without which negligence the 
 injury would not have happened, the former is liable for the 
 entire damage. 9 
 
 Contributory Negligence. 
 
 Definition. Contributory negligence is such an act or 
 omission on the part of the patient, amounting to want of 
 ordinary care, as, concurring with the negligent act or 
 omission of the practitioner, is the proximate cause of the 
 injury. 10 
 
 Effect of Contributory Negligence. Where the negli- 
 gence of the person injured primarily contributed to the in- 
 jury, by direct association with the cause of action, he can- 
 not recover damages. 11 Both parties being in fault with 
 reference to the cause of the injury complained of, the law 
 leaves the burden rest where it fell. 
 
 Reasons for the Rule. Though the action of malpractice 
 is in the nature of an action for a breach of the implied 
 terms of a contract, the general rules of law governing con- 
 tributory negligence are applied where both are contempo- 
 raneously and concurrently at fault, because of the difficulty 
 which would usually be encountered in an attempt to appor- 
 tion the injury between them. In this respect, however, 
 there is practically no difference between actions for mal- 
 practice and other actions in tort, because, as a matter of 
 fact, all actions sounding in tort have their origin in and 
 
 9 Rookfalls v. Wells, 169 111., 224; Weick v. Lander, 75 111., 93; I. C. R. Co. v. Siler, 
 229 111., 390; Joliet v. Varley, 35 111., 58; Carterville v. Cooke, 129 111., 152; Joliet v. 
 Shufeldt, 144 111., 403. 
 
 10 29 Cyc., 505. 
 
 U Littlejohn v. Arbogast, 95 111. App., 605 ; Haering v. Spicer, 92 111., App., 449.
 
 152 MEDICAL JURISPRUDENCE. 
 
 are based upon a breach of some obligation imposed by law. 
 
 Where the injury resulting from the negligence of the 
 patient can be distinguished from the results of the phy- 
 sician's negligence, the reason for the rule does not apply, 
 and the patient may maintain his action and, in that event, 
 the negligence of the patient can be used only in mitigation 
 of damages, and not to defeat the patient's right of action. 12 
 And for the same reason a physician will be liable for the 
 damage occasioned by his improper treatment although a 
 part of the patient's sufferings proceeded from other 
 causes. 13 Thus, where a physician treated a broken limb 
 in an improper and careless manner, necessarily resulting 
 in permanent injury to the patient, the fact that the con- 
 tributory negligence of the latter increased the injuries, 
 does not bar the patient's right of action, but affects only 
 the measure of damages. 14 
 
 Relation Between the Physician's and the Patient's Neg- 
 ligence and the Patient's Injury. The causal relation be- 
 tween a physician's conduct and his patient's injury, in 
 connection with operation and course of treatment, and the 
 conduct of the patient, presents itself in several different 
 aspects involving different phases of liability : 
 
 FIRST: The patient alone may be at fault, in which 
 event the practitioner will not be liable for the damages 
 sustained. Under this condition of facts, the want of re- 
 sponsibility is the same, without regard to the time of the 
 patient's negligence, with reference to the time of the oper- 
 ation or the course of treatment; that is, whether (a) before, 
 or (b) during, or (c) after the services. 
 
 SECOND: The practitioner alone may be at fault, in 
 which event he will be liable to the patient for the entire 
 
 12 Hibbard v. Thompson, 109 Mass., 286. 
 
 13 Gates v. Fleischer, 67 Wis., 504. 
 
 14 Wilmot v. Howard, 39 Vt., 447.
 
 ELEMENTS OF BREACH. 153 
 
 damage sustained by the latter by reason of such negli- 
 gence. 
 
 THIRD: Both patient and practitioner may be at fault, 
 in which event the question of liability is affected by the 
 fact as to whether the negligence of the patient was (a) 
 contemporaneous or concurrent, or (b) in order of sequence, 
 with the negligence of the practitioner. 
 
 (a) When the negligence of both operates contemporane- 
 ously, concurrently and jointly to produce the injury, the 
 patient cannot recover but must bear the entire loss alone. 
 
 (b) When the negligence of both operates successively 
 to produce the injury to the patient, the practitioner will 
 be liable for all damages or aggravation of damages, natu- 
 rally resulting from his own negligence, but he will not be 
 responsible for the injury flowing from the patient's negli- 
 gence, nor for the aggravation of the injury occasioned by 
 the subsequent negligence of the patient. 15 A practitioner 
 is liable for the injurious results of his own negligence, al- 
 though the subsequent acts of the patient, or a nurse, or 
 others over whom the practitioner had no control, may have 
 aggravated the injury. 16 If the improper treatment makes 
 the injury unavoidable and inevitable, an action against the 
 practitioner will not be defeated by the fact that subsequent 
 mismanagement, or negligence of the patient, or others 
 may have aggravated the trouble. 17 A practitioner is liable 
 to his patient for the damages resulting from his own negli- 
 gence, even though the injuries are aggravated by reason 
 of the subsequent or prior negligence of the patient, or 
 others. 18 
 
 15 Sauers v. Smits, 45 Wash., 559; 17 L. B. A., 1242; Sanderson v. Holland, 39 Mo. 
 App., 233; Wilmot v. Howard, 39 Vt., 447; Du Bois v. Decker, 130 N. Y., 325; Geisel- 
 man v. Scott, 25 O. St., 86. 
 
 16 Carpenter v. Blake, 75 N. Y., 12; Sanderson v. Holland, 39 Mo. App., 233; Hathorn 
 v. Richmond, 48 Vt., 557. 
 
 17 Hibbard v. Thompson, 109 Mass., 286; Wilmot v. Howard, 39 Vt., 449. 
 
 18 Wilmot v. Howard, 39 Vt., 449; Hathorn v. Richmond, 48 Vt., 557; Murdock v. 
 Walker, 43 111. App., 590; Sanderson v. Holland, 39 Mo. App., 223; Sauers v. Smith, 49 
 Wash., 557; Morris v. Despain, 104 111. App., 452; 17 L. R. A., 1242.
 
 154 MEDICAL JURISPRUDENCE. 
 
 RECOGNITION OF THE CLASSIFICATION. There is consider- 
 able confusion among the decisions with reference to this 
 subject, and some decisions have entirely lost sight of the 
 foregoing relations, but wherever the attention of the court 
 has been directed to the subject, these distinctions have 
 been recognized. 
 
 TEMPERAMENT. That the natural temperament or phys- 
 ical weakness of a patient contributed to produce the injury 
 primarily caused by the malpractice of the physician, is no 
 defense to an action against the physician for such injury, 
 but the same may be shown in mitigation of damages. 19 
 
 FAILURE TO OBEY INSTRUCTIONS. It is the duty of the pa- 
 tient to obey any reasonable instructions by his physician. 
 Failure of a patient to observe such reasonable instructions 
 and requirements of his physician may be negligence. 20 
 Thus where a patient fails to return to the office for further 
 treatment, as directed, whereby he suffers injury, though 
 the treatment was proper and skillful, his trouble is at- 
 tributed to his own carelessness, and he cannot recover 
 from the practitioner. 21 The refusal of the patient to em- 
 ploy an assistant for the practitioner, when the same is 
 necessary and recommended by the practitioner, and the 
 patient is injured by reason of such want of assistance, 
 such conduct of the patient is negligence on his part, enter- 
 ing into the cause of action itself, and will defeat his right 
 of recovery against the physician, unless the conduct of the 
 practitioner, under the circumstances, was such as to be 
 inconsistent with ordinary skill, due care and good judg- 
 ment. 22 
 
 Independent Services. If two or more practitioners, 
 simultaneously or successively perform independent serv- 
 
 19 Mullen v. Flanders, 73 Vt., 95. 
 
 20Whitesell v. Hill, 106 N. W., 894; Haering v. Spicer, 92 111. App., 449. 
 
 21 Dashiell v. Griffith, 84 Md., 363; Jones v. Angel, 95 Ind., 376; 17 L. R. A., 1243. 
 
 22 Haering v. Spicer, 92 111. App., 449.
 
 ELEMENTS OP BREACH. 155 
 
 ices for a patient, neither is liable for the independent mal- 
 practice of the other. 23 
 
 One practitioner is not liable for an injury inflicted by 
 another, if not partners, unless they acted in concert or co- 
 operation. Where their acts are entirely independent, 
 separate and distinct as to aid, concert, co-operation and 
 advice, there can be no joint liability and each will be liable 
 only to the extent of his own wrong. 24 
 
 Nurse's Negligence. The practitioner is not responsible 
 for the consequences of the ignorance, carelessness, or bad 
 judgment of nurses over whom he has no control. 25 But 
 where he selects the nurse and exercises control over her 
 actions, so that she may be said to represent him, or where 
 the physician is careless in observing her conduct, he may 
 be liable for injuries resulting from her negligence. 26 
 
 Negligence of Druggist. The fact that the negligence of 
 the druggist concurred with that of the physician in produc- 
 ing the death of the patient cannot be set up as a defense 
 by the physician in a suit against him for malpractice in 
 causing the death. 27 
 
 Negligence of Assistant or Apprentice. The attending 
 physician is responsible to his patient for the want of skill, 
 care or good judgment of his assistant or apprentice, whom 
 he puts in charge or permits to assist. 28 
 
 The assistant is also personally liable. 29 
 
 Partners. General partners in the actual practice of the 
 profession are liable for the independent malpractice of 
 either. 30 
 
 23 Foster v. Wadsworth Howland Company, 168 111., 514. 
 
 24 Teazel v. Alexander, 58 111., 254, 262; Barnes v. Means, 82 111., 379. 
 
 25 Sanderson v. Holland, 39 Mo. App., 233 ; Baker v. Wentworth, 155 Mass., 338. 
 
 26 Stanley v. Schumpert, 117 La., 255; 6 L. B. A., 306. 
 
 27 Murdock v. Walker, 43 111. App., 590. 
 
 28 Hancke v. Hooper, 7 C. & P., 81 ; Chicago B. Co. v. Flexman, 103 111., 546 
 
 29 Fish v. Walker, 7 Ohio N. P., 472; Beed v. Patterson, 91 111., 288, 297. 
 
 30 Hyrne t). Erwin, 25 S. C., 226 ; Haase v. Morton, 138 la., 205 ; Whittaker v. Col- 
 lins, 34 Minn., 299; Hess v. Lowrey, 122 Ind., 225.
 
 156 MEDICAL JURISPKUDENCE. 
 
 Negligence of Substitute. The physician in charge who, 
 leaving town or from sickness, puts another physician in 
 charge, would not under the ordinary practice, be liable for 
 the malpractice of such substitute. 31 In recommending 
 such substitutes, he owes his patient only ordinary care in 
 the selection, and he will not be liable for the independent 
 malpractice of the physician whom he thus leaves in charge 
 of the case ; unless they are partners, the patient must look 
 to the one in default for the recovery of any damage he sus- 
 tains by reason of malpractice. However, wherever possi- 
 ble, the patient should be informed of the contemplated 
 substitution and his consent obtained, otherwise the attend- 
 ing physician might be liable for the negligence, if any, of 
 the substitute, in delaying to make his first visit, or in fail- 
 ing to assume charge of the case. 32 
 
 Practitioner Not A Guarantor of Beneficial Results. A 
 practitioner cannot be regarded as an insurer of a success- 
 ful result from his treatment, and to base a liability on 
 failure alone would be to make him a guarantor. 33 
 
 Intoxication. Evidence that the practitioner was intoxi- 
 cated at the time of rendering the services alleged to be 
 improper, is admissible as a part of the res gesta? 4 
 
 Physician Engaged in Other Avocations. It has been 
 held that in an action for malpractice, the patient may show 
 that the practitioner was devoting time and attention to 
 some other avocation, as such fact was considered as hav- 
 ing a bearing upon the question of his skill and care. 35 
 
 Arbitrary Refusal to Take Case. Since a professional 
 man is not required to render professional services to every- 
 
 31 Keller v. Lewis, 65 Ark., 578; Hitchcock v. Burgett, 38 Mich., 501; Myers v. Hoi- 
 born, 58 N. J. L., 193. 
 
 32 Jones v. Angel, 95 Ind., 376. 
 
 33 Quinn v. Donovan, 85 111., 194, 195 ; McKee v. Allen, 94 111. App., 147 ; Yunker v. 
 Marshall, 65 HI. App., 667. 
 
 34 Merrill v. Pepperdine, 9 Ind. App., 416. 
 
 85 Hess v, Lowrey, 122 Ind., 225 ; Mayo v. Wright, 63 Mich., 32.
 
 ELEMENTS OF BREACH. 157 
 
 one, he may arbitrarily refuse to undertake the treatment 
 of a case and, in such event, he will not be liable for mal- 
 practice whatever may be the consequences to the appli- 
 cant. 36 The case last cited was a suit in malpractice under 
 a statute based upon Lord Campbell's Act, giving a right 
 of action for wrongfully causing the death of a person. 
 Suit was brought by the administrator of a deceased person 
 against a physician charging him with wrongfully causing 
 the death of the intestate. 
 
 STATEMENT OF FACTS. The defendant was a licensed 
 physician who was, and for a number of years had been, 
 practicing medicine in the locality, and who held himself 
 out to the public as a general practitioner in that profes- 
 sion. He had previously been the family physician of the 
 deceased. It appears that the decedent became seriously 
 ill and sent for the defendant by a messenger who informed 
 the defendant of the extreme sickness of the decedent, ten- 
 dered him his usual fee for services and stated to him that 
 no other physician was procurable at the time and that 
 decedent was relying upon him for professional attention 
 and services. In fact, it was conceded that no other phy- 
 sician was procurable at the time and that decedent did 
 rely upon the defendant for professional assistance and 
 relief in the emergency. Without any reason whatever the 
 defendant refused to accept the call or render aid to the 
 decedent. No other patients were requiring his immediate 
 attention and he could have responded to the call without 
 inconvenience. Death ensued without the fault of the dece- 
 dent. 
 
 GEAVAMEN OF THE COMPLAINT. In the complaint the death 
 was alleged to have been caused solely from the act of the 
 defendant in refusing to accept and respond to the call, a 
 difficult allegation to prove. It appears to have been con- 
 
 36 Hurley v. Eddingfield, 156 Ind., 416.
 
 158 MEDICAL JURISPRUDENCE. 
 
 ceded by the plaintiff that there is no common law liability 
 on the part of the physician to render professional services 
 to all who apply and, therefore, this question was not di- 
 rectly before the court. 
 
 Statutes Do Not Require Licentiates to Practice. The 
 real contention of the plaintiff was that the statute requir- 
 ing parties who desire to practice medicine to procure a 
 license implied that obligation. The statute in force at the 
 time, provided for a Board of Examiners, standard of 
 qualification, examination of applicants and license to those 
 found qualified, and prescribed p/enalties for practicing 
 without a license. The court held that the statute is a pre- 
 ventative, not a compulsive, measure; that in obtaining 
 permission from the State to practice medicine, the licensee 
 does not engage that he will practice at all, nor does he 
 promise to render the services on any other terms than he 
 may choose to accept or adopt in each particular case, and 
 that by the fact of issuing a license the State does not re- 
 quire that the licensee shall in fact practice the profession, 
 neither does it stipulate that he must serve all who need 
 him. A license is a privilege, not an obligation. 
 
 Civil Rights Acts. PURPOSES. The Civil Eights Acts of 
 the various States are intended for the protection of all 
 citizens in their civil and legal rights, their general purport 
 being to entitle all persons within the jurisdiction of the 
 State, regardless of color or race, to the full and equal en- 
 joyment of all the accommodations, advantages, facilities, 
 conveniences and privileges of inns, restaurants, eating 
 houses, barber shops, public conveyances on land or water, 
 theatres, and all other places of public accommodation and 
 amusement, subject only to the conditions and limitations 
 established by law, and applicable alike to all citizens, irre- 
 spective of race, color or previous condition of servitude. 37 
 
 37 Baylies v. Curry, 128 HI., 287.
 
 ELEMENTS OP BREACH. 159 
 
 APPLICATION. The business to which these statutes apply 
 must be of a public character; the statutes do not attempt 
 to control the conduct of the citizen in his private matters. 
 The statutes do not attempt to confer equality of social 
 rights or privileges or enforce social intercourse. The only 
 effect of the 13th and 14th amendments to the Federal Con- 
 stitution, and of the statutes passed in pursuance thereof 
 by Congress and the several States, is to place all citizens 
 on an equality before tine law. 38 
 
 PHYSICIANS. These statutes and amendments do not re- 
 quire a practitioner to undertake the relation of physician 
 and patient with a party, regardless of race, color or previ- 
 ous condition of servitude. They do not attempt to abridge 
 his right to determine with whom he will contract and for 
 whom he will render services. While he may hold himself 
 out as ready to accept as patients all persons presenting 
 themselves for that purpose who need his services, still his 
 work, being professional in character and having a large 
 personal equation is not sufficiently public in its nature to 
 bring it within the provisions of these statutes. 
 
 38 Ganaway v. Salt Lake Dramatic Asso., 17 Utah, 37; Civil Bights Act, 1 Hughes 
 (U. S.), 541; Coger v. N. W Union Packet Co., 37 la., 145; People v. Washington, 36 
 Cal., 658.
 
 CHAPTER XIV. 
 CIVIL MALPRACTICE. 
 Enforcement of Liability. 
 
 Proof Necessary to Establish Malpractice. Since injuri- 
 ous consequences, or failure to cure or relieve, ordinarily 
 do not establish either want of skill, default in care or bad 
 judgment, it follows that proof of injurious results or of 
 failure to cure or relieve, is not sufficient to fasten liability 
 upon the professional man. The mere failure to effect a 
 cure or afford relief, raises no presumption of either igno- 
 rance, negligence or poor judgment. 1 The fact that the 
 patient grew worse under the treatment, and improved when 
 the services were dispensed with, is not of itself sufficient 
 to establish malpractice, as such facts may have been mere 
 coincidences. 2 
 
 Anesthetic, Refusal to Give. Failure or refusal to ad- 
 minister an anesthetic is not ground for action for mal- 
 practice. 3 
 
 Mistake in Diagnosis. A mere mistake in diagnosis, not 
 accompanied by improper treatment for the real trouble, 
 will not render the practitioner liable. 4 
 
 Generally speaking, liability for malpractice attaches by 
 reason of improper treatment rather than from any mis- 
 taken diagnosis. The patient is not materially concerned 
 in what the practitioner thinks his trouble to be, except as 
 his conclusion takes concrete form by treatment for the 
 
 1 Tifft v. Wilcox, 6 Kans., 46. 
 
 2Wurdenmann v. Barnes, 72 Wis., 206; Ely v. Wilbur, 49 N. J. L., 685. 
 
 3 Dye v. Corbin, 59 W. Va., 266. 
 
 4 Red Cross v. Green, 126 111. App., 214. 
 
 160
 
 ENFORCEMENT OF LIABILITY. 161 
 
 supposed malady. 5 A wrong diagnosis, not followed by 
 improper treatment and injury to the patient, is not suffi- 
 cient to predicate an action for malpractice. 6 
 
 PURPOSE OF THE DIAGNOSIS, BASIS OF LIABILITY. Where 
 the sole purpose of the employment is the diagnosis and 
 report of the same, negligence or bad faith in making the 
 examination, resulting in a wrong conclusion and erroneous 
 report, and consequent damages to the patient, constitutes 
 a cause of action. 7 
 
 ILLUSTRATION. In the case last cited a young man was 
 engaged to be married but the father of the girl refused his 
 consent because of rumors that the fellow was afflicted with 
 a venereal disease. He denied the charge and agreed with 
 the father to submit to an examination by a physician se- 
 lected by the father at the latter 's expense. The examina- 
 tion was made and the physician erroneously reported that 
 the fellow had such a disease. In consequence, the engage- 
 ment was broken off and the fellow brought various suits 
 for conspiracy, slander and malpractice against the father, 
 the physician and others. On the trial the suits were con- 
 solidated. It was found that the young man was not dis- 
 eased; that the father and physician acted in good faith 
 and that there was no conspiracy. There was technical de- 
 fect in the pleadings in the slander suits and, therefore, 
 liability on that score was not considered. In the suit for 
 negligence or malpractice against the physician, the trial 
 court instructed the jury to find a verdict in favor of the 
 defendant, to which the plaintiff excepted and, on appeal, 
 the supreme court said : 
 
 "The verdict in the action for negligence must be set 
 aside. The evidence tended to show that the defendant was 
 employed by Morrill (the father). Having undertaken for 
 
 5 Grainger v. Still, 187 Mo., 197. 
 
 6 Red Cross v. Green, 126 111. App., 214; Tomer v. Aiken, 126 la., 114. 
 
 7 Harriott v. Plimpton, 166 Mass., 585.
 
 162 MEDICAL JUKISPKUDENCE. 
 
 compensation, to be paid by another, to examine the plain- 
 tiff, and to report whether he was diseased, the defendant 
 was bound to have the 9rdinary skill and learning of a phy- 
 sician, and to exercise ordinary diligence and care; and if 
 he failed, and the plaintiff was injured because of his want 
 of such skill and learning or his want of such care, the de- 
 fendant was answerable to him in damages. ... In our 
 opinion, the fact that the purpose of the examination was 
 information, and not medical treatment, is immaterial ; and 
 the breaking of the plaintiff's marriage engagement, in 
 consequence of the wrong diagnosis, was not too remote a 
 damage to sustain the action. Upon the evidence, it was 
 for the jury to say whether the defendant used ordinary 
 care, learning and diligence. ' ' 8 
 
 INQUISITION OF SANITY. In inquisitions of sanity, the 
 physician who examines the respondent and testifies in the 
 case, is liable to the respondent for any damages he may 
 sustain by reason of a mistake of the physician in his con- 
 clusion, if the mistake resulted from carelessness, either in 
 diagnosis or examination of surrounding facts, the exercise 
 of bad judgment, or the want of ordinary skill in the prem- 
 ises. Even when the physician is appointed by the court 
 and commissioned to make the examination and give his 
 opinion, he is acting in a ministerial, not a judicial, capac- 
 ity, and the law holds him to the same degree of accounta- 
 bility for skill, care and judgment, to the party whose rights 
 are involved, and an error in his opinion arising from his 
 negligence, willfulness or corruption, will make him liable 
 to the respondent for the damage sustained by the latter 
 as a result of such error. His liability is predicated upon 
 the breach of his duty to make an ordinarily skillful and 
 careful examination, and to use his best judgment in form- 
 ing his opinion therefrom, whereby his conclusion was 
 
 8 Harriott v . Plimpton, 166 Mass., 585.
 
 ENFORCEMENT OF LIABILITY. 163 
 
 wrong and injury resulted to the respondent. He is not 
 liable for the false testimony, even though it be perjured, 
 and uttered in malice. 9 
 
 Usual Results Not the Test of Duty. The patient has a 
 right to expect proper treatment in the light of the ad- 
 vanced state of the science at the time and place, and the 
 fact that the result of treatment is as good as is usually 
 obtained in like cases similarly situated, will not excuse the 
 physician for failing to give the patient the full benefit of 
 the chances involved in proper treatment. 10 
 
 How Proven. The method of treatment, what was done 
 and when, how and by whom, and all facts within ordinary 
 observation, may be established by the testimony of ordi- 
 nary witnesses, but the propriety and skill of the treatment 
 or operation can be proven only by experts on the subject. 11 
 Whether the treatment in question was in conformity with 
 established principles and usage; whether a surgical oper- 
 ation was performed skillfully; whether a specified diag- 
 nosis was proper; whether subsequent disease was due to 
 alleged negligent treatment; whether the treatment con- 
 formed to the principles of the school of medicine in ques- 
 tion; whether certain results are usual from certain in- 
 juries or diseases, are medical questions, and from the very 
 nature of the case, opinion evidence in relation thereto 
 must come from physicians. 12 A physician, however, can- 
 not give his opinion that there was not malpractice, as that 
 is a conclusion of law. 13 Expert opinions cannot be intro- 
 duced by hearsay. 14 
 
 FAILURE TO TAKE X-RAY. Failure of a physician to take 
 an X-ray of a broken arm does not constitute negligence, 
 
 9 Cooley on Torts, 210. 
 
 10 Burk v. Foster, 114 Ky., 20. 
 
 11 Spaulding v. Bliss, 83 Mich., 311. 
 !2Tifft v. Wilcox, 6 Kans., 46. 
 
 13 Hanover v. Koch, 84 111., 408, 409. 
 
 14 Sims v. Moore, 61 la., 128.
 
 164 MEDICAL JURISPRUDENCE. 
 
 even though the physician diagnosed the break as a sprain, 
 where the evidence showed that the diagnosis was made in 
 a careful and proper manner and that the physician acted 
 with ordinary skill and due care in the premises. 15 How- 
 ever, the use of the X-ray in diagnosis has become so gen- 
 eral in metropolitan cities and is so effective that, in certain 
 classes of cases, the physician who does not take such pre- 
 caution when such means are readily available to him, 
 doubtless would and, certainly at this stage in the develop- 
 ment of the science, should be made to respond in damages 
 for an injury to his patient for a wrong diagnosis followed 
 by improper treatment, if it should be made to appear that 
 an X-ray would readily have disclosed the true condition 
 and thus have enabled him to avoid the injury to his pa- 
 tient. The physician must use all approved, practical, 
 available, distinctive means to determine the condition of 
 his patient and relieve him of his ailment, and a failure in 
 this respect on his part should spell liability to him for all 
 damages resulting to his patient therefrom. 
 
 Burden of Proof. The burden is upon the patient to show 
 by a preponderance of competent evidence, (a) that the 
 physician was negligent, and (b) that certain injury re- 
 sulted to him thereby. 16 Patient must prove these facts 
 whether the action be for malpractice or as a defense of or 
 in recoupment in, an action by the physician for a fee. 17 
 
 PREPONDERANCE OF EVIDENCE. It is not necessary to 
 prove these facts beyond a reasonable doubt nor by evidence 
 sufficient to establish a clear conviction thereof. A pre- 
 ponderance is all that is required. 18 
 
 Questions which are susceptible of exact demonstration 
 
 15 Wells v. Ferry Baker Lumber Company, 57 Wash., 658. 
 
 16 Ewing v. Goode, 78 Fed., 442, 443. 
 
 17 Styles v. Tyler, 64 Conn., 432; Robinson v. Campbell, 47 la., 625. 
 
 18 Hoener v. Koch, 84 111., 408.
 
 ENFORCEMENT OF LIABILITY. 165 
 
 or absolute determination, are not often the subject of liti- 
 gation. 19 
 
 NEED NOT EXCLUDE ALL PROBABLE CAUSES. It is not nec- 
 essary to exclude every possible cause for the injury, except 
 the negligence of the practitioner, it being sufficient to show 
 that the wrongful treatment was the probable cause. But 
 the jury is not permitted to determine by mere conjecture 
 between two equally probable causes of the injury com- 
 plained of, for only one of which the practitioner is respon- 
 sible. 20 The patient, however, makes out his case, under 
 such circumstances, when he has shown that it is more 
 probable that the cause for which the practitioner was re- 
 sponsible is the one that was the proximate cause of the 
 untoward results. 21 
 
 JURY is NOT PERMITTED TO GUESS AT LIABILITY. The jury 
 cannot be permitted to determine by guess or mere con- 
 jecture between two equally probable causes of the injury, 
 for only one of which the practitioner is responsible. Thus, 
 
 INFECTION FOLLOWING TREATMENT. Proof that an infec- 
 tion followed treatment or operation does not discharge the 
 burden resting upon the patient to establish liability of the 
 practitioner. He must introduce evidence tending to show 
 that the practitioner was to blame and that it is at least 
 probable that the untoward result was due to the improper 
 conduct of the latter, and might not have happened but for 
 such conduct. 22 
 
 MALPRACTICE, OR OTHER CAUSES. Where the death of a 
 patient might have been caused by the improper adminis- 
 tration of an anesthetic by the physician, or calcareous de- 
 generation of the heart, the physician is not liable unless it 
 
 19 Boucher v. Larochelle, 74 N. H., 433. 
 
 20 Deschennes v. Concord R. Co., 69 N. H., 285. 
 
 21 Boucher v. Larochelle, 74 N. H., 433; 15 L. B. A., 416. 
 
 22 Ewing v. Goode, 78 Fed., 443.
 
 166 MEDICAL JUKISPKUDENCE. 
 
 is made to appear from all the evidence that the death re- 
 sulted either wholly, or in part, from the improper use or 
 administration of the anesthetic. 23 
 
 Where the improper treatment is shown and the inquiry 
 is addressed to the cause of the injury, the jury is not per- 
 mitted to conjecture or surmise other causes, but such other 
 causes must be conceded or proved by competent evidence. 24 
 
 The burden of proving contributory negligence is on the 
 physician, he holding the affirmative of the proposition. 25 
 
 Different Schools of Medicine. The law recognizes that 
 there are different schools of medicine and it does not favor 
 any particular school. The treatment adopted by a phy- 
 sician is to be tested by the principles and practices of the 
 school to which he belongs and under which he practices. 
 The jury are not' authorized to consider the relative merits 
 of the different systems. 26 The word "physician" is not 
 restricted to any particular school. 27 Where an action was 
 brought against an osteopath to recover damages for al- 
 leged injuries caused to the patient by reason of his errone- 
 ously diagnosing her trouble as dislocation of the hip and 
 treating her for that affliction, when in fact she was suffer- 
 ing from incipient hip disease, it was shown that hip disease 
 is ascribed to the same cause and diagnosed in the same way 
 by osteopaths and physicians of all schools, and thereupon 
 the plaintiff called several allopathic physicians to testify 
 as to the correctness of the defendant's diagnosis. The 
 court held that such testimony was properly admitted, and 
 said: "The expert medical witnesses offered by the plain- 
 tiff were competent to express an opinion as to the diag- 
 
 23 Yaggle v. Allen, 48 N. Y. Supp., 827. 
 
 24 Boucher v. Larochelle, 74 N. H., 433. 
 
 25 Gramm v. Boener, 56 Ind., 497. 
 
 26 Bowman v. Woods, 1 Greene (la.), 441; Force v. Gregory, 63 Conn., 167; Nelson v. 
 Harrington, 72 Wis., 591. 
 
 27 Raynor v. State, 62 Wis., 289 ; White v. Carroll, 42 N. Y., 161 ; Corsi r. Maretzek, 
 4 E. D/Smith (N Y.), 1.
 
 ENFORCEMENT OF LIABILITY. 167 
 
 nosis that was made by the defendant of the plaintiff's 
 trouble, as related by the lay witnesses, to-wit, that she had 
 partial dislocation of the hip-joint, and did not have hip 
 disease, and also competent to testify as to any scientific 
 fact that is, or ought to be, known to every physician of 
 every school and system; but they are not competent to 
 express an opinion as to the treatment of the plaintiff by 
 the defendant, unless it should appear that both the schools 
 to which the witnesses and the defendant belonged em- 
 ployed the same treatment. ' ' 28 
 
 In an action against a Christian Scientist for malprac- 
 tice, the propriety and skillfulness of his treatment must 
 be tested by the generally accepted doctrines of his school, 
 and even though such treatment in the particular case is 
 against public policy as announced in the law, still the pa- 
 tient cannot recover for injuries sustained .thereby, if the 
 treatment was proper when measured by that standard, 
 and if he knowingly employed the practitioner for that 
 purpose and consented to such treatment. 29 Where the 
 patient is a minor who has not arrived at the age of dis- 
 cretion, a different test should be applied and the practi- 
 tioner, whatever his belief or religion, should be required 
 to show that his method of treatment was in accordance 
 with enlightened intelligence and the recognized verities 
 of the time, and no maudlin sentiment of religious convic- 
 tions should be permitted to shield him from responding 
 in damages for the consequences of his folly, or ignorance, 
 or zeal. 
 
 Where an X-ray was used by a physician to locate a 
 foreign substance in the lungs of a patient, and not in con- 
 nection with treating the patient for the trouble, a college 
 professor who was familiar with the principles and effects 
 
 28 Grainger v. Still, 187 Mo., 197; 85 S. W., 1114. 
 
 29 Spead v. Tomlinson, 73 N. H., 46.
 
 168 MEDICAL JURISPRUDENCE. 
 
 of the rays on the animal organism, and experienced in 
 their use in taking pictures and diagnosing anatomical 
 conditions, was competent to testify as to the proper method 
 of operating the appliances, and that in the case at bar the 
 tube was held too close to the body and that the exposure 
 was too long, thus causing the burns in question. The 
 method of operating the apparatus, the degree of exposure 
 which the patient could stand for diagnostic purposes and 
 the anatomical effect of the rays, could not possibly be 
 affected by the school of practice to which the operator be- 
 longed and must necessarily be the same regardless of the 
 school. 30 
 
 Failure to Present Bill No Admission of Wrong. In an 
 action for malpractice, the patient cannot show that he has 
 paid nothing for the services and that no bill has been ren- 
 dered to him or charge made against him by the practi- 
 tioner, as such failure is not an admission of guilt. 31 How- 
 ever, where the fact that nothing was paid for the services 
 was introduced by the practitioner, it was held harmless 
 under the particular circumstances. 32 
 
 Exhibiting Injury. In an action for malpractice, the pa- 
 tient may exhibit the injured member to the jury in order 
 that they may determine the nature of the trouble charged 
 to the practitioner, provided the demonstration does not 
 involve indecent exposure. 33 
 
 When the Relation Begins. The responsibilities of the 
 relation attach from the very moment of the acceptance of 
 a call by the physician. When a patient comes to the office, 
 the relation ordinarily begins with the commencement of 
 the first diagnosis, however informal it may be, and an un- 
 
 30 Henslin v. Wheaton, 91 Minn., 219. 
 
 31 Baird v. Gillett, 47 N. Y., 186. 
 
 32 Jones r. Angel, 95 Ind., 376. 
 
 33 Lenark v. Dougherty, 153 111., 163, 165; Jefferson Ice Co. v. Zwicokoski, 78 HI. 
 App., 646; Fowler v. Sergeant, 1 Grant's Cases (Pa.), 355; Hess v. Lowrey, 122 Ind., 
 225 ; Freeman v. Hutchinson, 15 Ind. App., 639.
 
 ENFORCEMENT OF LIABILITY. 169 
 
 skillful, careless examination resulting in a mistaken recom- 
 mendation that no treatment or operation is necessary, if it 
 results in injury to the patient, is as much a breach of duty 
 as though it had been followed by improper treatment. 
 
 PROMPT RESPONSE TO CALL. If a physician accepts a call, 
 he must respond with reasonable promptness, under the cir- 
 cumstances, and if he defaults therein with resulting injury 
 to his patient, he will be liable for the damages sustained. 34 
 
 When the Relation Ends. The relation, once begun, does 
 not terminate until the patient has been discharged as cured 
 or until the physician has been relieved of further responsi- 
 bility by the patient. If he quits the case too soon, or, when 
 discharging the patient, fails to give him proper and neces- 
 sary instruction to enable the patient to get along without 
 his services, he is guilty of a breach of duty. Of course, 
 the physician or patient can always terminate the relation 
 on notice to that effect. When the notice is given by the 
 patient, the relation terminates in accordance therewith and 
 it may be peremptory. If the physician gives the notice at 
 a time when the patient is still in need of medical or sur- 
 gical attention, the relation will continue for a reasonable 
 time thereafter to enable the patient, with reasonable dili- 
 gence, to secure another practitioner. Conceding that the 
 relation has ceased, the parties are in the same position as 
 though the relation had never existed, and the physician is 
 not bound to respond to a new call, however urgent, espe- 
 cially when another physician has been on the case in the 
 meantime. 35 
 
 What Constitutes Malpractice, Is A Question of Law. 
 The question as to what is the proper degree of skill and 
 care required of a practitioner is a question of law, for the 
 court to determine and announce. 36 But the question as to 
 
 34 Adams v. Henry, 165 Mich., 554. 
 
 35 Tomer v. Aiken, 126 la., 114; 24 A. C., 833 
 3Link v. Sheldon, 136 N. Y., 1.
 
 170 MEDICAL JURISPRUDENCE. 
 
 whether or not these requirements were present in the par- 
 ticular case, is a question of fact for the jury to determine. 37 
 In other words, it is for the jury to say, from all the evi- 
 dence, whether or not the treatment amounted to negligence, 
 under the rule of skill, care and judgment required by the 
 law. 38 
 
 37 Harriott v. Plimpton, 166 Mass., 585; Langford v. Jones, 18 Ore., 307; Olmstead v. 
 Gere, 100 Pa., 127. 
 
 38 Van Hooser v, Berghoff, 90 Mo., 487; Hewitt v. Eisenbart, 36 Neb., 794; Tifft v. 
 Wilcox, 6 Kans., 46; Carpenter v. Blake, 60 N. Y., 488.
 
 CHAPTER XV. 
 
 CIVIL MALPRACTICE. 
 
 Defenses, Damages and Other Features. 
 
 Defenses. 
 
 Proper Treatment. In defense of an action for malprac- 
 tice, the practitioner is entitled to show by expert evidence 
 that the treatment given was such as a practitioner of ordi- 
 nary skill, care and good judgment, would and ought to 
 have given. 1 
 
 Former Judgment for Physician. On the trial of an 
 action for malpractice against a physician, he may show 
 that he previously brought suit to recover his fee and 
 obtained a judgment, although defended by the present 
 plaintiff on the ground of malpractice. In some States such 
 judgment is a bar to the subsequent action. 2 However, if 
 the patient did not appear and defend the suit for fee but 
 permitted the judgment to be entered by default, it has been 
 held that he is not debarred his right of action for malprac- 
 tice. 3 The courts are not in unison on the effect of judg- 
 ments for fees on subsequent action for malpractice with 
 reference to the same services. 4 
 
 Injury from Other Causes. The physician may show that 
 the injury came, or might with equal likelihood have come, 
 from other causes than his carelessness, and if the evidence 
 leaves it uncertain whether the untoward results complained 
 of arose from the wrongful conduct of the practitioner or 
 
 1 Quinn v. Higgins, 63 Wis., 664. 
 
 2 Howell v. Goodrich, 69 111., 556 ; Blair v. Bartlett, 75 N. Y., 150. 
 
 3 Lawson v. Conaway, 37 W. Va., 159. 
 
 4 Jordahl v. Berry, 72 Minn., 119; 45 L. R. A. (O. S.), 541. 
 
 171
 
 172 MEDICAL, JUKISPKUDENCE. 
 
 from other causes, the patient cannot recover in an action 
 for malpractice nor defeat an action by the physician for 
 his fee, because the law indulges no presumption against 
 the latter. 5 
 
 One Suit One Recovery. The law does not permit a 
 multiplicity of suits for one cause of action, but requires the 
 plaintiff to prove his entire damage, present and prospec- 
 tive, in his first case. Hence, a patient cannot bring suc- 
 cessive suits, from time to time as his loss may accrue, for 
 malpractice, but he is required to prove his entire damage 
 in the first action, and if he fails to do so he must bear the 
 loss. 6 The case just cited was an action against a physician 
 for malpractice in setting a fractured arm. of plaintiff's son. 
 It appeared that prior to the commencement of the suit the 
 physician brought an action against the plaintiff to recover 
 his fee for the same services ; that the plaintiff defended on 
 the ground of malpractice and that on the trial the physician 
 recovered the full amount of his claim. Held, that adjudica- 
 tion in the suit for the fee was a bar to a recovery for the 
 alleged malpractice. 
 
 Mistake by Patient. A patient cannot recover for in- 
 juries resulting from a mistake into which he himself led 
 the physician, unless the conduct of the latter was incon- 
 sistent with ordinary and reasonable skill and care. 7 
 
 Damages. 
 
 Kinds of Damages. Damages are three in kind, (a) 
 Nominal, (b) Compensatory, and (c) Exemplary or Puni- 
 tive. 
 
 Nominal damages are a trifling sum awarded when a 
 breach of duty or an infraction of a right of the plaintiff 
 is shown, but no serious loss is proven to have been sus- 
 
 5 Boucher v. Larochelle, 74 N. H., 433. 
 
 6 Howcll v. Goodrich, 69 111., 556. 
 
 7 Park v. Adams, 12 Mete., 417 ; Clark v. Keriom, 4 E. D. Smith, 21.
 
 DEFENSES, DAMAGES, OTHER FEATURES. 173 
 
 tained, or where, from the nature of the case, some injury 
 has been done, the amount of which the proofs fail to show 
 with sufficient certainty, or not at all, or cannot be shown. 
 They are "a peg to hang costs upon." They arise by 
 implication of law by reason of a breach of duty. 8 
 
 Compensatory damages are such as will compensate the 
 wronged party for the injury he has sustained and nothing 
 more. They proceed from a sense of natural justice and 
 end at the point where the wrong has been repaired. 9 
 
 Exemplary or Punitive, or Vindictive damages are those 
 given in addition to compensation for a loss sustained, in 
 order to punish and make an example of the wrongdoer. 
 They are allowed where a tort is aggravated by evil motives, 
 actual malice, deliberate violence, oppression or fraud, or 
 where the party acts willfully or with such gross negligence 
 as to indicate a disregard of the rights of others. 10 The 
 purpose and intent of such damages are to punish the of- 
 fender and furnish an example of the dangers consequent 
 on such misconduct. 11 
 
 While there is a maxim of law older than our language 
 De minimus non curat lex the law does not concern itself 
 with triflers still if, as a matter of substantial right, a 
 party is entitled to nominal damages, carrying costs of suit, 
 and the jury finds in favor of his adversary, a new trial 
 should be allowed him on motion, or if judgment has been 
 entered against him for costs, it should be set aside and a 
 new trial granted; but the maxim usually applies in such 
 cases and appellate courts will not interfere. 12 
 
 Presumptions. It is to be assumed that every physical 
 
 8 Stanton v. R. Co., 59 Conn., 272; Maher v. Wilson, 139 Cal., 514; W. U. T. Co. V. 
 Lawson, 66 Kan., 660; Sellers v. Mann., 113 Ga., 643. 
 
 9 McKnight v. Dessny, 198 Pa., 323; Sachra v. Massilla, 120 la., 562; Navigation Co. 
 v. U. S., 148 U. S., 312; Reid v. Terwilliger, 116 N. Y., 530. 
 
 10 Con. Coal Co. v. Haenni, 146 111., 614, 628. 
 
 11 Garrick v. R. Co., 53 8. C., 448. 
 
 12 Stevens v. Yale, 113 Mich., 580; Fisher v. Hopkins, 85 111. App., 207; 5 A. C., 223, 
 225.
 
 174 MEDICAL JURISPRUDENCE. 
 
 endowment, function and capacity is of importance in the 
 life of every man and woman and that occasion will arise 
 for the exercise of each and all of them, and to the extent 
 to which any function is destroyed or its discharge rendered 
 painful or perilous by the wrongful infliction of personal 
 injury, is the party complainant entitled to damages. We 
 can, in other words, conceive of no physical injury wrong- 
 fully inflicted, whether entailing pain only, or disfigurement 
 or incapacity, relative or absolute, to perform any of the 
 functions of life, which may not be made the predicate for 
 compensation in damages. 13 
 
 Elements of Damages. In assessing damages for mal- 
 practice the court or jury should take into consideration the 
 pain and suffering incident to the wrongful treatment, loss 
 of time, loss of health, increased delay in effecting a cure 
 and the probability of permanent injury necessarily or 
 reasonably consequent on the injury sustained by the mal- 
 treatment. 14 
 
 He may show his pecuniary loss direct or indirect, im- 
 paired earning capacity, loss of time and its value, actual 
 expenses incurred and pain and suffering, even up to the 
 time of trial, any disfigurement of person resulting from 
 the malpractice, permanency of the injury resulting there- 
 from, and the station and condition in life of the patient, 
 mental worry, anxiety, discomfort, mortification and 
 chagrin, by reason of the injury from the malpractice. 15 
 
 The correct measure of damages for injury caused by 
 carelessness or unskillful treatment by a physician is reason- 
 able compensation for the bodily pain and mental suffering, 
 if any, endured by the patient, and the impairment of the 
 
 13 Alabama R. Co. v. Hill, 93 Ala., 514, 515. 
 
 14 McCracken v. Smeathers, 122 N. C., 799. 
 
 15 Chamberlain v. Porter, 9 Minn., 244 ; Tint v. Wilcox, 6 Kans., 46 ; Cody v. Weins, 
 1 Mont., 424; Coombs v. King, 107 Me., 376, 380.
 
 DEFENSES, DAMAGES, OTHER FEATURES. 175 
 
 patient's ability to earn money and his loss of time, if any, 
 occasioned by the negligence of the physician, and where 
 the act is also willful or the negligence gross, exemplary 
 damages may be assessed. 16 
 
 Patient's Duty to Prevent Aggravation of Injury. It is a 
 general rule of law that a person who is injured by the fault 
 of another must use all reasonable means to protect himself 
 against aggravation of the injury and cannot recover for 
 any suffering or physical disability which, under the circum- 
 stances, could have been prevented by the use of reasonable 
 precaution and attention in caring for the injury. 17 But 
 this doctrine can have but little bearing in a case of mal- 
 practice, because the patient is usually justified in assum- 
 ing that he is already receiving proper medical and surgical 
 attention. 
 
 A person who is suffering from an injury is required 
 to use reasonable diligence to employ a physician of skill to 
 treat him, where treatment is reasonably necessary, and if 
 he is not negligent in failing to employ any physician, all 
 the damages he sustains will be regarded as the natural con- 
 sequences of his original injury, even though physicians 
 may have the opinion that, with medical assistance, the 
 result would not have been as serious; and if he employs 
 a skillful physician, the law regards an injury resulting from 
 the mistakes of such physician, or from the failure of the 
 means employed by him to effect a cure, as a part of the 
 immediate and direct damages flowing from the original 
 injury. 18 
 
 The reason for the rule does not apply in cases of patient 
 and physician ; hence, a patient is not bound to seek the aid 
 
 16 Dorris v. Warford, 124 Ky., 768. 
 
 IT Murphy v. S. P. Co., 31 Nev., 120, 134; Osborne v. Detroit, 32 Fed., 36; 21 A. 0., 
 502, 513. 
 
 18 Variety Mfg. Co. v. Landaker, 227 111., 22, 25.
 
 176 MEDICAL JUEISPEUDENCB. 
 
 of other practitioners to mitigate the consequences of the 
 mistakes of his attending physician as long as the relation 
 exists. 19 
 
 Mere Contingencies. Consequences which are contingent, 
 speculative or merely possible are not proper to be consid- 
 ered in assessing damages. It is not enough that the 
 injuries received may develop into more serious conditions 
 than those which are visible at the time of the injury, or even 
 that they are likely so to develop. To entitle the plaintiff 
 to recover present damages for apprehended future conse- 
 quences, there must be such a degree of probability of 
 their occurring as amounts to a reasonable certainty that 
 they will result from the original injury. 20 Therefore, 
 physicians will not be permitted to testify that certain speci- 
 fied results sometimes follow a specified inquiry. 21 
 
 Cannot Recover for Original Injury or Disease. The 
 damages which a patient may recover are those growing out 
 of the injury resulting from the negligence, but not for any 
 loss sustained by reason of the original disease or condition. 
 
 Mitigation. Where a physician is sued for malpractice 
 resulting in the death of his patient, he may show that the 
 nature of the patient's disease was of such character that 
 he would have died soon in any event. Though not a bar, 
 the fact goes to mitigation of the damages. 22 
 
 Excessive Damages. In an action for malpractice, a ver- 
 dict for the patient will not be set aside on the ground that 
 the damages found are excessive, unless it appears that the 
 jury was influenced by passion, prejudice or other improper 
 motive. 23 
 
 An Illinois court considered that a judgment for three 
 
 19 Chamberlin v. Morgan, 68 Pa, 168. 
 
 20 McLain v. R. C., 116 N. Y., 460, 467. 
 
 21 Blate v. R. Co., 44 N. Y. Supp., 615; Pry v. R. Co., 45 la., 416. 
 
 22 Chase v. Nelson, 39 HI. App., 53. 
 
 23 Chamberlain v. Porter, 9 Minn., 260; Kelsey v. Hay, 84 Ind., 189.
 
 DEFENSES, DAMAGES, OTHER FEATURES. 177 
 
 thousand dollars was not excessive in a malpractice case, 
 where the defendant, while claiming to put in artificial 
 teeth without plate or bridge work, placed in the plaintiff 's 
 mouth heavy bridge work by what was pretended to be a 
 secret process, and in so doing filed, ground, broke and 
 loosened plaintiff's teeth and produced other damage to 
 her mouth. The case contained an element of fraud and 
 deceit, and the court held that there was evidence to support 
 such a charge, and these facts should be taken into consid- 
 eration in accepting the case as an example, since it appears 
 from the report of the case that the damages allowed were 
 more than compensatory. 24 
 
 A verdict for $500 was held not excessive in an action 
 against a dentist for negligence in allowing a tooth to fall 
 into the patient's windpipe during the operation of extrac- 
 tion. 25 
 
 Form of Action. A suit for malpractice is a civil action. 
 Such actions are almost invariably in tort, that is, ex delicto 
 in character. However, a practitioner may make a special 
 contract with his patient for special skill and care, for viola- 
 tion of which he will be liable in contract; but where the 
 action is for a breach of the obligation imposed by law as a 
 matter of public necessity and policy, it is in the nature of 
 tort and not in contract. 26 Nevertheless, "if the defendant 
 made a contract with the plaintiff to treat him and his fam- 
 ily, as alleged in the petition . . . and simply broke the con- 
 tract by refusing to come when sent for . . . the right of 
 action would be simply for the breach of the contract, and 
 there would be no right of action in tort. But if the phy- 
 sician came and undertook the case and, having undertaken 
 it, was negligent in his treatment, then a cause of action in 
 tort may be maintained for the non-performance of the duty 
 
 24 Prout v. Martin, 160 111. App., 11. 
 
 25Keily v Colton, 1 City Ct. (N. Y.), 489. 
 
 26 Carpenter v. Walker, 170 Ala., 659 ; 25 A. C., 866.
 
 178 MEDICAL JURISPRUDENCE. 
 
 which the law cast upon him when he undertook to treat the 
 case." 27 A practitioner who accepts but fails to respond 
 to a call cannot be said to be guilty of malpractice, and, if 
 the patient is damaged, his action ought to sound in con- 
 tract. 28 But even in such case, the question might arise as 
 to whether the delay in responding was due to refusal to call 
 at all, or. to negligence in determining when to make the 
 visit. Some courts hold that in any case the patient may 
 waive the tort and sue in contract. 29 And the law of con- 
 tracts with reference to limitations and survival applies. 30 
 Where the patient sues for the breach of a special agree- 
 ment his action is in contract. 31 
 
 BEASON FOE ALLEGING CONTRACT. In actions of malprac- 
 tice the usual allegations of employment of the practitioner 
 by the patient are mere matters of inducement to show the 
 relation existing between the parties and, inferentially, the 
 obligation imposed by law on the practitioner by reason 
 thereof. 
 
 Death from Malpractice. At common law no action lies 
 for damages caused by the death of a human being, by the 
 wrongful or negligent act of another, in favor of the heirs, 
 distributees or personal representatives of the decedent. 32 
 
 LORD CAMPBELL'S ACT. In 1846 the British Parliament 
 passed a statute familiarly known as Lord Campbell's Act, 
 in words as follows: "That whensoever the death of a 
 person shall be caused by wrongful act, neglect or default, 
 and the act, neglect or default is such as would (if death 
 had not ensued) have entitled the party injured to main- 
 tain an action and recover damages in respect thereto, then 
 
 27 Randolph v. Snyder, 139 Ky. t 159. 
 zsSee Adams v. Henry, 165 Mich., 554; 24 A. C., 829. 
 29 Lane v. Boicourt, 128 Ind., 420. 
 
 so Staley v. Jameson, 46 Ind., 156 ; Long v. Morrison, 14 Ind., 595 ; Goble v. Dillon, 
 86 Ind., 327. 
 
 31 Burns v. Barenfield, 84 Ind., 43. 
 82 Holton v. Daly, 106 HI., 181, 136.
 
 DEFENSES, DAMAGES, OTHEE FEATURES. 179 
 
 and in every such case, the person who would have been 
 liable if death had not ensued, shall be liable to an action 
 for damages, notwithstanding the death of the person in- 
 jured and, although the death shall have been caused under 
 such circumstances as amount, in law, to a felony." The 
 act then provides that the suit shall be brought for the 
 benefit of the wife, husband, parent and child of the de- 
 ceased in the name of the personal representative of the 
 deceased. 
 
 ADOPTED GENERALLY. This statute has been enacted, with 
 slight modifications and additions, in all the States of the 
 United States, and in all countries which follow English 
 jurisprudence, and wherever such a statute is in force a 
 practitioner is liable for all damages sustained by the bene- 
 ficiaries named in the statute, in case the death of his pa- 
 tient results from his malpractice. 
 
 DAMAGES. In these cases, where the beneficiaries are 
 lineal kindred of the deceased, the damages which are re- 
 coverable are usually limited to the pecuniary loss sustained 
 by such beneficiaries. 33 
 
 Joint Tort Feasors Joint and Several Actions. Where 
 two or more physicians are jointly guilty of malpractice, 
 suit may be brought by the patient against all jointly, or 
 one, or any number less than all, at the option of the pa- 
 tient, or separate actions may be brought against all, or 
 any number less than all. 34 One practitioner, however, is 
 not liable for an injury inflicted by another, unless they 
 were partners or acted in concert or co-operation, and sev- 
 eral will not be liable for the torts of one unless they con- 
 certed or co-operated in the negligent act, or unless their 
 combined, co-operating conduct produced the resultant 
 injury. 
 
 33 Chicago, etc. v. Kelly, 182 111., 267. 
 
 34 Barnes v. Means, 82 111., 378; Yeazel v. Alexander, 58 111., 254, 261; Chicago v. 
 Babcock, 143 111., 358, 366.
 
 180 MEDICAL JURISPRUDENCE. 
 
 INDEPENDENT ACTS. Where the acts of the practitioners 
 are entirely distinct and separate as to aid, concert, advice, 
 co-operation or countenance, one to the other, there can 
 be no joint liability and each will be liable only for his own 
 wrong. 35 
 
 PHYSICIAN AND DRUGGIST. The physician who writes a 
 prescription and carelessly inserts a deadly drug, or too 
 large a proportion thereof, in view of the prescribed dose, 
 and the druggist who compounds it with knowledge of the 
 use to which it is to be put, are jointly liable to the patient 
 for injurious consequences, or to the proper representative 
 in case of the death of the patient as a result of taking the 
 medicine. 36 
 
 ASSISTANT TO SURGEON. Where the family physician is 
 present at an operation and assists the operating surgeon 
 in minor ways but does not exercise any discretion as to 
 the operation, and did not have anything to do with the 
 handling of sponges or gauze, he is not jointly liable with 
 the operator who carelessly left gauze in the abdominal 
 cavity after closing the wound. 37 
 
 CONTRIBUTION. Where a patient sues only one practi- 
 tioner, or any number less than all who are jointly guilty 
 of malpractice, those sued cannot require the others to be 
 made parties to the suit nor to contribute to the payment 
 of the judgment. 38 When an action is founded upon con- 
 tract all parties liable are required to contribute their 
 pro rata share. 
 
 SATISFACTION. In cases of this character, a patient can 
 have but one satisfaction of his damages. If, for a suffi- 
 cient consideration, he releases one of the joint wrongdoers, 
 he releases all and, if a judgment against one is satisfied, 
 
 35 Teazel v. Alexander, 58 111., 254, 262. 
 
 36 Sutton v. Wood, 120 Ky., 23 ; 8 A. C., 894 ; Tumblay v. Kimball, 24 A. C., 1215, 
 1219; Murdock v. Walker, 43 111. App., 590. 
 
 37 Brown v. Bennett, 157 Mich., 654. 
 
 38 Bend v. R. R. Co., 8 111. App., 517, 525; Reed v. Peterson, 91 111., 288, 297.
 
 DEFENSES, DAMAGES, OTHER FEATURES. 181 
 
 it bars a prosecution of the others, or a collection on the 
 judgments. 39 
 
 PURCHASE OF PEACE AGREEMENT NOT TO SUE. An agree- 
 ment not to sue is not considered an accord and satisfac- 
 tion, does not amount to a release and, therefore, if given 
 to one or more joint wrongdoers, for a sufficient consider- 
 ation, does not bar action against other joint wrongdoers. 40 
 
 Survival of Action. In the absence of statutory pro- 
 visions to the contrary, a right of action for malpractice 
 does not survive the death of either patient or practitioner, 
 and if suit has been brought, it abates upon the death of 
 either. 41 
 
 However, if a partner, who is guilty of malpractice, dies, 
 the right of action survives against the surviving partner, 
 whether the latter contributed to the malpractice or not. 42 
 
 39 Vigeant v. Scully, 35 111. App., 44, 47. 
 
 40 Chicago v. Smith, 95 111. App., 335, 339. 
 
 41 Vittum v. Oilman, 48 N. H., 416 ; Boor v. Lowrey, 103 Ind., 468 ; Wolf v. Wall, 40 
 O. St., Ill; Lattimore v. Simmons, 13 S. & R., 183. 
 
 42 Hess v. Lowrey, 122 Ind., 225.
 
 CHAPTEE XVI. 
 CRIMINAL MALPRACTICE. 
 
 Definition. Criminal malpractice consists in doing acts 
 which show a reckless disregard of human life or which 
 are expressly forbidden by statutes or denounced by the 
 common law, on the part of a physician in treating a pa- 
 tient, by means of which the patient suffers death or un- 
 necessary injury. 1 
 
 Negligence. 
 
 Criminal Liability. In case of gross negligence of a phy- 
 sician, resulting in the death of his patient, he may be 
 guilty of manslaughter. 2 In order to sustain the action, 
 gross incompetency or reckless inattention or indifference 
 must be shown. An inadvertent mistake, a mere error of 
 judgment, an inability to master unforeseen conditions will 
 not be sufficient to predicate such liability. 3 In case of 
 criminal negligence, where death does not result, the prac- 
 titioner will be guilty of a misdemeanor. 4 The real intent 
 of the physician is immaterial. He is presumed to intend 
 the reasonable and probable consequences of his acts. 5 
 Thus, in England, a physician has been held criminally 
 liable where corrosive sublimate was applied as a remedy 
 for cancer and as an emetic to remove mercury from the 
 system, and where other dangerous and deadly medicines, 
 as arsenic and lobelia, were administered by one ignorant 
 
 1 Tucker v. Gillett, 22 O. Oir. Ct., 664, 669. 
 
 2 State v. Reynolds, 42 Kan., 320. 
 
 3 Com. v. Pierce, 138 Mass., 165. 
 
 4 State v. Reynolds, 42 Kan., 320; Hyatt v. Adams, 16 Mich., 198. 
 8 Rex v. Simpson, 4 C. & P., 398 ; Stehr v. State, 92 Nebr., 755. 
 
 182
 
 CBIMINAL MALPRACTICE. 183 
 
 of their effects. Mere error of judgment does not consti- 
 tute criminal carelessness. Eeckless failure to give proper 
 instructions to a patient as to the use of a dangerous drug, 
 gross ignorance of the proper use of instruments or of the 
 effects of dangerous remedies employed and the selection 
 and application thereof may constitute criminal malprac- 
 tice. 6 
 
 Abortion. 
 
 Definition. Abortion is the act of miscarrying, or pro- 
 ducing young before the natural time; before the foetus is 
 perfectly formed, or able to sustain life. 
 
 To cause, procure or produce an abortion is, therefore, 
 to cause, procure or produce this premature bringing forth 
 of the foetus. 
 
 Criminal Abortion. 
 
 At Common Law. Abortion as a crime is to be found 
 only in modern treaties and modern statutes. No trace of 
 it is to be found in the ancient common-law writers. 7 How- 
 ever, the courts of this country are not agreed as to the 
 nature of this act at common law. In a number of the 
 States there are decisions to the effect that "to produce 
 an abortion on a woman before she is quick with child and 
 with her consent" is not to commit the common law crime 
 of abortion. On the other hand, it has been judicially de- 
 clared in Pennsylvania that " It is a flagrant crime at com- 
 mon law to attempt to produce the miscarriage or abortion 
 of a woman, because it interferes with and violates the 
 mysteries of nature in the process of which the human race 
 is propagated and continued. It is a crime against nature 
 which obstructs the fountains of life and therefore it is 
 punished. ... It is not the murder of a living child which 
 constitutes the offense of abortion, but the destruction of 
 
 6 22 Am. & Eng. Ency. Law, 811. 
 1 State v. Cooper, 22 N. J. L., 52.
 
 184 MEDICAL JURISPHUDENCE. 
 
 gestation by wicked means and against nature. . . . The 
 moment the womb is instinct with embryo life and gesta- 
 tion has begun, the crime may be perpetrated. " 8 It is 
 perfectly certain, by the unanimous concurrence of all the 
 authorities, that at common law, the offense could not be 
 committed unless the child had quickened. This seems to 
 be the reasonable and just doctrine. 9 
 
 Attempt To Abort. The law prohibits not only abortion 
 when without legal justification but also the attempt to 
 abort when not legally necessary. 
 
 Intent. Intent to produce a miscarriage, without legal 
 excuse, is a necessary element of the offense; hence to as- 
 sault and beat, in anger, a pregnant woman, thereby caus- 
 ing her to abort, does not constitute the crime of abortion. 10 
 Intent may appear manifest from the character of the 
 means employed, must be shown by the circumstances and 
 will be presumed if the statutory elements of the offense 
 are present. 11 
 
 Where a physician attended a woman in premature con- 
 finement, to which he in no way contributed, and removed 
 the foetus by force, he was held not liable criminally under 
 the provisions of the statute of Illinois. 12 That the de- 
 fendant was the father of the child is competent evidence 
 to show the motive for an attempt to produce an abortion. 13 
 
 Without the Woman's Consent. The use of violence 
 upon a woman, with intent to produce her miscarriage, 
 even before quickening, without her consent, is an assault 
 highly aggravated by such wicked purpose and is indictable 
 at common law. 14 
 
 8 Mills v. Com., 13 Pa. St., 630. 
 
 9 State v. Slagle, 83 N. C., 630 ; People v. Sessions, 58 Mich., 594 ; Smith v. Gafford, 
 31 Ala., 45; State v. Atwood, 54 On. 526; 21 A. C., 516, 522. 
 
 10 Slattery v. People, 76 HI., 217. 
 
 11 State v. Glass, 5 Ore., 73. 
 
 12 Honnard v. People, 77 HI., 481. 
 
 13 Scott v. People, 141 111., 195. 
 
 i* Com. v. Parker, 9 Mete. (Mass.), 263; Smith v. State, 33 Me., 48; State v. Cooper, 
 22 N. J. L., 52.
 
 CRIMINAL MALPRACTICE. 185 
 
 Of course, the consent of the woman does not relieve the 
 act of its criminality under the statutes or at common law. 15 
 
 Knowledge of Pregnancy. An intent to commit an abor- 
 tion may exist without an absolute knowledge of preg- 
 nancy. 16 
 
 Pregnancy Not Necessary to Attempt to Abort. Under 
 some statutes which do not specify a pregnant woman, an 
 attempt to cause abortion may be committed on a woman, 
 even though she is in fact not pregnant. The offense is 
 considered complete when the overt act is committed with 
 the specific criminal intent. 11 
 
 Means Employed. Where the intent to commit an abor- 
 tion exists, the means employed are usually not material. 
 Thus, where a party has a pregnant woman under his con- 
 trol and induces her to indulge in excessive and violent 
 exercise with the intent thereby to produce an abortion, 
 and such result follows, he is guilty of the offense. 18 
 
 Failure to Produce Abortion. The fact that the efforts 
 of the defendant were barren of results and the contem- 
 plated miscarriage was not effected, has no bearing upon 
 the guilt of the accused when charged with an attempt to 
 abort, since the actual abortion is not necessary to the 
 consummation of the offense. 19 
 
 Advice to Procure Abortion. Ordinarily, mere advice to 
 a pregnant woman to take medicine to bring about a mis- 
 carriage, or to undergo an operation for that purpose, 
 without any overt act or assistance, will not render the 
 advisor guilty of the offense denounced by the statute. 20 
 However, owing to the language of some statutes, mere ad- 
 
 15 State v, Moore, 25 la., 128; Com. v. Snow, 116 Mass., 47. 
 
 16 Powe v. State, 48 N. J. L., 34. 
 
 17 Powe v. State, 48 N. J. L., 84; Com. v. Surles, 165 Mass., 59; Eggart i>. State, 
 40 Pla., 527. 
 
 18 1 Cyc., 170. 
 
 19 Smith v, 'State, 33 Me., 48; Willingham v. State, 33 Tex. Grim., 98; State v. Owens, 
 22 Minn., 238. 
 
 20 People v. Phelps, 133 N. Y., 267.
 
 186 MEDICAL JUKISPEUDENCE. 
 
 vice and information are considered as completing the 
 offense of attempt, without any overt act. 21 
 
 Proof of Pregnancy. Where the statute designates a 
 pregnant woman or a woman pregnant with child, the preg- 
 nancy of the woman in question must be proven beyond a 
 reasonable doubt, but not with absolute certainty, such 
 reasonable certainty as shall silence all reasonable doubt 
 is sufficient. 22 If the pregnancy is admitted and the de- 
 fense offered is that the foetus was dead at the time of the 
 operation, the burden is upon the defendant to introduce 
 some evidence to establish that fact, on the ground that 
 life once existing is presumed to continue. 23 
 
 Stage of Pregnancy. Where the statutes make preg- 
 nancy of the woman an ingredient of the offense, without 
 specifying the stage of gestation, the crime may be com- 
 mitted at any time after conception and before complete 
 parturition. 24 
 
 Period of Pregnancy. Pregnancy begins with conception 
 and ceases when the foetus has come forth from the womb, 
 even though it is still attached by the umbilical cord, and 
 though the afterbirth has not been removed. 25 
 
 Existence of Pregnancy. Pregnancy may be shown by 
 conduct, statements and probative circumstances, 26 and it 
 need not be proven that the foetus was alive at the time and 
 in the course of nature would have matured into a human 
 being. 27 If the foetus was dead, such fact is a defense. 
 
 Evidence. The mere fact that treatment was followed 
 by expulsion of the foetus, does not establish the offense, 
 but is a fact to be taken into consideration. A denial by 
 
 21 State v. Murphy, 27 N. J. L., 112. 
 
 22 State v. Stafford, 145 la., 285 ; Fitch v. People, 45 Colo., 298 ; State v. Lilly, 47 W. 
 Va., 496. 
 
 23 Com. v. Reid, 8 Phila. (Pa.), 385, 400. 
 
 24 State v. Fitzgerald, 49 la., 260. 
 
 25 Com. v. Brown, 14 Gray (Mass.), 415. 
 20 State v. Alcorn, 7 Idaho, 599. 
 
 27 Com. v. Surles, 165 Mass., 59.
 
 CRIMINAL MALPRACTICE. 187 
 
 the woman that she had been .criminally aborted will not 
 defeat a prosecution, and often is entitled to but little con- 
 sideration in the light of other facts and circumstances. 
 However, she is not usually considered an accomplice. 28 
 
 KES GEST.E. Letters, statements and conduct of the 
 woman so closely connected in time and substance with the 
 facts and conduct alleged as to be a part of the res gestce, 
 are admissible in a prosecution of a physician for causing 
 the abortion. 29 
 
 CIRCUMSTANTIAL EVIDENCE. The evidence in abortion 
 cases is almost exclusively circumstantial, and the question 
 of admissibility of collateral facts is often determined by 
 the nature of the case under consideration. The tendency 
 is to permit the evidence to cover a wide range of subjects 
 and to admit in evidence any fact which has a bearing on 
 any issue in the case. 30 
 
 It is proper to show that the physician accused held him- 
 self out as able and willing to assist women in producing 
 miscarriages, when evidence has been introduced tending 
 to show the commission of the offense, or where the phy- 
 sician admits the act and attempts to justify it on the 
 ground of necessity, because such holding out tends to show 
 his intent and characterizes the act. 31 
 
 OPINION EVIDENCE. The opinions of medical experts are 
 admissible to prove that an abortion had been performed 
 on a woman, the nature and effect of drugs, treatments and 
 instruments, the stage to which pregnancy had advanced 
 at the time of the expulsion, and other pertinent matters of 
 a medical character. But the opinion of the woman as to 
 
 28 People v. Vedder, 98 N. Y., 630; Com. v. Boynton, 116 Mass., 343; Smartt v. 
 State, 112 Tenn., 539; State v. Smith, 99 la., 26; Seifert v. State, 160 Ind., 464. 
 
 29 State v. Dickinson, 41 Wis., 299 ; Solander v. People, 2 Colo., 48 ; State v. Ryder, 
 80 Vt., 422. 
 
 30 Clark v. People, 224 111., 554, 562; People v. McGonegal, 136 N. Y., 62; Diehl v. 
 State, 157 Ind., 549. 
 
 81 Clark v. People, 224 111., 554; People v. Sessions, 58 Mich., 594; Clark v. Com., 
 Ill Ky., 443.
 
 188 MEDICAL JURISPRUDENCE. 
 
 the effect of the drugs taken or treatments administered 
 is not admissible. 32 Of course, she can testify as to what 
 followed the treatment or administrations, but she cannot 
 state that such conditions were the result of the treatment 
 or operation. 33 
 
 Statutes. This subject is now regulated by statute. 
 The same general purpose is aimed at by all legislation 
 and the provisions are substantially similar. The statute 
 of Illinois may be taken as an illustration of the spirit of 
 such laws. 
 
 "Whoever, by means of any instrument, medicine, drug 
 or other means whatever, causes any woman, pregnant with 
 child, to abort or miscarry, or attempts to procure or pro- 
 duce an abortion or miscarriage, unless the same were done 
 as necessary for the preservation of the mother's life, shall 
 be imprisoned in the penitentiary not less than one year 
 nor more than ten years ; or if the death of the mother re- 
 sults therefrom, the person procuring or causing the abor- 
 tion or miscarriage shall be guilty of murder. ' ' 34 
 
 Necessary to Save the Mother's Life. BURDEN OF 
 PROOF. All statutes except from their prohibition cases 
 when the delivery is necessary to save the mother's life, 
 the exception being expressed in slightly varying language 
 in different States. Ordinarily the burden is on the de- 
 fendant to show that his act comes within the exception to 
 a statute. However, in cases of abortion, where the statute 
 excepts cases necessary to save the mother's life, the ma- 
 jority of the courts hold that the burden is on the prosecu- 
 tion to prove the absence of such necessity for the oper- 
 ation. 35 Even if the exception did not appear in the 
 
 32 State v. Baldwin, 79 la., 714; King v. State, 35 Tex. Grim., 472. 
 SSNavarro v. State, 24 Tex. App., 378; People v. Olmstead, 30 Mich., 431. 
 
 34 R. S. 111., Chap. 38. 
 
 35 State v. Lee, 69 Conn., 186 ; State v. Aiken, 109 la., 643 ; State v. Clements, 15 Ore., 
 237; Moody v. State, 17 O. St., 110; State v. Meek, 70 Mo., 355; Hatchard v. State, 79 
 Wis., 357.
 
 CRIMINAL, MALPRACTICE. 189 
 
 statute, doubtless the existence of the fact that the oper- 
 ation was necessary to save the mother's life, would com- 
 pletely exonerate the physician and relieve him of criminal 
 liability in performing the operation but the burden of 
 proving such fact would be upon him. 36 
 
 NECESSITY . MEANING OF THE TERM. The necessity men- 
 tioned in the various statutes, and which as a matter of 
 common law will justify the operation, is intended to cover 
 only those cases where the death of the mother might rea- 
 sonably be expected to result from natural causes, growing 
 out of or aggravated by the pregnancy, unless the child is 
 destroyed. Of course, it need not appear that the death 
 of the mother is inevitable and at hand in the absence of 
 the operation. 37 However, the fact that the woman has 
 threatened to commit suicide unless relieved of her child 
 is not such a necessity as the statutes contemplate or the 
 common law would recognize. The threatened death must 
 be the natural and apparent result of existing conditions. 38 
 A desire to shield the woman from ignominy and disgrace 
 does not bring the case within the exception, nor relieve 
 the act of criminality. 39 
 
 ADVICE OF PHYSICIAN. Where a physician after proper 
 examination, in good faith, concludes that an operation is 
 necessary to save the life of the mother or child, and his 
 diagnosis and prognosis are concurred in by other phy- 
 sicians, after independent investigation, he is justified in 
 acting, even though the statute makes no provision for de- 
 termining when the necessity exists, or does not except such 
 cases. 40 The mere belief of the operator that abortion is 
 necessary, however conclusively established, is not suffi- 
 
 36 State v. Fitzporter, 93 Mo., 390; Bassett v. State, 41 Ind., 303; State v. Clements, 
 15 Me., 237; State v. Stokes, 54 Vt., 179. 
 
 37 Beasley v. People, 89 111., 571. 
 
 38 Hatchard v. State, 79 Wis., 357. 
 
 39 Com. v. Wood, 11 Gray (Mass.), 85; Com. v. Snow, 116 Mass., 47. 
 
 40 People v. Johnson, 33 Colo., 224; Beasley v. State, 89 111., 572.
 
 190 MEDICAL JURISPRUDENCE. 
 
 cient; the necessity must exist as a matter of fact* 1 and 
 such conditions must be shown as reasonably to justify 
 such belief. 
 
 Distinction Between Civil and Criminal Malpractice. 
 1. The former is a civil, the latter a criminal action. 
 
 (a) The one is brought by the injured patient; the other, 
 by the State. 
 
 (b) In the first, the patient recovers for his damages; in 
 the second, a fine is levied and perhaps imprisonment in- 
 flicted as a punishment for the offense. 
 
 (c) The civil is compensatory, for damages sustained; 
 the criminal is remedial and punitive for the purpose of 
 preventing crime. 
 
 2. The civil action is based upon want of skill, care or 
 good judgment; the criminal action has no reference 
 thereto, the act itself constituting the offense. 
 
 3. In the civil, the consent of the patient usually is a 
 complete defense where the fact (as consent to a surgical 
 operation) enters as an element in issue; in the criminal, 
 the consent of the patient is immaterial, and merely makes 
 her a particeps criminis. 
 
 4. The necessity for the operation is not ordinarily a 
 defense to a civil suit; whereas, in a criminal action, the 
 necessity of the operation to save the life of the mother is 
 a complete defense under our statute. 
 
 41 Hatchard v. State, 79 Wis., 357.
 
 CHAPTEK XVII. 
 
 FALSE REPRESENTATIONS. 
 
 Fraud. 
 
 Definition. Any deceitful practice in depriving or en- 
 deavoring to deprive another of property or rights by 
 means of some artful device, trickery, chicanery, contriv- 
 ances, stratagem or plan contrary to the plain rules of 
 common honesty, is fraud. 1 
 
 Fraud may be said to consist in deception intentionally 
 practiced upon another to induce him to part with his prop- 
 erty or to surrender some legal right or claim, and which 
 deception accomplishes the end designed. 2 The fraud 
 which gives rise to an action of deceit exists where a person 
 makes a false representation of a material fact susceptible 
 of knowledge, knowing it to be false, or as of his own knowl- 
 edge, when he does not know whether it is true or false, 
 with the intention to induce the person to whom it is made, 
 in reliance upon it, to do or refrain from doing something 
 to his pecuniary hurt, when such person, acting with rea- 
 sonable prudence, is thereby deceived and induced to do so, 
 or refrain, to his damage. 3 
 
 Effect. Fraud vitiates everything it touches and makes 
 voidable every contract it induces. 
 
 Intent. A fraudulent intent or design is necessary in 
 order to predicate a right of action. Where the statement 
 is made or the opinion expressed with knowledge of its 
 falsity, or recklessly without any knowledge of its truth 
 
 1 Mitchell v. Kintzer, 5 Pa. St., 216, 219. 
 
 2 Judd v. Weber, 55 Conn., 267, 277. 
 
 3 20 Cyc., 10. 
 
 191
 
 192 MEDICAL JUKISPEUDENCE. 
 
 or falsity, and as a positive assertion calculated to convey 
 the impression that the speaker knows or believes it to be 
 true, a fraudulent intent will always be inferred. Where 
 the statement or opinion was false and material, and the 
 party when he made it knew that it was false, or, not know- 
 ing whether it was true or false and not caring what the 
 effect might be, made it in reckless -disregard of the facts, 
 and paying no heed to the injury which might ensue to the 
 other party, a fraudulent intent will be presumed. 4 An 
 honest error of judgment is not sufficient to predicate a 
 charge of fraud because the wrongful intent is wanting. 5 
 Where an opinion is recklessly made, however, a fraudulent 
 intent may be presumed. 6 
 
 Corrupt Motive. There need not be a corrupt motive of 
 gain nor a wicked motive of injury to predicate an action 
 of deceit, although the former is usually present. The 
 gist of fraudulent representations is the producing, by 
 statement or conduct, of a false impression upon the mind 
 of the party to whom they are made, with the intent to 
 create such false impression, and, where this result is ac- 
 complished, the means by which it is consummated, whether 
 by the expression of a belief or by the assertion of a fact, 
 are not very material as a matter of justice and fair deal- 
 ing. A charge of fraud may be based upon a knowingly 
 false expression of opinion by an expert, or upon an ex- 
 pression by an expert of an opinion in utter disregard of 
 the facts and inconsistent with the honesty and good faith 
 of the party expressing it, where the party has, or, under 
 the law, should have special knowledge on the subject not 
 possessed by the other party, and where he ought to be 
 able to approximate the truth. 7 
 
 4 Hedin v. Institute, 62 Minn., 146; Kuntze v. Kennady, 147 N. Y., 124, 129. 
 
 5 Johnson v. Beeney, 9 111. App., 64. 
 
 6 Miller v. John, 208 111., 173. 
 
 7 Hedin v. Minnesota M. & 8. I., 62 Minn., 146 ; Picard v. McCormick, 11 Mich., 68 ; 
 Kost v. Bender, 25 Mich., 515; Powell v. Fletcher, 18 N. Y. Supp., 451 and 19 N. Y. 
 Supp., 911.
 
 FALSE REPRESENTATIONS. 193 
 
 Materiality. It must appear that the representation of 
 fact or opinion was material to the transaction, otherwise 
 the court will not attempt to give relief. If a false repre- 
 sentation be such that, had it not been made, the trans- 
 action would not have been entered into, then it is material ; 
 but if it be established or made probable that the same 
 thing would have been done in the same way by the party 
 complaining, if the representation had not been made, it 
 cannot be deemed material. 8 The fact that the statement 
 or opinion was intended to deceive, was of a character cal- 
 culated to deceive the party to whom it was addressed, and 
 actually did deceive, are considered sufficient to establish 
 its materiality. 9 To be actionable the representation must 
 be as to a material fact, and susceptible of knowledge. 
 Generally speaking, if they appear to be mere matters of 
 opinion or conjecture, they are not regarded as material. 10 
 
 Opinions. In ordinary business transactions, the expres- 
 sion of an erroneous or false opinion is not considered, in 
 law, a false representation. Thus, opinions of quality, 
 utility, value, capability or other generally recognized 
 commercial attributes of an article are not regarded as 
 statements of fact, within the meaning of the law. A repre- 
 sentation that a worthless medicine is a sure cure for 
 cholera is a statement of a fact, not the expression of an 
 opinion, and is actionable fraud if relied upon. 9 
 
 Caveat Emptor. Caveat emptor is the prevailing doc- 
 trine. The rule is based upon the presumption that both 
 parties to the transaction are equally competent to form 
 an opinion ; that neither should be misled by the knowingly 
 false or honestly erroneous opinions of the other, and that 
 as the basis of the opinion is equally within the knowledge 
 of both, neither should be deceived by the alleged mental 
 
 8 McAleer v. Horsey, 35 Md., 439. 
 
 McDonald v. Smith, 139 Mich., 21; 102 N. W., 668. 
 
 10 Hedin v. Institute, 62 Minn., 146.
 
 194 MEDICAL JUEISPEUDENCE. 
 
 conclusions of the other. In a great majority of business 
 proceedings this presumption is practically true, and 
 neither party thereto is materially influenced by the opin- 
 ions of his adversary. 
 
 Actionable Misrepresentation. False representations, to 
 be the basis of an action of deceit or criminal prosecution, 
 must be of a past or present existing material fact. The 
 common law did not encourage reliance upon a mere opin- 
 ion of an adversary in a business deal. Adversary is used 
 advisedly; the common law practically forced a vendee to 
 consider the vendor as an enemy. They were regarded in 
 the light of duelists battling for advantage. So long as 
 the vendor confined himself to opinions, whether of quality, 
 utility, value, capability, future usefulness, productivity, 
 salability or other similar attributes of the article, he was 
 not required to fix any limit to his imagination, except the 
 credulity of the prospective buyer; but the harshness of 
 this doctrine has been somewhat modified in modern times 
 and the more equitable doctrine of the civil law is gradually 
 shaping a new attitude of the courts toward the subject. 11 
 
 Peculiarity of the Relation. We are readily convinced 
 where we want to believe. The afflicted are easily deceived. 
 "With reference to their ailments they grasp at phantoms, 
 pursue the will-o'-the-wisp and cling to an offer of relief 
 with the tenacity of a delusion. Money has little signifi- 
 cance except as a means to a restoration to health. The 
 invalid is readily persuaded to spend his substance for 
 remedies which do him no good. Treatment, like religion, 
 is taken on faith and, once the patient is convinced, he be- 
 comes the dupe of the most arrant imposter. In any event 
 he can know the value of the treatment only by results and 
 in the meantime his money is being wasted. The causes 
 
 11 Hicks v. Stevens, 121 HI., 186; Hedin v. Minn. Med. & Surg. Institute, 62 Minn., 
 146.
 
 FALSE EEPEESENTATIONS. 195 
 
 which lead to health and disease are often obscure and 
 elude even the trained mind of the honest and faithful prac- 
 titioner. How easy, therefore, for the dishonest practi- 
 tioner to persuade his victim to continue treatments until 
 his substance is squandered and he is impoverished. The 
 dishonest practitioner is the meanest of confidence men. 
 The field of opportunity is great and, sorry commentary 
 though it be, it must be admitted that the opportunity has 
 been well improved. 
 
 Trust and Confidence. The relation of physician and pa- 
 tient necessarily imposes a large degree of trust and confi- 
 dence on the part of the patient and should require the 
 utmost good faith and fair dealing on the part of the prac- 
 titioner. The law justifies a patient in relying upon the 
 representations of his physician as to the nature of his 
 malady, the curability thereof, the character of treatment 
 necessary and the ability of the physician to afford relief. 
 If a practitioner is required by his patient to give an un- 
 qualified opinion as a condition precedent to his employ- 
 ment to treat the patient, he must use reasonable and ordi- 
 nary skill and care, and his best judgment; and exercise 
 good faith and the strictest honesty, eliminating all selfish 
 considerations in forming and expressing that opinion. 
 In such manner only can he discharge his full legal duty in 
 this respect. The reposing of faith and confidence by one 
 party in another and the justification thereof in the law, 
 are important elements in an action of deceit. 12 The law 
 does not assume to safeguard every confidence, and cannot 
 undertake to right every abuse thereof, since these elements 
 enter into every business and social transaction. In the 
 eyes of the law there are only two general classes of peo- 
 ple, (a) the legally competent, and (b) the legally incom- 
 petent. The legally competent are all put on substantially 
 
 12 Clodfelter t>. Hulett, 72 Ind., 137.
 
 196 MEDICAL JURISPEUDENCB. 
 
 the same plane ; they are treated, in the law, as though they 
 were absolutely equal in mental ability, experience and de- 
 velopment. The man with ten talents is under no different 
 or greater obligation by reason of that fact than the man 
 who has one talent. There are certain relations, however, 
 in which the law takes cognizance of the fact that the par- 
 ties thereto are not on an equality; that one of the parties 
 holds a dominant position; that the origin of the special 
 relation is due to the superior knowledge and ability of the 
 one over the other in the subject matter involved; that a 
 degree of special faith and confidence is essential, or at 
 least important, to successful results from the efforts put 
 forth in that behalf, and that the general welfare requires 
 that the utmost good faith be exacted of the dominant 
 party, and that the other party be encouraged to repose 
 faith and confidence in the superior. These considerations 
 have special application to the medical profession. Why 
 should the practitioner be permitted to say that his patient 
 should not have believed him, or that the patient should 
 have doubted or questioned his motives? 
 
 Confidential Relations and Special Knowledge. An opin- 
 ion, however, may be a sufficient basis for an action of 
 deceit, under proper conditions of subject-matter and rela- 
 tion of parties. Introduce a confidential relation and the 
 reason for the rule of caveat emptor ceases. Where the 
 disparity is great, the expression of an opinion may have 
 all the consequences, and should have all the legal responsi- 
 bilities, of an assurance of a material fact. Where the 
 relation is in its nature confidential, and the subject-matter 
 is a profession requiring special knowledge and skill, and 
 the party expressing the opinion is a practitioner therein, 
 while the one to whom the opinion is conveyed is not versed 
 in the profession but is actuated by self-interests to believe 
 the statements, the assurance of a belief may be sufficient
 
 FALSE BEPRESENTATIONS. - 197 
 
 in itself to induce and control the conduct of the party to 
 whom it is communicated, and the practitioner should be 
 held to the strictest accountability for the honesty, disin- 
 terestedness and practical accuracy thereof. The patient 
 may have no means of testing the truth of the opinion of 
 the practitioner or the good faith of its utterance. Where 
 one of the parties to a transaction possesses special learn- 
 ing and skill not possessed by the other on the subject with 
 respect to which the opinion is given and which is the sub- 
 ject of the relation, and where the other party is justified 
 in believing that such opinion can and ought to be an ap- 
 proximation to the truth, and the relation is such as to 
 justify a reliance by the one on the good faith and ability 
 of the other, an action of deceit may be predicated for the 
 false or reckless statement thereof, when deception is in- 
 tended and damage results in reliance thereon. Of course, 
 this does not mean that a practitioner cannot express an 
 opinion except at his peril, nor communicate his belief 
 without being liable for deceit, if it turns out to be wrong. 
 We are considering only his good faith in reference thereto. 
 He cannot use a professed opinion as a vehicle to entrap 
 and defraud his patients. He must not pretend to have a 
 conviction which he does not hold, nor make capital out of 
 an opinion which he cannot honestly possess. 13 
 
 False Pretenses. It is a fraud for a practitioner to pre- 
 tend, to the detriment of his patient, that he can cure or 
 alleviate a disease when he knows he cannot; or that his 
 patient is improving, when he knows or ought to know that 
 the trouble is not being relieved; or that he understands 
 the nature of the malady when, in fact, he is ignorant 
 thereof. In all these cases, the law should charge knowl- 
 edge, where the practitioner with the application of ordi- 
 
 13 Hedin v. Minnesota Med. & Surg. Institute, 62 Minn,, 146; Hicks v. Stevens, 121 
 111., 186,
 
 198 MEDICAL JURISPRUDENCE. 
 
 nary skill and care, and the exercise of good judgment, 
 ought to have known. If he finds he cannot help his pa- 
 tient he must advise him of that fact. 14 He owes this duty 
 of informing his patient for two reasons, (a) that the pa- 
 tient may determine whether he wants to continue the 
 services, and (b) that the patient may seek relief elsewhere, 
 if he desires. 
 
 MISSTATING IMPROVEMENT. Where a practitioner, know- 
 ing that he cannot cure an ailment or relieve a trouble, and 
 concealing such prognosis from the patient, persuades the 
 latter to take or continue a course of treatment and, during 
 the progress of the treatment, encouraging him to believe 
 that he is improving satisfactorily, well knowing that his 
 assurance is false and that the patient is relying upon his 
 statements, he is guilty of such fraud as will defeat a re- 
 covery for his services in that behalf. 15 
 
 Fair Dealing. If he finds that he cannot cure, he must so 
 advise his patient, and any concealment of his ignorance of 
 the patient's disease, or of his inability to afford relief, 
 while at the same time encouraging the patient to continue 
 the services, is a gross fraud on the part of the practitioner 
 and ought to defeat his right of recovery for such services, 
 if indeed it ought not to be attended by more serious conse- 
 quences. 16 Even though, because at the inception of the 
 treatment, the physician did not know that his method 
 would be ineffective, he might be justified in undertaking 
 the case, still, if, during the progress of the treatment, he 
 discovered that he could do the patient no good, or, by the 
 exercise of the care and skill required of him, he could have 
 discovered such fact, but did not, or, if, having discovered 
 it, he concealed the same from the patient and encouraged 
 him to continue the treatment and accept the services, then 
 
 i* Chase v. Heaney, 70 HI., 268. 
 is Logan v. Field, 75 Mo. App., 594. 
 i Chase v. Heaney, 70 111., 268.
 
 FALSE REPRESENTATIONS. 199 
 
 unquestionably he ought not to recover any compensation 
 therefor, after the discovery that his treatment would be 
 ineffectual, or after he could have discovered its want of 
 efficacy by the exercise of reasonable skill and care. 
 
 While the responsibility of practitioners is not based 
 upon the result of their remedies, they owe their patients 
 the highest degree of fairness and good faith and they 
 must not be guilty of any deception or indirection to the 
 detriment of their patients. 17 
 
 False Advertisements. False advertisements in news- 
 papers or by circulars, intended for the public, and solicit- 
 ing patronage, when acted upon by a party to his damage, 
 may be grounds for an action of deceit. 18 The advertiser 
 need not know that the patient saw the advertisement and 
 has acted upon the information obtained therefrom, and he 
 need not have made any personal representations to the 
 patient. 
 
 As to Third Party. False statements as to the curability 
 of a malady, method of treatment, and the ability of a third 
 party to cure the same, when made with intent to defraud 
 and when acted upon to his damage by a patient, in good 
 faith believing them to be true, may be sufficient to predi- 
 cate an action for deceit against the party making them, 
 by the party thereby defrauded. 19 
 
 Illustrations of the Principle. In a certain case the pa- 
 tient, who was an illiterate man, had previously been perma- 
 nently injured in an accident which left him a physical 
 wreck. He consulted with the physician in charge of an 
 Institute as to his condition, the probability of his recovery 
 and their ability to give him relief. The injury which he 
 had received was a fracture at the base of the skull, and it 
 occurred about a year before the conference with the phy- 
 
 17 Logan v. Field, 75 Mo. App., 584, 601. 
 
 is Warfield v. Clark, 118 la., 69. 
 
 19 Hedin v. Institute, 62 Minm., 146; Kenner v. Hardin, 85 111., 264.
 
 200 MEDICAL JURISPRUDENCE. 
 
 sician. The evidence warranted the jury in finding that his 
 injuries were incurable and that any honest physician, hav- 
 ing the history of the case before him, must, after a proper 
 examination, have come to that conclusion. The evidence 
 tended to show that after an examination the physician 
 positively assured the patient that he could be cured, and 
 that by treatment at the Institute he would be made sound 
 and well again. Belying upon these representations, and 
 believing them to be true, the patient was induced to enter 
 into a written agreement obligating himself to pay the sum 
 of five hundred dollars for the treatment. It appears from 
 the opinion of the court that the written contract did not 
 guarantee a cure or promise that the patient would be re- 
 stored to good health, or even assure him of any relief, but 
 merely obligated the institution to give him the treatment. 
 He paid his money, took the treatment but was not cured. 
 After learning his real condition he brought an action 
 against the institute and the physician to recover the fee 
 paid, on the ground that he was induced to enter into the 
 contract and pay his money to the defendants by means of 
 false and fraudulent representations. To maintain his 
 action it was incumbent on the patient to prove that his 
 malady was incurable ; that the defendants represented that 
 he could be cured and that they would cure him; that they 
 knew or, if skillful and honest, should have known that such 
 representations were false; that they were not the expres- 
 sion of an honest opinion, based upon a proper investiga- 
 tion, but were either fraudulently made with knowledge of 
 their falsity, or were uttered with a reckless or ignorant 
 disregard of facts, and of the interest of the patient; that 
 the patient did not know their falsity but believed them to 
 be true; that in reliance thereon he entered into the con- 
 tract and parted with his money; that his condition was 
 such that an honest physician should have been able to
 
 FALSE KEPEESENTATIONS. 201 
 
 approximate the truth and to have known that his malady 
 was incurable. On the trial, before a jury, the patient ob- 
 tained a verdict and judgment for the $500 which he had 
 paid, and interest thereon from the date of payment and, 
 on appeal, the judgment was affirmed. 20 The honest prac- 
 titioner can usually approximate the truth in his prognosis 
 in such cases, and the patient is justified in relying upon his 
 opinion as being substantially correct. The law must exact 
 of the practitioner the utmost good faith in this respect. 
 He dare not pretend to have an opinion which he does not 
 hold, nor express an opinion which, ordinary skill and hon- 
 esty should know to be false. If the expressed opinion is 
 contrary to the enlightened judgment of the profession at 
 the time and place, the jury are warranted in concluding 
 that it was deliberately false and that the practitioner knew 
 he could not accomplish the results stated and, therefore, 
 that the representations and promises were made for the 
 wrongful and deliberate purpose of depriving the patient 
 of his money, without giving the consideration anticipated 
 by the patient and promised by the physician. 
 
 Illustration. In the Logan case a physician brought an 
 action to recover his fee for treatments and the patient de- 
 fended on the ground of malpractice, charging that the 
 physician knew he was doing the patient no good, while 
 pretending to the patient that he was improving. The phy- 
 sician was practicing as a specialist for diseases of the 
 nose, throat and ear. Covering a period of nine months 
 he had previously given the patient sixty-four treatments 
 for his malady, which was an affection of the nose, and had 
 received his pay therefor. It appears that the treatment 
 did not do the patient any good. Later, he returned for 
 treatment, but told the physician he could not take the same 
 unless he could be cured, and the physician said that he 
 
 20 Hedin v. Institute, 62 Minn., 146.
 
 202 MEDICAL JURISPRUDENCE. 
 
 could not tell him at that time, but encouraged him to renew 
 the treatments, which was done. During the second course 
 of treatment the physician frequently told the patient his 
 nose was getting along beautifully. In fact, however, he 
 was not improving and the physician subsequently admitted 
 such fact and said that an operation would be necessary in 
 order to effect a cure or afford relief. Apparently, the pa- 
 tient refused to submit to an operation. On refusal of the 
 patient to pay for the treatment, the physician brought suit 
 for his fee and the patient, as his defense, charged malprac- 
 tice, alleging that he had received no benefit and that the 
 physician knew, or ought to have known, that he could not 
 help him. The case went to the Appellate Court because of 
 alleged error in the refusal of certain instructions asked by 
 the patient. It was considered by the court that if the 
 practitioner, by the exercise of that degree of skill and care 
 which the law exacts of him, might and reasonably ought 
 to have discovered (a) that the disease of the patient was 
 incurable, or (b) that it was a case that would not yield to 
 the usual mode of treatment, or (c) that it was probable 
 that the patient would not be benefited by such treatment, 
 and yet failed to make such discovery, or, if he made such 
 discovery and failed to advise the patient thereof, he was 
 guilty of such negligence and bad faith as ought to defeat 
 his recovery for the services. It was his duty to act in the 
 utmost good faith towards the patient, and if he knew that 
 he could not accomplish a cure, or that the treatment 
 adopted by him would probably not be of any substantial 
 benefit, it was his duty to advise the patient to that effect, 
 and a failure to disclose such fact to the patient was a 
 breach of his duty. 
 
 Certainty of Proof. None of the essential elements of 
 fraud need be established to a 1 mathematical certainty ; in 
 fact such a thing as mathematical certainty cannot exist in
 
 FALSE REPRESENTATIONS. 203 
 
 the enforcement of the law. All that courts and juries 
 usually have to act upon is proof establishing belief to a 
 moral certainty, and moral certainty always admits the 
 possibility of error. 21 
 
 Elements of the Tort. The essential elements of an 
 action of deceit brought by a patient against a practitioner 
 for the expression of a false or erroneous opinion, or fraud 
 as a defense to an action for a fee, are 
 
 (a) The opinion must have been communicated directly 
 or indirectly by the practitioner to the patient ; 
 
 (b) The opinion must, in fact, have been false or errone- 
 ous; 
 
 (c) The practitioner must, at the time, have known it to 
 be false, or, not knowing its truth or falsity, he must have 
 promulgated it under such circumstances as to show a dis- 
 regard for the interest of the patient, and that he ought 
 to have known the approximate truth ; 
 
 (d) The practitioner must have intended to deceive the 
 patient ; 
 
 (e) The patient must have known the falsity of the 
 opinion ; 
 
 (f) The patient must have been justified, under the cir- 
 cumstances, in believing the opinion to be true ; 
 
 (g) He must have believed it to be true; 
 
 (h) He must have relied upon it and his conduct must 
 have been controlled by it ; 
 
 (i) The opinion must have materially induced the con- 
 duct of the patient in his reliance thereon, and it must 
 appear that without it his conduct would probably have 
 been different, but it is not necessary that it should have 
 been the sole inducement; 
 
 (j) The patient must have been damaged by his reliance 
 upon the representations. 22 
 
 21 Brown v. State, Okl., ; 132 Pac., 359. 
 
 22 Hicks v. Stevens, 121 111., 186; Eaton v. Winnie, 20 Mich., 126.
 
 204 MEDICAL JURISPRUDENCE. 
 
 Remedies. Where a patient has been defrauded by the 
 false and fraudulent representations, opinions and pre- 
 tences of a practitioner, into parting with his money for 
 treatment which inevitably can do him no material good, 
 he may, upon discovery of the fraud, bring an action and 
 recover the money he has paid, and any other actual damage 
 he has sustained. On the other hand, if he has made no 
 payment, but is sued for a fee for the treatment, whether 
 the action be based on a contract induced by the fraud or 
 upon an implied agreement to pay for the services, he may 
 urge the deceit as a defense and, if he establishes the same, 
 he will defeat the claim asserted against him and, on proper 
 pleadings, may even recover judgment for any actual dam- 
 ages he may have sustained. 
 
 Damages. The treatment may not have resulted in any 
 actual damage to the patient, and he may have suffered no 
 loss, except the money or other consideration with which 
 he parted and, in that event, his recovery in an action of 
 deceit would be limited to the amount of that consideration. 
 If he parted with money he would be further entitled, in 
 some States, to interest thereon from the date of payment 
 to the time of the judgment. 23 If he parted with property, 
 he can recover its fair cash value as of the date of delivery 
 to the practitioner and, in some States, in addition thereto, 
 he may recover interest thereon from the date of such de- 
 livery to the date of the judgment. 
 
 23 Hauk v. Brownell, 120 111., 161.
 
 CHAPTER XVIII. 
 ANESTHETICS. 
 
 Definition. Anesthesia means a loss of sensibility to ex- 
 ternal impressions; in a technical and restricted sense, a 
 loss of the sense of touch. Frequently, however, it is a 
 general term used to denote all classes of insensibility. 
 The agent which produces anesthesia is termed an anes- 
 thetic; therefore, an anesthetic is any remedy used to re- 
 lieve pain or other hyperesthetic condition of the sensory 
 nerves. 
 
 Kinds of Anesthetics. There are two principal groups of 
 anesthetics when classified according to the nature of their 
 effects : 
 
 1. Local, as affecting a restricted area or part of the 
 body, and 
 
 2. General, as affecting the entire body. 
 
 Cold is one of the most useful and generally employed 
 local anesthetics. This condition is now usually brought 
 about by the use of ether or ethyl chlorides, as a spray. 
 Local anesthesia is frequently produced by the use of 
 cocaine, eucaine, holocaine and orthoform. Some of the 
 more common general anesthetics are ether, chloroform, 
 nitrous oxide, antipyrine, acetanilid, etc. 
 
 Effects of Anesthetic. In cases of anesthesia from the 
 administration of a general anesthetic the following propo- 
 sitions of fact may be said to be established by the con- 
 sensus of medical experience and opinion : 
 
 1. Consciousness of external impressions is impaired in 
 the early stages. 
 
 205
 
 206 MEDICAL JUKISPEUDENCE. 
 
 2. This impairment is progressive. 
 
 3. The impressions which reach the mind during the 
 progress of anesthesia are distorted and somewhat per- 
 verted. 
 
 4. Consciousness of external impressions is entirely lost 
 in the final stage. 
 
 5. Voluntary muscular movement is not lost until the 
 final stage. 
 
 6. Emotions of an erotic character are sometimes excited. 
 
 7. Memory of events occurring during the progress of 
 anesthesia is distorted and sometimes wholly unreal. 
 
 8. Dreams are sometimes experienced. 
 
 9. The impressions left by these dreams remain fixed in 
 the mind with all the vividness of real events. 
 
 Right to Administer. The law recognizes the importance 
 of anesthesia in the science of surgery, and that its use is 
 indispensable to the successful performance of some oper- 
 ations. The question of its use in a particular case is a 
 matter resting largely in the sound discretion of the oper- 
 ator. The welfare of his patient must always be the para- 
 mount consideration. A general anesthetic should not be 
 given where a local application will be equally effective and 
 appropriate. The right to administer anesthetics, general 
 and local, should be implied in a medical degree from a 
 modern medical school, because the court should take judi- 
 cial notice of the fact of universal knowledge that instruc- 
 tion in the properties, effects and uses of anesthetics is an 
 indispensable part of the work of all schools and that infor- 
 mation on the subject is essential to equipment for the 
 profession. However, if the patient charges ignorance in 
 this respect and introduces any evidence tending to sustain 
 his charge, the operator would be put to the necessity of 
 showing his qualifications and experience in the premises. 
 If there is any reasonable justification in fact for resorting
 
 ANESTHETICS. 207 
 
 to the expedient, considering the nature of the operation 
 and the condition of the patient, and the patient desires or 
 consents to the same, the practitioner may employ it in 
 connection with his professional services, and he will not 
 be answerable for untoward results merely by reason of the 
 fact of having administered the drug. The law indulges no 
 presumptions, either of ignorance or skill. If the plaintiff 
 alleges ignorance in the matter of administering the anes- 
 thetic, as the basis of his right of action, he must prove his 
 allegation or lose his case. If he offers no proof of igno- 
 rance, there is nothing on which to found his charge, since 
 the law does not presume that the practitioner was ignorant. 
 If the patient introduces evidence tending to sustain his 
 allegations, the practitioner must show that the anesthetic 
 administered, and the method of administration were in 
 accordance with the teaching and practice of the profes- 
 sion at the time and place. In practice, an operator is not 
 likely to be charged generally with being ignorant. Such 
 an allegation might be extremely difficult to prove and, even 
 if proven would avail the patient nothing unless he also 
 proved that, by reason of that ignorance, he was injured. 
 The want of skill must have been manifested in the par- 
 ticular case. Ignorance must be translated into action or 
 non-action before the patient can complain. The conduct, 
 not the ignorance, is the real ground of complaint. The 
 practitioner may be generally ignorant and unskilled but 
 may do right by chance, accident or mistake. Why should 
 the patient complain? He may be ever so skilled and do 
 wrong through negligence and, thereby, injure his patient. 
 Why should the patient not recover for his injury? 
 
 Selection of Anesthetic. The operator must use his best 
 judgment, based on his knowledge, experience and skill, 
 after careful examination of his patient, in selecting the 
 most appropriate anesthetic under the circumstances.
 
 208 MEDICAL JURISPRUDENCE. 
 
 Chloroform should not be given where there is weakened 
 heart action from disease, if any other reasonable course 
 is available. Where there is chronic or severe kidney trou- 
 ble an anesthetic should not be given unless absolutely 
 necessary. An error in these respects, resulting in injury 
 to the patient will render the operator liable for malprac- 
 tice, in event the error was due either to his ignorance or 
 to his carelessness. 
 
 Duty to Administer Anesthetic. Failure or refusal to 
 administer an anesthetic, where the same was not clearly 
 and indispensably necessary and proper, is not even prima 
 facie basis for an action for malpractice. 1 
 
 Legal Responsibility in Administering Anesthetics. In 
 administering an ordinary anesthetic in general use for the 
 purpose of his professional duties, a practitioner is re- 
 quired, in law, to anticipate only natural, ordinary, usual 
 and probable consequences, those results which, from gen- 
 eral experience, may be expected. Conversely, he is not 
 answerable in malpractice for failure to anticipate unusual 
 results arising from a peculiar condition or temperament 
 of his patient, of which, after the usual diagnosis with the 
 exercise of reasonable skill and care, under the circum- 
 stances, he had no knowledge. Where the administration 
 of the anesthetic is necessary or proper for professional 
 purposes, objection to its administration not appearing or 
 being discoverable by skillful diagnosis, the practitioner is 
 not liable, in an action for malpractice for resulting dam- 
 ages unless at least two facts coexist, namely : 
 
 1. That he was guilty of negligence in reference to the 
 administration of the anesthetic, and 
 
 2. That the injury of which the patient complains was 
 the result of this negligence in the use of the anesthetic. 
 
 The negligence in the administration of the anesthetic 
 
 Dye v. Corbin, 69 W. Va., 266.
 
 ANESTHETICS. 209 
 
 may have consisted (a) in administering it without suffi- 
 cient preliminary examination, or (b) in administering an 
 unfit and unsuitable drug, or (c) in the unskillful or care- 
 less manner of administration, or (d) in the excessive 
 amount given. 2 
 
 Extreme Responsibility in Pact. In dealing with anes- 
 thetics, the practitioner must know that he is using instru- 
 mentalities which are dangerous and deadly, and his care 
 in diagnosis, selection of drug and administration, must be 
 in proportion to the risk involved to his patient. His re- 
 sponsibility begins with the examination preceding the ad- 
 ministration of the drug, and carelessness or ignorance in 
 diagnosis, resulting in the determination to use the par- 
 ticular drug, or to resort to anesthesia, when clearly it 
 should not have been given, will make him liable in mal- 
 practice for resulting injuries, and possibly for manslaugh- 
 ter, where the consequences are death. He cannot trifle 
 with the health or life of his patient and not shoulder the 
 responsibility. 3 
 
 Value of Testimony. The fact that, during the last 
 stages of anesthesia, the mind is entirely lost to outward 
 impressions, and the entire sensory nervous system has 
 suspended its functions, should be sufficient to stamp with 
 great uncertainty the statement of a person as to what 
 occurred to him during the progress of anesthesia, or while 
 under the general influence of an anesthetic, when the state- 
 ment is based upon his alleged sensations at the time; 
 therefore, when to actual mental suspension there is added 
 possible hallucinations and self-deception of a character 
 similar to the alleged experience, the testimony has but 
 few elements entitling it to credit. Manifestly, but little 
 reliance can be placed upon supposed impressions alleged 
 
 2 Bogle v. Winslow, 5 Phila., 136, 139. 
 
 3 State v. Baldwin, 36 Kan., 1.
 
 210 MEDICAL JURISPRUDENCE. 
 
 to have been received, or experiences alleged to have oc- 
 curred during the time. These facts have an important 
 bearing on the credibility of a female who claims to have 
 been deflowered while under the influence of a general 
 anesthetic for professional purposes, and indicate that the 
 corroborating circumstances should be strong in order to 
 justify a belief that the event actually occurred.
 
 CHAPTER XIX. 
 
 INSANITY. 
 Mental Faculties. 
 
 Mental Processes. There is no rigid line of demarkation 
 between sanity and insanity. The processes of mental ac- 
 tivity are the same whether sane or insane, although they 
 differ in their origin as well as in the degree of their 
 intensity. 
 
 Cerebral Cortex. To understand insanity, you must know 
 the normal action of the mind, and have some knowledge of 
 the physical basis of mental action. This involves a study 
 and knowledge of the contents of the cerebral cortex and 
 its association fibers. The functions of the contents of the 
 cerebral cortex, briefly and generally stated, are, 
 
 A. INTELLECT. 
 
 1. To receive impressions from the organs of sensation, 
 that is, conscious perception. 
 
 2. To group these impressions into a unit known as a 
 concept, that is, conscious thought. 
 
 3. To store up these concepts or thoughts. 
 
 (a) For future recollection and recognition, that is, 
 memory. 
 
 (b) For gathering into novel combinations, that is, 
 imagination. 
 
 (c) For use as a basis of reflection. 
 
 4. To express thought in speech and action. 
 
 B. SENSIBILITY OR FEELING. 
 
 5. To experience emotions which accompany mental ac- 
 tivity, that is, sensibility or feeling. 
 
 211
 
 212 MEDICAL JUBISPEUDENCE. 
 
 C. WILL. 
 
 6. To exert self-control over mental action, that is, at- 
 tention, or choice. (Starr.) 
 
 Classification. The faculties of the mind readily resolve 
 themselves into the three distinct classes above referred to, 
 namely : 
 
 1. Intellect, 
 
 2. Sensibility, or feeling, and 
 
 3. Will. 
 
 To illustrate, You read the pages of a book, and thereby 
 the thoughts of the author become your thoughts. This 
 is intellect. But you get more than this from the reading 
 of the book. The thoughts produced awaken in you feel- 
 ings, emotions and mental instincts. This is sensibility. 
 
 Perhaps you derive still more than this. The thoughts 
 produced not only awaken and arouse your sensibility, but 
 you are prompted to act, to do something, as the result of 
 the emotion excited in you. This constitutes will. 
 
 If either of these faculties is impaired, there will be a 
 corresponding derangement of the mind. If the impair- 
 ment is of sufficient magnitude, it will amount to what is 
 known as insanity. 
 
 Intellect as above implied is subdivided into presentation 
 or Perception, re-presentation or Memory, and perhaps 
 Recognition. If the re-presentation is not of exact previ- 
 ous perceptions, it is Imagination. 
 
 CHOICE. The free exercise of the will presupposes 
 choice. Thus, in the illustration above given, you deter- 
 mined or intended to act in a particular way. This pre- 
 supposes a previous act of mind. It might have been so 
 instantaneous as not to be perceptible except upon reflec- 
 tion, but there must have been presented to your mind, pos- 
 sibly only for an instant, the question, Shall I or shall I 
 not do so and so? and the mind having exercised the
 
 INSANITY MENTAL FACULTIES. 213 
 
 choice between them, the executive will manifested itself in 
 accordance with that choice. Where there can be no choice 
 there can be no freedom of will, and if the inability to 
 choose is the result of disease or a condition within the 
 brain itself, the party is relieved from criminal responsi- 
 bility for the resulting act. 
 
 Functional Disturbances and Mental Phenomena. When 
 areas of cerebral cortex are diseased, one or more of the 
 cortical functions above named may be impaired, impeded 
 or suspended, and mental disorder results. If changes in 
 blood-supply or in nutrition occur, or if disease affects the 
 entire cortex, insanity may result, and as a consequence, 
 thought becomes illogical; emotion becomes excessive or 
 depressed, or arises without external stimulus; action is 
 irregular or purposeless, and conduct is not properly ad- 
 justed to surrounding circumstances. In the insane person, 
 impressions from sense-perceptions may be wrongfully 
 interpreted, giving rise to illusions. Ideas may arise with- 
 out any sense-perception at all, and these false perceptions 
 without external origin in sensory experience are called 
 hallucinations. A mistaken idea may be harbored by any- 
 one; as, the size or distance of an object. Measurement, 
 examination and calculation may convince the person of 
 his error, and if he is sane he corrects his judgment. The 
 insane man is not affected by logical methods and analyses, 
 and retains his erroneous ideas in spite of demonstration 
 and reasoning. 
 
 A mistaken idea accepted without logical foundation is 
 a delusion; if retained in spite of demonstration of its 
 falsity, it is an insane delusion. 
 
 The reader is referred to standard medical works for a 
 discussion of the medical aspect of the subject, its factors 
 and causes, forms and classification, signs and tests, etc. 
 
 Progress of the Law. Law follows, but in normal condi-
 
 214 MEDICAL JURISPRUDENCE. 
 
 tions never precedes enlightened, deliberate, prevailing, 
 persistent public sentiment. It is the delayed expression 
 of public opinion on the subject involved. With experience 
 and information our notions of right and wrong change 
 and, therefore, where these changes are pronounced, there 
 is a continual conflict between enlightened public conscience 
 and its legal expression. If the law is not changed, it be- 
 comes a dead letter and is relegated to the dominion of 
 innocuous desuetude. Out of this fact of progression 
 springs most of our so-called judge-made law. This is a 
 misnomer. The judge does not make the law, he merely 
 recognizes the manifestation of public conscience, as he 
 interprets it. "If matters arise in our law which concern 
 other sciences or faculties, we commonly apply for the aid 
 of that science or faculty which it concerns; which is an 
 honorable and commendable thing in our law, for thereby 
 it appears that we don't despise all other sciences but our 
 own, but we approve of them and encourage them as things 
 worthy of commendation. ' ' 1 
 
 The attitude of the law towards the insane is a good illus- 
 tration of the growth of law in harmony with the develop- 
 ment of our knowledge of the subject. 
 
 Insanity in Law. 
 
 Presentation. In law, the question of insanity is pre- 
 sented in two phases, 
 
 1. In criminal law, as exonerative of what would other- 
 wise be criminal acts, and 
 
 2. In civil law, as incapacitating a person for ordinary 
 business transactions, making contracts, wills, etc. 
 
 Definition. In legal contemplation, insanity consists in 
 the lack of such mental soundness as renders a person 
 criminally responsible for his acts, or capable of managing 
 
 Uustice Saunders in Buckley v. Thomas, 1 Plowd., 118 (1553).
 
 INSANITY MENTAL FACULTIES. 215 
 
 his own business affairs. There is a great difference of 
 legal opinion as to what extent of disease or imperfect de- 
 velopment, and what, if any, aberrations of mind, not trace- 
 able to disease or imperfect development of the brain, con- 
 stitute this degree of mental unsoundness. The tendency 
 has been, and still is, to enlarge the scope of the word and 
 to extend the rules of insanity to derangements not recog- 
 nized in earlier times as a defense to a charge of crime. 
 Insanity, however, is not merely mental disorder, although 
 disorder of mind is always present: that is to say, not 
 every mental disorder is insanity. Thus, a person who 
 cannot distinguish between red and green has a mental 
 disorder, but it is not insanity ; he is merely color-blind. 
 
 Presumption of Sanity. All persons who have reached 
 the age of discretion are presumed to be sane until the con- 
 trary is shown. The burden of proving insanity rests upon 
 him who alleges it. 2 
 
 Presumption of Continuity of Insanity. Habitual insan- 
 ity having once been established is presumed to continue 
 until the contrary is shown. 3 In other words all persons, 
 in the first instance, are presumed to be sane, but after 
 insanity is once established by proof that condition is pre- 
 sumed to continue. 4 When insanity is once shown to have 
 existed, the burden of proving sanity rests upon the party 
 who alleges a restoration. 
 
 Evidence as to Insanity. In the trial of an issue of insan- 
 ity, evidence of hereditary taint is competent to corrobo- 
 rate direct proof of the disease, but proof of taint alone 
 is not sufficient to overcome the presumption of sanity. 
 Proof of acts, conduct, temperament and habits inconsist- 
 ent with the known character and previous habits of the 
 
 2 Stevens v. Shannahan, 160 111., 330. 
 
 3 Langdon v. People, 133 111., 382. 
 
 4 Titcomb v. Vantyle, 84 111., 381 ; Ellars v. Mossbarger, 9 111. App., 122.
 
 216 MEDICAL JURISPRUDENCE. 
 
 person are competent in establishing insanity, taken in 
 conjunction with surrounding facts and influences. 5 It may 
 be shown that the person whose sanity is in question has 
 been under and subject to the influences of the recognized 
 causes of insanity. Any symptoms of the disease known 
 to the medical profession and present in the case may be 
 produced in evidence. Many of these symptoms are largely 
 medical in character, and generally must be introduced 
 through medical men. Where the question of sanity at a 
 particular time is involved, insanity prior or subsequent to 
 such time may be shown, remoteness merely affecting its 
 weight. 6 
 
 SUICIDE AS EVIDENCE. Suicide is not per se even prima 
 facie evidence of insanity but the fact and the circumstances 
 may be taken into consideration in determining the ques- 
 tion. 7 
 
 ABSENCE OF MOTIVE FOB CRIME. In criminal cases, the 
 absence of any apparent motive for the commission of the 
 offense is a circumstance to be considered by the jury in 
 connection with other evidence of insanity, and the circum- 
 stances and character of the offense, but, of itself, it does 
 not prove insanity. 8 
 
 General Practitioner is an Expert on Insanity. The 
 usual rule is that a general practitioner of medicine is a 
 competent witness concerning insanity, and that a special 
 study of that subject is not required. 
 
 8 Smith v. Kramer, 5 Pa. L. J., 226; Snow *. Benton, 28 111., 306. 
 
 6 Dickinson v. Barber, 9 Mass., 225. 
 
 7 22 Cyc., 1118. 
 
 8 People v. Barber, 115 N. Y., 475.
 
 CHAPTER XX. 
 
 INSANITY. 
 In Criminal Law. 
 
 Intent. Non est reus, nisi meus sit rea. An evil intent 
 is a necessary element of every criminal offense. 
 
 "Let my disclaiming from a purposed evil, 
 Free me so far in your most generous thoughts, 
 That I have shot mine arrow o'er the house, 
 And hurt my brother." 1 
 
 Since a criminal intent is an essential element in every 
 crime, a person destitute of the mental capacity to main- 
 tain this intent cannot incur legal guilt. The decisive 
 question is, and, in every enlightened system of jurispru- 
 dence, must be, Was the person mentally capable of enter- 
 taining a criminal intent A person may act without the 
 concurrence of a responsible will even though he is not 
 raving, and though he knows what he is about and lays and 
 executes plans with great shrewdness and sagacity. 
 
 At Common Law. At common law an insane person 
 could not be convicted of any crime, not even high treason. 2 
 
 Homicide. In criminal law, the question of insanity is 
 most frequently raised as a defense in homicide cases, and 
 the question becomes, What degree of insanity should ex- 
 onerate the defendant from the penalty of his act? Here 
 again, the history of the law is the history of the progress 
 of knowledge on the subject of mental derangements. 
 
 Tests. (a) ABSOLUTE WANT OF REASON. The early Eng- 
 
 1 "Hamlet" : Act. V, Scene 2. 
 
 2 Co. Inst. pt. 3, p. 4. 
 
 217
 
 218 MEDICAL JURISPRUDENCE. 
 
 lish law applied what is sometimes denominated "the wild 
 beast test," and it was expressed by Lord Hale as follows: 
 
 "A man to be exempt from punishment for an act must 
 be totally deprived of his understanding and memory, and 
 must not know what he is doing any more than an infant, 
 a brute or a wild beast." 3 This is known as Lord Hale's 
 test. 
 
 An imbecile who had the intelligence of a child over four- 
 teen years of age was held responsible for his acts. 
 
 (b) KNOWLEDGE OF RIGHT AND WRONG GENERALLY. 
 Later, the English Courts adopted the test, Had the de- 
 fendant at the time he committed the act, the power to dis- 
 tinguish right from wrong in the abstract. Both these 
 tests, however, have now disappeared from English Juris- 
 prudence and may be said never to have been the law in 
 this country. 
 
 (c) KNOWLEDGE OF EIGHT AND WRONG WITH REFERENCE 
 TO THE PARTICULAR ACT. By this test, the question is, 
 Was the defendant at the time of committing the act, able 
 to distinguish between the right and wrong of the particu- 
 lar act? Where this is the standard, insanity is the inabil- 
 ity to distinguish between right and wrong in respect to 
 the act in question, or inability to be conscious of acting 
 contrary to law. This test substantially is, at present, 
 used in England and in some of the States of the United 
 States. 
 
 (d) POWER OF CONTROL. This test is, knowledge of right 
 and wrong with reference to the particular act, and the 
 power to choose the right and avoid the wrong, that is, the 
 power of control. The characteristic feature of this test 
 is the power of choice. By this test the question is, Had 
 the defendant, at the time of committing the act in ques- 
 tion, the ability to distinguish right from wrong, with refer- 
 
 3 16 State Trials, 176.
 
 INSANITY CRIMINAL LAW. 219 
 
 ence to such act, and also the power to adhere to the right 
 and avoid the wrong? 4 
 
 In the Hopps case above cited, the court says : ' ' Where 
 a party who is upon trial on an indictment for murder, 
 interposes the defense of insanity, the rule in regard to 
 character and degree of insanity which would demand an 
 acquittal, is thus laid down: That where it shall appear 
 from the evidence that at the time of doing the act charged, 
 the prisoner was not of sound mind, but affected with 
 insanity, and such affection was the cause of the act, and 
 that he would not have done the act but for that affection, 
 he ought to be acquitted. But this unsoundness of mind, 
 or affection of insanity, must be of such a degree as to 
 create an uncontrollable impulse to do the act charged, by 
 over-riding the reason and judgment, obliterating the sense 
 of right and wrong as to the particular act done, or depriv- 
 ing the accused of the power of choosing between them." 
 (391.) 
 
 The real distinction lies in the power of choice. 
 
 "If, from the observation and concurrent testimony of 
 medical men who make the study of insanity a specialty, 
 it shall be definitely established to be true that there is an 
 unsound condition of the mind in which, though a person 
 abstractly knows that a given act is wrong, he is yet, by an 
 insane impulse, that is an impulse proceeding from a dis- 
 eased intellect, irresistibly driven to commit it, the law must 
 modify its ancient doctrines, recognize the truth and give 
 to this condition, when it is satisfactorily shown to exist, 
 its exculpatory effect. ' ' 5 
 
 Subjects of Inquiry. According to the enlightenment on 
 the subject of insanity at the present time, the inquiries to 
 be submitted to the jury in every criminal trial where the 
 
 4 Hopps v. People, 31 111., 385; Parson v. State, 81 Ala., 577. 
 
 5 State v. Falter, 25 la., 82; Parsons v. State, 81 Ala., 577.
 
 220 MEDICAL JURISPRUDENCE. 
 
 defense of insanity is interposed, are, it has been said, as 
 follows : 
 
 1. Was the defendant at the time of the commission of 
 the alleged crime, as a matter of fact, afflicted with a dis- 
 ease of the mind so as to be idiotic, or otherwise insane? 
 
 2. If such be the case, did he know right from wrong, as 
 applied to the particular question? 
 
 If both these are answered in the negative, he is not 
 legally responsible. 
 
 3. If he did have such knowledge, he may, nevertheless 
 be legally irresponsible if the two following conditions 
 concur : 
 
 (a) If, by reason of the duress of such mental disease, 
 he had so far lost the power to choose between the right 
 and the wrong, and to avoid doing the act in question, as 
 that his free agency in that respect was, at the time, de- 
 stroyed, and 
 
 (b) If at the same time the alleged crime was so con- 
 nected with such mental disease in the relation of cause 
 and effect as to have been the product of it solely. 6 How- 
 ever, the element of power of choice is not nominally recog- 
 nized in many jurisdictions, but in actual practice before 
 juries there is but little difference in results. 7 
 
 Instructions that if the. jury believed that (a) at the 
 time of committing the alleged offense, defendant was able 
 to distinguish right from wrong with reference to the par- 
 ticular act, and (b) capable of choosing to do or not to do 
 the acts constituting such crime, he could not be acquitted 
 on the ground of insanity, are proper. 8 
 
 Insane Delusion. Where a person is under an insane 
 delusion or hallucination, but is rational on other subjects, 
 the rule is that he is not responsible criminally for acts 
 
 6 Parsons v. State, 81 Ala., 596; State v. Lyons, 113 La., 998. 
 
 7 Smith v. State, 95 Miss., 786 ; 22 A. O., 23, 36. 
 
 8 Hornisch v. People, 142 111., 620.
 
 INSANITY CRIMINAL LAW. 221 
 
 committed under the influence of such delusion or halluci- 
 nation, where the fact or state of facts existing in his 
 imagination would, if actually existing, justify or excuse 
 the act. 
 
 Delirium Tremens. It is the consensus of medical opin- 
 ion and a common observation of laymen that a person may 
 voluntarily indulge in the excessive use of intoxicants to 
 such an extent that he loses all power of control over the 
 habit and his mind becomes so diseased that he cannot dis- 
 tinguish between right and wrong, and that delusions and 
 hallucinations are usual concomitants. Hence, when de- 
 lirium tremens have seized upon the victim of reckless in- 
 dulgence and he is unable to distinguish right from wrong, 
 with reference to the particular act, or, knowing the act to 
 be wrong, is impelled by an overpowering delusion or hal- 
 lucination which dethrones reason, annihilates rational 
 intent, and controls his power of choice between doing or 
 refraining from doing the acts, he is not criminally respon- 
 sible in the premises. 9 
 
 Somnambulism or Somnambulentia. Somnambulism and 
 somnambulentia are included under the head of insanity, by 
 alienists, and if the person afflicted with either is so far 
 unconscious at the time that he does not comprehend the 
 moral character of the act performed, or, if comprehending 
 it, he cannot choose between right and wrong, or if his con- 
 dition may be regarded as that of a person under an insane 
 delusion, with reference to the act in question, he cannot 
 be held criminally responsible for his act. 10 
 
 Drunkenness. Voluntary drunkenness is no excuse for 
 crime. However, where a specific intent is necessary to 
 constitute the offense charged, a person who is so far under 
 the influence of liquor, at the time, as not to know what he 
 
 9 State v. Driggers, 84 S. 0., 526; 19 A. 0., 1166. 
 
 10 Fain v. Com., 78 Ky., 183; 39 Am. B., 213.
 
 222 MEDICAL JURISPRUDENCE. 
 
 is doing may be incapable of committing the offense. 11 If 
 voluntary intoxication were permitted to excuse criminal 
 acts, most premeditated offenses would become a matter of 
 history, because the parties contemplating them would be 
 sure to prepare their defense beforehand. 
 
 Epilepsy. Epilepsy is not insanity, and proof of epi- 
 lepsy is not sufficient to establish irresponsibility. 12 It 
 must be shown that the trouble had so far progressed in 
 weakening the mind that the subject was not conscious of 
 the wrongful character of his act at the time, or was im- 
 pelled by an overpowering insane delusion. 13 
 
 Degree of Proof Required. Where insanity is offered as 
 a defense to a criminal act, and the evidence raises a rea- 
 sonable doubt as to the sanity of the defendant, he is 
 entitled to an acquittal. 14 If any evidence has been intro- 
 duced rebutting the legal presumption of sanity, and tend- 
 ing to raise a reasonable doubt of the sanity of the defend- 
 ant, the burden shifts to the prosecution, which is then 
 required to prove the defendant's sanity beyond a reason- 
 able doubt. 15 The plea of insanity is merely a denial of 
 one of the essential allegations of the indictment, and the 
 burden is not upon the defendant to establish the same, but 
 if a reasonable doubt exists upon the whole evidence as to 
 defendant's sanity, he must be acquitted. 16 
 
 Moral Insanity is a morbid perversion, and sometimes 
 accentuation, of the moral feelings. As a proposition of 
 law, a mere perversion of the moral faculties unaccom- 
 panied ~by mental delusion, will not invalidate a civil, nor 
 excuse a criminal, act. Mere moral depravity is not in- 
 sanity. 17 
 
 11 Chowning v. State, 91 Ark., 503; 18 A. C., 529. 
 
 12 Oborn v. State, 143 Wis., 249. 
 
 13 People v. Gambacorta, 197 N. Y., 181; 18 A. C., 425, 428. 
 
 14 Hopp v. People, 31 111., 385, 393. 
 
 15 Dacey v. People, 116 111., 555. 
 
 16 Montag v. People, 141 111., 75. 
 
 17 Goodwin v. State, 96 Ind., 550.
 
 INSANITY CEIMINAL LAW. 223 
 
 Irresistible Impulse must not be confounded with pas- 
 sionate propensity or willful temper. No matter how hot 
 the passion or how furious the frenzy, it is not insanity, 
 and the question, in its ultimate analysis, becomes, Was 
 there a disease of the brain? 
 
 Excitement, anger, jealousy or passion which, for the 
 time being, are permitted to overwhelm the judgment, is 
 no defense to a charge of crime. 18 
 
 Emotional Insanity is a morbid derangement of the emo- 
 tional powers, or inability to control the impulses. It is 
 closely allied to irresistible impulse. The latter is intel- 
 lectual, the former emotional. Emotional insanity is not 
 an excuse from criminal responsibility. 19 
 
 Kleptomania does not exonerate from a charge of lar- 
 ceny; but it should mitigate the penalty. 
 
 Statute. A statute which provides that insanity shall 
 not be a defense to a charge of crime violates the constitu- 
 tional provisions against depriving a party of life, liberty, 
 or property without due process of law and guaranteeing 
 the right of trial by jury. 20 
 
 is Lynch v. Com., 77 Pa. St., 205; Guetig v. State, 66 Ind., 94. 
 
 19 David Dudley Field in Ga., Ala. L. J., 273. 
 
 20 State v. Strassburg, 60 Wash., 106.
 
 CHAPTER XXI. 
 
 INSANITY. 
 
 i 
 
 In Civil Law. 
 Contracts. 
 
 Validity. The contracts of lunatics or persons non 
 compos mentis are voidable, not void, and may be ratified 
 or avoided when the disability is removed, or during dis- 
 ability, by a conservator legally appointed and qualified. 1 
 This applies to a deed executed by an idiot before he has 
 been adjudged to be such. 2 But a contract made with a 
 lunatic during a lucid interval is binding on him. 3 
 
 Purpose. This provision of law is intended for the pro- 
 tection of the incompetent against his own weakness and 
 the avarice of the unscrupulous and, therefore, can be taken 
 advantage of only by him or his representative. The com- 
 petent party is bound by the agreement as he cannot have 
 any legal grounds for complaint, except, of course, as in 
 the case of all contracts, for fraud, duress, accident or 
 mistake. 
 
 Necessaries. An insane person is liable for necessaries 
 supplied to him in good faith, and it is not necessary to 
 prove a specific agreement, and in fact a specific agreement 
 would not be enforced, because the law raises a contract by 
 implication on the part of the insane person, by virtue of 
 which the reasonable value of such necessaries becomes 
 payable as a debt, but not for an amount in excess of the 
 
 iMead v. Stegall, 77 111. App., 679. 
 2 Burnham v. Kidwell, 118 HI., 425. 
 8 Lilly v. Waggoner, 27 111., 395. 
 
 224
 
 INSANITY CIVIL LAW. 225 
 
 agreed price, if any. 4 Where there is nothing in the ap- 
 pearance of an alleged insane person to indicate his inca- 
 pacity, and he purchases necessary goods at a fair and 
 reasonable price, and the seller has no notice of his having 
 been adjudged insane, he will be liable to pay for the price 
 agreed therefor where no conservator has been appointed 
 for him, and he is in the actual management and control of 
 his own business. 5 
 
 Degree of Insanity Invalidating Contracts. The tests for 
 insanity in civil matters is entirely different from that 
 applied in the administration of the criminal laws. A party 
 will be considered so insane as to justify an avoidance of 
 his contracts when, from disease, senility or defective de- 
 velopment, he is rendered incompetent, successfully to con- 
 duct business. 6 Knowledge of right and wrong does not 
 enter into the question, except as it relates to mental 
 strength, and the mind need not be abnormal. In all civil 
 matters, the question is one of mental strength rather than 
 of mental derangement. The operations of the mind may 
 be perfectly regular and rational, but if the mind is too 
 weak to comprehend the nature and effect of ordinary busi- 
 ness transactions, or the transaction in question, the court 
 will not permit the party to bind himself by his financial 
 engagements. 7 
 
 The question is usually complicated with questions of 
 fraud, duress and undue influence. Where there is some 
 evidence of the presence of any or either of these, the 
 courts will not enforce the engagements of a party at the 
 suit of his adversary if it shall appear that he was so inca- 
 pacitated mentally as not fully to comprehend the nature 
 and effect of the transaction. 
 
 * Fruit v. Anderson, 12 111. App., 421. 
 6 McCormick v. Littler, 85 111., 62. 
 
 6 Burnham v. Kidwell, 113 111., 425, 429. 
 
 7 Greene v. Maxwell, 251 111., 335.
 
 226 MEDICAL JURISPRUDENCE. 
 
 Marriage. A marriage is void ab initio where the men- 
 tal faculties of the husband at the time of the celebration 
 were so impaired that he was unable to understand the 
 nature and effect of his acts and, especially, where his con- 
 dition was known to the wife and where he was subject to 
 improper influences exerted to the end that the conspirators 
 might profit by the marriage. 8 When unaccompanied by 
 fraud, duress, or undue influence, mere weakness of mind 
 will not invalidate a marriage unless the mental incapacity 
 be such that the party could not comprehend the nature 
 and effect of the transaction ; that is, the nature of the con- 
 tract and the duties and responsibilities it entails. 9 A mar- 
 riage which is the result of a delusion and without which 
 it would not have been entered into, will be set aside as 
 invalid. 10 In this case the alleged marriage was induced 
 through the medium of spiritualism. 
 
 Delirium Tremens. Insanity from delirium tremens, at 
 the time of the marriage, will void the contract, but whether 
 the party was really insane or only intoxicated is usually a 
 question of fact for the jury to decide. 11 
 
 Drunkenness. Mere drunkenness will not be sufficient to 
 release a party from his agreement, but he will be pro- 
 tected against the improvidence of his own contracts, en- 
 tered into by him while in a state of intoxication which 
 drowns reason, memory and judgment, and impairs the 
 mental faculties to such an extent, for the time being, as to 
 render him non compos mentis. When the mind of a con- 
 tracting party has been broken down by a long course of 
 dissipation, continual drunkenness and debauchery, the 
 feverish moments of a half-sober, or even sober, inter- 
 val, cannot be called a lucid interval for the purpose of 
 
 SPyott v. Pyott, 191 111., 280; 25 A. C., 1127. 
 
 9 Dunphy v. Dunphy, 161 Cal., 380; 27 A. C., 1230, 1236. 
 
 10 Orchardson v. Cofield, 171 111., 14. 
 
 11 Prine v. Prine, 36 Fla., 676; Gillett v. Gillett, 78 Mich., 184.
 
 INSANITY CIVIL LAW. 227 
 
 establishing a contract made during such interval. 12 
 Impaired Faculties. Though the mind of a party may, 
 to some extent, be impaired by age or disease, still if he 
 has capacity to comprehend the nature of the business and 
 its effects, and to act rationally in the particular trans- 
 action in which he is engaged, if he can understand the 
 nature of his business and the effect of what he is doing, 
 and can exercise his will with reference thereto, his acts 
 will be valid and binding upon him and his representatives. 13 
 
 Wills. 
 
 Mental Capacity. The possession of mind and memory 
 sufficient to enable the testator to transact ordinary busi- 
 ness, such as renting his real estate, settling accounts, buy- 
 ing and selling property, and to know and understand the 
 business he was engaged in, and the effect of the disposi- 
 tion made by him of his property, at the time he made the 
 will in dispute, is a proper test of testamentary capacity. 14 
 The usual test is that the party be capable of acting ration- 
 ally in the ordinary affairs of life, and of understanding 
 the effect and circumstances of his acts. 15 Capacity to 
 transact ordinary business is too high a test of mental 
 capacity for making a will, because cases may exist where 
 a less degree of mental capacity is required intelligently to 
 give effect to a purpose already formed in relation to the 
 disposition of property by will, than is required in the 
 transaction of ordinary business when dealing with others 
 at arm's length. 16 The provisions of the will and the cir- 
 cumstances of the testator should be considered, because a 
 person may be competent to dispose of a small estate among 
 a few persons, by simple gifts, and yet be incompetent to 
 
 12 Martin v. Harsh, 231 111., 384, 389. 
 
 13 Martin v. Harsh, 231 111., 384, 389. 
 
 14 Taylor v. Pegram, 151 111., 106 ; Campbell v. Campbell, 130 111., 466. 
 
 15 Meeker v. Meeker, 75 111., 260. 
 
 16 Sinnet v. Bowman, 151 111., 146; Taylor v. Cox, 153 111., 220.
 
 228 MEDICAL JURISPRUDENCE. 
 
 dispose of a large estate among a great number of persons 
 by complex and involved conditions. 17 The capacity must 
 be sufficient to comprehend the condition of the property 
 and the provisions of the will, and to recall those who are 
 the proper and natural objects of testator's bounty, and 
 the memory must be sufficient to retain these with ability 
 to form a judgment upon them. 18 But it need not be suffi- 
 cient to validate a deed where he is dealing with an antago- 
 nist, and must balance and compare considerations. 19 
 
 Insane Delusion. An insane delusion in regard to one 
 who is a natural object of testator's bounty and affection, 
 and which causes a disposal differing from what testator 
 otherwise would have made, is sufficient to destroy capacity. 
 The same rule applies if the delusion is in respect to a duty 
 or moral obligation on the part of the testator towards a 
 corporation, society or individual benefited by the will. 20 
 
 A delusion which is unconnected with the facts controlling 
 disposition of the property does not incapacitate. 21 
 
 Undue Influence. In matters pertaining to the contest of 
 wills on the ground of mental incapacity, insane delusion, 
 etc., the question of undue influence or fraud is usually 
 present and, quite frequently, is the controlling factor. 
 The less the mutual capacity the less the improper influ- 
 ence which will invalidate the will, hence the two must be 
 considered together. 
 
 Sound Mind and Memory. The meaning of the phrase 
 "sound mind and memory," is that the testator shall pos- 
 sess sufficient mental power and understanding to compre- 
 hend what property he has -to dispose of, the natural ob- 
 jects of his affection and bounty, and to understand the 
 
 IT Taylor v. Pegram, 151 111., 106; Green v. Green, 145 111., 264. 
 
 18 Delafield v. Parrish, 25 N. Y., 9 ; 1 Redfield Surrog., 130. 
 
 19 Greene v. Maxwell, 251 111., 335, 340. 
 
 20 American Bible Society v. Price, 115 111., 623. 
 
 21 Stanton v. Wetherwax, 16 Barb., 259 ; Brace v. Block, 125 111., 33.
 
 INSANITY CIVIL LAW. 229 
 
 nature of his acts, and the effect his will will have upon the 
 natural objects of his bounty and affection. 22 It is not 
 necessary that testator retain all his vigor of mind and 
 memory; impairment of mind and memory is not incom- 
 patible with testamentary soundness and capacity. 23 Ca- 
 pacity to transact ordinary business, ability to comprehend 
 objects and subjects of bounty, and freedom from insane 
 delusions, which especially affect the power of disposition, 
 constitute testamentary capacity; that is, sound mind and 
 memory, even though the mind is not perfectly balanced. 24 
 
 Torts. 
 
 ->v 
 
 Responsibility. Where a loss must be borne by one of 
 
 two innocent parties, the law places the burden upon the 
 party whose act or default occasioned the same. 25 Hence, 
 an insane person or a lunatic even though incapable of har- 
 boring a wrongful or malicious intent is liable in a civil 
 action for torts committed by him. 26 But where ^an evil 
 intent or express malice is an essential element of the 
 wrong, an insane person or an imbecile without capacity to 
 have such motives, is not liable for damages resulting from 
 such act. Thus, he cannot be held liable for libel, slander, 
 conspiracy or malicious prosecution. 27 
 
 Homicide. While an insane person is not liable crimi- 
 nally for a homicide committed by him, he is liable civilly 
 in compensatory damages to those who have suffered by the 
 act; in other words, the gravity of the tort does not relieve 
 or increase the liability. 28 
 
 Damages. In an action against an insane person to re- 
 
 22 Ring v. Lawless, 190 III., 520. 
 
 23Graybeal v. Gardner, 146 111., 336; Taylor v. Pegram, 151 111., 106. 
 
 24 Hutchinson v. Hutchinson, 153 111., 347; Freeman v. Easly, 117 111., 317. 
 
 25 B. Co. v. Hall, 124 Ga., 322. 
 
 26 Mclntyre v. Scholte, 121 111., 660. 
 
 27 Jewell v. Colby, 66 N. Y., 399; Williams v. Hays, 143 N. Y., 442 ; t 4 A. 0., 569. 
 
 28 Young v. Young, 141 Ky., 76; Ballinger v. Bader, 153 N. C., 488; 42 L. B. A., 84.
 
 230 MEDICAL JURISPRUDENCE. 
 
 cover damages for a tort committed, whether of misfeasance 
 or nonfeasance, the measure of damages is mere compen- 
 sation to the party for the injury sustained. Exemplary 
 damages cannot be recovered. 29 
 
 29 Holdom v. A. O., W. W., 159 111., 619 ; 21 A. C., 1350-5.
 
 CHAPTER XXII. 
 WOUNDS. 
 
 Definition. A wound is any lesion of the body, and com- 
 prises not only solution of continuity, but every kind of 
 accident, such as bruises, contusions, fractures, dislocations 
 and the like. 1 
 
 Surgically. A wound is a solution of continuity in the 
 soft parts by some mechanical agent. 2 
 
 Wound implies force and violence. All wounds are ac- 
 companied by some death of tissue, and usually by hemor- 
 rhage. 
 Character of Wounds: 
 
 1. According to depth. (a) Superficial, (b) penetrating, 
 and (c) perforating. 
 
 (a) A superficial wound is one which does not enter 
 deeply into the tissue, the injury is of the 
 surface. 
 
 (b) A penetrating wound is onel which enters a 
 cavity or part, but does not pass through it. 
 
 (c) A perforating wound is one which both enters 
 and emerges from a cavity or part. 
 
 2. According to presence or absence of infection. (a) 
 Aseptic, (b) Septic, and (c) Poisoned. 
 
 (a) An aseptic wound is one not contaminated by 
 bacterial or poisonous infection. 
 
 (b) Septic wound is one contaminated by bacterial 
 or other f ermentive agents, causing suppuration 
 and sloughing. 
 
 1 Bouvier's Law Dictionary. 
 
 2 Dunglison's Medical Dictionary. 
 
 231
 
 232 MEDICAL JURISPRUDENCE. 
 
 (c) A poisoned wound is one contaminated by poi- 
 sonous infection. 
 
 In common parlance we frequently speak of 
 these wounds as clean, sloughing or poisoned, 
 as the case may be. 
 
 3. According to the condition of soft parts. Incised, 
 lacerated, contused, punctured, penetrating and gun- 
 shot. 
 
 Gun-shot wounds Facts to be considered : 
 
 1. Orifice of entrance. 
 
 2. Track of missile in the tissue. 
 
 3. Orifice of exit. 
 Cause of Death from Wounds. 
 
 1. By direct violence and injury to a vital organ. 
 
 2. By pressure from hemorrhage interfering with the 
 functions of a vital organ. 
 
 3. From severe hemorrhage, either external or into one 
 of the cavities. 
 
 Relation of Wound to Death. 
 
 (a) No relation whatever of cause and effect; 
 
 (b) Where such relation may exist; 
 
 (c) Wound remote cause of death, and 
 
 (d) Wound proximate cause of death. 
 
 Shock. 
 
 Definition. Shock is the result of powerful impressions 
 made upon the nerve-centers; a sudden depression of the 
 vital powers due (a) to injury, or (b) to profound mental 
 emotion. When due to injury it is called surgical shock; 
 when due to fright, grief or other powerful mental impres- 
 sions, it is called mental shock. The latter is sometimes 
 delayed for a considerable time after the occurrence of the 
 violent emotion; it is then called deferred shock. 
 
 Delusions, and in children, convulsions, are sometimes
 
 WOUNDS. 233 
 
 present. Through its depression of the nerve-centers, a 
 circulatory paresis is induced, and this results in an accu- 
 mulation of blood in the large abdominal vessels, with a 
 corresponding loss to the cerebral and peripheral circula- 
 tion, accompanied by disturbance of voluntary cerebration, 
 and lowering of surface temperature. Shock may be of all 
 degrees, from slight to fatal. 
 
 Symptoms. A condition of shock is denoted by sub-nor- 
 mal temperature, rapid and feeble pulse, pinched features, 
 cold, pallid, clammy skin, profuse perspiration, shallow 
 irregular respiration, diminution or loss of sensibility to 
 pain, and a tendency to urinary suppression. 
 
 If death results from a wound given in malice, not in its 
 nature fatal, but which, being neglected or improperly 
 treated, caused death, the assailant may be held guilty of 
 murder unless it clearly appears that the neglect or im- 
 proper treatment was the sole cause of the death. 3 
 
 Opinions of Physicians. When the facts sought to be 
 elicited are material to an issue in court, the following are 
 a few of the countless questions which physicians may be 
 called upon to answer: 
 
 Might specified symptoms be the result of certain in- 
 juries'? To illustrate, might a miscarriage have been pro- 
 duced by certain injuries received in a certain manner? 
 
 Might a certain wound have been inflicted by a certain 
 instrument? 
 
 Are certain injuries permanent? 
 
 What force was necessary o produce a certain wound? 
 
 What was the nature of the instrument causing a given 
 wound? 
 
 Might a specified injury have been received in a speci- 
 fied manner? 
 
 Was a certain wound necessarily fatal? 
 
 S Crum v. State, 64 Miss., 4.
 
 234 MEDICAL JUKISPKUDENCE. 
 
 How soon would death necessarily follow the infliction 
 of the wound? 
 
 Was the death the result of the wound or of the surgical 
 operation? 
 
 Did the shock following the wound have any relation to 
 the shock following the surgical operation and the result- 
 ing death? 
 
 Was a certain wound the cause of death? 
 
 Was the wound the immediate or remote cause of death? 
 
 Was death caused by the wound or by disease? 
 
 Where the deceased was afflicted with a mortal disease 
 and was injured, death following, which was the cause of 
 death? 
 
 Was a certain wound accidental, suicidal or homicidal? 
 
 Which wound was the primary cause of death? 
 
 (a) Where more than one was necessarily fatal. 
 
 (b) Where no one was necessarily fatal. 
 
 Was a certain wound inflicted before or after death? 
 
 What was the probable direction of the violence? 
 
 If gun-shot wound, what was the probable distance of the 
 weapon from the body at the time of the discharge? 
 
 What was the caliber of the weapon? 
 
 What was the character of the missile? 
 
 Was a given wound accidental, suicidal or homicidal? 
 
 Could a certain wound have been self-inflicted? 
 
 Could two wounds, both of which are necessarily fatal, 
 have been self-inflicted?
 
 CHAPTEE XXIII. 
 BLOOD STAINS. 
 
 Definition of Blood. Blood is the fluid which circulates 
 in the arteries and veins of animals. 
 
 Classification. From the standpoint of histology, it is 
 usually classed as a tissue. Its inter-cellular substance is 
 fluid, while in other tissues this substance is solid. 
 
 Origin. It is developed from the middle layer of the 
 embryo. 
 
 Color of Blood. In vertebrates, except amphioxis, the 
 blood is red ; in other animals, it is of various colors, red, 
 colorless, bluish, greenish, milky, etc. In the human, and 
 most craniota, venous blood is dark red, and arterial blood 
 is bright scarlet. 
 
 Weight, or Specific Gravity. Human blood has a spe- 
 cific gravity of about 1.055. 
 
 Quantity. In quantity, the blood of the healthy, normal 
 human is about one-eighth the weight of the person. One 
 author gives it at only one-thirteenth. 
 
 Composition. The blood is primarily composed of a 
 fluid known as liquor sanguinis, or plasma, in which float 
 myriads of small semi-solid corpuscles and platelets. The 
 proportion in bulk of the fluid to the solids varies from 
 equality to about two to one. In a cubic millimeter of 
 healthy normal human blood, there are about 5,000,000 of 
 these corpuscles. 
 
 KINDS OP CORPUSCLES. There are two kinds of corpuscles, 
 red and white, and while the proportion varies through a 
 wide range, in health and disease, there are about 350 times 
 as many red as white corpuscles. 
 
 235
 
 236 MEDICAL JURISPBUDENCE. 
 
 Red Corpuscles. The blood derives its color from the 
 innumerable corpuscles which it contains. These red cor- 
 puscles are flat, bi-concave discs, non-nucleated and almost 
 always round in mammals, and nucleated and almost always 
 oval in other craniota. In man, their larger diameter 
 averages about 7.5 micro-millimeters (1/3400 inch), while 
 in amphiuma and tridactylum, the longer diameter is 
 67.22 micro-millimeters (1/363 inch). In their narrow 
 diameter or thickness these discoid bodies are about one- 
 fourth as large. The redness characteristic of these discoid 
 cells is not manifest wjien examined singly, at which time 
 they appear of a light straw color. The color is due to 
 hemoglobin, which constitutes about ninety per cent of the 
 dried substance of a cell. The red corpuscles are em- 
 bryologically of mesoblastic origin, beginning their life 
 history as nucleated cells, and as such, possessing amoeboid 
 movement and reproductive powers. At birth, however, 
 all nuclei have been lost by them, as well as all power of 
 movement and reproduction. After birth, the production 
 of new red corpuscles is believed to occur mainly in the 
 marrow of the bones. 
 
 White Corpuscles. The white corpuscles are slightly 
 larger than the red and average about eight to ten micro- 
 millimeters in their larger diameters. They are nucleated, 
 and the proto-plasm of the cell-body is more or less gran- 
 ular. Their shape varies, due largely from .their amoeboid 
 movement. They accomplish some locomotion by the same 
 movement. In this way they pass through the walls of the 
 capillaries into the tissues, where they are known as wan- 
 dering cells. Embryologically, the white corpuscles are 
 derived from the mesoblast. New white cells are derived 
 by reproduction, which seems to take place largely in the 
 lymphatic organs, especially the spleen. 
 
 PLASMA. This fluid portion of the blood consists of
 
 BLOOD STAINS. 237 
 
 water containing calcium salts, the chlorides of sodium, 
 potassium, phosphates, albumen and other proteid sub- 
 stances, as well as fatty and extractive substances. 
 
 PLATELETS. The platelets are small, non-nucleated, 
 round or oval bodies, about one-third the diameter of a 
 red corpuscle. They are usually found in groups, and are 
 prone to disintegration. Their function is unknown, but 
 there is reason for believing that they are concerned in the 
 process of coagulation when it occurs. 
 
 Hcemoglobin. Haemoglobin is a very important substance 
 found in the red corpuscles, and has the property of readily 
 taking up oxygen from the lungs and as readily giving it up 
 to the tissues of the body. Its known characteristics make 
 it an important factor in the identification of blood and 
 blood-stains. On exposure to the air, it quickly crystallizes. 
 Crystalline haemoglobin is dark red in color, differing some- 
 what with the direction from which the crystals are viewed, 
 is readily soluble in cold water and imparts its color to the 
 solution. The crystals combine freely, not only with oxy- 
 gen, but also with nitric oxide, carbon monoxide and prob- 
 ably carbon di-oxide. 
 
 Hcematin. After long exposure to the air, haemoglobin 
 is changed to hasmatin, a bluish-black substance, which is 
 insoluble in water and in the ordinary organic solvents, but 
 which dissolves readily in alkaline solutions. Haematin is 
 extremely stable, chemically; the caustic alkalies, hydro- 
 chloric and nitric acids have no effect on it and it does not 
 decompose even at as high a temperature as 180 degrees 
 Centigrade. Under ordinary conditions it retains its chemi- 
 cal identity indefinitely. 
 
 Oxy-hcemoglobin. Oxy-haemoglobin is a crystalline com- 
 pound of oxygen and haemoglobin, and the crystals thereof 
 have a bright scarlet color like that of arterial blood. 
 
 Coagulation. If blood escapes from the body, coagula-
 
 238 MEDICAL JUKISPRUDENCE. 
 
 tion or clotting occurs. After standing awhile, the blood 
 separates into a dark and semi-solid mass, the clot, and a 
 thin red fluid, the serum. The clot is composed of red 
 blood corpuscles matted together with fibrine. The process 
 of clotting is accelerated by cold, and retarded by heat. 
 It may occur in the blood vessels from obstruction or infec- 
 tion, or in the neighboring tissues where a vessel has been 
 ruptured. After death the blood remains fluid in the capil- 
 laries, but clots in the veins. Clots are sometimes found 
 in the cavities of the heart. 
 
 Tests for Blood. There are several tests recognized and 
 practiced to determine whether a certain substance or cer- 
 tain stains are of blood origin. These tests are based upon 
 ascertained characteristics of blood, or of some of its com- 
 ponent parts. 
 
 The tests may be classified as (1) Physical, (2) Chemical 
 and (3) Biological. The physical test consists of several 
 different experiments; such as (a) the heat test, (b) the 
 microscopic test, (1) for corpuscles and (2) for ha}min crys- 
 tals and (c) the spectroscopic test. There are three forms 
 of the chemical test, namely, (a) the ammonia tests, (b) 
 the potassium-hydrate tests, and (c) the guaiacum tests. 
 These tests collectively will distinguish blood from other 
 substances with great accuracy under favorable conditions, 
 but do not with certainty differentiate between human blood 
 and the blood of some animals. The value of the tests de- 
 pends upon the skill of the experimenter. 
 
 ACCURACY OF TESTS. Some of these tests are remarkably 
 delicate, and their combined results and eliminations ap- 
 proximate certainty. From as small a quantity as 1/1000 
 of a grain of dried blood, crystals of haematin hydro- 
 chlorate have been obtained. Owing to the stability of 
 haematin, it makes little difference as to the age of the stain. 
 In 1819, Kotzebue was assassinated at his desk in his own
 
 BLOOD STAINS. 239 
 
 house by Sand, and the papers upon his desk were stained 
 with his blood. In 1879, crystals of hasmatin hydrochlorate 
 were obtained from these stains. Accurate as these tests 
 may be for ascertaining the presence of blood stains, they 
 are not infallible in practice. The person making the test 
 may prove unskilled or negligent; he may even be biased 
 or suborned. The difficulty of getting sufficient suspected 
 material and of putting it in condition to make the test is 
 often very great and may sometimes lead to precarious 
 results. 
 
 BIOLOGICAL TEST. The biological test is based upon the 
 fact that when a sterilized solution of the blood of one 
 animal is injected into the veins of a different species of 
 animal haemolysis is induced, but if the animal treated be 
 of the same species as the animal whose blood is used such 
 disintegration will not take place. The difficulty in this 
 test lies in the impracticability of finding the subject to be 
 treated. This test has been so far experimented with that 
 we have learned that the blood of the anthropoid ape gives 
 the characteristic human reaction, but that the blood of the 
 lower monkeys does not. A sterilized solution of human 
 blood injected into the veins of the higher type of apes does 
 not occasion disintegration or destruction of the corpuscles, 
 but a different condition arises when the test is made with 
 the lower types of monkeys. If future experiments bear 
 out the results of present investigations along this line, it 
 would seem that a party who has had the proper experience, 
 with sufficient materials, could determine with great accu- 
 racy the origin of a certain blood solution. 
 
 Color of Blood Stains. The color of blood stains depends 
 upon a variety of circumstances, among them being their 
 age, their thickness, their origin, the material upon which 
 they are found, etc. 
 
 As BELATED TO CRIMINAL LAW. Blood stains have always
 
 240 MEDICAL JUKISPEUDENCE. 
 
 been recognized among the ordinary indicia of crime, and 
 they frequently afford important evidence in homicide 
 cases. 1 To determine whether such stains are human blood 
 is often a vital question in a criminal case. Two questions 
 are always presented for solution, namely, (1) Is the solu- 
 tion in question blood, and (2) Is it human blood? A nega- 
 tive answer to the first question also negatives the second, 
 and the inquiry need go no further and any inference of 
 guilt arising from the presence of the stain is completely 
 refuted. Some of the evidence to establish the first condi- 
 tion, that is, whether the given stain is blood, is a matter 
 of common observation and every day experience, but by 
 the aid of science many effective means of distinguishing 
 the same are available to the investigator and, therefore, 
 seized upon by the courts whenever the issue is involved. 
 
 TESTIMONY. An ordinary witness who has observed a 
 substance or stain and formed a conclusion from his obser- 
 vation, may testify that it is or is not blood. Some courts, 
 however, limit such witness to the statement that it " looked 
 like blood," or " appeared to be blood." 2 In the latter 
 case, an ordinary witness, having examined the blood under 
 a microscope, based his conclusion partly upon such exami- 
 nation. The opinion of a physician is competent evidence. 
 He is always permitted to state that a certain stain is 
 blood. 3 The testimony of a physician was admitted to 
 show that, upon examination by means of the microscope, 
 certain spots were found to be human, as distinguished 
 from animal, blood. 4 Such testimony was admitted to show 
 that of certain spots found on a board, some were human 
 blood and some were hog's blood. 5 Again, the testimony 
 
 1 People v. Fernandez, 35 N. Y., 60; Com. v. Tolliver, 119 Mass., 312. 
 
 2 People v. Bell, 49 Cal., 485; State v. Robinson, 117 Mo., 649, 663; Com. v. Sturte- 
 vant, 117 Mass., 122. 
 
 3 State v. Knight, 43 Me., 132; Lindsay v. People, 63 N. Y., 143. 
 
 4 Knoll v. State, 55 Wis., 249. 
 
 5 Lindsay v. People, 63 N. Y., 144.
 
 BLOOD STAINS. 241 
 
 of a physician was admitted to show that a stain on a shirt 
 was occasioned by the blood flowing directly on the outer 
 surface, as shown by the fact that the coloring matter of 
 the blood remained on the outer surface. 6 In the latter 
 case, the defense attempted to show by the testimony of 
 physicians that the location and appearance of the blood 
 marks on the shirt of the defendant demonstrated that the 
 defendant was probably prostrate on the ground and de- 
 ceased on top of him when the stains on the shirt were 
 received. The court held that this was not a matter of 
 medical testimony, as it merely involved a question of 
 gravity. 
 
 It has been said that the testimony of a chemist who has 
 analyzed the stain, and that of a person who has merely 
 observed it, belong to the same legal grade of evidence. 7 
 
 DEMONSTRATIVE EVIDENCE. Articles having spots on them 
 resembling blood are competent evidence to go to the jury, 
 when connected with the subject of the inquiry. 8 
 
 6 State v. Knight, 43 Me., 132 ; Dillard v. State, 58 Miss., 370. 
 
 7 People v. Fernandez, 35 N. Y., 61. 
 
 SState v. Baker, 33 W. Va., 319; Thomas v. State, 67 Ga., 460.
 
 CHAPTER XXIV. 
 CRIMES WITH MEDICAL ASPECTS. 
 
 Introduction. While all offenses of violence against the 
 person may involve medical evidence, there are some crimes 
 in which the services of medical science are sometimes in- 
 dispensable to the administration of justice. The essential 
 element of the offense may rest entirely on medical evi- 
 dence. There will be no attempt made to illustrate and 
 detail the character of the medical evidence which may be 
 present in special offenses and particular cases, and where 
 such evidence is referred to, the reference is made in order 
 to illustrate the legal principles involved, the importance 
 of the medical evidence and its relation to the administra- 
 tion of law. Most treatises on medical jurisprudence, espe- 
 cially those prepared by medical men, discuss only the 
 medical side of these cases, and to them the reader is re- 
 ferred. 
 
 Rape. 
 
 Definition. Rape is the carnal knowledge of a female 
 forcibly and against her will. Where the female is under 
 the age of consent, there need not be any force and the act 
 may meet with her approval, or even be brought about at 
 her solicitation. 
 
 Age of Consent. At common law the age of consent was 
 ten years, but the subject is now generally regulated by 
 statute and the age fixed varies from ten years, in some 
 States, to eighteen years in other States. 
 
 Punishment. Rape is regarded as a most brutal crime 
 and the penalty in all civilized communities is justly severe. 
 
 242
 
 CRIMES WITH MEDICAL ASPECTS. 243 
 
 On the high seas and in all places within the exclusive juris- 
 diction of the United States, it is punishable by death. 
 
 Physical Violence. Where physical violence is the means 
 employed to perpetrate the crime, the female must resist 
 her uttermost and to the last, and herein many delicate 
 medical questions may arise and should be given proper 
 consideration. 1 
 
 Force. The kind and degree of force used is not mate- 
 rial, if it be sufficient to overcome resistance. It may be 
 physical violence, fraud, deception, as by impersonating her 
 husband, intimidation by threats and through fear of per- 
 sonal injury or public scandal, the administration of drugs 
 or gases producing anesthesia or exciting sexual passions, 
 taking advantage of natural sleep, hypnotic influences, or 
 any of the countless artificial means whereby a female's 
 power or desire to resist may be overcome. The gist of the 
 offense is the having sexual intercourse without her con- 
 sent, or, what amounts to the same thing in law, at a time 
 when, because of a natural or artificial, permanent or 
 transient, mental condition she was incapable, in fact or 
 in law, of giving consent. Since defloration of a female 
 under the influence of an anesthetic is rape, and the grava- 
 men of the offense is the violation of the person, the intent 
 with which or the person by whom the anesthesia is induced 
 is unimportant. Whether the stupefaction was brought 
 about at her request to relieve the pain of an operation, or 
 without her consent to excite her sexual passions, leading 
 to voluntary submission, or to overcome her power of re- 
 sistance to his assault, where intercourse occurs, the offense 
 is rape. 
 
 Previous Unchastity of the Woman. The previous un- 
 chastity of the woman is immaterial, except as it affects her 
 
 1 Rahke v. State, 168 Ind., 615; Brown v. State, 127 Wis., 193; Adams v. People, 179 
 111., 638.
 
 244 MEDICAL JURISPRUDENCE. 
 
 credibility, where the act is denied, or bears upon the pre- 
 sumption of consent, where the act is admitted. 2 
 
 Signs. The characteristic signs of rape are numerous 
 and usually easy to discover. When called on a case in- 
 volving a charge of defloration of a female the physician 
 should take every available precaution to locate and verify 
 the medical evidences of the offense. The condition of the 
 woman's clothing, the appearance of her sexual organs, the 
 presence of seminal fluid, and all other special facts indica- 
 tive of sexual intercourse, with or without force, should be 
 specially noted and classified. 3 It is needless to say that a 
 thorough physical examination of the woman, and tests for 
 spermatozoa, when possible, are indispensable to the ends 
 of justice. 4 
 
 EUPTURE OF HYMEN. As a matter of law, the crime may 
 be consummated without a rupture of the hymen, but all 
 circumstances must be considered before forming an opin- 
 ion. 5 
 
 Poisoning. 
 
 Definition. Poison is any substance which, when intro- 
 duced into the animal organism, produces morbid, noxious 
 or deadly effects, or is injurious to health or life. 6 Poison 
 imports, ex vi termini, a substance which has fatal proper- 
 ties when introduced into the animal system. 7 Whether a 
 given substance is poison is always a question of fact, and 
 may involve a chemical analysis or other scientific demon- 
 stration. 8 
 
 Malice. The intentional administration of a poison for 
 any wrongful purpose implies malice. 9 
 
 2 Carney v. State, 118 Ind., 525; Maxey v. State, 66 Ark., 523. 
 
 3 Com. v. Lynes, 142 Mass., 577. 
 
 4 State v. Tuipner, 36 Minn., 535; State v. Murphy, 118 Mo., 7; State v. Perry, 41 
 W. Va., 641. 
 
 5 State v. Hargrove, 65 N. C., 467; Braner v. State, 25 Wis., 413. 
 
 6 State v. Baldwin, 36 Kan., 20 ; People v. Van Deleer, 53 Cal., 149. 
 
 7 State v. Slagle, 83 N. C., 130. 
 
 8 Com. v. Kennady, 170 Mass., 25. 
 Siebert v. People, 143 111., 571.
 
 CRIMES WITH MEDICAL ASPECTS. 245 
 
 Common Law. At common law, administering poison 
 was assault and battery with intent to kill and, if death re- 
 sulted, the offense was murder. 
 
 Post-mortem. If the evidence of the administration of a 
 specific poison is positive and the symptoms established 
 are characteristic, there may be a conviction without the 
 aid of a post-mortem, 10 but wherever possible an autopsy 
 should be held, and the investigation should go to the ex- 
 tent of ascertaining, not only the presence of poison in the 
 tissue, and the kind, but also as to whether there was suffi- 
 cient, under the circumstances, to cause death. Where 
 there is no direct evidence of the administration of the 
 drug, its presence in the tissue after death, in sufficient 
 quantities to occasion that event, is very essential to a con- 
 viction of the offender. 11 In cases of poisoning, most ques- 
 tions involving the science of medicine are purely medical, 
 not legal, and for the medical evidence of death or injury 
 by poisoning, the reader is referred to medical treatise on 
 the subject. The symptoms of death from certain well- 
 known poisons are so familiar to the profession that, in 
 some jurisdictions, a general practitioner may testify that 
 the given symptoms are those of a certain poison and, with 
 sufficient other facts given to enable him to form an intelli- 
 gent conclusion, he may state that in his opinion death was 
 caused by such substance, even though he never had a case 
 of such poisoning in his practice, because he is not confined 
 to information derived from observation and experience, 
 but may base his opinion on knowledge derived from medi- 
 cal works and other sources. 12 
 
 Infanticide. 
 Definition. Infanticide is the criminal destruction of a 
 
 10 Polk v. State, 36 Ark., 117. 
 
 11 Hatchett v. Com., 76 Va., 1030. 
 
 12 Siebert r. People, 143 111., 571, 579.
 
 246 MEDICAL JURISPRUDENCE. 
 
 new-born child. It is a term applied to the act of destroy- 
 ing an infant at the time of birth, but after it has estab- 
 lished an independent existence. The destruction of a 
 foetus, even though partly delivered is not infanticide and, 
 at common law, was only a misdemeanor, while, on the other 
 hand, if the child has lived a sufficient length of time under 
 circumstances to establish its independent existence by 
 other evidence than that disclosed by the corpse itself, such 
 as witnesses who saw and heard the child and other evi- 
 dence of the presence of a living infant, its destruction 
 would not be classified as infanticide, but as a plain case of 
 homicide. Such prosecutions are usually directed against 
 the mother, but any other person who is present may be 
 guilty of the offense. The subject is of special interest to 
 the physician because of the great number of medical ques- 
 tions involved as essential elements of the crime. If the 
 child has established an independent existence, the willful 
 taking of its life will be murder, and will subject the 
 offender to the penalties of such offense, but if it still de- 
 pends upon its mother for life, its destruction will only be 
 a misdemeanor, hence the importance of knowing and prov- 
 ing to which class the act in question belongs. However, 
 the killing of an unborn quick child is now generally de- 
 clared a criminal homicide by statute. But in the absence 
 of statute, such act is only a misdemeanor. 13 
 
 Duty of the Mother. What duty does a mother owe her 
 unborn child? Does that duty increase or vary between the 
 instant of conception and the moment of final parturition? 
 These questions the law has wisely left, in a large measure, 
 to the instincts of the race. Whatever may be the mother's 
 obligations in the premises, the law has never undertaken 
 to outline or classify them. Her sense of right and the 
 instinct of self -preservation, have, in a great measure, been 
 
 13 Williams v. State, 34 Fla., 217; Evans v. People, 49 N. Y., 86.
 
 CBIMES WITH MEDICAL ASPECTS. 247 
 
 relied upon, without supervision or mandate, to protect 
 society in so far as the public is interested in the subject. 
 From the earliest time, however, she was held accountable 
 for its willful destruction, after "quickening," it being sup- 
 posed that at that time the child had life and power of mus- 
 cular movement. 
 
 Prevalence. The offense is apparently much less preva- 
 lent than formerly. We should not, however, flatter our 
 generation by inferring that such a fact is due to any great 
 improvement or change in the morals of society in the 
 meantime. The explanation is more likely to be found in 
 the increased and more prevalent knowledge of means of 
 preventing conception and of procuring the expulsion of the 
 unwelcome intruder before maturity without positively 
 jeopardizing the life of the mother. The human heart with 
 its weaknesses and follies is, in all ages, the same. 
 
 Intent. Intent to take the life of the infant must be 
 proven. The evidences of intent are generally circumstan- 
 tial and of a nature to be explained on the hypothesis of 
 ignorance, accident or natural causes. Here is where the 
 ingenuity of the medical man is taxed to find the true facts 
 in the case. Mere voluntary exposure of herself by the 
 mother at the time of the delivery, for the purpose of con- 
 cealing her shame and which, without other fault on her 
 part, results in the child's not surviving the ordeal, or mere 
 failure on her part to get assistance at the time, would not 
 be sufficient to establish intent. 
 
 Independent Existence. What constitutes being born 
 alive and having an independent existence is a question 
 involved. All authorities agree that the offense cannot be 
 predicated unless the child had completely proceeded in a 
 living state from the body of the mother. At least two con- 
 ditions of fact must also exist : 
 
 (1) The child must have been alive; and
 
 248 MEDICAL JURISPRUDENCE. 
 
 (2) It must have had an independent circulation, and ac- 
 cording to some authorities, 
 
 (3) It must have breathed. 
 
 But if these conditions existed, it makes no difference 
 whether 
 
 (1) It was still attached to the mother by the umbilical 
 cord, or, according to some (and probably the better) au- 
 thorities, 
 
 (2) It had breathed or not. 
 
 According to one authority, a child is born alive when, 
 breathing and living by reason of breathing through its 
 own lungs alone, it exists as a live being without deriving 
 any of its living, or power of living, by or through any con- 
 nection with its mother. 14 
 
 SEVERANCE OF UMBILICAL CORD. According to English 
 authorities birth is complete when the child has been wholly 
 expelled from the body of the mother, even though it is 
 still connected with her by the umbilical cord. 15 However, 
 it would ordinarily seem the more correct position that 
 birth is not complete until the child has an independent 
 circulation, and breathes through its own lungs. If circu- 
 lation has been set up, the mere continuity of the funis is 
 unimportant. Independent circulation should be one of the 
 tests and as soon as that condition exists, with power to 
 purify the blood in its own lungs, shown by respiration, the 
 child may be said to have complete, independent existence. 16 
 Circulation and respiration are essential functions of ani- 
 mate life and, until both have been established, there is not 
 a complete self-sustaining organism. 
 
 MEDICAL EVIDENCE OF INDEPENDENT EXISTENCE. The 
 medical evidence that a child was born alive and had an 
 independent existence is derived, 
 
 i* Beg. v. Hindley, 13 Cox, 0. 0., 79 ; State v. Winthrop, 43 la., 519. 
 16 Reg. v. Trilloe, 41 E. C. L., 352. 
 16 State v. Winthrop, 43 la., 519.
 
 CRIMES WITH MEDICAL ASPECTS. 249 
 
 1. From an inspection of its general appearance and 
 
 2. From the conditions of 
 
 (a) Respiratory Organs, 
 
 (b) Circulatory System, and 
 
 (c) Abdominal Organs. 
 
 BESPIEATOKY ORGANS. Where breathing has occurred, the 
 respiratory organs offer the most reliable proof of live 
 birth. The thorax is higher or more vaulted in appearance 
 than where the child has not breathed, and the diaphragm 
 is more depressed after respiration than before. After 
 breathing, the larynx is wider, and is not closed by the 
 epiglottis. 
 
 Hydrostatic Test. The hydrostatic test, celebrated in 
 the history of infanticide, is based on the fact that the lungs 
 in their foetal or unaerated condition sink when placed in 
 water, while the lungs of a child that has breathed (or where 
 they have been otherwise inflated) float in water. This test 
 for infanticide was, for several centuries, regarded as de- 
 cisive by men of distinction who had thoroughly experi- 
 mented on the subject, but some writers of experience and 
 authority are opposed to the test as fallacious, Baron Gar- 
 row styling it " scientific humbug." 17 
 
 Breathing. It is a well recognized fact that some chil- 
 dren breathe before complete expulsion and, on the other 
 hand, instances are not wanting in which breathing does 
 not commence until some time after complete parturition. 
 Therefore, the fact that a child has breathed does not neces- 
 sarily prove that it was born alive, 18 nor, on the other hand, 
 does the fact that the child never breathed prove that it was 
 not born alive. 19 
 
 CIRCULATORY ORGANS. The condition of the circulatory 
 organs may assist in arriving at the fact of independent 
 
 17 Dole v. Johnson, 50 N. H., 452. 
 
 18 Bex. w. Wright, 9 0. & P., 754. 
 IB State v. Winthrop, 43 la., 619.
 
 250 MEDICAL JURISPRUDENCE. 
 
 existence. The condition of the foramen ovale and the 
 ducti arteriosus and venosus is probative of independent 
 breathing and circulation, but their presence in the foetal 
 condition does not conclusively negative independent exist- 
 ence. 
 
 ABDOMINAL ORGANS. In the foetus the liver is relatively 
 enormously large and very vascular. If the child has par- 
 taken of any food, the stomach and intestinal canal may 
 afford proof thereof, by reason of the presence therein of 
 food, milk or farinaceous or saccharine matters, from which 
 life is necessarily inferred. Other medical facts will read- 
 ily occur to the alert and skilled physician. 
 
 Natural Causes of Death. The natural causes of death 
 during birth and in new-born children is a subject of great 
 importance in medical jurisprudence. The principal 
 causes acting during birth and immediately subsequent 
 thereto are, 
 
 1. Compression of the umbilical cord, 
 
 2. Strangulation by the umbilical cord, 
 
 3. Hemorrhage from the umbilical cord, 
 
 4. Suffocation by the amniotic membrane, 
 
 5. Malformation of the mother, 
 
 6. Protracted delivery, 
 
 7. Constitutional debility of the infant, and 
 
 8. Accidental fractures. 
 
 The scar or mark left by strangulation by the umbilical 
 cord can usually be readily distinguished from the mark 
 left by strangulation by a rope or string, as the funis never 
 leaves any mark of excoriation or cutting of the skin, the 
 mark being broad, smooth, uniform and without break. 
 Hemorrhage from the cord may occur from accidental rup- 
 ture during the birth, or it may occur after severance. Of 
 course, sometimes it occurs from the cutting of the cord 
 with a criminal design. A child often dies of constitutional
 
 CEIMES WITH MEDICAL ASPECTS. 251 
 
 feebleness. An inspection of the body will frequently war- 
 rant this judgment where there is no other apparent cause 
 of death. 
 
 In the case of Reg. v. Middleship, reported in Cox's Crim- 
 inal Cases, 275, the evidence tended to show that the child 
 had dropped from the mother while she was in a privy. 
 Other similar instances are not wanting in the experience 
 of medical men, and they show that in cases of concealed 
 birth where there is a fracture of the skull, it may possibly 
 be due to accident and not to a criminal act. Therefore, the 
 medical man seeking to find out the right should, by his 
 investigation, negative all possible accidents and natural 
 causes. 
 
 Identity of Mother. The identity of the mother may be 
 an issue in the case. Where such fact is at issue, a phy- 
 sician, from proven symptoms and history shown, or from 
 his own examination of the defendant, where such has been 
 made, may give his opinion as to whether the defendant had 
 been delivered of a child and how recently. 20 When the 
 other evidence of the identity of the mother is only circum- 
 stantial, the medical evidence of pregnancy and delivery, 
 or their absence, becomes very important in determining 
 the right of the case. 
 
 Burden of Proof. It has been stated by writers of author- 
 ity that about one in every twenty legitimate children is 
 born dead while, in illegitimates the proportion is about one 
 in every ten. We may not agree on the proportions, but all 
 persons of experience must agree on the fact that many chil- 
 dren are born dead, even in the absence of any criminal act 
 on the part of the mother or other person. This fact, there- 
 fore, is an important consideration in determining the guilt 
 in charges of infanticide. In all prosecutions for crime the 
 defendant is presumed to be innocent until he is proven 
 
 20Echols v. State, 81 Ga., 696.
 
 252 MEDICAL JURISPRUDENCE. 
 
 guilty, and the jury must be satisfied beyond reasonable 
 doubt. No man can honestly be satisfied beyond reasonable 
 doubt where the chances are one in twenty that he is wrong. 
 Therefore, in cases of infanticide, the prosecution has the 
 burden of proving that the child was born alive. In prac- 
 tice, this means that the prosecution is put to the necessity 
 of producing some evidence that the child did have an inde- 
 pendent existence. 
 
 Statutes. During the reign of James I, a statute was 
 enacted making concealment of the death of a bastard child 
 prima facie evidence of murder by the mother, but she 
 could overcome the presumption by the testimony of one 
 reputable witness that the child was born dead. By a 
 statute of Pennsylvania passed May 31, 1781, such conceal- 
 ment was conclusive evidence against the mother.
 
 CHAPTER XXV. 
 STATUTES OF LIMITATIONS. 
 
 Policy of the Law. It is the policy of the law to discour- 
 age the litigation of stale matters. Such policy was orig- 
 inally adopted to discourage perjury by trying issues when 
 the facts were fresh in the memory of the witnesses and 
 the falsity of testimony could more readily be proved. 
 Statutes of limitations are universally in effect whereby the 
 time within which actions may be brought is designated with 
 reference to the time the cause of action accrued. 
 
 When Cause Accrues. The question of when a cause of 
 action accrues is often difficult to determine, and has led to 
 innumerable interpretations by the courts. At the time a 
 party has a right to demand fulfillment of an obligation by 
 another, his right of action is complete and is said to have 
 accrued. When a cause of action accrues the statute is said 
 to begin to run. In actions for personal injuries, the statute 
 begins to run at the time the injuries are received. 1 
 
 Malpractice Cases. As a general proposition, in mal- 
 practice cases, the cause of action accrues at the time the 
 alleged improper services were rendered. Thus, where the 
 negligence and unskillfulness of a surgeon in treating a frac- 
 tured arm were the gist of the action, it was held that the 
 statute began to run at the time of the discharge of the case 
 after the setting of the arm, where the facts showed that 
 the wrongful setting was the real and substantial cause of 
 complaint. 2 
 
 Period of the Statutes. In some States actions in tort for 
 
 1 Fadden v. Satterlee, 43 Fed., 568. 
 
 2 Coady v. Reins, 1 Mont., 424. 
 
 253
 
 254 MEDICAL JURISPRUDENCE. 
 
 malpractice must be begun within one year from the accrual 
 of the cause of action. In other States it is two years. 
 Most statutes favor actions on contracts by giving them a 
 longer period to run. Under such statutes, an action for 
 breach of contract by malpractice may be maintained, after 
 the statute has run against the tort action. 
 
 Diligence. It is not the policy of the law to refuse redress 
 to an injured party who has a just cause of complaint. Dil- 
 igence in enforcing remedies is the purpose of the statutes 
 under consideration. A party must not sleep on his rights. 
 Reasonable promptness in appealing for redress is encour- 
 aged and, in fact, demanded. However, a party cannot be 
 said to sleep on his rights before he knows that he has suf- 
 fered injury at the hands of another. Generally, in matters 
 of malpractice, the time when the action accrues is always 
 manifest and self-evident, as there can be no mistaking 
 exactly when the wrong was done and the injury inflicted. 
 The presence of the injury is a continual reminder of the 
 wrongful conduct. But cases there are which are not free 
 from doubt and uncertainty. Take the case of a course of 
 treatment by a physician, which was clearly wrong from 
 the beginning and resulted in injury to the patient. Should 
 the statute begin to run with the first treatment or at the 
 termination of the relation! Is not the wrong a continuous 
 one? Is there not a breach of duty at the last as well as at 
 the first, or at any intervening visit! So long as the im- 
 proper treatment continues there is a continuing breach of 
 the duty which the practitioner owes to his patient. 
 
 Specified Services. Where there is an agreement for 
 certain specified services, covering a period of time, the 
 statutes should not begin to run until the services have 
 been completed, or the relation terminated in some other 
 manner. 3 It would appear that this proposition should 
 
 3 Gillett v. Tucker, 67 O. St., 106.
 
 STATUTES OF LIMITATIONS. 255 
 
 not apply where the ground of complaint was for some 
 known improper conduct which, to the knowledge of the 
 patient, could not be remedied by subsequent proper atten- 
 tion and treatment. Thus, the wrongful amputation of a 
 limb where such operation was clearly unnecessary and ill- 
 advised, would create a cause of action at the time and the 
 statute should begin to run at the time of the act regardless 
 of subsequent conduct of the operator. 
 
 Knowledge of Injury. It has been held that the breach 
 of duty constitutes the ground of complaint and causes the 
 action to accrue, not knowledge by the plaintiff of the fact 
 of the wrong evidenced by the resulting injury. 4 The 
 statute begins to run at the time the injury is inflicted, not- 
 withstanding the results may not be fully developed until 
 long after. 5 Thus, malpractice in the delivery of a woman, 
 whereby the child is injured, dates from the time of the 
 delivery, although the serious consequences of the negli- 
 gence to the child are not apparent for several years there- 
 after. 6 
 
 Latent Injuries. General laws cannot cover every pos- 
 sible contingency. They are made with reference to usual 
 experiences. Exceptional cases must be reached by inter- 
 pretation, when within the purview of the act and by new 
 legislation, when they are not. The statutes under discus- 
 sion have been enacted with the unexpressed assumption 
 that the party wronged knows of his injury at the time of 
 its infliction. In most cases of malpractice this is not a 
 violent presumption because, in fact, it is in harmony with 
 the circumstances. The man with a deformity occasioned 
 by an improper setting of the parts, by the surgeon, knows 
 of the blunder at the time and is continually reminded of the 
 
 4 Frounce v. Nichols, 22 O. C. C., 539. 
 
 5 Fadden v. Satterlee, 43 Fed., 568. 
 
 6 Miller v. Ryerson, 22 Ont., 369.
 
 256 MEDICAL JUBISPEUDENCB. 
 
 wrong which was done him, and of the breach of duty by his 
 surgeon. Cases there are, however, where the injury is 
 inflicted and the patient does not know it, and from the very 
 nature of things cannot know at the time that he has been 
 wronged. The law is not intended to protect the wrong- 
 doer who successfully covers up his misdeeds, nor the party 
 whose negligence of omission is concealed by the nature of 
 his dereliction. Thus, the patient in whose abdomen an 
 operating surgeon has left a sponge, absorbent cotton, a pair 
 of scissors or other foreign substance, may be ignorant of 
 the fact until years after when, driven by excruciating pain 
 to undergo another operation, the presence of the intruder 
 is disclosed. There can be no reason for encouraging 
 promptness of action where the party is ignorant of any 
 wrong having been done him. Promptness presupposes 
 knowledge of the matter to which it relates. 
 
 Continuing Obligations. Where a physician operated 
 upon a patient for what he pronounced to be appendicitis, 
 and neglected to remove from her abdominal cavity a sponge 
 which he had placed therein, in connection with the opera- 
 tion, and this condition continued during his entire profes- 
 sional relation to the case, it was held that the statute of lim- 
 itations did not commence to run against the right to sue and 
 recover on account of want of skill, care and attention, until 
 the case had been abandoned or the professional relation 
 otherwise terminated. There was an agreed consideration 
 in this case for the operation itself, and also for such treat- 
 ment as might be necessary thereafter, and the contract 
 was regarded as an entirety. The obligation on the part 
 of the physician to use due care and diligence, to the end 
 that recovery might be had, existed, therefore, as long as 
 the relation of physician and patient continued. "It was a 
 constant and daily obligation to use ordinary skill and care 
 and if, by omission or negligence he had left a foreign sub-
 
 STATUTES OF LIMITATIONS. 257 
 
 stance within the walls of the incision at the time of the 
 operation, it behooved him to afford timely relief. Neglect 
 of this duty, imposed by the continuance of obligation, was 
 a continuous and daily breach of the same and, as the facts 
 show, caused continuous increasing daily and uninterrupted 
 injury." It will be observed that in this case there were 
 two distinct grounds on which to base complaint against 
 the surgeon: 
 
 First: Negligently permitting the sponge to remain in 
 the cavity when closing the incision, and 
 
 Second: Negligently allowing it to remain there from 
 day to day until he dismissed his patient from his attention. 
 
 The neglect of the surgeon was inherent in the operation, 
 and also in the subsequent treatment. 7 
 
 A Continuing Wrong. Sponge cases and others of that 
 type are in reality continuing breaches of the obligation 
 which the operator owes to his patient. If the surgeon 
 knew of the presence of the foreign body and purposely, 
 with or without malice but without sufficient reason, im- 
 properly permitted it to remain, his conduct in that respect 
 would amount to an assault. If he did it through negli- 
 gence, the law would charge him with knowledge, for he 
 should have known, and the legal consequences as to his 
 liability would be the same. In either alternative the act 
 amounts to a continuing assault, each recurring pain being 
 a new breach of duty by the operator, and the statute should 
 not begin to run until the discovery of the fact by the 
 patient, or until, in the exercise of reasonable care and due 
 diligence, under the circumstances, the patient should have 
 discovered his real condition. If the object is removed by 
 the offending surgeon, the statute should not begin to run 
 until after such removal and the disclosure of such fact to 
 the patient by the surgeon. 
 
 7 Gillett v. Tucker, 67 0. St., 106.
 
 258 MEDICAL JURISPRUDENCE. 
 
 Suit for Fee. When a physician delays action for his fee 
 until after the statute of limitations has run against an 
 action in tort by his patient for malpractice in reference to 
 the same services, the patient may, nevertheless, show the 
 malpractice as a defense to the physician's claim even 
 though the fee had been agreed upon before the services 
 were rendered. Under such circumstances, generally speak- 
 ing, the patient is limited to a defeat of the physician's 
 claim ; he cannot recover affirmatively against the physician. 
 However, the decisions are not in harmony on this subject, 
 and the reader is referred to the decisions of the State in 
 which he is interested. 
 
 Persons Under Disability. The statutes usually except 
 minors, insane persons and others under disability, and give 
 them a certain period, usually a year, after the removal of 
 the disability in which to begin suit. Therefore, in case of 
 malpractice on a minor, the possibility of litigation is not 
 ended until a year or more after the patient attains his 
 majority.
 
 CHAPTER XXVI. 
 
 MISCELLANEOUS. 
 
 Business, Contracts and Work on Sunday. 
 
 Sunday. In contemplation of law Sunday is merely a 
 day of rest. In this country there is no attempt by law to 
 ingraft upon the day any religious aspect. While all 
 religious faiths are regarded with respect, the law does not 
 attempt to enforce any religious observance of the day nor 
 to treat it as a religious institution. Sunday, as a Christian 
 institution, is a development from the Jewish Sabbath, or 
 day of rest. 
 
 Duration of the Day. At common law, the natural and 
 civil day consists of twenty-four hours, extending from 
 midnight to midnight, while the artificial or solar day 
 extends from sunrise to sunset. 1 Some statutes relating 
 to work on Sunday have been construed to mean the solar 
 day, from sunrise to sunset. 2 As used in such statutes, 
 however, the more general interpretation of Sunday is that 
 it means the civil day of twenty-four hours, extending from 
 midnight Saturday to midnight Sunday. 3 
 
 At Common Law. For centuries Sunday has been consid- 
 ered a non-judicial day. By a canon of the Church 
 ingrafted on the common law all judicial proceedings which 
 took place on that day were void ; however, all other business 
 might lawfully be transacted on that day. Thus, a contract 
 executed on Sunday is not void at common law, by reason of 
 
 1 Hiller v. English (S. C.), 4 Strob., 486. 
 
 2 Fox v. Abel, 2 Conn., 541. 
 
 a State v. Green, 37 Mo., 466, 470; Schwab v. Mayforth, 1 City Ct. (N. Y.), 177, 179; 
 State v. Heard, 107 La., 60; Shaw v. Dodge, 5 N. H., 462, 463. 
 
 259
 
 260 MEDICAL JUEISPBUDENCE. 
 
 having been entered into on that day. 4 The common law 
 does not prohibit ordinary labor or secular work on 
 Sunday. 5 
 
 Statutes. During the medieval period the authority of 
 the Church was so universally recognized that secular leg- 
 islation on the subject of Sunday observance appears to 
 have been unnecessary. In fact the day appears to have 
 been treated entirely as a religious institution. By the 
 statute of 5 and 6, Edw. V., Chap. 3, it was provided that all 
 secular labor on Sunday should be unlawful except in cases 
 of necessity. This statute was greatly enlarged by the Act 
 of 29 Chas. 2nd, Chap. 7, which prohibited all " worldly 
 business" except when absolutely necessary or for charity. 
 These statutes have been substantially enacted and fol- 
 lowed in all the United States. Our courts have held that 
 statutes prohibiting the execution of contracts, the transac- 
 tion of business and the performance of secular labor on 
 Sunday are a reasonable exercise of the police power for the 
 protection, health and general welfare of society. A gen- 
 eral law prohibiting the transaction of all business and the 
 performance of all labor on Sunday, except work of neces- 
 sity and charity is constitutional and enforcible. 
 
 LIMITED TO CERTAIN CALLINGS. However, where such 
 statutes or ordinances single out a particular occupation 
 whose exercise does not necessarily disturb the peace and 
 good order of society, they are regarded as class legislation 
 and will not be enforced. 6 
 
 CONSTRUCTION. Where the statutes are limited to a pro- 
 hibition of disturbances of the peace and good order of 
 society by labor on Sunday, they are construed not to pro- 
 hibit ordinary business transactions or professional work. 
 
 WORK OF NECESSITY AND CHARITY. The statutes of the 
 
 4 Richmond v. Moore, 107 111., 429. 
 
 5 Eden v. People, 161 J1L, 296. 
 
 6 Eden v. People, 161 HI., 296.
 
 MISCELLANEOUS. 261 
 
 various States prohibiting labor and the transaction of busi- 
 ness on Sunday, naturally and necessarily except work of 
 necessity, great public convenience, and charity. What 
 constitutes work of necessity and charity has often been 
 before the courts and is not always easy to determine. The 
 circumstances of each particular case must be taken into 
 consideration. An act which would be considered a neces- 
 sity under one set of circumstances, might be clearly pro- 
 hibited under a different set of circumstances. 
 
 MEANING OP NECESSITY. Necessity, within the meaning of 
 the law, is generally considered a moral and social fitness 
 or propriety of the work or labor under the circumstances 
 of the particular case. 7 The necessity referred to in the 
 statute need not be an absolutely unavoidable physical neces- 
 sity; a mere moral emergency which will not reasonably 
 admit of delay is a necessity within the contemplation of 
 such statutes. 8 It has been said that it is impossible to lay 
 down any general rule as to work of necessity and charity, 
 and also that the exigencies of human life, which demand 
 work of necessity and charity, are so numerous and diversi- 
 fied by attending circumstances as to defy classification. 9 
 
 SEKVICES OF A PHYSICIAN. The usual services of a phy- 
 sician are generally regarded as coming within the excep- 
 tion as work of necessity, and he may collect the usual 
 reasonable fee for medical and surgical attention on Sun- 
 day. 
 
 Coroners. 
 
 Definition. A coroner is a municipal or county officer 
 who, in modern times, is charged with the duty of holding 
 inquests upon the bodies of persons who may be supposed 
 to have died violent, unnatural or extraordinary deaths. 10 
 
 7 Flagg v. Mullbury, 4 Gush., 243 ; Johnston v. People, 81 111., 469. 
 
 8 Burns v. Moore, 76 Ala., 839, 342. 
 
 9 Johnston v. Com., 22 Pa. St., 102 ; Ungericht v. State, 119 Ind., 379. 
 
 10 Bouvier's Law Dictionary,
 
 262 MEDICAL JURISPRUDENCE. 
 
 Duties. At the present time the duties and powers of a 
 coroner are both judicial and ministerial; formerly, at an 
 early date, they were exclusively judicial. 11 Wherever the 
 circumstances surrounding a death are of such a character 
 as to sustain a reasonable belief that it resulted from unlaw- 
 ful or violent means, an inquest should be held. The de- 
 cision of the necessity therefor lies in the sound discretion 
 of the coroner, which, ordinarily, will not be reviewed by 
 the courts. 12 He cannot arbitrarily, capriciously, for an 
 ulterior motive, and without any apparent reason, hold an 
 inquest. 13 He has the power to summon witnesses and 
 retain physicians to make examination and autopsy. He 
 can compel the attendance of a physician who knows the 
 facts or has inspected the body and require him to give his 
 opinion of the cause of death, 14 but he can not compel him 
 to perform an autopsy as a basis for his opinion. 15 
 
 Civil Liability. The coroner is not civilly liable for 
 slander for any remarks or instructions he may give the 
 jury on the facts of the case under consideration, even 
 though alleged to have been uttered falsely and ma- 
 liciously. 16 
 
 Boards of Health. 
 
 Civil Liability. Where members of a board of health, in 
 good faith, act in a judicial capacity, that is, in the exercise 
 of a judicial power within their jurisdiction, they are not 
 civilly liable personally to a party who claims to have been 
 damaged by their decision or by the enforcement thereof. 17 
 In such cases there is no presumption in favor of jurisdic- 
 
 11 1 Bl. Com., 348 ; Yeargin v. Siler, 83 N. C., 348. 
 
 12 Boisliniere v. St. Louis Co., 32 Mo., 375. 
 
 13 Lancaster Co. v. Mishler, 100 Pa. St., 624; Clark Co. v. Galloway, 52 Ark., 361; 
 State v. Marshall, 82 Mo., 484. 
 
 14 St. Francis Co. v. Cummings, 55 Ark., 421. 
 
 15 Allegheny Co. v. Watt, 3 Pa. St., 462. 
 
 16 Thomas v. Churton, 2 B. & S., 475. 
 
 IT Underwood v. Green, 42 N. Y., 140; Salem v. Eastern R. Co., 98 Mass., 431; Ray- 
 mond v. Fish, 51 Conn., 80.
 
 MISCELLANEOUS. 263 
 
 tion and the board has the burden of showing that the 
 matter in question was within their cognizance. 
 
 Medical Services Required by Law. 
 
 Duty of Parent to Employ Medical Services for Minor 
 Child. It is the duty of a parent, or of one in loco parentis, 
 to procure necessary medical treatment for his minor child 
 and for any gross, willful neglect herein, he may be held 
 criminally liable. 18 The law is based upon the assumption 
 that the medical services were a necessity and applies 
 wherever the party sought to be held responsible is charged 
 with the duty of supplying the minor with necessaries. 
 
 Christian Science. Conscientious scruples generally 
 against the employment of medical assistance in case of 
 disease or accident will not avail the responsible party as 
 an excuse for the failure to procure such services. In this 
 respect, the law enforces contemporaneous, prevailing, par- 
 amount public opinion and enlightenment. Whether the 
 Christian Scientist be regarded as a survival of the primor- 
 dial stages of human development, or as a projection from 
 the mystic, ethereal regions of the millenial perfection yet to 
 be, a camp-follower or a van-guard of progress, he is not 
 in harmony with present notions of conditions and responsi- 
 bilities, which is the basis of all law, and if he fails to 
 respond to present requirements, he must suffer the conse- 
 quences. 
 
 "I entirely agree . . . that while the merits or demerits 
 of the Christian Science or faith are things with which we 
 have nothing to do as long as it does not transgress or lead 
 to a transgression of the law, the law of the land is par- 
 amount, and it is not for people to set themselves up in 
 opposition to it; that the law of the land must be obeyed, 
 and it must b'e obeyed even though there be something in the 
 
 18 Stehr v. State, 92 Neb., 755 ; 45 L. R. A., 559.
 
 264 MEDICAL, JURISPRUDENCE. 
 
 shape of belief in the conscience of the person which would 
 lead them to obey what, in his state of mind, he may consider 
 a higher power or higher authority. And especially must 
 there be obedience where, as in this instance, the subject 
 of the judgment to be exercised is a child of tender years, 
 unable to exercise any judgment of his own. In one form 
 or another it has been frequently said by able judges, and 
 it cannot be too widely known or too often repeated, that 
 where an offense consists of a positive act, which is know- 
 ingly done, the offender cannot escape punishment because 
 he holds a belief which impels him to think that the law 
 which he has broken ought not to exist or ought never to 
 have been made." 19 
 
 Religious Belief. Where a statute provides that "every 
 parent of any child who wilfully omits, without lawful ex- 
 cuse ... to furnish necessary . . . medical attendance for 
 such child is guilty of a misdemeanor," a father who fails 
 to call a physician and who refuses to permit a minor child 
 to be treated by a physician for typhoid fever because of 
 his religious scruples against such ministrations is liable 
 to the penalty the law inflicts. 20 His religious conviction is 
 not a lawful excuse. "A party's religious belief cannot be 
 accepted as a justification for his commission of an overt act, 
 made criminal by the law of the land. ' ' 21 
 
 Malingerers. 
 
 Feigned Diseases. Diseases are often feigned so success- 
 fully as to baffle the most skilled medical experts. This 
 subject usually comes before the courts in attempts to mag- 
 nify the results of injuries, in actions for damages, and to 
 appear insane when charged with crime. The falsity of 
 pretended results is often extremely difficult to demonstrate, 
 
 19 Rex v. Lewis, 6 Ont. L. Rep., 132, 1 B. R. C., 732. 
 
 20 Owens v. State, 6 Okl. (Mm., 110; 27 A. C., 1218, 1221. 
 
 21 Reynolds v. U. S., 98 U. S., 145, involving polygamous marriages.
 
 MISCELLANEOUS. 265 
 
 and the mere opinion of the medical expert is usually out- 
 weighed by the apparently truthful assertion of the 
 malingerer. Two medical questions are involved, 
 
 (a) Is the party in fact suffering from the condition 
 claimed, and 
 
 (b) Could the pretended condition result from the in- 
 juries claimed to have been received? 
 
 In cases of fraud, real or apparent, the attention of the 
 medical man should be directed to the solution of these two 
 questions. Besides, where the relation of cause and effect 
 are not apparent, the physician should always be on the 
 alert for other causes of the trouble. As to pretended in- 
 sanity, common observation and experience, testify that 
 the affliction can be readily and skillfully simulated. 22 
 
 That insane persons should attempt to conceal their 
 malady in certain stages, and even pretend to be rational, 
 is to be expected, but the courts record but few cases where 
 there was a well laid plan followed with any degree of intel- 
 ligence by an insane person to simulate sanity. 23 Guiteau 
 pretended to be sane notwithstanding the plea of his attor- 
 ney, but his conduct at the trial cannot be regarded as an 
 attempt to conceal insanity and to appear sane. 
 
 Possibilities. Almost any disease or group of symptoms 
 may be feigned. When a physician is called upon to give 
 an opinion as to whether or not a certain alleged injury or 
 disease is feigned, he must base his opinion upon the rela- 
 tion between certain facts, rather than upon a positive 
 knowledge that the conditions claimed are feigned. His de- 
 cision must depend upon the relation between the character 
 of the injury and the conditions claimed to result therefrom ; 
 that is, 
 
 22 De Jarnette v. Com., 75 Va., 867 ; State v. Klinger, 43 Mo., 127 ; Ex partt Schnei- 
 der, 21 D. C., 433. 
 
 23 Beg. v. Pearce, 9 C. & P., 667.
 
 266 MEDICAL JURISPRUDENCE. 
 
 (1) Whether or not the conditions claimed might reason- 
 ably result from the accident as described ; 
 
 (2) What is the relation between the conditions claimed 
 and those which are found upon examination; 
 
 (3) The relation between the alleged subjective symptoms 
 and the injury or condition claimed, and could the former 
 have been the result of the latter ; 
 
 (4) Whether the subjective symptoms and conditions 
 claimed are regular, well-defined, localized and character- 
 istic ; 
 
 (5) Are the subjective symptoms consistent with the ob- 
 jective symptoms? 
 
 Contracts in Restraint of Professional Activity. 
 
 Not Favored in Law. Contracts in restraint of trade, in- 
 dustry, employment, or personal or professional activity 
 are not favored in law because they are considered as being 
 against public policy. The law will not permit any one to 
 restrain a person from doing what the public welfare and 
 his own interest requires that he should do. 24 
 
 Prevalence. Probably the reports of every State in the 
 Union contain adjudicated cases in which some physician 
 sold the good will of his practice for a consideration, and 
 ancillary thereto agreed not to engage in the practice of his 
 profession within a certain distance of his former location, 
 within a certain period of time. 
 
 Validity. Where the restraint is partial and reasonable, 
 in good faith, and founded upon good consideration, such 
 contracts are valid and enforcible. 25 
 
 Ancillary to Employment. Agreements not to engage in 
 the practice of the profession in a certain place for a definite 
 
 24 Homer v. Ashford, 3 Bing., 322. 
 
 25 Hedge v. Lowe, 47 la., 137; Boutelle v. Smith, 67 111., 75; Arnold v. Krutzer, 87 
 la., 214; Dwight v. Hamilton, 113 Mass., 175; Cook v. Johnson, 47 Conn., 175; Niles v. 
 Penn, 33 N. Y. Supp., 857; Homer v. Graves, 7 Bing., 735; Butler v. Burleson, 16 Vt. 
 176.
 
 MISCELLANEOUS. 267 
 
 period of time, are frequently ancillary to contracts of em- 
 ployment of the covenantor by the covenantee and, unless 
 void for the want of consideration or mutuality, or for un- 
 reasonableness or fraud, will be enforced by the courts, by 
 enjoining the party from practicing in violation of his cove- 
 nant. 26 
 
 Specific Performance. Courts of equity will enforce 
 specific performance of such negative agreements by re- 
 straining a breach thereof by injunction, prohibiting the 
 covenantor from practicing in violation of his covenant. 
 
 Reason for the Relief. The injunctional relief is based 
 upon the theory that the covenantee does not have a complete 
 and adequate remedy at law, since the latter action is for 
 damages only and in which he can recover only what he can 
 prove. The evidence to establish damages might not be 
 available, and, ordinarily, would be purely speculative. 27 
 
 Contract in Writing. By all means such contracts should 
 be in writing and the restriction should not be greater than 
 absolutely necessary reasonably to protect the vendee and 
 to insure him that he will get what he contracted for. 
 
 PROVISIONS OF CONTRACT. (a) Time Limit. It is advis- 
 able to incorporate a limitation as to time. While such 
 limitation is not indispensable, it may become important if 
 the limitation as to space might otherwise appear unreason- 
 able. 28 
 
 (b) Assignees, etc. It is advisable to require the vendor 
 to agree not to engage in the practice in the vicinity, nor 
 enter the employ of any one there engaged in the practice, 
 and the promise should run to the vendee and his assigns, 
 so that the covenant may be enforced after the death of the 
 covenantee. 
 
 26 Freudenthal v. Espey, 45 Colo., 488; 26 L. R. A., 961. 
 
 27 Hubbard v. Miller, 27 Mich., 15; Doty v. Martin, 32 Mich., 462; Parkinson's Appeal, 
 78 Pa. St., 196; Ellis v. Jones, 56 Ga., 504. 
 
 28 Ocean Steamer Navigation Co. v. Winsor, 20 Wall., 64 ; Boyce v. Watson, 52 111. 
 App., 361; Feckelstein Bros. Co. v. Feckelstein, 76 N. J. L., 613; See L. B. A., 913, 927.
 
 268 MEDICAL JURISPRUDENCE. 
 
 RESTRICTION MUST BE SEASONABLE COURTS WILL NOT 
 REFORM CONTRACT. The court will not attempt to make a 
 new contract for the parties by fixing a reasonable limit 
 within which it will enforce the covenant, though such 
 reasonable limitation can readily be determined. The court 
 will enforce or annul the contracts made, but will not under- 
 take to make a new contract for the parties. 29 
 
 WHEN REASONABLE SUCH CONTRACTS WILL BE ENFORCED 
 ACCORDING TO THEIR SPIRIT. In order to be entitled to relief 
 it is not necessary that the covenantee prove that the consid- 
 eration was adequate, or that the covenantor is insolvent, or 
 that the damage will be irreparable. 80 
 
 Illustrations. Where a physician, for a consideration, 
 agreed not to practice medicine in the village or vicinity for 
 at least the term of five years, on attempting to violate the 
 covenant he was restrained from practicing within ten miles 
 of the village limits. 31 An agreement by a physician with 
 the purchaser of his residence and practice in a country 
 town, not to engage in the practice of medicine within six 
 miles of his said residence, was considered reasonable. 32 
 Such agreement by physicians, when for a consideration, 
 have been held binding when limited to twelve miles, fif- 
 teen miles, 34 and twenty miles 35 of the then residence of 
 the promisor. 
 
 Injunctions. While courts of equity will restrain parties 
 from affirmative acts in violation of their negative cove- 
 nants, they will not usually enter mandatory injunctions 
 which will require performance of acts on the part of the 
 
 2 Homer v. Graves, 7 Bing., 734. 
 
 30 Ryan v. Hamilton, 205 111., 191; Gordon v. Mansfield, 84 Mo. App., 367; Beatty v. 
 Goble, 142 Ind., 329; McCurry v. Gibson, 108 Ala., 451; 22 Cyc., 869, 
 
 31 Timmerman v. Dever, 52 Mich., 34. 
 82 Linn v. Sigsbee, 67 111., 75. 
 
 S3 McClurg's Appeal, 58 Pa. St., 51. 
 34 Miller v. Elliott, 1 Ind., 484. 
 85 Butler v. Burleson, 16 Vt., 176.
 
 MISCELLANEOUS. 269 
 
 covenantor. 38 Thus, where a prima donna agrees to sing at 
 a certain theatre and promises not to engage with a rival 
 house, the courts will not require her to appear as promised, 
 but they will restrain her from warbling at a rival theatre in 
 violation of her covenant. The reason for refusing the 
 affirmative relief is because courts will not enter decrees 
 where they cannot enforce substantial compliance there- 
 with. 37 
 
 Asexualization and Sterilization. 
 
 As a Punishment for Crime. Asexualization by vasec- 
 tomy or sterilization by salpingectomy, as a penalty for 
 crime whereof the party has been duly convicted, is not pro- 
 hibited by the constitutional provision against the infliction 
 of cruel and unusual punishment. To come within the con- 
 stitutional inhibition the punishment must be both cruel and 
 unusual. 38 " Cruel and unusual punishments are punish- 
 ments of a barbarous character unknown to the common law. 
 The word, when it first found place in the Bill of Bights, 
 meant not a fine or imprisonment, or both, but such punish- 
 ment as that inflicted by the whipping-post, the pillory, 
 burning at the stake, breaking on the wheel and the like, or 
 quartering the culprit, cutting off his nose, ears or limbs, or 
 strangling him to death. ' ' 39 The practice of flogging for 
 certain offenses has been upheld on the ground that, while 
 cruel, it was not unusual at the time of the adoption of the 
 constitution and was not unknown to the common law. 
 Asexualization by vasectomy as a penalty for the crime of 
 rape was sustained because, while unusual, it was not cruel. 
 The evidence in the case showed that the operation is a 
 minor one, easily performed, without pain to the patient, 
 
 30 Wollensak v. Briggs, 20 111. App., 50; Blanchard v. B. B. Co., 31 Mich., 48. 
 
 37 Lumley v. Wagner, 1 DeG., M. & G., 604 ; Webster t>. Dillon, 3 Jur. N. S., 432 ; 
 M. E. Co. v. Ward, 9 N. Y. Supp., 779 ; 22 Cyc., 857. 
 
 38 State t'. Woodward, 68 W. Va., 66 ; 30 L. B. A., 1004. 
 89 In re O'Shea, 11 Gal. App., 575.
 
 270 MEDICAL JURISPRUDENCE. 
 
 and entailing no confinement to bed or even cessation from 
 employment. 40 
 
 To Prevent Procreation. When applied to defectives, 
 who have committed no offense, for the sole purpose of de- 
 stroying their power of procreation, a different considera- 
 tion arises and the conservatism of the law may be depended 
 upon to prevent any radical measures in this direction. All 
 citizens are entitled to the equal protection of the law, and 
 no rights may be impaired except by procedure according to 
 the law of the land. If such operation is permitted, the 
 sanction will come under the guise of that most flexible doc- 
 trine, the police power. The right of the State to sterilize 
 by salpingectomy an epileptic, has just been denied by the 
 Supreme Court of New Jersey. 41 The court calls attention 
 to the fact that the operation of salpingectomy is a danger- 
 ous one, requiring both sides to be operated upon under 
 profound and prolonged anesthesia, and considered that it 
 involved all the dangers to life incident to the anesthetic 
 and to a serious surgical operation. The court said : ' ' The 
 order with which we have to deal threatens possibly the life 
 and certainly the liberty of the prosecutrix, in a manner 
 forbidden by both the State and Federal Constitutions, un- 
 less such order is a valid exercise of the police power. The 
 question thus presented is, therefore, not one of those con- 
 stitutional questions that are primarily addressed to the 
 legislature, but purely a legal question as to the due exer- 
 cise of the police power. This power is the exercise by the 
 legislature of a State of its inherent sovereignty to enact 
 and enforce whatever regulations are, in its judgment, for 
 the welfare of society at large, in order to secure or to guard 
 its order, safety, health or morals. The general limitation 
 of such power, to which the prosecutrix must appeal, is, that 
 
 40 State v. Peilen, 70 Wash., 65 ; 41 L. R. A., 418. 
 
 41 Smith v. Board N. J. L. ; 88 Atl., 963.
 
 MISCELLANEOUS. 271 
 
 under our system of government, the artificial enhancement 
 of the public welfare by the forcible suppression of the con- 
 stitutional rights of the individual is inadmissible. Some- 
 where between these two fundamental provisions the exer- 
 cise of the police power in the present case must fall, and 
 its assignment to the former rather than to the latter in- 
 volves consequences of the greatest magnitude. For, while 
 the case in hand raises the very important and novel ques- 
 tion, whether it is one of the attributes of government to 
 essay the theoretical improvement of society by destroying 
 the function of procreation in certain of its members who 
 are not malefactors against its laws, it is evident that the 
 decision of that question carries with it certain legal con- 
 sequences having far reaching results. The feeble-minded 
 and epileptics are not the only persons in the community 
 whose elimination as undesirable citizens would or might in 
 the judgment of the legislature be a distinct benefit to 
 society. If the enforced sterility of this class be a legiti- 
 mate exercise of governmental power, a wide field of legis- 
 lative activity and duty is thrown open, to which it would be 
 difficult to assign a legal limit. ' ' 
 
 The court held that the classification of those subject to 
 the operation was of such a nature that the persons included 
 within it are not afforded the equal protection of the laws, 
 and announced the doctrine that the State statute which 
 bears solely upon a class of persons, selected by it, must not 
 only bear alike upon all the individuals of such class, but 
 that the class as a whole must bear some reasonable relation 
 to the legislation in question. The court does not, however, 
 pretend to hold that the State does not have the right, under 
 its police power, to order surgical operations upon its 
 citizens whereby they shall be rendered incapable of procre- 
 ation, if there is a proper basis for the classification 
 adopted. 42 
 
 42 R. Co. v. Ellis, 165 U. S., 150.
 
 272 MEDICAL JURISPRUDENCE. 
 
 Vaccination. 
 
 Police Power. The police power of the State may be 
 exercised by the legislature wherever the application 
 thereof will reasonably promote the public health, safety or 
 welfare, subject only to constitutional limitations, and if 
 the latter are not transgressed the courts will not interfere 
 to prevent enforcement of the legislative will. 43 The police 
 power is that inherent and plenary power in the State over 
 persons and property, when expressed in the legislative 
 will, which enables the people to prohibit all things inimical 
 to the comfort, safety, health and welfare of society, and is 
 sometimes spoken of as "the law of overruling neces- 
 sity." 44 
 
 Statutory Provisions for Vaccination. Compulsory vac- 
 cination has not been enforced in the United States. A re- 
 quirement for vaccination is upheld as a valid exercise of 
 the police power by the legislature but our laws do not go 
 to the extent of requiring the authorities forcibly to perform 
 the operation on the recalcitrant citizen but merely provide 
 a penalty for failure to comply with such requirements. In 
 some jurisdictions boards of health have authority con- 
 ferred upon them by the legislature to order under penalty 
 the vaccination of all citizens wherever it may be deemed 
 necessary to public health and safety and the general wel- 
 fare. 45 
 
 Necessity. The presence or reasonable apprehension of 
 smallpox in the community is a sufficient necessity, under 
 the law, for promulgating the requirement. 46 
 
 Vaccination a Preventative. The courts do not base 
 their conclusions on a finding of fact that vaccination is a 
 preventative of smallpox but they take judicial notice of the 
 
 43 Viemeister v. White, 179 N. Y., 235. 
 
 44 Town v. Cemetery Co., 70 111., 191, 194. 
 
 45 Commonwealth v. Jacobson, 183 Mass., 242; 197 U. S., 11; 17 L. R. A., 709. 
 
 46 Potts v. Breen, 167 111., 67.
 
 MISCELLANEOUS. 273 
 
 fact that it is the common belief of the people that vaccina- 
 tion is a preventative. 47 
 
 Opposing Theories. The courts will take judicial notice 
 of the fact that there are opposing theories with regard to 
 the propriety and effect of vaccination, and they presume 
 that the legislature when enacting such a law knew of the 
 theory against vaccination and deliberately adopted the 
 opposite theory, and the courts will not revise their dis- 
 cretion in that respect. 48 
 
 Public Schools. The exclusion of a child from a public 
 school by a local board by reason of a refusal to be vacci- 
 nated is justified when such extremity is necessary or 
 reasonably appears to be necessary, to prevent the spread of 
 smallpox, because of an existing or actually threatened epi- 
 demic of the disease, and conversely, a rule adopted by a 
 State Board of Health compelling vaccination of all chil- 
 dren as a prerequisite to their right to attend public schools 
 is unreasonable when smallpox does not exist in the com- 
 munity, and when there is no reasonable cause to apprehend 
 its appearance. 49 In the case last cited the decision of the 
 court was based upon the fact that the legislature had not 
 clothed the board with any authority to promulgate such 
 an order. Doubtless the legislature may provide for vacci- 
 nation as a condition precedent to the right to attend public 
 schools irrespective of the presence or threatened appear- 
 ance of smallpox in the community or State, 50 and some 
 courts have held that the legislature may delegate such 
 power to local boards. 51 
 
 The enforcement of such requirement has frequently 
 been restrained by the courts and the orders annulled be- 
 
 47 Viemeister v. White, 179 N. Y., 235; 1 A. 0., 334. 
 
 48 Com. v. Jacobson, 183 Mass., 242. 
 
 49 Potts v. Breen, 167 111., 67. 
 
 GO Lawton v. Steele, 152 U. S., 136; Morris v. Columbus, 102 Ga., 792. 
 51 Bissell v. Davidson, 65 Conn., 183.
 
 274 MEDICAL JURISPRUDENCE. 
 
 cause of the want of authority in the particular board pro- 
 mulgating the requirement. 52 
 
 Some courts have taken the position that a general grant 
 of power, in broad and comprehensive terms, to do the acts 
 and make all rules and regulations necessary for the preser- 
 vation of the public health, carries with it, by necessary 
 implication, the power to enforce in cases in which the neces- 
 sity arises a regulation requiring children to be vaccinated 
 as a condition to their admission or continued use of the 
 public school. 53 
 
 Charitable Institutions. 
 
 Liability for Negligence of Employes. Where due care is 
 used in the selection of its employes, a private charitable 
 hospital, conducted for benevolent and philanthropic pur- 
 poses, is not responsible to a patient for damage received 
 through the unskillfulness or carelessness of servants, at- 
 tendants or physicians in charge, even though the patient 
 paid for the services given. 54 The same rule applies to a 
 school of instruction supported by charity, and where all 
 fees for tuition and other income must be used for the ben- 
 efit of the institution, and where no part of the same can be 
 distributed to any one as profit. 55 A city, county or State 
 does not possess power to operate a hospital for revenue 
 and, therefore, cannot be made liable for the negligence of 
 persons employed about the hospital, even though the au- 
 thorities are unlawfully conducting the institution for 
 revenue. 56 Where the hospital is a private institution and 
 conducted for profit, the institution is liable for such negli- 
 gence. 57 
 
 52 People v. Board, 234 111., 422. 
 
 53 Blue v. Beach, 155 Ind., 121. 
 
 54 Benton v. City Hospital, 140 Mass., 13 ; Duncan v. Neb. S. & B. Asso., 92 Neb., 162. 
 
 55 Parks v. N. W. University, 218 111., 381; 4 A. C., 103; Farrigan v. Pevear, 193 
 Mass., 147; 7 L. B. A., 48. 
 
 56Tollefson v. Ottawa, 228 111., 134; 4 L. B. A., 269. 
 57 Stanley v. Schumperl, 117 La., 255; 8 S. A. C., 1044.
 
 MISCELLANEOUS. 275 
 
 Inmates of Public Hospitals. 
 
 Neither the State which operates an insane asylum, nor 
 the superintendent who has control over the same is liable 
 to a party who is injured by an inmate. 58 
 
 Jury Service. 
 
 Exemption. The exemption, by statute, of physicians 
 from jury duty is very general in the United States, and 
 such laws are usually held to be constitutional ; 59 but a dif- 
 ferent view has been taken in Tennessee, and sucn a statute 
 was held to be class legislation. 60 
 
 Where such exemption is allowed, the courts construe it 
 to be a personal privilege which must be claimed by the 
 physician and which may be waived by him. Such privi- 
 lege furnishes the parties to the litigation no ground for 
 challenge of him as a juror, nor for objection to the verdict 
 in which he participates. 61 
 
 Libel and Slander. 
 
 The utterance of written or printed words which impute 
 to a physician ignorance, incompetence or a general want of 
 professional knowledge and skill is an actionable wrong, 
 without proof of special damages. The language must 
 refer to the physician in his professional capacity. 62 How- 
 ever, a person who is practicing osteopathy without a license 
 cannot recover as for a libel for being called a quack and 
 charlatan. 63 
 
 Gifts and Legacies. 
 
 The relation of a physician to his patient is one of trust 
 and confidence and the former occupies the dominant posi- 
 
 58 Leavell v. W. Ky. A. I., 122 Ky., 213; Clough v. Worsham, 32 Tex. Civ. App., 187. 
 
 59 Dunne v. People, 94 111., 120. 
 
 60 Neeley v. State, 4 Lea. (Tenn.), 316. 
 
 61 People v. Owens, 123 Cal., 482. 
 
 62 Nelson v. Borchenius, 52 111., 236; 20 A. C., 482. 
 
 63 Lathrop v. Sundberg, 62 Wash., 136.
 
 276 MEDICAL JURISPRUDENCE. 
 
 tion. The general principles of law governing confidential 
 relations apply. Courts will scrutinize with great care any 
 transaction between a physician and his patient, favorable 
 to the physician. The law regards the patient as being in a 
 subordinate position easily susceptible to the wishes of the 
 physician. The relation does not per se forbid the accept- 
 ance by a physician of a gift or conveyance from his patient, 
 but the burden is on the donee to prove that such gratuity 
 was fairly and honestly obtained without any undue influ- 
 ence and that the entire transaction was free from all fraud 
 and above suspicion. The same rule applies where a patient 
 makes a will in favor of the physician, and especially when 
 made in the presence of the latter. 64 
 
 64 Unruh v. Lukens, 166 Pa. St., 324; Audenreid's Appeal, 89 Pa. St., 114.
 
 INDEX
 
 INDEX 
 
 Abdominal organs, in infanticide, 250 
 Abortion, 183 
 
 advice of physician, 189 
 
 to procure, 185 
 
 attempt to procure, 185 
 
 burden of proof, 188 
 
 circumstantial evidence, 187 
 
 common law, 183 
 
 consent of woman, 184, 190 
 
 definition, 183 
 
 dying declaration, 49 
 
 evidence of pregnancy, 186 
 
 existence of pregnancy, 186 
 
 failure to procure, 185 
 
 intent, 184 
 
 knowledge of pregnancy, 185 
 
 means employed, 185 
 
 motive, 184 
 
 necessary, 188, 189 
 
 opinion evidence, 187 
 
 period of pregnancy, 186 
 
 pregnancy, 185, 186 
 
 proof of pregnancy, 186 
 
 quick with child, 183 
 
 res gestse, 187 
 
 save life of mother, 188 
 
 soliciting, 62 
 
 stage of pregnancy, 186 
 
 statutes, 188 
 
 Absorbent gauze cases, 129, 255 
 Accident, 149 
 
 death by, 20 
 
 definition, 149 
 
 liability, 149 
 
 negligence, 149, 150 
 Accrual of cause, 253 
 Act, independent, 180 
 Act, prohibited, 119 
 Actions : 
 
 joint, 179 
 
 survival of, 181 
 Acts, civil rights, 158 
 Administering anesthetic, 206 
 Administrative law, 23 
 Adverse statements, 51 
 Advertisements, false, 75, 199 
 Affirmations, 32 
 Age of consent, 242 
 Agreement, 80, 109, 143, 181 
 
 279
 
 280 INDEX. 
 
 Agreement for operation, 109 
 
 action, form of, where no consent to operation, 113 
 
 agent, surgeon, 119 
 
 consent, 111 
 
 controlling facts, 115 
 
 damages, for unauthorized operation, 123 
 
 departure, 118 
 
 different methods, 116 
 
 discretion of surgeon, 110 
 
 elements, 109 
 
 emergency, 91, 115 
 
 good faith, 117 
 
 illustration, 119 
 
 implied consent, 111 
 
 implied stipulations, 109 
 
 motive, 111 
 
 nature, 109 
 
 patient controls, 117 
 
 patient's request, 117 
 
 presumptions, 113 
 
 prohibited act, 119 
 
 question of fact, 118 
 
 stipulations, 109 
 
 surgeon's discretion, 110 
 
 unconscious patient, 91, 115 
 
 whose consent, 112 
 Agreement not to sue, 181 
 Anesthetic, 205 
 
 administering, 206, 209 
 
 cold, 205 
 
 definition, 205 
 
 duty, 209 
 
 effects, 205 
 
 general, 205 
 
 legal responsibility, 208 
 
 local, 205 
 
 malpractice, 208 
 
 presumptions, 207 
 
 rape, 243 
 
 responsibility, 208 
 
 right to administer, 206 
 
 selection, 207 
 
 testimony, 209 
 
 Arbitrary refusal to take case, 156 
 Asexualization, 269 
 Assignee of contract, 267 
 Attempt to procure abortion, 185 
 Autopsy, 60, 108, 245 
 
 disclosing information, 60 
 
 fee for holding, 108 
 
 poisoning cases, 245 
 
 Bad character of physician, 99 
 
 Bankrupts, 22 
 
 Beliefs, medical care, 263 
 
 Beliefs, penalizing, 21 
 
 Best judgment, 140 
 
 Biological tests for blood, 239
 
 INDEX. 281 
 
 Blood, 235 
 
 accuracy of tests, 238 
 
 biological tests, 239 
 
 chemical tests, 238 
 
 classification, 235 
 
 color, 235 
 
 composition, 235 
 
 corpuscles, 235 
 
 criminal law, 239 
 
 definition, 235 
 
 demonstrative evidence, 241 
 
 hsematin, 237 
 
 haemoglobin, 237 
 
 origin, 235 
 
 oxy-hsemoglobin, 237 
 
 physical tests, 238 
 
 plasma, 235, 236 
 
 platelets, 235, 237 
 
 quantity, 235 
 
 red corpuscles, 236 
 
 specific gravity, 235 
 
 testimony, 240 
 
 tests, 238 
 
 weight, 235 
 
 white corpuscles, 236 
 Blood stains, 235 
 
 color, 239 
 
 criminal law, 239 
 
 testimony, 240 
 Boards of health, 67, 262 
 Books, medical, as evidence, 45 
 Breach of contract, 96 
 Breathing, infanticide, 249 
 Burden of proof: 
 
 abortion, 186, 188 
 
 contributory negligence, 166 
 
 infanticide, 251 
 
 insanity, 222 
 
 malpractice, 146, 160, 164 
 Business on Sunday, 259 
 
 Calcareous degeneration of the heart, 129 
 Calls, frequency of, 97 
 Care, 132, 138 
 
 agreement waiving, 143 
 
 burden of proof, 160 
 
 carelessness, 139 
 
 definition, 138 
 
 degree, 138 
 
 established mode, 145 
 
 experimentation, 145 
 
 failure to cure, 142 
 
 gratuitous services, 146 
 
 highest, 139 
 
 implied, 132 
 
 misconduct, 139 
 
 non-professional, 146 
 
 ordinary, 139
 
 INDEX. 
 
 presumption, 142 
 
 relative term, 138 
 
 results, 142 
 
 specialists, 144 
 
 tests, 139 
 
 unlicensed practitioner, 147 
 
 usual, 139 
 
 volunteer, 146 
 
 Carelessness, never excused, 139 
 Case, refusal to take, 156 
 Cases on fraud, 199 
 Cause and effect, 124 
 Certainty of proof, 202 
 Causes of death, infanticide, 250 
 Character, license, 67 
 Character of physician, 74, 99 
 Charge for services (see compensation), 93 
 Charges to revoke license, 76 
 Charitable institutions, 274 
 Chastity in rape cases, 243 
 Christian Science, 167, 263 
 Choice, 212, 218 
 City license, 67 
 
 Circulatory organs, infanticide, 249 
 Civil law, 21 
 Civil malpractice, 148 
 Civil rights acts, 158 
 Coagulation, 237 
 Cold as anesthetic, 205 
 Color of blood, 235, 239 
 Communication of infectious diseases, 98 
 Communications, privileged, 55 
 Compensation, 93 
 
 agency of minor, 104 
 
 agreement, 93 
 
 agreement to cure, 96 
 
 bad character, 99 
 
 benefit to patient, 86, 94 
 
 bill, differing, etc., 99 
 
 character, 96 
 
 charge to other patients, 99 
 
 charge for previous services, 98 
 
 charge by other physicians, 99 
 
 consultant, 105 
 
 defenses, 104 
 
 detriment to physician, 86, 95 
 
 different bill, 99 
 
 emergency, 91, 115 
 
 expert witness, 105 
 
 extra for extra services, 107 
 
 family expenses, 103 
 
 financial standing, 100 
 
 frequency of visits, 97 
 
 history, 93 
 
 husband and wife, 102 
 
 husband selects physician, 102 
 
 income of physician, 99 
 
 income of patient, 100 
 
 infectious disease, 98 
 
 judgment for fee, effect, 105
 
 INDEX. 283 
 
 license presumed, 100 
 
 limitations, 258 
 
 malpractice, 94, 104, 258 
 
 mother liable, 104 
 
 nature of remedies disclosed, 101 
 
 necessaries, 102 
 
 no agreement, 94 
 
 opinions, 101 
 
 parent and child, 103 
 
 pecuniary circumstances, 99 
 
 post-mortem, 108 
 
 previous charges, 98 
 
 professional standing, 98 
 
 proper treatment, 94 
 
 proof, 98, 101 
 
 ratification, 104 
 
 remedies disclosed, 101 
 
 results, as affecting, 94 
 
 special agreement, 96 
 
 special preparation, 107 
 
 treatment, proper, 94 
 
 unconscious patient, 91, 115 
 
 unlicensed practitioner, 100 
 
 value, 94 
 
 value, question of fact, 98 
 
 visits, frequency, 97 
 
 what shown, 98 
 
 what not shown, 99 
 
 witness fees, 105 
 Competency of evidence, 32 
 Competent to practice, 67 
 
 Conditions of the relation imposed by law, 132 
 Confidence, 195 
 
 Confidential relation, 194, 196 
 Consent, age of, 242 
 Consent to abortion, 184, 190 
 Consent to operation, 111 
 
 implied, 111 
 
 necessary. 111 
 
 whose, 112 
 
 Consideration, contract, 85 
 Contagious disease, carrying, 98 
 Contracts, 80 
 
 agreement for surgical operation, 109 
 
 assignee, 267 
 
 benefit to promisor, 86, 94 
 
 breach, 94 
 
 compensation, 93 
 
 consideration, 85 
 
 constitutional right, 87 
 
 definition, 80 
 
 delivery, 83 
 
 detriment to promisee, 86 
 
 duty, compared, 81 
 
 equivalence, 85 
 
 express, 81, 83 
 
 guaranty, 88 
 
 illustrations, 81 
 
 implied, 81, 109 
 
 infants, 84, 85
 
 284 INDEX. 
 
 injunctions, 268 
 
 kinds, 81, 84 
 
 minors, 84 
 
 mutuality, 84 
 
 non compi menti, 84 
 
 not to sue, 181 
 
 nudum pactum, 86, 88 
 
 operation, 109 
 
 parties, 84 
 
 promise for promise, 86 
 
 ratification, 104 
 
 receipt, 88 
 
 release, 89 
 
 restraint of practice, 266 
 
 right to contract, 87 
 
 signing written contract, 87 
 
 specific performance, 267 
 
 Sunday, 259 
 
 surgical operation, 109 
 
 validity, 87, 266 
 
 written, 83 
 
 Contractual relations, 80 
 Contributory negligence, 151 
 
 assistant, 154 
 
 burden of proof, 165, 166 
 
 classification, 152 
 
 definition, 151 
 
 effect, 151 
 
 inevitable results, 153 
 
 patient's negligence, 152 
 
 reason for rule, 151 
 
 relation, 152 
 
 temperament, 154 
 Contribution, 180 
 Corpuscles, 235 
 Coroner, 261 
 
 civil liability, 262 
 
 definition, 261 
 
 duties, 262 
 
 slander, 262 
 Courts, 27 
 
 Courts and physician, 25 
 Crime, 18 
 
 Criminal action and civil suit, 23 
 Criminal law, 18 
 
 insanity defense, 217 
 Criminal malpractice, 182, 190 
 Cross-examination of expert, 44 
 Cruel punishments, 21, 269 
 Cure: 
 
 failure to, 95, 160 
 
 no cure, no pay, 96 
 
 Damages, 123, 154, 172, 179, 204, 229 
 assessment, 174 
 compensatory, 172, 229 
 contingencies, 176 
 death, 178, 179
 
 INDEX. 285 
 
 elements, 174 
 
 excessive, 176 
 
 exemplary, 172 
 
 false pretenses, 204 
 
 future loss, 176 
 
 insane persons, 229 
 
 measure, 174 
 
 mistakes of physician, 175 
 
 mitigation, 176 
 
 nominal, 172 
 
 operation, wrong, 123 
 
 original injury, 176 
 
 patient's poor health, 176 
 
 presumptions, 173 
 
 punitive, 172 
 
 temperament, 154 
 
 torts by insane, 229 
 
 unauthorized operation, 123 
 
 vindictive, 172 
 Death: 
 
 accident, 20 
 
 malpractice, 178 
 
 natural causes, 250 
 
 wounds, 232 
 Debt: 
 
 imprisonment for, 21, 22 
 Declarations : 
 
 against interest, 51 
 
 dying, 46 
 
 to physician, 52 
 
 Defectives, asexualization of, 270 
 Defenses to malpractice suit, 171 
 Definitions : 
 
 abortion, 183 
 
 accident, 149 
 
 care, 138 
 
 contract, 80 
 
 courts, 27 
 
 crime, 18 
 
 dying declaration, 46, 48 
 
 evidence, 32 
 
 expert, 39 
 
 fraud, 191 
 
 hypothetical question, 43 
 
 infanticide, 245 
 
 insanity, 214, 217 
 
 jurisdiction, 27 
 
 law, 17 
 
 legal right, 27 
 
 malpractice, 148 
 
 medical jurisprudence, 26 
 
 negligence, 149 
 
 opinion evidence, 36 
 
 poison, 244 
 
 police power, 272 
 
 presumption, 125 
 
 privileged communication, 55 
 
 rape, 242 
 
 res ipsa loquitur, 127 
 
 testimony, 32
 
 286 INDEX. 
 
 trial, 30 
 
 wound, 231 
 
 Delirium tremens, 221, 226 
 Demonstrative evidence, 241 
 Dentist, 130 
 
 Dentistry, physician practicing, 72 
 Departure from agreed operation, 118 
 Detriment to physician, 95 
 Diagnosis, 160, 161 
 Diligence, 254 
 Discretion, delegating, 72 
 Discretion of surgeon, 110 
 Disease : 
 
 contagious, 98 
 
 feigned, 264 
 Druggist, 155, 180 
 
 Drunkenness (see intoxication), 156, 221, 226 
 Due process of law, 73 
 Dying declaration, 46 
 
 abortions, 49 
 
 E 
 
 Effect: 
 
 and cause, 124 
 
 opinion evidence, 36 
 
 signing contract, 87 
 
 testimony, 39 
 
 Emergency operation, 91, 115 
 Employment, 91 
 
 accepting services, 91 
 
 by third party, 91 
 
 master for servant, 92 
 
 unconscious patient, 91 
 Epilepsy, 222, 270 
 Equivalence, 85 
 Established treatment, 145 
 Evidence, 32 
 
 abortion, 186 
 
 books, 45 
 
 circumstantial, 187, 247 
 
 competency, 32 
 
 demonstrative, 241 
 
 hearsay, 46 
 
 hypothetical question, 43 
 
 infanticide, 247, 248 
 
 malpractice, 160 
 
 medical, 242, 248, 251 
 
 medical books, 45 
 
 opinion, 33 
 
 rape, 244 
 
 rules, 33 
 
 Exemption from jury duty, 275 
 Exhibiting injury to jury, 168 
 Expense, family, 103 
 Experimentation, 145 
 Express contract, 81, 83 
 Expert testimony, weight and effect, 39 
 Expert witnesses, 39 
 
 basis of opinion, 40
 
 INDEX. 287 
 
 conduct, 40 
 cross-examination, 44 
 definition, 39 
 history, 40 
 physicians, 25, 40 
 preliminary inquiry, 39 
 qualifications, 39 
 special knowledge, 40 
 subjects of inquiry, 41 
 weight of testimony, 39 
 
 Failure to cure, 160 
 Failure to relieve, 95 
 Fair dealing, 198 
 False advertisements, 75, 199 
 False representations, 191 
 
 actionable, 194 
 
 advertisements, 75, 199 
 
 caveat emptor, 193 
 
 certainty of proof, 202 
 
 confidence, 195 
 
 corrupt motive, 192 
 
 damages, 204 
 
 definition, 191 
 
 effect, 191 
 
 elements, 203 
 
 fair dealing, 198 
 
 false pretenses, 197 
 
 fraud, 191 
 
 good faith, 198 
 
 illustrations, 199 
 
 improvement, 198 
 
 intent, 191 
 
 knowledge, 196 
 
 materiality, 193 
 
 measure of damages, 204 
 
 misstating improvement, 198 
 
 motive, 192 
 
 opinion, 193 
 
 pretenses, 197 
 
 proof, 202 
 
 relation of parties, 194 
 
 remedies, 204 
 
 special knowledge, 196 
 
 trust, 195 
 
 Family expense, 103 
 Fee (see Compensation), 91 
 Feigned diseases, 264 
 Former judgment, 171, 172 
 Fraud, 191 
 
 Free services, malpractice, 146 
 Frequency of visits, 97 
 
 Gauze, surgical operation, 129, 255 
 Gestation, 41, 186 
 Gifts, 275
 
 288 INDEX. 
 
 Good faith, 34, 62, 149 
 Gratuitous services, 146 
 Guarantor, physician not, 95, 96, 156 
 Guaranty, 88 
 
 Hsematin, 237 
 
 Haemoglobin, 237 
 
 Hearing to revoke license, 78 
 
 Hearsay evidence, 46 
 
 Homicide, 217, 229 
 
 Hospitals, 274 
 
 Hydrostatic test, 249 
 
 Hymen, rupture of in rape, 244 
 
 Hypnotism, rape, 243 
 
 Hypothetical question, 43 
 
 Identity of mother, 251 
 Ignorance, 132 
 Immorality, license, 74, 75 
 Implied conditions, 109, 132 
 Implied contract, 81, 109 
 Imposing on privacy, 58 
 Imprisonment for debt, 22 
 Improper treatment, 94, 148 
 Improvement, misstating, 198 
 Independent acts, 180 
 Independent existence, 248 
 Infanticide, 245 
 
 abdominal organs, 250 
 
 breathing, 249 
 
 burden of proof, 251 
 
 causes of death, 250 
 
 circulatory organs, 249 
 
 definition, 245 
 
 duty of mother, 246 
 
 funis, 248 
 
 hydrostatic test, 249 
 
 identity of mother, 251 
 
 independent existence, 248 
 
 intent, 247 
 
 medical evidence, 248 
 
 natural causes of death, 250 
 
 prevalence, 247 
 
 proof, burden of, 251 
 
 respiratory organs, 249 
 
 statutes, 252 
 
 still-born, 251 
 
 umbilical cord, 248 
 Infants (see Minors), 84, 102, 263 
 Infection, 131, 165 
 Infectious disease, 98 
 Injunction, 268 
 Injurious results, 142 
 Injury in malpractice, 148 
 Inquisition of sanity, 162 
 Insanity :
 
 INDEX. 289 
 
 absence of motive, 216 
 anger, 223 
 
 burden of proof, 222 
 cerebral cortex, 211 
 choice, 212, 218 
 civil liability, 229 
 common law, 217 
 continuity, 215 
 compensatory damages, 230 
 contracts, 224 
 control, 212, 218 
 criminal intent, 217 
 criminal law, 217 
 damages, 229 
 deeds, 227 
 definition, 214, 217 
 degree of proof, 222 
 delirium tremens, 221, 226 
 delusion, 213, 220, 228 
 depravity, 222 
 drunkenness, 221, 226 
 emotional, 223 
 epilepsy, 222 
 evidence, 215 
 exemplary damages, 230 
 expert, 216 
 
 functional disturbances, 213 
 general practitioner, 216 
 hallucination, 213 
 homicide, 229 
 illusion, 213 
 impaired faculties, 227 
 impulse, 223 
 
 insane delusion, 220, 228 
 intellect, 211 
 intent, 217 
 
 intoxication, 221, 226 
 irresistible impulse, 223 
 kleptomania, 223 
 knowledge of right, 218 
 law, 214 
 marriage, 226 
 memory, 211, 228 
 mental capacity, 227 
 mental faculties, 211 
 moral, 222 
 moral depravity, 222 
 motive, 216 
 murder, 217, 229 
 necessaries, 224 
 particular act, 218 
 passion, 223 
 perversion, 222 
 power of control, 218 
 presumption of sanity, 215 
 progress of law, 213 
 proof required, 222 
 reason, 217 
 reasonable doubt, 222 
 right and wrong, 218
 
 290 INDEX. 
 
 sensibility, 211 
 
 somnambulism, 221 
 
 sound mind and memory, 228 
 
 subjects of inquiry, 219 
 
 suicide, 216 
 
 temper, 223 
 
 tests, 217 
 
 torts, 229 
 
 tremens, 221, 226 
 
 undue influence, 228 
 
 wild beast test, 218 
 
 will, 211 
 
 wills, 227 
 Intellect, 211 
 Intoxication, 156, 221, 226 
 
 contracts, 226 
 
 crimes, 221 
 
 delirium tremens, 221, 226 
 
 malpractice, 156 
 
 marriage, 226 
 Itinerant patients, 71 
 Itinerant physicians, 66 
 Itinerant vendors, 66 
 
 Joint tort feasors, 179 
 
 agreement not to sue, 181 
 
 contribution, 180 
 
 independent acts, 180 
 
 purchase of peace, 181 
 
 satisfaction, 180 
 
 survival of action, 181 
 Judgment, 140 
 
 agreement waiving, 143 
 
 best, 140 
 
 correct, 141 
 
 different methods, 141 
 
 mistake, 142 
 
 presumption, 142 
 
 rule, 140 
 
 Judgment of court, 171, 172 
 Jurisprudence : 
 
 medical, definition, 26 
 Jurisdiction, 27 
 Jury, 31, 275 
 Jury service, 275 
 Jury trial, 30, 31 
 
 revocation of license, 78 
 
 right, 30 
 
 Kleptomania, 223 
 Knowledge of injury, 255 
 Knowledge of pregnancy, 185 
 Knowledge of right, 218 
 
 Latent injuries, 255 
 Law, 17
 
 INDEX. 291 
 
 administrative, 23 
 
 civil, 18, 21 
 
 classes, 18 
 
 criminal, 18 
 
 definition, 18 
 
 municipal, 18 
 
 prevalence, 17 
 
 substantive, 23 
 Law of the land, 73 
 Legacies, 275 
 Legal rights, 27 
 
 Liability for independent act, 180 
 Libel, 275 
 License, 63 
 
 boards, 67 
 
 calling, liberty to pursue, 63 
 
 Christian Science, 69 
 
 city license, 67 
 
 common law right, 63 
 
 control by state, 64 
 
 delegating discretion, 72 
 
 dentistry, physician practicing, 72 
 
 due process, 73 
 
 grounds for revoking, 74 
 
 how regulated, 67 
 
 itinerant physicians, 66 
 
 itinerant vendors, 66 
 
 optician, 72 
 
 practice, not property, 64 
 
 practicing medicine, what is, 69 
 
 practicing medicine, without, 69 
 
 public welfare, 64 
 
 requirements, 67, 68 
 
 reserved rights, 72 
 
 resident practitioner, 72 
 
 revocation, 72 
 
 rights to practice, 63 
 
 soliciting patients, 65 
 
 state may control, 64 
 
 statutes, 67 
 
 vested rights, 73 
 Limb, fractured, shorter, 143 
 Limitations, 253 
 
 accrual of cause, 253 
 
 continuing obligation, 256 
 
 continuing wrong, 257 
 
 diligence, 254 
 
 disability, 258 
 
 fee, 258 
 
 knowledge of injury, 255 
 
 latent injuries, 255 
 
 license, 79 
 
 malpractice cases, 253 
 
 minors, 258 
 
 period, 253 
 
 persons under disability, 258 
 
 policy of the law, 253 
 
 specified service, 254 
 
 statutes of, 253 
 
 suit for fee, 258
 
 292 INDEX. 
 
 Lord Campbell's Act, 178 
 
 M 
 
 Malingerers, 264 
 Malpractice, 94, 104, 148, 258 
 
 accident, 149 
 
 accident and negligence, 150 
 
 action, survival of, 181 
 
 agreement excusing, 143 
 
 anesthetic, 129, 160, 208 
 
 assistance, 154 
 
 assistants, 155, 180 
 
 burden of proof, 164 
 
 Campbell's act, 178 
 
 carelessness, 139 
 
 causes, more than one, 165 
 
 Christian Science, 167 
 
 civil, 148, 190 
 
 civil rights acts, 158 
 
 communication of disease, 98 
 
 compensation, 94, 104, 256 
 
 contingencies, 176 
 
 contribution, 180 
 
 contributory negligence, 151 
 
 criminal liability, 182, 190 
 
 damages, 172 
 
 death from, 178 
 
 defenses, 171 
 
 definition, 148 
 
 dentist, 130 
 
 diagnosis, 160, 161 
 
 different schools, 166 
 
 druggist, 155, 180 
 
 established mode, 145 
 
 excused, never, 139 
 
 exhibiting injury, 168 
 
 experimentation, 145 
 
 failure to cure, 156 
 
 failure to obey, 154 
 
 good faith, 149 
 
 gratuitous services, 146 
 
 guarantor, 156 
 
 guess at liability, 165 
 
 how proven, 163 
 
 illustrations, 161. 
 
 improper treatment and injury, 148 
 
 independent acts, 154, 180 
 
 independent treatment, 154 
 
 infection, 165 
 
 infectious disease, 98 
 
 injurious results, 156 
 
 injury, 148 
 
 inquisition of sanity, 162 
 
 intent, 149 
 
 instructions, 154 
 
 intoxication, 156 
 
 joint tort feasors, 179 
 
 law, a question of, 169 
 
 matron, 155
 
 INDEX. 293 
 
 mistake by patient, 172 
 
 mistake in diagnosis, 160 
 
 mitigation, 176 
 
 negligence, 149 
 
 nurses, 155 
 
 obey instructions, 154 
 
 other causes, 165, 171 
 
 other vocations, 156 
 
 partners, 155 
 
 patient, negligence of, 152, 172 
 
 preponderance of evidence, 164 
 
 presumptions, 173 
 
 probable causes, 165 
 
 prompt response, 169 
 
 proof necessary, 160 
 
 refusal to treat, 156 
 
 relation begins, 168 
 
 relation ends, 169 
 
 relation to injury, 148 
 
 response to call, 169 
 
 rule, reason for, 151 
 
 sanitary, inquisition, 162 
 
 satisfaction of claim, 180 
 
 schools of medicine, 166 
 
 services free, 146 
 
 specialists, 144 
 
 substitute, 156 
 
 suit in tort, 177 
 
 suit, only one, 172 
 
 survival of action, 181 
 
 temperament, 154 
 
 tort, 177, 229 
 
 unlicensed practitioner, 147 
 
 usual results, 163 
 
 usual treatment, 145 
 
 vocations, other, 156 
 
 volunteer, 146 
 
 wrong diagnosis, 160 
 
 X-ray, failure to take, 163, 167 
 Materiality of representations, 193 
 Matron, 155 
 
 Medical jurisprudence, definition, 26. 
 Medical books as evidence, 45 
 Medical services, 102, 263 
 
 beliefs, 264 
 
 Christian Science, 263 
 
 duty to employ, 263 
 
 necessaries, 102 
 
 religious belief, 264 
 Medical testimony, subjects of, 41 
 Mental faculties, 211 
 Minors, 84, 102, 263 
 
 agent of parent, 104 
 
 duty of parent, 263 
 
 medical services, 102 
 
 necessaries, 102 
 Miscellaneous practitioners, 70 
 Misconduct, 139 
 Mistake in diagnosis, 160 
 Mitigation of damages, 176
 
 294 INDEX. 
 
 Moral character, license, 67 
 Moral qualities, 19 
 Morality, license, 67 
 Municipal law, 18 
 
 civil, 18 
 
 classes, 18 
 
 conforms to civilization, 18 
 
 crime, 18 
 
 criminal, 18 
 
 definition, 18 
 Murder,; 2 17, 229 
 
 N 
 
 Natural causes of death in infanticide cases, 250 
 Necessaries, 102, 263 
 
 definition, 102 
 
 husband and wife, 102 
 
 husband selects physician, 102 
 
 medical services, 102, 263 
 
 minors, 103 
 
 mother liable for, 103 
 
 value, 102 
 
 Necessary to save mother's life, 188, 189 
 Necessity, 188, 189, 260 
 Negligence (see Malpractice), 149 
 Negligence, never excused, 139 
 No cure, no pay, 96 
 Notice, 28, 77 
 
 jurisdictional, 28 
 
 to revoke, 77 
 Nudum pactum, 86 
 Nurse, negligence of, 155 
 
 Oath, 32 
 
 Objective symptoms, 44 
 Obligations imposed by law, 132 
 Obligations, liability, 133 
 Operation, 109 
 
 agreement, 109 
 
 consent, 111, 112 
 
 controlling facts, 115 
 
 departure, 118 
 
 emergent, 91, 115 
 
 presumptions, 113 
 
 prohibited act, 119 
 
 request of patient, 117 
 
 unauthorized, 111, 119 
 Operator's duty, 114 
 Opinion evidence, 33 
 Opinions, 33 
 
 basis, 40 
 
 effect, 36 
 
 expert witness, 36 
 
 not favored, 36 
 
 ordinary witness, 33 
 
 reasons for admitting, 34 
 
 special knowledge, 40
 
 INDEX. 295 
 
 subject-matter, 36 
 
 weight, 34 
 Optician, 72 
 Ordeal, trial by, 30 
 Ordinary witness, 33 
 Oxy-hsemoglobin, 237 
 
 Pain, statement of, 53 
 Parent and child, 102, 263 
 Particular mode of treatment, 145 
 Patient's negligence, 152 
 Patient's right, 117 
 Pay (see Compensation), 91 
 Peace, purchase of, 181 
 Pecuniary circumstances : 
 
 of patient, 100 
 
 of physician, 99, 100 
 Penalties, 20 
 Penalizing beliefs, 21 
 Period of pregnancy, 41, 186 
 Physicians and courts, 25, 48 
 Physicians as experts, 48 
 Plasma, 235, 236 
 Platelets, 235, 237 
 Poisoning, 244 
 
 common law, 245 
 
 definition, 244 
 
 malice, 244 
 
 post-mortem, 245 
 Police power, 64, 270, 272 
 Policy of the law, 253 
 Post-mortem, 60, 245 
 Practice is not property, 64 
 Practicing medicine, what is, 69 
 Pregnancy, 41, 186 
 Preponderance of evidence, 129, 164 
 Presumption of good faith, 62 
 Presumptions : 
 
 absorbent gauze cases, 130 
 
 broken jaw, 130 
 
 brooch in tooth, 130 
 
 care, 142 
 
 cause and effect, 124 
 
 definition, 125 
 
 different causes, 128 
 
 fact, 125 
 
 failure to cure, 142 
 
 failure to discover rupture, 143 
 
 gauze cases, 129 
 
 illustrations, 128 
 
 infection, 131 
 
 injurious results, 142 
 
 judgment, 142 
 
 kinds, 125 
 
 law, 125 
 
 license, when, 100 
 
 life, continuing, 186 
 
 negligence, 142
 
 296 INDEX. 
 
 other causes, 128 
 
 results injurious, 142 
 
 skill, 142 
 
 sponge cases, 129 
 
 strength of, 125 
 
 surgical operations, 113 
 
 tooth down throat, 131, 143 
 
 upon presumption, 126 
 Prevalence of infanticide, 247 
 Prevalence of law, 17 
 Preventing procreation, 270 
 Privacy, imposing upon, 58 
 Privileged communications, 55 
 
 at common law, 55 
 
 autopsy, 60 
 
 criminal purpose, 61 
 
 criminals, 61 
 
 definition, 55 
 
 duty of physician, 60 
 
 entirety, 59 
 
 good faith, 62 
 
 incidentals, 57 
 
 interpretation of statutes, 56 
 
 party to suit, 58 
 
 physician to patient, 58 
 
 presumption of good faith, 62 
 
 privacy, 58 
 
 provisions of statutes, 55 
 
 publishing operation, 58 
 
 purpose of statutes, 56 
 
 statutes, 55 
 
 waiver of privilege, 59 
 Procedure, 29 
 
 Proceedings to revoke license, 76 
 Process, due, 73 
 Procreation, 270 
 Professional character, 99 
 Professional standing, 98 
 Progress, 144 
 
 Proper treatment required, 94 
 Property, practice is not, 64 
 Public necessity, 64 
 Public policy, 132 
 Public schools, vaccination, 273 
 Public welfare, 64 
 Punishments, 20, 21, 242, 269 
 Purchase of peace, 181 
 
 Qualification : 
 
 expert, 39 
 
 license, 67 
 Qualities of acts, 19 
 Question, hypothetical, 43 
 Quick with child, 183 
 
 Rape, 242 
 
 age of consent, 242 
 anesthetic, 243
 
 INDEX. 297 
 
 chastity, 243 
 
 consent, 242 
 
 definition, 242 
 
 force, 243 
 
 fraud, 243 
 
 hymen, 244 
 
 hypnotic influence, 243 
 
 physical violence, 243 
 
 punishment, 242 
 
 rupture of hymen, 244 
 
 signs of, 244 
 
 threats, 243 
 
 violence, 243 
 Ratification, 104 
 Receipt, 88, 90 
 Red corpuscles, 236 
 Refusal to take case, 156 
 Release, 89 
 Relief, 95, 160 
 Religious belief, 264 
 
 Representations, false, (see False Representations), 191 
 Requirements for license, 67 
 Res gestse, 51, 187 
 Res ipsa loquitur, 124 
 
 applicable, when, 127 
 
 applicable, when not, 131 
 
 application, 127 
 
 basis, 124 
 
 broken jaw, 130 
 
 brooch in tooth, 130 
 
 cause and effect, 124 
 
 convictions, 126 
 
 definition, 124 
 
 dentists, 130 
 
 different causes, 128 
 
 effect and cause, 124 
 
 gauze cases, 129 
 
 history, 128 
 
 illustrations, 128 
 
 infection, 131 
 
 jaw broken, 130 
 
 maxim, 124 
 
 mental convictions, 126 
 
 operations, 113 
 
 other causes, 128 
 
 physicians, 129 
 
 presumptions, 125 
 
 probable causes, 128 
 
 reason, 127 
 
 several causes, 128 
 
 sponge cases, 129 
 
 submaxillary, broken, 130 
 
 when applicable, 127 
 
 when not applicable, 131 
 
 X-ray cases, 129 
 Restraint of practice, 266 
 
 ancillary, 266 
 
 assignees, 267 
 
 employment, 266 
 
 illustrations, 268
 
 298 
 
 injunctions, 268 
 
 not favored, 266 
 
 prevalence, 266 
 
 provisions, 267 
 
 reasonable, 268 
 
 relief, 267 
 
 space limit, 266. 268 
 
 specific performance, 267 
 
 time, 267 
 
 validity, 87, 266 
 
 written contract, 267 
 Results, 95. 142 
 Revocation of license, 72 
 
 charges, 76 
 
 criminal prosecution, 79 
 
 decision, effect of, 78 
 
 due process, 73 
 
 grounds, 74 
 
 hearing, 78 
 
 jury trial, 78 
 
 limitations, statutes of, 79 
 
 notice, 77 
 
 proceedings, 76 
 
 record, 78 
 
 reserved right, 72 
 
 statutes of limitations, 79 
 
 trial by jury, 78 
 
 vested right, 73 
 Right and wrong, 19 
 Right, legal, 27 
 Right to contract, 87 
 Rights: 
 
 constitutional, 87 
 
 in courtesy, 27 
 
 in personam, 27 
 
 in rem, 27 
 
 in trust, 27 
 
 vested, 73 
 
 Rules of evidence, 33 
 Rupture of hymen, in rape, 244 
 
 Salpingectomy, 270 
 
 Satisfaction, 180 
 
 Schools of medicine, 166 
 
 Schools, public, vaccination, 273 
 
 Sensibility, 211 
 
 Services during life of patient, 97 
 
 Services, free, 146 
 
 Shock, 232 
 
 Skill, 132 
 
 agreement excusing, 143 
 
 ailment treated, 137 
 
 average, 135 
 
 best, 135 
 
 burden of proof, 160 
 
 competent considered, 136 
 
 definition, 134 
 
 degree, 134
 
 INDEX. 299 
 
 disease treated, 137 
 
 educated physicians, 135 
 
 established mode, 145 
 
 experimentation, 145 
 
 failure to cure, 142 
 
 generality of requirement, 133 
 
 gratuitous services, 146 
 
 highest, 135 
 
 implied, 132 
 
 injurious results, 142 
 
 liability, 133 
 
 locality, 136 
 
 non-professional, 146 
 
 obligations, 132 
 
 ordinary, 135 
 
 presumption, 142 
 
 proofs, 137, 142 
 
 progress, 144 
 
 public policy, 132 
 
 reasonable, 134 
 
 relative term, 134 
 
 results, 142 
 
 special agreement, 144 
 
 special claims, 144 
 
 specialists, 144 
 
 test, 134 
 
 time, 136, 138 
 
 unlicensed practitioner, 147 
 
 usual, 135 
 
 volunteer, 146 
 
 when, 138 
 Slander, 262. 275 
 Soliciting patients, 65 
 Somnambulism, 221 
 Sound mind and memory, 228 
 Special agreement, 96, 144 
 Specialists, 144 
 Specific performance, 267 
 Specified services, 254 
 Sponge case, surgical operation, 129, 255 
 Stain, 235 
 
 Standing of physician, 98 
 Statements : 
 
 adverse, 51, 55 
 
 against interest, 51, 55 
 
 confidential, 97 
 
 in presence, 51 
 
 pain, 53 
 
 privileged, 55 
 
 res gestae, 51, 54 
 
 suffering, 53 
 
 by physician, 58 
 
 to physician, 52 
 Statutes of limitations, 253 
 Still born, 251 
 Subjective symptoms, 44 
 Subjects of medical testimony, 41 
 Substantive law, 23 
 Suffering, statement of, 53 
 Sunday, 259
 
 300 INDEX. 
 
 Surgeon, 109 
 Surgical operation, 109 
 Survival of action, 181 
 Symptoms, 44 
 
 objective, 44 
 
 shock, 232 
 
 subjective, 44 
 
 Temperament, as affecting malpractice, 154 
 Testimony, 32, 41, 209 
 Testimony, subjects of medical, 41 
 Tests: 
 
 blood, 238 
 
 care, 139 
 
 judgment, 140 
 
 skill, 134 
 
 Torts of insane persons, 229 
 Tort feasors, 179 
 Treatment, one mode, 145 
 Tremens, 221, 226 
 Trial, 30 
 
 jury, 31 
 
 ordeal, 30 
 
 witches, 41 
 Trust, 194, 195 
 
 U 
 
 Unauthorized operation, 111, 119 
 Unchastity, in rape cases, 243 
 Unconscious patient, 91, 115 
 
 fee for services, 91 
 
 operation, 115 
 Unlicensed physician: 
 
 compensation, 100 
 
 malpractice, 147 
 
 qualification, 69 
 
 Unreasonable requirements for license, 68 
 Unusual punishment, 269 
 Usual results, not sufficient, 163 
 
 Vaccination, 272 
 
 Validity of contracts, 87, 143, 266 
 
 Value of services, 94, 98 
 
 Vasectomy, 269 
 
 Vendors of medicines, 66 
 
 Vested rights, 73 
 
 Violence, in rape, 243 
 
 Visits, frequency of, 97 
 
 Volunteer, 146 
 
 W 
 
 Waiver of privilege, 59 
 White corpuscles, 234 
 Will, a mental faculty, 212
 
 INDEX. 301 
 
 Wills, 227 
 Witches, 41 
 Witness, 32 
 Witness fees, 105 
 Work on Sunday, 259 
 Wounds, 231 
 Written contract, 83 
 Wrong, 19 
 
 Wrong, continuing, 257 
 Wrong diagnosis, 160 
 
 X-ray cases, 129, 163, 167 
 X-ray in diagnosis, 164
 
 l -QJ