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-Project Gutenberg's The Law and Medical Men, by Robert Vashon Rogers
-
-This eBook is for the use of anyone anywhere in the United States and most
-other parts of the world at no cost and with almost no restrictions
-whatsoever.  You may copy it, give it away or re-use it under the terms of
-the Project Gutenberg License included with this eBook or online at
-www.gutenberg.org.  If you are not located in the United States, you'll have
-to check the laws of the country where you are located before using this ebook.
-
-Title: The Law and Medical Men
-
-Author: Robert Vashon Rogers
-
-Release Date: February 24, 2016 [EBook #51293]
-
-Language: English
-
-Character set encoding: UTF-8
-
-*** START OF THIS PROJECT GUTENBERG EBOOK THE LAW AND MEDICAL MEN ***
-
-
-
-
-Produced by Bryan Ness, RichardW, and the Online Distributed
-Proofreading Team at http://www.pgdp.net (This file was
-produced from images generously made available by The
-Internet Archive/Canadian Libraries)
-
-
-
-
-
-
-
-
-
- THE LAW AND MEDICAL MEN
-
-
- BY
- R. VASHON ROGERS, JR.,
- _Of Osgoode Hall, Barrister-at-Law_.
-
-
- TORONTO, CANADA,
- AND
- EDINBURGH, SCOTLAND:
-
- CARSWELL & CO., LAW BOOK PUBLISHERS.
- 1884.
-
-
-
-
-PREFACE.
-
-
-The idea that in the library of nearly every practitioner in the
-professions of both Physic and Law there has been for some time a
-small gap among the books, which could be filled by a little work like
-this now submitted, has induced the author to prepare and publish the
-following pages.
-
-While it is hoped that this little work will prove of use to the
-members of the Legal and Medical Professions, it is intended to be
-suggestive rather than exhaustive—a primer not an encyclopædia; and
-it is not expected that it will obviate the necessity for frequent
-conferences between physicians and lawyers whenever, in the practice of
-either, questions arise requiring the experience of the other.
-
-In most cases the very words of the judges and reporters have been
-used, and if any expressions are noticed that may be deemed over strong
-it will be found that they are the words of others: the author’s aim
-has been rather to act as an humble compiler and citer of cases, than
-to obtrude opinions or theories of his own.
-
-Brief chapters on Dentists and Druggists have been given because of
-the intimate connection between these gentlemen and the members of the
-medical profession.
-
-With great diffidence this book is committed to the tender mercies
-of the critics of these two learned professions—to those who can so
-effectually wield the pen, the tongue and the scalpel.
-
-R. V. B., JR.
-
-Kingston, Ont., November, 1884.
-
-
-
-
-CONTENTS.
-
-
- PREFACE . . . iii
-
- TABLE OF CASES CITED . . . vii–xiii
-
- CHAPTER I.
-
- EARLY PRACTITIONERS AND LAWS . . . 1–14
-
- CHAPTER II.
-
- FEES . . . 15–31
-
- CHAPTER III.
-
- WHO SHOULD PAY THE DOCTOR . . . 32–41
-
- CHAPTER IV.
-
- WHO MAY PRACTISE . . . 42–54
-
- CHAPTER V.
-
- NEGLIGENCE AND MALPRACTICE . . . 55–81
-
- CHAPTER VI.
-
- CRIMINAL MALPRACTICE . . . 82–92
-
- CHAPTER VII.
-
- PROFESSIONAL EVIDENCE . . . 93–107
-
- CHAPTER VIII.
-
- MEDICAL EXPERTS . . . 108–120
-
- CHAPTER IX.
-
- EXPERTS IN INSANITY CASES . . . 121–128
-
- CHAPTER X.
-
- DEFAMATION . . . 129–137
-
- CHAPTER XI.
-
- RELATIONS WITH PATIENTS . . . 138–148
-
- CHAPTER XII.
-
- DISSECTION AND RESURRECTION . . . 149–159
-
- CHAPTER XIII.
-
- DENTISTS . . . 160–173
-
- CHAPTER XIV.
-
- DRUGGISTS . . . 174–188
-
- CHAPTER XV.
-
- PARTNERS, GOODWILL, ASSISTANTS . . . 189–195
-
- INDEX . . . 197–214
-
-
-
-
-TABLE OF CASES CITED.
-
-
- A.
-
- Abernethy v. Hutchinson, 195
-
- Adams v. Stevens, 17, 18
-
- Adler v. Buckley, 20, 21
-
- Ahearne v. Hogan, 141
-
- Allen v. Davis, 140, 172
-
-   ″  v. Eaton, 132
-
- Allison v. Hayden, 16
-
- Alpen v. Morton, 137
-
- Anderson v. Burrows, 146
-
- Andeureid’s Appeal, 138
-
- Anon, 134, 190
-
- Anthony v. Smith, 106
-
- Apothecaries Company v. Lotinga, 12, 16
-
- Ashworth v. Kittridge, 102
-
- Askin & Charteris, _re_, 27
-
- Aswell v. Lomi, 142
-
- Austen v. Boys, 191
-
- Aveson v. Lord Kinnaird, 96
-
- Ayre v. Craven, 132, 134, 135.
-
-
- B.
-
- Bacon v. Charlton, 96
-
- Baker v. London & S. W. Railway, 96
-
- Ballon v. Prescott, 73
-
- Barber v. Merriam, 96, 97, 117.
-
- Barnes v. Means, 58
-
- Barnstable v. Thatcher, 157
-
- Basten v. Butler, 20
-
- Bassett v. Spofford, 24
-
- Battersby v. Lawrence, 16
-
- Baxter v. Gray, 18, 19
-
- Beekman v. Planter, 18
-
- Bell v. Parke, 136
-
- Bellinger v. Craigue, 21.
-
- Bells v. Clifford, 28
-
- Bergold v. Puckta, 131
-
- Berier v. Galloway, 36
-
- Bibber v. Simpson, 52
-
- Billage v. Southbee, 140
-
- Bill v. Neal, 130
-
- Blackburn v. Great Western Railway, 81
-
- Blake v. Midland Railway, 81.
-
- Blackburn v. Mackey, 37, 39
-
- Blogg v. Parkers, 20
-
- Boardman v. Woodman, 113
-
- Bogert v. Indianapolis, 153
-
- Boone v. State, 188
-
- Bowman v. Woods, 51, 53, 64, 100
-
- Boyd v. Lappington, 33
-
- Boynton v. Somersworth, 67, 148
-
- Boyle v. Winslow, 166
-
- Bracegirdle v. Orford, 157
-
- Bradbury v. Bardin, 51, 120
-
- Bradley v. Dodge, 33
-
- Bradford v. People, 147
-
- Brewer v. Dero, 157
-
- Broad v. Pitt, 93
-
- Brown v. N. Y. C., 97
-
-   ″  v. Marshall, 179
-
-   ″  v. Sheppard, 99, 101
-
-   ″  v. State, 143
-
- Buchanan v. State, 29
-
- Buell v. N. Y. C., 117
-
- Burton v. Scott, 128
-
-
- C.
-
- Cadwallader v. West, 139, 140
-
- Cairo, etc., Railway v. Mahoney, 41
-
- Caldwell v. Murphy, 97
-
- Camp v. Martin, 133
-
- Campan v. North, 94
-
- Campbell v. Richards, 119
-
- Carpenter v. Blake, 57, 58, 63, 64, 72, 73
-
- Carnes v. Nesbitt, 193
-
- Carson v. State, 148
-
- Carter v. Baker, 114
-
-   ″  v. State, 103
-
- Castner v. Sliker, 112
-
- Cawdry v. Highley, 130
-
- Chamberland v. Morgan, 70
-
- Chapen v. Marlborough, 96, 97
-
- Chicago. etc., Railway v. McKean, 68
-
- Chicago, etc., Railway v. McGiven, 108
-
- Chorley v. Bolcot, 16
-
- Clark v. Gill, 26
-
- Clarke v. Freeman, 132
-
-   ″  v. Hawke, 138, 139
-
- Clark v. Kerwin, 69, 163
-
-   ″  v. State, 116, 124
-
- Clay v. Roberts, 134
-
- Cleveland, etc., Railway v. Ferry, 68
-
- Cohen v. Continental Insurance Company, 95
-
- Collier v. Simpson, 99, 103
-
- Collins v. Grady, 19
-
-   ″  v. Carnegie, 134, 135
-
-   ″  v. Graves, 23
-
- Colton v. Thomas, 172
-
- Commonwealth v. Butterick, 187
-
-   ″  v. Cooley, 155
-
-   ″  v. Hackett, 91
-
-   ″  v. Hallett, 187
-
-   ″  v. Loring, 155
-
-   ″  v. Marshall, 155
-
-   ″  v. McPike, 91
-
-   ″  v. Ramsdell, 187
-
-   ″  v. Rich, 128
-
-   ″  v. Rodgers, 109, 124, 127
-
-   ″  v. Sturtevant, 100, 117
-
-   ″  v. Thompson, 84, 89
-
- Connecticut Mutual Life Ins. Co. v. Ellis, 100
-
- Cooper v. Lloyd, 35
-
-   ″  v. Phillips, 38, 40
-
-   ″  v. N. Y. C., 41
-
- Corsi v. Maretzek, 43, 51, 64, 115
-
- Cossey v. L. B, and S. C., 96
-
- Cox v. Midland Counties Ry., 41
-
- Craig v. Chambers, 76
-
- Craine v. Bandoine, 33
-
- Crantz v. Gill, 37
-
- Curtis v. Rochester, etc. Ry., 79
-
-
- D.
-
- Davidson v. Nicholls, 183
-
- Davis v. Mason, 193
-
-   ″  v. Ockham, 131
-
-   ″  v. State, 113, 117, 124, 126
-
- Deane v. Annis, 38
-
- Delafield v. Parish, 124
-
- Demay v. Roberts, 145
-
- Dement, _Ex parte_, 30
-
- Denison v. Denison, 138
-
- Dent v. Bennett, 139, 140, 172
-
- Denton v. State, 97, 98
-
- Dickenson v. Barber, 124
-
- Dingnan v. Walker, 192
-
- Dixon v. Smith, 134
-
- Doggett v. Lane, 141
-
- Duclos’ Succession, 24
-
- Duffit v. James, 21
-
- Durnell v. Corfield, 142
-
-
- E.
-
- Eakin v. Brown, 68, 163
-
- Edington v. Ætna Life Ins. Co., 96
-
- Edsall V. Russell, 131, 133
-
- Ellis v. Kelly, 16
-
- Emerson v. Lowell Gas L. Co., 112
-
-
- F.
-
- Fairchild v. Bascomb, 112, 113, 125, 126
-
- Farnsworth v. Garrard, 20
-
- Farlar v. Lane, 141
-
- Farr v. Pearce, 191
-
- Fawcett v. Mothersell, 77
-
- Fenwick v. Bell, 119
-
- Fields v. Rutherford, 76
-
- Fisk v. Wait, 69
-
- Fletcher v. Fletcher, 146
-
- Flint v. Bodenhamer, 124
-
- Flower’s Case, 130
-
- Fox v. Glastonbury, 20
-
- Forgery v. First Nat. Bank, 114
-
- Foster v. Small, 134
-
- Fraser v. Jennison, 94, 103, 106
-
-
- G.
-
- Gale v. Rector, 103
-
- Gallagher v. Thompson, 20
-
- Gardiner v. Heartt, 56
-
- Gardner v. People, 117
-
- Geiselman v. Scott, 68
-
- Genshaw v. Germain, 17
-
- Getchell v. Hill, 114
-
- George v. Skivington, 183
-
- Gibson v. Russell, 140
-
-   ″  v. Williams, 119
-
- Gilman v. Andrews, 171
-
- Gladwell v. Steggall, 75
-
- Gramm v. Boener, 69
-
- Goddart v. Haselfoot, 132
-
- Granger Ins. Co. v. Brown, 159
-
- Grattan v. Metropolitan L. I. Co., 95
-
- Gray v. McLaughlin, 97
-
- Greenough v. Gaskill, 93
-
- Greonvelt’s Case, 55
-
- Greville v. Lylee, 142
-
- Guthrie v. Weaver, 153
-
-
- H.
-
- Haguenin v. Baseley, 138
-
- Hains’ Case, 152
-
- Hall v. Semple, 146
-
- Hammond v. Stewart, 26
-
- Hancke v. Hooper, 58, 167, 194
-
- Handey v. Henson, 17
-
- Haniline v. Commonwealth, 174
-
- Hansford v. Payne, 182
-
- Harbottle and Wilson _re_, 27
-
- Harris v. Panama Railway Co., 103, 113
-
- Harris v. Russell, 94
-
- Harrison v. Bush, 136
-
-   ″  v. Grady, 33, 35, 36
-
- Hartman v. Tegart, 36
-
- Hartford Pro. Ins. Co. v. Harmer, 108
-
- Harvey v. State, 104
-
- Hastings v. Rider, 128
-
-   ″  v. Whitley, 193
-
- Hathaway v. Nat. Life Ins. Co., 112
-
- Haynard v. Young, 193
-
- Hathorn v. Richmond, 61
-
- Heald v. Wing, 113, 128
-
- Heath v. Gibson, 59
-
- Hegerick v. French, 80
-
- Heinemann’s Appeal, _re_, 48
-
- Hewitt v. Prime, 95
-
-   ″  Wilcox, 18
-
- Hibbard v. Thompson, 68, 69
-
- Hides v. Hides, 140
-
- Higham v. Ridgway, 106
-
- Hill v. Featherstonhaugh, 21
-
- Hills v. Home Insurance Co., 113
-
- Hitchcock v. Burgett, 148
-
- Hoard v. Peck, 187
-
- Hoener v. Koch, 118
-
- Hoghton v. Hoghton, 138, 139
-
- Hollenback v. Fleet, 177
-
- Holmes v. Halde, 80
-
- Hood v. Grimes, 65
-
- Horner v. Graves, 193
-
- Horton v. Green, 54, 112
-
- Howe v. Young, 179
-
- Hoyt v. Casey, 39
-
- Hughes v. Hampton, 23
-
- Huffman v. Click, 103
-
- Humphreys v. Stilwell, 137
-
- Hunn v. Hunn, 95
-
- Hunter v. Blount, 64
-
-   ″  v. Ogden, 73
-
-   ″  v. Sharpe, 133
-
- Hunt v. Lowell Gas Light Co., 126
-
- Hupe v. Phelps, 21
-
-
- I.
-
- Illinois Cen. Railway v. Sutton, 97
-
- Indianapolis, etc., Railway v. Gaston, 79
-
- Indian. and Cin. Railway v. Caldwell, 69
-
-
- J.
-
- Jackson v. Hyde, 77
-
- Jarrett v. Jarrett, 124
-
- Jauncey v. Knowles, 190
-
- Jenkins v. French, 80
-
- Johnson v. Robertson, 131
-
-   ″  v. Wills, 79
-
- Jones v. Diver, 133
-
-   ″  v. Fay, 184
-
-   ″  v. Goodrich, 141
-
-   ″  v. George, 178
-
-   ″  v. Murray, 179
-
-   ″  v. Northmore, 78
-
-   ″  v. White, 108
-
-
- K.
-
- Kannen v. McMullen, 21
-
- Keily v. Colton, 164
-
- Keith v. Lothrop, 116
-
- Kennard v. Burton, 97
-
- Kennedy v. People, 108, 119
-
- Kerwhaker v. Cleveland, etc., Railway, 69
-
- Kilborne v. Jennings, 114
-
- Kingston’s Case, Duchess of, 93
-
- Kinney v. Nash, 135
-
- Klock v. Burger, 174
-
-
- L.
-
- Lamphier v. Philpot, 84
-
- Landon v. Humphrey, 22
-
- Langdon v. Mutual Life Insurance Co., 54
-
- Lee v. Hamerton, 96
-
-   ″  v. Griffin, 169
-
- Leighton v. Sargent, 58, 64, 67, 79, 118
-
- Lett v. St. Lawrence & Ottawa Railway, 81
-
- Lester v. Pittsford, 113
-
- Linn v. Sigsbee, 120
-
- Livingstone’s Case, 113
-
- Long v. Chubb, 132
-
-   ″  v. Morrison, 21, 57
-
- Longmeid v. Holliday, 74
-
- Lorg v. First German Cong. 113
-
- Lovatt v. Tribe, 125
-
- Luning v. State, 100, 105
-
- Lush v. McDaniel, 97
-
- Lynn’s Case, 154, 158
-
-
- M
-
- Mackenna v. Parkes, 190
-
- Mahoney v. Nat. Widow’s Life Ass. 96
-
- Major v. Knight, 142
-
- Mallan v. May, 193
-
- Malton v. Nesbitt, 125
-
- Marshall v. Brown, 101
-
-   ″  v. Peck, 179
-
- Masons v. Fuller, 111
-
- Matteson v. N. Y. C. Railway, 97, 117
-
- Maxon v. Perrott, 170
-
- May v. Thompson, 192
-
- Meagher v. Driscoll, 157
-
- Mendum v. Commonwealth, 113
-
- Mertz v. Detweiler, 64, 118
-
- Metropolitan Railway v. Jackson, 76
-
- Michigan Cen. Railway v. Hasseneyer, 61
-
- Middleton v. Sherbourne, 141, 143
-
- Miller v. Beal, 23
-
- Mills v. Perkins, 174
-
- Mitchell v. Homfray, 141
-
-   ″  v. State, 119
-
-   ″  v. Connor, 147
-
- Mock v. Kelly, 18, 25
-
- Moises v. Thornton, 135
-
- Morgan v. Hallen, 17
-
-   ″  v. Schuyler, 173
-
- Morrison v. Harmer, 133
-
- Morse v. Auburn, etc., Railway, 81
-
- Morse v. State, 119
-
- Murphy v. Kellett, 137
-
-
- Mc.
-
- McAllister v. State, 124, 126
-
- McCandless v. McWha, 58, 59, 61, 67
-
- McClallen v. Adams, 26
-
- McClurg’s Appeal, 193
-
- McEwan v. Bigelow, 114
-
-   ″  v. Milne, 138
-
- McIntyre v. Belcher, 191
-
- McLeod v. Wakley, 133
-
- McPherson v. Chedell, 18
-
-
- N.
-
- Newell v. Doty, 117
-
- New England Glass Co. v. Lovell, 119
-
- New Orleans, etc., Railway v. Allbritton, 111
-
- Newton v. Ker, 23
-
- Nickson v. Brohan, 194
-
- Nicols v. Pitman, 195
-
- Norton v. Sewall, 182
-
-
- O.
-
- Ordway v. Haynes, 103
-
-
- P.
-
- Page v. Barker, 118
-
-   ″  v. State, 126
-
- Parker v. Adams, 68, 69, 163
-
- Parkinson v. Atkinson, 26
-
- Parnell v. Commonwealth, 114, 124
-
- Patten v. Wiggin, 52, 57, 58, 62
-
- Peacock v. Kesnot, 140
-
- Pennell v. Cummings, 145
-
- People v. Anderson, 103
-
-   ″  v. Hall, 99
-
-   ″  v. Monroe, 20
-
- People v. Montgomery, 30
-
-   ″  v. McCann, 125
-
-   ″  v. N. Y. Hospital, 69
-
-   ″  v. Wheeler, 103
-
- Perionowsky v. Freeman, 66, 70
-
- Phillips v. S. W. Railway, 79
-
- Pierson v. People, 95
-
- Pinney v. Cohill, 101
-
- Piper v. Manifee, 22, 167
-
- Pippin v. Shepherd, 65, 74
-
- Poe v. Mondford, 131
-
- Polk v. State, 112
-
- Popham v. Brooke, 140
-
- Potter v. Warner, 63, 71
-
-   ″  v. Virgil, 36
-
- Poucher v. Norman, 16
-
- Pratt v. Barker, 140
-
- Puryear v. Reese, 124
-
-
- Q.
-
- Quafe v. C. & N. W. Railway, 98
-
-
- R.
-
- Ramadge v. Ryan, 118, 119, 132
-
-   ″  v. Wakley, 132
-
- Ray v. Burbank, 186
-
- Reynolds v. Graves, 54
-
-   ″  v. Robinson, 120
-
- Rhodes v. Bates, 138
-
- Rice v. State, 84, 87, 89
-
- Rich v. Pierpont, 59, 62, 117
-
- Ripon v. Bittel, 100, 101
-
- Ritchey v. West, 65
-
- Roberts v. Johnson, 112
-
-   ″  v. Kerfoot, 24
-
- Robinson v. N. Y. C. Railway, 103
-
- Rodgers v. Cline, 133
-
- Roelker, _re_, 29
-
- Rogers v. Cain, 97
-
-   ″  v. Turner, 38
-
- Roosa v. Boston Loan Co., 98
-
- Rose v. College of Physicians, 12
-
- Rowell v. Lowell, 98
-
- Ruddock v. Lowe, 65
-
- Russell v. State, 128
-
- Rutherford v. Evans, 135
-
-   ″  v. Norris, 110
-
- R. v. Bennett, 194
-
-   ″  v. Burnett, 147
-
-   ″  v. Campbell, 46
-
-   ″  v. Case, 144
-
-   ″  v. Chamberlaine, 85
-
-   ″  v. Coll. Phy. & Sur., 45, 47
-
-   ″  v. Coll. Phy. & Sur., Ont., 148
-
-   ″  v. Coney, 144
-
-   ″  v. Crouch, 103
-
-   ″  v. Cuddy, 144
-
-   ″  v. Downes, 39
-
-   ″  v. Frances, 144
-
-   ″  v. Fraser, 147
-
-   ″  v. Gibbons, 93
-
-   ″  v. Gilles, 154
-
-   ″  v. Hannah, 147
-
-   ″  v. Hessel, 46
-
-   ″  v. Higginson, 125
-
-   ″  v. Hines, 39
-
-   ″  v. Lee, 91
-
-   ″  v. Long, 83, 86, 87
-
-   ″  v. Lynn, 154, 159
-
-   ″  v. Macleod, 66
-
-   ″  v. Markuss, 88
-
-   ″  v. Morby, 39
-
-   ″  v. Noakes, 56, 183
-
-   ″  v. Offord, 124
-
-   ″  v. Price, 154
-
-   ″  v. Richards, 125
-
-   ″  v. Rosinski, 144
-
-   ″  v. Searle, 120, 124, 125
-
-   ″  v. Sharpe, 153, 154
-
-   ″  v. Stanton, 144
-
-   ″  v. Simpson, 65, 84, 87
-
-   ″  v. Smith, 40
-
-   ″  v. Spiller, 84
-
-   ″  v. Spilling, 85
-
-   ″  v. Stitt, 117
-
-   ″  v. Sutton, 147
-
-   ″  v. Tefft, 46, 190
-
-   ″  v. Tessymond, 194
-
-   ″  v. Thomas, 99
-
-   ″  v. Trick, 83
-
-   ″  v. Van Butchell, 84
-
-   ″  v. Vantandillo, 147
-
-   ″  v. Wagstaffe, 39
-
-   ″  v. Webb, 84, 90
-
-   ″  v. West, 147
-
-   ″  v. Whitehead, 117
-
-   ″  v. Williamson, 85
-
-   ″  v. Wright, 125
-
-
- S.
-
- Sainter v. Ferguson, 193
-
- Scott v. Wakem, 146
-
- Seare v. Prentice, 21, 64
-
- Seavey v. Preble, 143
-
- Secord v. Harris, 131
-
- Sellen v. Norman, 40
-
- Shafer v. Dean’s ad’mor, 120
-
- Shearwood v. Hay, 44
-
- Sheldon v. Johnston, 24
-
- Shields v. Blackburne, 65, 66
-
- Simmons v. Means, 18
-
- Simonds v. Henry, 58, 162, 168
-
- Simpson v. Dismore, 18
-
- Sinclair v. Rourk, 113
-
- Sizer v. Burt, 106
-
- Skinner v. G. N. Ry., 96
-
- Skirving v. Ross, 134
-
- Slater v. Baker, 59, 71, 168
-
- Small v. Howard, 61
-
- Smith v. Lane, 51
-
-   ″  v. Hyde, 25
-
-   ″  v. Watson, 18, 34
-
- Southey v. Denny, 130, 132
-
- Spaun v. Mercer, 33
-
- Stackman v. Vivian, 38
-
- Staunton v. Parker, 94
-
- State v. Bowman, 117
-
-   ″  v. Clark, 118
-
-   ″  v. Cook, 112
-
-   ″  v. Dickinson, 147
-
-   ″  v. Fitzgerald, 147
-
-   ″  v. Gedicke, 147
-
-   ″  v. Hardister, 88
-
-   ″  v. Henkle, 112
-
-   ″  v. Hoyt, 104, 105
-
-   ″  v. Holmes, 174
-
-   ″  v. Knowles, 188
-
-   ″  v. Laffer, 187
-
-   ″  v. Jones, 117
-
-   ″  v. Powell, 117
-
-   ″  v. Reddick, 112
-
-   ″  v. Shultz, 85, 89
-
-   ″  v. Slagh, 117
-
-   ″  v. Slagle, 147
-
-   ″  v. Smith, 116, 117
-
-   ″  v. Sturtevant, 117
-
-   ″  v. Watson, 110
-
-   ″  v. West, 104
-
-   ″  v. Windsor, 126
-
-   ″  v. Wood, 111, 117
-
-   ″  v. Wray, 188
-
- Stephenson v. N. Y. and H. R. Ry., 41
-
- Stirling v. Thorp, 100
-
- Street v. Blackburn, 166
-
- St. Louis Mut. Ins. Co. v. Graves, 115
-
- Suegoe’s Case, 133
-
- Summer v. State, 31
-
- Sutton v. Tracy, 48, 54
-
- Swain v. Tyler, 38
-
-
- T.
-
- Tate v. State, 155, 156
-
- Tatum v. Mohr, 114
-
- Tingley v. Congill, 125
-
- Thistleton v. Frewer, 52
-
- Thomas v. Winchester, 180
-
- Thorpe v. Shapleigh, 36
-
- Todd v. Myers, 23
-
- Toomes, _re_, 111, 113
-
- Towne v. Gresley, 17
-
- Tracy Peerage, 110
-
- Tullis v. Kidd, 113
-
- Tulty v. Alewin, 131
-
- Turner v. Reynall, 44, 190
-
-   ″  v. Turner, 26
-
- Tuson v. Batting, 19, 23
-
- Twombly v. Leach, 117
-
-
- U.
-
- U. S. v. McGlue, 126, 127
-
- Utley v. Burns, 58
-
-
- V.
-
- Van Bracken v. Fondar, 179
-
- Van Tassel v. Capson, 135
-
- Veitch v. Russell, 16
-
- Villalobas v. Mooney, 23
-
-
- W.
-
- Wade v. DeWitt, 104, 105
-
- Wagstaffe v. Sharpe, 44
-
- Walker v. G. W. Railway, 41
-
- Wakley v. Healey, 135
-
- Washburn v. Cuddihy, 103
-
- Watling v. Walters, 33
-
- Watson v. Vanderlash, 131
-
- Webb v. Paige, 26, 28
-
- Webber v. Shampake, 36
-
- Wennall v. Adney, 40
-
- Whetherbee v. Whetherbee, 128
-
- Whalen v. St. Louis, etc., Railway, 79
-
- Wharton v. Brook, 130
-
- Wheeler v. Sims, 23
-
- Whitcomb v. Reid, 171
-
- Whittaker v. Parker, 110
-
- White v. Bailey, 124, 125
-
-   ″  v. Carroll, 132
-
- Williams v. Poppleton, 118
-
-   ″  v. Williams, 153
-
- Wilmot v. Howard, 57, 70
-
-   ″  v. Shaw, 47
-
- Wilson v. Brett, 65, 166
-
-   ″  v. Granby, 97
-
-   ″  v. People, 117
-
-   ″  v. Rastall, 93
-
- Winans v. N. Y. & E. Railway, 113, 121
-
- Wise v. Wilson, 194
-
- Witt v. Witt, 97
-
- Wohlfarht v. Beckert, 185
-
- Woods v. Kelly, 37
-
- Woods v. State, 188
-
- Wright v. Proud, 140
-
- Wynkoop v. Wynkoop, 153
-
-
- Y.
-
- Yertore v. Wiswall, 80
-
- Yoe v. State, 105
-
- Young v. Makepeace, 116
-
-
-
-
-CORRIGENDA.
-
-
- Page   5, line 23, _for_ ousted _read_ ousting.
-   ″    8, line 3, _for_ was _read_ were.
-   ″   12, line 17, _for_ his _read_ its.
-   ″   24, line 19, _for_ friend _read_ friends.
-   ″   43, line 18, _read_ Hahnemann _for_ Hahnneman.
-   ″   55, line 6, _for_ misdemeanour _read_ misdemeanor.
-   ″   85, last line but one, transpose the , and the ;.
-   ″   96, line 7, _read_ witnesses, can be excluded the
-   ″  103, line 15, _for_ Brown’s _read_ Browne’s.
-   ″  105, line 10, _for_ words _read_ works.
-   ″  115, line 5, _for_ opinion _read_ opinions.
-   ″  119, last line but one, _read_ opinion of another etc.
-   ″  138, line 1, _read_ occupies _for_ occupying.
-   ″  173, line 12, _read_ within.
-   ″  175, line 4, _read_ chemical.
-   ″  177, last line, _read_ venditor.
-
-
-
-
-THE LAW AND MEDICAL MEN.
-
-CHAPTER I.
-
-EARLY PRACTITIONERS AND LAWS.
-
-
-The first medical practitioners in England, of whom we have any record,
-were the Druids: these philosophers, theologians and soothsayers,
-also practised medicine and surgery, and were skilled in anatomy and
-physic. To add to the veneration in which they were held, to impress
-the ignorant masses with the idea that they had power with the gods and
-could prevail, and perhaps to cultivate a belief in the efficacy of
-the remedies provided, they mingled incantations and charms with their
-medicaments and nostrums. Their panacea was the mistletoe, cut from
-the sacred oak, with a consecrated hook of gold held in holy hands, on
-a mysterious night when the propitious beams of the waxing moon fell
-upon it; wrapped for a while in a sanctified cloth and treasured up in
-the holy of holies of the woodland god, this strange parasitic growth
-was deemed possessed of many virtues and was named All-heal. Two other
-herbs, the selago and samolus were also in those days highly valued for
-their medicinal efficacy.
-
-To every healing herb a divinity was assigned by the Druids, and the
-good gods were ever ready to help suffering |2| humanity against the
-evil genii who presided over the poisonous and unwholesome.
-
-These priests also considered the creeping through _tolmens_ (or
-perforated stones) good for many diseases. Their best charm, however,
-was the anguineum, or snake’s egg, produced (’tis said) from the saliva
-and frothy sweat of a cluster of snakes writhing in a tangled mass,
-tossed in the air by the fierce hissings of the serpents, and caught
-ere it fell to the ground in a clean white cloth. A genuine egg, though
-encased in gold, would float against a running stream and do many
-another marvel. The Druid seems to have been a herbalist, a believer
-in the faith or prayer cure, as well as a homœopathist, for in taking
-the diseased plant, the mistletoe, to cure diseases he anticipated the
-doctrine of _similia similibus curantur_.
-
-Even in those old days, according to Tacitus, there were female
-physicians who competed with the practitioners of the other sex. The
-wives of the Druids exercised the calling of sorceresses, causing
-considerable evil by their witchcrafts, but caring for warriors
-wounded in battle. Later on women seem to have enjoyed a pre-eminence
-as physicians and surgeons in England. Thus are we told that a “Mayd”
-treated a wounded “Squyre,”
-
- Meekely shee bowed downe, to weete if life
- Yett in his frosen members did remaine;
- And, feeling by his pulses beating rife
- That the weake sowle her seat did yett retaine,
- Shee cast to comfort him with busy paine.
-
-        *       *       *       *       *
-
- Into the woods thenceforth in haste shee went,
- To seeke for herbes that mote him remedy;
- For she of herbes had great intendiment.
-
-        *       *       *       *       *
-
- There, whether yt divine tobacco were,
- Or panachæa, or polygony,
- Shee fownd, and brought it to her patient deare,
- Who al this while lay bleding out his hart blood neare. |3|
- The soveraine weede betwixt two marbles plaine
- Shee pownded small, and did in peeces bruze;
- And then atweene her lilly handes twaine
- Into his wound the juice thereof did scruze;
- And round about, as she could well it uze,
- The flesh therewith she suppled, and did steepe
- T’abate all spasme and soke the swelling bruze;
- And, after having searcht the intuse deepe,
- She with her scarf did bind the wound from cold to keep [1].
-
-Of fair Nicolette we read—
-
-                         Her strength alone
- Thrust deftly back the dislocated bone;
- Then culling various herbs of virtue tried,
- While her white smock the needful bands supplied,
- With many a coil the limb she swathed around,
- And nature’s strength returned.
-
-Chirurgery, or surgery—that is manual application—appears to have been
-the earliest branch of the healing art. We are told of a wonderful cure
-effected upon Queen Elgiva, whose beauteous face had been mutilated
-by the brutal clergy. Many superstitious practices were in the early
-days mingled with the operations of the surgeons, as well as of the
-physicians. History speaks of a man the muscles of whose legs were
-drawn up and contracted so as to defy all the skill of the surgeons,
-until an angel advised wheat flour to be boiled in milk, and the limb
-to be poulticed with it while warm; then all was well.
-
-From the tenth to the twelfth century the practice of medicine and
-surgery, in England, was almost exclusively in the hands of the monks
-and clergy. So lucrative did they find it that many of the monks
-devoted themselves entirely to it, to the utter neglect of their
-religious duties. This the authorities of the church disapproved of,
-and made many attempts to restrain. At last, in 1163, it was enacted
-by the Council of Tours that no clergyman or monk should undertake any
-bloody operation. From that time |4| the clerics confined themselves
-to prescribing medicines, and the practice of surgery naturally fell
-into the hands of the barbers and smiths, who had previously been
-employed as assistants and dressers to the ecclesiastical operators.
-
-The smiths soon found that most of the business was absorbed by the
-barbers: the latter kept little shops for cutting hair, shaving,
-bathing and curing the wounded, especially about the royal palaces and
-the houses of the great: the shops were marked by a striped pole and a
-basin, symbols that all the king’s subjects might know where to apply
-in time of need; (the fillet around the pole indicating the ribbon for
-bandaging the arm in bleeding, and the basin the vessel to receive
-the blood). The barbers became so important that in 1461 the freemen
-of “The Mystery of Barbers, using the mystery or faculty of Surgery,”
-obtained a charter from Edward IV., and were incorporated under the
-name of “The Company of Barbers in London,” and none were allowed to
-practise save those admitted by the company. Although this charter was
-several times confirmed by subsequent kings, yet side by side with
-the regular barber-surgeons there grew up a body of men who practised
-pure surgery, and who actually formed a company, called “The Surgeons
-of London.” In 1540, by Act of Parliament, these rival companies
-were united and named “The Masters, or Governors, of the Mystery and
-Commonalty of the Barbers and Surgeons of London.”
-
-The third section of this Act, after reciting that persons using the
-mystery of surgery oftentimes meddled and took into their cure and
-houses people infected with pestilence, great pox, and other contagious
-infirmities, and also used or exercised barbery, as washing, or
-shaving, or other feats thereto belonging, “which was very perilous for
-infecting the King’s liege people resorting to their shops and houses
-and there being washed and shaven,” enacted “that no |5| manner of
-person within the City of London, suburbs of the same and one mile
-compass of said City of London, after the feast of the Nativity of Our
-Lord God then next coming, using barbery or shaving, or that hereafter
-shall use barbery or shaving within the said city, etc., he nor they,
-nor none of them, to his, her, or their use, shall occupy any surgery,
-letting of blood, or any other thing belonging to surgery, drawing of
-teeth only excepted; and furthermore, in like manner, whosoever that
-useth the mystery or craft of surgery within the circuit aforesaid, as
-long as he shall fortune to use the said mystery or craft of surgery,
-shall in nowise occupy nor exercise the feat or craft of barbery or
-shaving, neither by himself, nor by one other for him, to his or their
-use; and moreover, that all manner of persons using surgery for the
-time being, as well freemen as foreigners, aliens and strangers within
-the circuit aforesaid, before the feast of St. Michael the Archangel,
-next coming, shall have an open sign on the street side where they
-shall fortune to dwell, that all the King’s liege people there passing
-by may know at all times whither to resort for remedies in time of
-necessity [2].”
-
-In 1745 this union of barbers and surgeons was dissolved; or,
-apparently, the surgeons ousting the barbers, received a new name
-and all the privileges of the old company, with the exclusive right
-to practise within London and for seven miles around. In 1800 the
-Surgeons’ Company was called “The Royal College of Surgeons, in
-London;” and this, in 1843, was changed to that of “The Royal College
-of Surgeons of England.”
-
-In Scotland, at a very early day, the chirurgeons and barbers were
-united, and enjoyed many rights and privileges. In 1505 the “craftes
-of Surregeury and Barbouris” were |6| formed into a college or
-corporation, by the town council of Edinburgh, and became one of the
-fourteen incorporated trades of the city. George the Third erected this
-corporation into a Royal College, and now it is known as “The Royal
-College of Surgeons of Edinburgh.” In 1599, James VI., “to avoid the
-inconvenience caused by ignorant, unskilled, and unlearned persons,
-who, under the colour of chirurgeons, are in the habit of abusing the
-people to their pleasure, and of destroying thereby infinite numbers
-of his Majesty’s subjects,” incorporated the faculty of Physicians
-and Surgeons of Glasgow; and gave them jurisdiction over the City of
-Glasgow and the adjoining counties. A recent Act of Parliament has very
-much shorn the privileges of this faculty [3].
-
-In Ireland, the “Fraternity of Barbers and Chirurgeons of the Guild
-of S. Mary Magdalene” was incorporated by Henry II. The apothecaries
-belonged to this body until 1745, when, with the aid of a statute, they
-set up for themselves, as “The Guild of S. Luke,” or “The worshipful
-Company of Apothecaries.” In 1784 the regularly educated surgeons of
-Dublin became incorporated under the name of “The Royal College of
-Surgeons in Ireland.”
-
-In the twelfth century medicine seems to have been first studied
-as a science in England. The Universities enacted that none should
-practise physic without passing through a certain course of study. In
-the fourteenth century the degree of Doctor of Physic was by no means
-uncommon. For many years physicians were greatly aided in chemistry and
-medical science by the discoveries of alchemists, and the search after
-the philosopher’s stone and the elixir of life gave many useful hints
-to practitioners. Chaucer well describes a “Doctour of Phisike,” in the
-Prologue to the |7| Canterbury Tales, and gives an insight into the
-state of medical knowledge in the fourteenth century.
-
- ——He was grounded in astronomie.
- He kept his patient a ful gret del
- In houres by his magike naturel.
-
- He knew the cause of every maladie,
- Were it of cold, or hote, or moist, or drie,
- And when engendred, and of what humour.
- He was a veray parfite practisour.
- The cause yknowe, and of his harm the rote,
- Anon he gave to the sike man his bote.
- Ful redy hadde he his apothecaries
- To send him dragges, and his lettuaries,
- For eche of hem made other for to winne:
- His frendship n' as not newe to beginne.
- Wel knew he the old Esculapius,
- And Dioscorides, and eke Rufus;
- Old Hippocras, Hali, and Gallien;
- Serapion, Rasis and Avicen;
- Averrois, Damascene and Constantin,
- Bernard, and Gatisden and Gilbertin.
- Of his diete mesurable was he,
- For it was of no superfluitee,
- But of gret nourishing and digestible.
- His studie was but litel on the Bible.
-
-In 1421, under Henry V., an Act was prepared, providing that “no one
-shall use the mysterie of fysyk, unless he hath studied it at some
-university, and is at least a bachelor in that science. And saying, the
-sheriff shall inquire whether any one practises in his county contrary
-to this regulation; and if any one so practise fysyk he shall forfeit
-£40 and be imprisoned: and any woman who shall practise fysyk shall
-incur the same penalty.” But this appears never to have become law.
-
-It was not, however, until the beginning of the sixteenth century that
-modern British medical practice may be said to have commenced. And
-in 1511 was passed the first |8| statute for regulating the medical
-profession [4]. From the preamble of this Act we learn that physic and
-surgery were then practised by “ignorant persons, who could tell no
-letters on the book, and by common artificers, smiths, weavers, and
-women, who took upon themselves great cures, partly using sorcery and
-witchcraft, partly applying very noxious medicines to the disease.”
-
-Many years after this, however, were to be found those who though
-not “ignorant persons” approved of what would now be called sorcery,
-witchcraft and noxious medicines. Bacon gives the following as
-infallible cures for the whooping-cough: let a pie-bald horse breathe
-on the patient: give him fried mice, three a day for three days in
-succession: pass the sick person nine times under the belly and over
-the back of a donkey: feed the patient on currant cake made by a woman
-who did not change her name when she was married: or, hold a toad in
-the mouth that it may catch the disease. Burton, the Anatomist, says
-that an amulet consisting of a spider in a nut-shell, lapped with silk,
-is a cure for ague. Graham, in his “Domestic Medicine,” prescribes
-spider’s webs for ague and intermittent fevers.
-
-By the statute of Henry the profession was for the first time divided
-into physicians, surgeons and apothecaries: a division still kept up
-in England. It also enacts, under a penalty, that “no physician or
-surgeon shall practise in London, or within seven miles of it, without
-examination by the Bishop of London, or the Dean of St. Paul’s, and
-four doctors of physic; nor out of the city, or precinct, but if he
-be first examined and approved by the bishop of the diocese, or his
-vicar-general, calling to them such expert persons in the same faculty
-as their discretion shall think convenient.” Fancy a D.D. sitting in
-judgment on an |9| M.D. How orthodox and regular in his attendance at
-church would the latter have to be! However, 14 & 15 Henry VIII. cap.
-5, vests this power of examination in the President and Elects of the
-College of Physicians of London. This Royal College was founded in 1518
-by letters patent from the king. Power was given to it to make laws
-for the government of all men of the faculty of physic in London and
-within seven miles, and for the correction of the physicians within
-those limits and their medicines: and none could practise within those
-limits without a license. Shortly after an Act of Parliament confirmed
-this patent so that none could practise in England without the license
-of the college, save graduates of Oxford and Cambridge. Subsequently
-Fellows of the college were given power, together with the warden of
-the Apothecaries’ Society, to enter the houses of apothecaries in
-London, to examine their wares, drugs and stuffs, and to burn and
-destroy those that were defective.
-
-In 1560, by 32 Henry VIII. cap. 40, surgery was declared a part of
-physic, and the practice thereof was thrown open to all of the company
-or fellowship of physicians throughout the realm. Not long afterwards
-the Parliament of this reforming king seems to have changed its mind
-and made a move in the direction of free-trade in physic, and by 34 &
-35 Henry VIII. cap. 8, any man or woman was permitted to practise to
-a limited extent. We fancy we can trace the influence of the sturdy
-king in the provisions of this Act, which was entitled, “An Act that
-persons being no common surgeons may administer outward medicines
-notwithstanding the statute;” the statute after referring to the Act
-passed in the third year of the king’s reign (which imposed penalties
-upon those who should practise as physicians or surgeons without being
-examined and admitted) goes on to say, “Sithence the making of which
-said Act (that of 3 Henry VIII.) the |10| company and fellowships of
-surgeons of London, minding only their own lucres, and nothing the
-profit or ease of the diseased or patient, have sued, troubled and
-vexed divers honest persons, as well men as women, whom God hath endued
-with the knowledge of the nature, kind and operation of certain herbs,
-roots and waters, and the using and ministering of them to such as be
-pained with customable diseases, as women’s breasts being sore, a pin
-and the web in the eye, uncomes of hands, burnings, scaldings, sore
-mouths, the stone, strangury, saucelin, and morphers, and such other
-like diseases; and yet the said persons have not taken anything for
-their pains or cunning, but have ministered the same to poor people
-only, for neighbourhood and God’s sake, and of pity and charity. And
-it is now well-known that the surgeons admitted will do no cure to any
-person, but where they shall know to be rewarded with a greater sum or
-reward than the cure extendeth unto: for in case they would minister
-their cunning unto sore people unrewarded there should not so many rot
-and perish to death, for lack of help of surgery, as daily do; but the
-greatest part of surgeons admitted have been much more to be blamed
-than those persons that they trouble.” It further states that “although
-the most part of the persons of the said craft of surgery have small
-cunning, yet they will take great sums of money and do little therefor,
-and by reason thereof they do oftentimes impair and hurt their patients
-rather than do them good.” In consideration whereof and for the ease
-and health of the king’s poor subjects, it was enacted that it should
-be lawful to every person having knowledge and experience of the nature
-of herbs, etc., to practise and minister them without suit or vexation.
-(Here is evidence of the existence of herb doctors, hydropaths and lady
-physicians in those days.)
-
-Numerous Acts of Parliament have been passed touching the medical
-profession since the days of “Bluff King Hal,” |11| one under
-James I. to prevent popish recusants practising physic, or using or
-exercising the trade or art of an apothecary; another under William
-and Mary for exempting apothecaries from serving as constables or
-scavengers; another for exempting spirits and spirituous liquours used
-by physicians, &c., in the preparation of medicine from duty, and
-others for purposes too numerous to mention. But it is the Medical
-Act of 1858, as amended by 22 Vict. cap. 21, that now governs the
-practitioners.
-
-In 1681, the Royal College of Physicians of Edinburgh, was incorporated
-and power was given of licensing practitioners and of preventing others
-practising. In Ireland, although the idea had been conceived many years
-before, it was not until 1654 that a body called “The President and
-Fraternity of Physicians” was founded; subsequently this company was
-incorporated and powers given to it very similar to those enjoyed by
-the London College. Under the Medical Act, Her Majesty was empowered to
-change the name of this institution (which had already enjoyed several
-aliases), to that of “The Royal College of Physicians of Ireland.”
-
-In England and Ireland a third class of medical practitioners exists,
-namely, the apothecaries. Prior to the days of Henry VIII. an
-apothecary seems to have been the common name in England for a general
-practitioner in medicine. About that time shops began to be established
-for the exclusive sale of drugs and medicinal compounds, and those
-who kept these shops often took upon them to doctor their customers.
-In 1542 Henry’s parliament permitted any irregular practitioner to
-administer outward medicines, and these shopkeepers readily availed
-themselves of the permission granted by the Act and pushed the sale of
-their drugs and obtained larger prices on account of the advice they
-gave with them, and they appropriated exclusively the title of |12|
-apothecaries. In 1617 they were incorporated under the name of “The
-Master, Wardens and Society of the Art and Mystery of Apothecaries of
-the City of London.” About the beginning of the seventeenth century
-they began to prescribe as well as supply medicine; and although the
-College of Physicians resisted this poaching on what they considered
-their preserves, still early in the eighteenth century the matter was
-settled in favor of the apothecaries, since which time they have been
-legally recognised as a branch of the medical profession [5].
-
-An Act of 1815 now regulates the practice of apothecaries throughout
-England and Wales, and no one can act as such or recover any charges
-for his services unless he has a certificate from the Society of
-Apothecaries. An apothecary is bound to make up any prescription
-duly signed by a licensed physician [6]. Creswell, J., considered an
-apothecary one “who professes to judge of internal disease by its
-symptoms, and applies himself to cure that disease by medicine.” And
-Glenn says that the practice of an apothecary may now be said to
-consist in attending and advising patients afflicted with diseases
-requiring medical (as distinguished from surgical) treatment; and
-prescribing, compounding and supplying medicines for their cure and
-relief [7].
-
-The invention of medicine was generally attributed by the ancients
-to the gods, and both in Egypt and Greece female divinities were
-intimately connected with the healing art. Isis not only caused, but
-cured disease; she discovered—so it was said—many remedies and as late
-as Galen several compounds in the materia medica bore her name. Hygeia,
-the daughter of Æsculapius, was deemed |13| the goddess of health, and
-Juno presided at accouchments. These fables show that in the remotest
-antiquity woman practised medicine. The laws of Greece, at a later
-period, forbad women to practise; thus, also, was it in Rome. However,
-300 years before Christ, Agnodice—a young Athenian—dared to attend
-in disguise the schools of medicine forbidden to her sex. Preserving
-her incognito, when her education was finished she soon acquired a
-lucrative practice; and eventually her case caused the law against
-women to be revoked.
-
-In the Middle Ages, among Mohammedans, many women were skilled in
-attending to the needs of their own sex; and among the Christians,
-nuns as well as monks ministered to bodies as well as souls diseased,
-practising both surgery and physic. In Italy, at Salerno, women
-prepared drugs and cosmetics, practised among persons of both sexes,
-took doctor’s degrees, wrote treatises on medical subjects, obtained
-the royal authority to engage in the art, and composed poems in praise
-of their science. At the University of Bologna, as late as 1760,
-Anna Morandi Manzolini filled the chair of Anatomy; her reputation
-was European, and her lecture-room was frequented by students of all
-countries—so great was her skill in delicate dissections, and so
-clearly did she demonstrate the wonders of the human form divine. Dr.
-Maria delle Donne was professor of medicine and obstetrics in the same
-college in 1799; and many were the lady graduates of the Universities
-of Padua, Pavia and Ferrara, as well as Bologna.
-
-In France, the earliest official document extant relative to the
-profession (dated 1311) forbids the practice of surgeons, or female
-surgeons, who have failed to pass the required examinations; and
-an edict of 1352 refers to female practitioners. In Spain, the
-Universities of Cordova, Salamanca and Alcala bestowed doctor’s
-degrees on |14| many women. In Germany, also, a number of the fair
-sex successfully cultivated the science of medicine, and practised it,
-in the last century and in the early part of this. In England, as has
-already been seen, in early days women practised the healing arts.
-Henry VIII. checked them for a time, but in his old age, changing his
-mind on this, as on almost every other subject, gave them liberty to
-minister to the outward and less serious ailments of his people.
-
-Crossing the Atlantic an entry is found, under the date of March, 1638,
-which tells a tale. It is this: “Jane Hawkins, the wife of Richard
-Hawkins, had liberty till the beginning of the third month, called May,
-and the magistrates (if she did not depart before) to dispose of her:
-and in the meantime she is not to meddle in surgery or phisick, drinks,
-plaisters or oyles, nor to question matters of religion, except with
-the elders for satisfaction [8].” But now woman is no longer regarded
-as too good or too stupid to study medicine in America; in nearly
-every State in the Union she has free access to Medical Colleges [9].
-The Council of the College of Physicians and Surgeons of Ontario
-admit to registration and practice any person who complies with their
-requirements, without regard to sex. And the Imperial Parliament, by an
-Act passed in 1876, affirmed the principle that women are entitled to
-become registered practitioners of medicine.
-
-
-
-
-|15|
-
-CHAPTER II.
-
-FEES.
-
-
-The Roman Law considered the services of an advocate and of a physician
-as strictly honorific; and, as in the Roman age, practitioners in law
-and medicine, were usually men of leisure and wealthy, who did not
-practise for the sake of a livelihood, remuneration for their services
-could not be recovered in the ordinary way. Although owing to the
-Utopian ideas concerning the honour of a liberal profession then in
-vogue it was considered that any mention of a “fee,” or a “salary,” by
-that name would soil and disgrace the robe of a practitioner, still
-it was an established fiction of the Civil Law that the promise of an
-_honorarium_ always accompanied the employment of a professional man,
-and that such promise created one of those obligations that might be
-enforced by action [10]. The Common Law of England adopted the theory of
-the Civil Law as to the high standing of the profession, but afforded
-no remedy for the recovery of the charges. Surgeons and apothecaries
-were enabled to recover by law remuneration for their services, but
-a physician was presumed to attend his patient for an _honorarium_
-(something left to the honour of the patient to pay or not to pay),
-and could not maintain an action for his fees until the passing of
-the Medical Act, 1858, put an end to his anomalous position in this
-money-making age, and gave him as free an entrance into the courts of
-law to recover compensation for his work and labour, time and |16|
-skill bestowed, as the worker in any other path of life. Before this a
-physician could not recover even expenses out of pocket, such as those
-incurred in travelling to visit a patient, unless there had been an
-agreement specially made to that effect [11].
-
-If a physician was a surgeon as well, and attended a case where the
-advice of a physician and the aid of a surgeon were necessary, he
-could recover the value of his services as a surgeon but not as a
-physician [12].
-
-In England the question sometimes arises, where the practitioner is
-only a surgeon, whether he can charge for attendance as a physician or
-as an apothecary. It has been held that typhus fever is not a disease
-that belongs to a surgeon’s branch of medicine, and that he cannot
-therefore recover for his attendance on a patient suffering under it.
-So, too, with regard to consumption and dropsy, though, in the latter
-case, he may recover for any work done for the patient specifically
-within his practise, such as puncturation, scarification, bandaging and
-friction [13].
-
-At one time it was considered that an apothecary was not entitled to
-charges for his attendances, but only for his medicine: then the law
-decided that he might charge for either attendances or medicines, but
-not for both. Shortly afterwards Tenterden held that one might recover
-for attendance (the charge being reasonable), as well as for medicine.
-After that full justice was done to this branch of the profession, and
-it was decided that there was no rule of law, and there certainly is
-none of morals, to prevent an apothecary from making distinct charges
-for |17| attendances and medicines; but if he charges very high for
-his drugs the jury may think the attendances ought not to be paid for
-as well [14].
-
-In Scotland, also, at one time physicians’ fees were regarded as
-honoraries, and not recoverable by action except under a special
-contract [15]. Neither in the United States nor in the Colonies have
-these distinctions been made between the different branches of the
-profession, nor has the principle been adopted that the profession of
-a physician is a merely honorary one, and that his services cannot be
-charged for [16].
-
-In England every person registered according to the Medical Act,
-1858, and in Ontario those registered under the Provincial Act, can
-practise medicine or surgery, or medicine and surgery; and can recover
-in any court of law, with full costs of suit, reasonable charges for
-professional aid, advice, and visits, and the costs of any medicine
-or other medical and surgical appliances rendered or supplied to his
-patient; but no person is entitled to recover any such charges in
-any court of law unless he can prove upon the trial that he is so
-registered. Registration has now become a part of the plaintiff’s
-title to recover, which it is imperative upon him to prove. A copy of
-the medical register for the time being, purporting to be printed and
-published under the direction of the General Council, is evidence in
-all courts that the persons therein specified are registered according
-to the provisions of the Medical Act; and the absence of the name of
-any person is evidence, until the contrary be made to appear, that
-such person is not so registered; and the contrary may be shown by a
-certified copy, under the hand |18| of the registrar, of the entry
-of the name of such person on the register [17]. Similar rules are in
-force in the various States where Medical Boards have been constituted
-by legislative authorities for the purpose of examining and licensing
-practitioners, such as Alabama, Delaware, Florida, Georgia, Louisiana,
-Maine, Minnesota, New York, Ohio, South Carolina and Wisconsin.
-
-Subject to the various statutory enactments, every physician or
-surgeon, or any one who chooses to act as such, is entitled to a
-reasonable reward for his services and for his medicines. If there was
-no express promise to pay when the services were requested, the law
-implies one: the broad principle being, that when a person has bestowed
-his skill and labor for the benefit of another, at his request, and
-no agreement is made in respect to them, the law raises an implied
-promise to pay such compensation as the person performing the service
-deserved to have; and when there is no statutory or other restraint
-upon the remedy, an action lies on such promise [18]. The amount, unless
-settled by law, is a question for the jury, and in settling that, the
-eminence of the practitioner, the wealth of the patient, the delicacy
-and difficulty of the operation, as well as the time and care expended,
-are to be considered [19].
-
-The law, as a rule, sets no limitation to fees, provided they be
-reasonable. Within this rule a practitioner is allowed discretionary
-powers and may charge more or less according to his own estimate of
-the value of his services. No one will pretend to assert that all
-services are of equal value, and no one will claim that those who
-can |19| render them the most skilfully should receive only the
-same reward as those who can render them the least so. A medical man
-of great eminence may be considered reasonably entitled to a larger
-recompense than one who has not equal practice, after it has become
-publicly understood that he expects a larger fee, inasmuch as the party
-applying to him must be taken to have employed him with a knowledge
-of this circumstance [20]. But doctors must not be unreasonable in
-their charges; as Lord Kenyon remarked, “Though professional men are
-entitled to a fair and liberal compensation for their assistance, there
-are certain claims which they affect to set up, which if unreasonable
-or improper, it is for the jury to control” [21]. That a patient is a
-millionaire does not justify an extortionate charge. The French rule
-is to consider the gravity of the disease as well as the fortune and
-position of the patient in settling the remuneration of a physician [22].
-
-The existence of an epidemic does not authorise the charging of
-exorbitant fees [23].
-
-In some ages and countries the fees payable to medical practitioners
-have been fixed by law. In Persia, for instance, in ancient times the
-law said that “a physician shall treat a priest for a pious blessing,
-or a spell; the master of a house for a small draught animal; the lord
-of a district for a team of four oxen; and if he cure the mistress of
-a house a female ass shall be his fee.” (Vendidad Farg. VII.) To take
-another instance, the medical men in attendance upon the old princes
-of Wales had their fees settled; for curing a slight wound, a surgeon
-received for payment the clothes of the injured person which had been
-stained with blood; |20| and for curing a dangerous wound he had, in
-addition to the bloody clothing, board and lodging while in attendance,
-and 180 pence. In Egypt, according to Herodotus, practitioners were
-paid out of the public treasury, although they might also receive fees
-from their patients.
-
-A medical man can also recover for the services rendered by his
-assistants or students; and that even though the assistant is
-unregistered [24]. It is not necessary that there should be any agreed
-specified price, he will be allowed what is usual and reasonable [25].
-
-The right of a medical man to recover his charges for professional
-services does not depend upon his effecting a cure, or on his services
-being successful, unless there is a special agreement to that effect.
-It does not depend upon the fortune of the case whether it be good
-or bad, but upon the skill, diligence and attention bestowed. For,
-as a general rule, a physician does not guarantee the success of his
-treatment; he knows that that depends upon a higher power. Still, some
-good must have resulted from his efforts. The rule appears to be that
-if there has been no beneficial service there shall be no pay; but if
-some benefit has been derived, though not to the extent expected, this
-shall go to the amount of the plaintiff’s demand, leaving the defendant
-to his action for negligence [26]. The practitioner must be prepared to
-show that his work was properly done, if that be disputed, in order
-to prove that he is entitled to his reward [27]. Where the surgical
-implements employed in amputating an arm were a large butcher knife and
-a carpenter’s sash-saw, it was held that the Court rightly charged the
-jury, that if the |21| operation was of service, and the patient did
-well and recovered, the surgeon was entitled to compensation, though it
-was not performed with the highest degree of skill, or might have been
-performed more skilfully by others [28].
-
-If a surgeon has performed an operation which might have been useful
-but has merely failed in the event, he is nevertheless, entitled
-to charge; but, if it could not have been useful in any event, he
-will have no claim on the patient [29]. A medical man who has made a
-patient undergo a course of treatment which plainly could be of no
-service, cannot make it a subject of charge; but an apothecary who has
-simply administered medicines under the direction of a physician may
-recover for the same, however improper they may have been [30]. If the
-physician has employed the ordinary degree of skill required of one in
-his profession, and has applied remedies fitted to the complaint and
-calculated to do good in general, he is entitled to his fees, although
-he may have failed in this particular instance, such failure being then
-attributable to some vice or peculiarity in the constitution of the
-patient, for which the medical man is not responsible [31].
-
-It is the duty of a physician who is attending a patient infected
-with a contagious disease, when called upon to attend others not so
-infected, to take all such precautionary means experience has proved to
-be necessary to prevent its communication to them. When a physician who
-was told by a patient not to attend any infected with small-pox or his
-services would be dispensed with, failed to say that he was attending
-such a patient, and |22| promised not to do so, but continued to
-attend, and did by want of proper care communicate small-pox to the
-plaintiff and his family, it was held that these facts were proper
-evidence to go to the jury in reduction of damages in an action for
-his account, and that the physician was responsible in damages for the
-suffering, loss of time and damage to which the plaintiff may have been
-subjected. If a physician by communicating an infectious disease has
-rendered a prolonged attendance necessary, thereby increasing his bill,
-he cannot recover for such additional services necessitated by his own
-want of care [32]. This rule will apply with equal force to puerperal
-fever [33].
-
-In the case of vaccination, the physician, while he does not guarantee
-the specific value of the vaccine virus, yet guarantees its freshness;
-so that if he inoculate a patient with virus in an altered state,
-constituting as it then would mere putrid animal matter, and erysipelas
-or any injury to any limb necessitating amputation should arise, he
-will undoubtedly be held responsible for the suffering, loss of time,
-and permanent injury to the patient [34]. Long since Lord Kenyon was of
-the opinion that if a surgeon was sent for to extract a thorn, which
-might be pulled out with a pair of nippers, and through his misconduct
-it became necessary to amputate the limb, the surgeon could not come
-into a court of justice to recover fees for the cure of the wound which
-he himself had caused [35].
-
-The physician when sending in his bill should be specific in his
-charges and not general; he should give the number of visits and dates.
-In one case a lump charge of “$13 for medicine and attendance on one
-of the general’s daughters |23| in curing the whooping cough,” being
-objected to by the valiant officer, was held by the Court to be too
-loose to sustain an action [36]. Where a practitioner brought an action
-for a bill consisting of a great number of items, and gave evidence as
-to some of them only, and the jury gave a verdict for the whole amount
-of the bill, the Court refused to interfere and grant a new trial
-because every item was not proved [37]. Where a medical man delivered
-his bill to a patient without a specific charge, leaving a blank for
-his attendance, the Court inferred that he considered his demand in
-the light of a “_quiddam honorarium_,” (this was before the Medical
-Act), and intended to leave it to the generosity of the patient, and
-the latter having paid into court a certain amount, the Court held
-the surgeon was bound by the amount so paid and could not recover any
-more [38]. As a rule, however, if a doctor’s bill is not paid when
-presented he is not limited by it to the amount of his claim, if he
-can show that his services were of greater value [39]. When witnesses
-are called to speak as to the value of the practitioner’s services the
-Courts generally incline towards the lowest estimate [40].
-
-The number of visits required must depend on each particular case, and
-the physician is deemed the best and proper judge of the necessity
-of frequent visits; and in the absence of proof to the contrary, the
-Court will presume that all the professional visits made were deemed
-necessary and were properly made [41]. There must not be too many
-_consultations_; and the physician called in for consultation or to
-perform an operation may recover his fees from the |24| patient,
-notwithstanding that the attending practitioner summoned him for his
-own benefit and had arranged with the patient that he himself would
-pay [42].
-
-Where a medical man has attended as a friend, he cannot charge for
-his visits. This was held in one case where it was proved that
-the practitioner had attended the patient as a friend, upon the
-understanding that he was to have refreshments and dinners free
-of charge; and in another case, where a medical man had attended
-professionally, for several years, a lady with whom he was on terms of
-intimacy (but received no fees, except once, when he had prescribed
-for her servant). The day before her death this lady had written to
-her executors, asking them to remunerate the doctor in a handsome
-manner, and moreover in her will she gave him a legacy of £3,000 and a
-reversionary interest in £6000 more. It was proved that he had attended
-others without having taken fees or sent in bills. It was held that
-his services had been tendered as for a friend, and accepted as a
-friends, and his demand as a debt against the assets of the lady was
-rejected [43]. One would have thought that the physician in this latter
-case should have been satisfied.
-
-Where a tariff of fees has been prepared, and agreed to by the
-physicians in any locality, they are bound by it legally as far
-as the public is concerned, morally as far as they themselves are
-concerned [44]. It is no part of the physicians business to supply the
-patient with drugs; if he does so he has a right to be reimbursed
-therefor [45]. |25|
-
-If a physician enters into a special contract to perform a cure he
-will be held strictly to its terms, nor will he be allowed to plead
-circumstances, which, under the general law of professional obligation,
-might fairly exonerate him from blame, for failing of success in the
-treatment of his patient. To promise an absolute cure is to assume
-arrogantly the possession of powers never delegated to man; only a weak
-and vapid intellect will commit so egregious a blunder. Yet, if a man
-choose to do it he may, and having entered into an _express_ contract
-he will be held liable for its fulfilment. For it is his own fault if
-he undertake a thing above his strength. If the agreement is, no cure,
-no pay: he cannot even recover for medicines supplied if the cure is
-not effected. At least, so it was held at Vermont. Contracts to receive
-a certain sum contingent upon the performance of a cure have always
-been considered as professionally immoral, and in the civil law were
-repudiated as against public policy [46].
-
-The physician is always allowed discretionary powers over the patient
-entrusted to his care in modes of treatment, so as to be able to alter
-them according to the varying necessities of the case. Unless such
-change of treatment involves a risk of life or consequences of which he
-is unwilling to assume the responsibility, he is not under obligation
-to give notice or obtain permission before making it. Particularly is
-this the case where the patient is not at home or among friends or
-relatives, but is in some degree in his custody and under his exclusive
-supervision, as well as care. In such circumstances he is authorised
-to perform operations, or change his treatment, or enforce discipline
-essential to its fulfilment, without first consulting or obtaining
-permission from friends or guardians at a distance, since delay might
-involve a greater risk to the health |26| and possibly the life of
-the patient than would a necessitated operation; and of such things he
-alone is the proper, as he alone can be the best, judge. He may recover
-his fees for such operation or change of treatment without proving
-that it was necessary or proper, or that before he performed it he
-gave notice to the party who had to pay, or that it would have been
-dangerous to have waited until such notice had been given. The burden
-of proving unskilfulness or carelessness in the operation lies upon the
-party objecting to it [47].
-
-When a medical man is called as a witness before a court, to testify as
-to facts within his knowledge, he must attend and give evidence upon
-payment of the same fees as other witnesses are entitled to; unless it
-is otherwise provided by statute.
-
-Where a statute provides that a medical man should be paid a certain
-witness fee, he is entitled to that fee although he be not called to
-give professional evidence, and it is not necessary to prove that
-he is in practice [48]. A witness should be paid his fees when he is
-subpœnaed; but even if he attends he can refuse to give evidence until
-he is paid, unless he takes the oath before making the objection [49]. A
-subpœna should be served a reasonable time before the trial, to enable
-a witness to put his affairs in such order that his attendance on the
-court may be as little detrimental as possible to his interests [50].
-
-Where a medical man is summoned to attend a coroner’s inquest, unless
-the statute law is clearly to the contrary, |27| he is only entitled
-to be paid for each days attendance, not for each body on which the
-inquest was held [51].
-
-Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the
-deceased was attended during his last illness, or at his death, by a
-duly qualified medical man, may summon that medical man to attend the
-inquest; if he finds that he was not so attended, he may summons any
-legally qualified neighbouring practitioner, and may direct him to
-hold a post-mortem examination; but a second practitioner will not be
-entitled to any fees, unless a majority of the jury have, in writing,
-asked him to be called [52]. The fees are, for attendance without
-_post-mortem_ $5, if with _post-mortem_, without an analysis of the
-contents of the stomach or intestines, $10; if with such analysis, $20;
-together with a mileage each way of twenty cents. If the practitioner
-when duly summoned fails to attend, without sufficient reason, he is
-liable to a penalty of $40 [53].
-
-Is an expert witness entitled to receive greater compensation than
-an ordinary witness? or can he be compelled to give a professional
-opinion without being paid for it? The States of Iowa, North Carolina
-and Rhode Island have answered these questions by statutes which say
-such witnesses shall be entitled to extra compensation to be fixed
-by the court, in its discretion: while Indiana says experts may be
-compelled to appear and testify to opinions without payment or tender
-of compensation other than the _per diem_ and mileage allowed by law to
-other witnesses [54].
-
-The subject does not appear to have been very much considered in
-England. In a case, at _Nisi Prius_, Lord |28| Campbell declared that
-an expert was not bound to attend upon being served with a subpœna,
-and that he ought not to be subpœnaed; that he could not be compelled
-to attend to speak merely to matters of opinion [55]. And Mr. Justice
-Maule, where an expert demanded additional compensation, said there
-was a distinction between a witness to facts and a witness selected by
-a party to give his opinion on a subject with which he is peculiarly
-conversant from his employment in life. The former is bound as a matter
-of public duty to testify as to all facts within his knowledge, the
-latter is under no such obligation, and the party who selects him must
-pay him for his time before he will be compelled to give evidence [56].
-
-Worden, J., of the Supreme Court of Indiana, in considering the
-question, in a case that came up prior to the statute above referred
-to, reviewed most of the American decisions and the opinions of
-the text writers, and concluded “that physicians and surgeons,
-whose opinions are valuable to them as a source of their income and
-livelihood, cannot be compelled to perform service by giving such
-opinions in a court of justice without payment.” The Court further
-said, “It would seem, on general principles, that the knowledge and
-learning of a physician should be regarded as his property, which
-ought not to be extorted from him in the form of opinions without just
-compensation.” “If the professional services of a lawyer cannot be
-required in a civil or criminal case without compensation, how can
-the professional services of a physician be thus required? Is not his
-medical knowledge his capital stock? Are his professional services
-more at the mercy of the public than the services of a lawyer? When
-a physician testifies as an expert by giving his opinion, he is
-performing a strictly |29| professional service. * * * The position
-of a medical witness testifying as an expert is much more like that
-of a lawyer than that of an ordinary witness testifying to facts. The
-purpose of this service is not to prove facts in the cause, but to
-aid the Court or Jury in arriving at a proper conclusion from facts
-otherwise proved” [57]. In an earlier case (in 1854), in Massachusetts,
-the Court said, “to compel a person to attend because he is
-accomplished in a particular science, art or profession, would subject
-the same individual to be called upon in every case in which any
-question in his department of knowledge is to be solved. Thus, the most
-eminent physician might be compelled, merely for the ordinary witness
-fees, to attend from the remotest part of the district, and give his
-opinion in every trial in which a medical question should arise. This
-is so unreasonable that nothing but necessity can justify it” [58].
-
-On a trial for murder the prosecution had procured the attendance of
-Dr. Hammond to testify professionally, and had agreed to give him
-$500 as his fee. This fee was complained of as an irregularity, but
-the Court in delivering judgment remarked, “The district attorney,
-it is true, might have required the attendance of Dr. H. on subpœna,
-but that would not have sufficed to qualify him as an expert with
-clearness and certainty upon the questions involved. He would have met
-the requirements of the subpœna if he had appeared in court when he
-was required to testify and given impromptu answers to such questions
-as might have been put to him. He could not have been required, under
-process of subpœna, to examine the case, and to have used his skill
-and knowledge to enable him to give an opinion upon any points of the
-case, nor to have attended during the whole trial and attentively
-considered and carefully |30| heard all the testimony given on both
-sides, in order to qualify him to give a deliberate opinion upon such
-testimony, as an expert, in respect to the question of the sanity of
-the prisoner;” and held “that there was no irregularity in the payment
-of such a fee” [59].
-
-Such text writers of high repute as Taylor, Phillips, Redfield and
-Ordronaux, all agree that an expert cannot be compelled to give
-professional opinions without proper remuneration. The last named
-writer says, “Where a subpœna is served upon an expert he must obey it,
-if within the range of physical possibility. But once on the stand as a
-skilled witness his obligation to the public ceases, and he stands in
-the position of any professional man consulted in relation to a subject
-upon which his opinion is sought. He cannot be compelled to bestow
-his skill and professional experience gratuitously; whoever calls for
-an opinion from him in chief must pay him, and the expert may decline
-to answer until the party calling him has paid. When he has given his
-evidence he cannot decline repeating it, or explaining it. A similar
-rule will, by parity of reasoning, apply to personal services demanded
-from the expert, as well as to opinions asked” [60].
-
-On the other hand, the Supreme Court of Alabama, in 1875 [61], confirmed
-a fine imposed upon a physician for refusing to state the nature and
-character of a wound received by a man and its probable effect, upon
-the ground that he had not been remunerated for his professional
-opinion, nor had compensation for it been promised or secured. And
-the Court of Appeals in Texas, in 1879, held, that the court could
-compel a physician to testify as to the |31| result of a post-mortem
-examination; adding, that a medical expert could not be compelled to
-make a post-mortem examination unless paid for it, but an examination
-having already been made by him he could be obliged to disclose the
-results thereof [62].
-
-The result of the authorities seems to be that, without the aid of
-a statute, an expert cannot be compelled to bestow his skill and
-professional experience gratuitously upon any party, for his skill and
-experience are his individual capital and property.
-
-
-
-
-|32|
-
-CHAPTER III.
-
-WHO SHOULD PAY THE DOCTOR.
-
-
-If Smith says to Brown, a medical man, “Attend upon Robinson, and if
-he does not pay you I will;” that being a promise to answer for a debt
-of Robinson’s, for which he is also liable, the guarantee is only a
-collateral undertaking, and, under the Statute of Frauds, must be in
-writing and signed by Smith, or some other person thereunto by him
-lawfully authorised, in order to be binding upon him. But if Smith says
-to Dr. Brown, absolutely and unqualifiedly, “Attend upon Robinson,
-and charge your bill to me,” or “I will pay you for your attendance
-upon Robinson;” then the whole credit being given to Smith, no written
-agreement is necessary to enable the doctor to recover the amount of
-his account from him, since it is absolutely the debt of Smith [63].
-
-Where a person calls at the office of a physician, and, he being
-absent, the visitor leaves his business card with these words written
-on it, “Call on Mrs. Jones, at No. 769 High Street,” handing it to the
-clerk in attendance, with the request that he would give it to the
-doctor and tell him to go as soon as possible; this caller becomes
-liable to pay the doctor’s bill for attendance upon Mrs. Jones in
-pursuance of such message. Yet Mrs. Jones, if a widow, may also be
-liable; for one who acquiesces in the employment of a physician, and
-implies, by his or her conduct, that the doctor is attending at his or
-her request, is responsible for |33| the value of his services. If
-Mrs. Jones is living with her husband, or, without her fault, away from
-him, the doctor has still another string to his bow, and may recover
-the amount of his bill from Mr. Jones; for the rule is, that a husband
-must pay his wife’s doctor’s bills. Of course the doctor cannot make
-all three pay [64].
-
-Long since, Park, J., was clearly of the opinion that if a mere
-stranger directed a surgeon to attend a poor man, such person was
-clearly liable to pay the surgeon [65]. Yet, in some cases in the United
-States, it has been held that the man who merely calls the doctor is
-not bound to pay him. When, for instance, in Pennsylvania, a son of
-full age, when living with his father, fell sick, and the father went
-for the doctor, urging him to visit his son. Afterwards the physician
-sued the parent. The Court said this was wrong, that he should have
-sued the son, as the father went as a messenger only, that the son,
-who had the benefit of the services, was the responsible person; and
-remarked that it was clear that had the defendant been a stranger,
-however urgent he may have been and whatever opinions the physician
-may have formed as to his liability, he would not have been chargeable
-without an express promise to pay, as, for instance, in the case of an
-inn-keeper or any other individual whose guest may receive the aid of
-medical service. A different principle, the Court considered, would be
-very pernicious, as but very few would be willing to run the risk of
-calling in the aid of a physician where the patient was a stranger or
-of doubtful ability to pay. This was in 1835 [66]. And, in Vermont, one
-brother took another, who was insane, to a private lunatic asylum and
-asked that he (the insane one), might be taken in and |34| cared for.
-This was done. In course of time the doctor sued the sane one for his
-bill, but the Court would not aid him in the matter, saying, “He is not
-liable unless he promised to pay” [67].
-
-In the case of Mr. Dodge, above referred to, the Court said, “He might
-very readily have screened himself from all liability, by simply
-writing the memorandum on a blank card, or by adding to that which he
-wrote on his own card something that would have apprised the doctor of
-the fact that he acted in the matter for Mrs. Jones, as her agent.”
-
-The reporter did not approve of this decision, and so appended the
-following graphic note: “Let us see how this thing works. We will
-take as an illustration an almost every-day occurrence arising in the
-country. A. B. is taken suddenly and seriously ill in the night time,
-and sends to his neighbour, C. D. living in the next house to his, to
-have him go after the doctor as soon as he can, for he is in great
-pain and distress. C. D. jumps out of bed without hesitation, and
-hastily dresses himself, and goes out to his barn and takes a horse
-from the stable, and not waiting to put on a saddle or bridle, jumps
-on to the horse with the halter only, puts him at full speed for the
-doctor’s office, some two or three miles distant. On arriving there
-he finds the doctor absent from home, but his clerk is there, and C.
-D. at once says, ‘Tell the doctor to call on A. B. who has been taken
-suddenly sick; tell him to come as soon as possible.’ In accordance
-with this message the doctor calls upon A. B., and prescribes for and
-attends him professionally for several days. After a reasonable time
-the doctor sends in his bill to A. B. and it not being paid as soon
-as the doctor desires, he calls on C. D. and requests him to pay the
-bill. C. D. with perfect astonishment, asks why he is to pay. |35| The
-doctor informs him that he made himself liable to pay the bill because,
-when he delivered the message, he did not tell the clerk that he came
-for the doctor by the request of A. B. nor that he acted as agent of
-A. B. in delivering his message. Well, says C. D. the fact was I did
-go at the request of A. B. and merely acted as his agent in delivering
-the message, and I will swear to these facts if necessary. The doctor
-insists that it will do him no good if he should give such testimony,
-for the law is settled on that point, as just such a case has recently
-been decided in New York under just such a state of facts, where the
-jury, in the justice court, found a verdict for the doctor for the
-amount of his bill, and, on appeal by the defendant to the general
-term of the New York Common Pleas, that court unanimously sustained
-the verdict of the jury, and affirmed the judgment of the court below.
-Well, says C. D. ‘If that is the law I think I will wait awhile before
-I go after a doctor again as an act of neighbourly kindness.’” This
-case was decided as late as March, 1873.
-
-A wife has implied authority to bind her husband for reasonable expense
-incurred in obtaining medicines and medical attendance during illness;
-but this implied authority is put an end to if she commits adultery
-while living apart from her husband, and there has been no subsequent
-condonation; or, if she leaves her husband’s home of her own accord
-and without sufficient reason, and the fact has become notorious, or
-the husband has given sufficient notice that he will no longer be
-responsible for any debts that she may incur [68]. If a husband turn an
-innocent wife out of doors without the means of obtaining necessaries,
-it is a presumption of law, which cannot be rebutted by evidence, that
-she was turned out with the authority of her husband to pledge his
-credit for necessaries, and in such a case |36| medical attendance
-will be considered as one of the primary necessaries [69]. A married
-woman’s misconduct does not exonerate the husband from paying a doctor
-whom he requests to attend her [70].
-
-Although the law requires the husband to furnish the wife with all
-necessaries suitable to his condition in life, including medical
-attendance in case of sickness, still it gives him the right to procure
-these necessaries himself and to decide from whom and from what place
-they are to come. If a physician attends a wife whom he knows to be
-living separate and apart from her husband, he ought to enquire whether
-she has good cause for so doing; for if she has not he cannot make
-the husband pay the bill; and it has been held that it devolves upon
-the doctor to show that there was sufficient cause for the wife’s
-separation [71]. The employment of a physician by a husband to attend
-his sick wife, presumably continues throughout the illness; and the
-mere fact that the wife is removed, with the husband’s consent, from
-his home to her father’s, will not enable him to resist payment of the
-doctor’s bill for visits paid to her at the father’s [72].
-
-Notwithstanding the law’s desire not to favour any particular school,
-a quack’s bill was thrown out where the services were rendered without
-the husband’s assent. This was done in a case where a doctor was in the
-habit of putting a woman into a mesmeric sleep, she thereupon became a
-clairvoyant and prescribed the medicines which the doctor furnished,
-and for these he sued. The Judge said:—“The law does not recognize
-the dreams, visions or revelations of a woman in mesmeric sleep as
-necessaries for |37| a wife for which the husband, without his consent,
-can be made to pay. These are fancy articles which those who have money
-of their own to dispose of may purchase if they think proper, but they
-are not necessaries known to the law for which the wife can pledge the
-credit of the absent husband” [73].
-
-In England, it was, until 1869, considered that a parent’s duty to
-furnish necessaries for an infant child was a moral and not a legal
-one, so that he was not liable to pay for medicines or medical aid
-furnished to his child without some proof of a contract on his part
-either expressed or implied. And this still is the view where the child
-is over fourteen. The rule of law varies in the different States of
-the Union. In most of those in which the question has come before the
-courts the legal liability of the parent for necessaries furnished
-to the infant is asserted, unless they are otherwise supplied by the
-father; and it is put upon the ground that the moral obligation is a
-legal one, and some of the courts have declared this quite strongly.
-In other States the old English rule has been held to be law, and
-agency and authority have been declared to be the only ground of such
-liability. The authority of the infant to bind the parent for medical
-aid supplied him will be inferred from very slight evidence [74]. But a
-contract to pay will not be implied when the infant has been allowed a
-sufficiently reasonable sum for his expenses [75]. Where the services
-have been rendered with the parent’s knowledge and consent, he will
-generally have to pay for them. A boy left home against his father’s
-will, and refused to return at his parent’s command. Being seized with
-a mortal illness he did at last come back. His father went with him to
-a |38| physician to obtain medical advice, and the doctor afterwards
-visited him professionally at his father’s house. No express promise
-to pay was proved, nor had the father said he would not pay. The Court
-held the father liable to pay the doctor’s bill [76]. And in an English
-case, where a father had several of his children living at a distance
-from his own house under the protection of servants, it was held that
-if an accident happened to one of the children he was liable to pay for
-the medical attendance on such child, although he might not know the
-surgeon called in, and although the accident might have been received
-through the carelessness of a servant [77].
-
-By a recent English statute [78], when any parent shall wilfully neglect
-to provide adequate food, clothing, medical aid, or lodging for his
-child, in his custody, under the age of fourteen, whereby the child’s
-health shall have been, or shall be likely to be, seriously injured, he
-shall be guilty of an indictable offence punishable by imprisonment.
-Charles Downes was the two-year-old child of a member of the sect
-of Peculiar People. These people never call in medical aid or give
-medicines: to do so would be contrary to their religious opinions; but
-if any is sick they call in the elders of the church, who pray over
-him, anointing him with oil in the name of the Lord; then they hope
-for a cure, as they have thus literally complied with the directions
-in the 14th and 15th verses of the 5th chapter of the Epistle of St.
-James. This child was ill for months; the usual course was pursued by
-his father; no medical aid was obtained, although easily obtainable.
-The illness was misunderstood, and, although he was taken care of and
-well supplied with food, the child died. The father was indicted for
-manslaughter, and the |39| jury found that the death was caused by
-the neglect to obtain medical assistance, that the father _bona fide_
-(though erroneously) believed that medical aid was not required, and
-that it was wrong to use it. The Judge entered a verdict of guilty, and
-the Court held—under this statute—that a positive duty was imposed upon
-the father to provide adequate medical aid when necessary, whatever
-his conscientious scruples might be, and that that duty having been
-wilfully neglected by the prisoner, and death having ensued from that
-neglect, he was properly convicted of manslaughter [79].
-
-It had been held by Pigott, B., in a case against these same Peculiar
-People, and also by Willis, J., that, at common law, there was no legal
-duty upon a father to employ a physician for his sick child [80].
-
-It is not enough to shew neglect of reasonable means for preserving
-or prolonging the child’s life, to convict of manslaughter, it must
-be shewn that the neglect had the effect of shortening life. It will
-not do merely to prove that proper medical aid might have saved or
-prolonged life and would have increased the chance of recovery, but
-that it might have been of no avail [81]. In this case the father,
-perhaps, might have been convicted of neglect of duty as a parent,
-under the statute (per Stephen, J.).
-
-Medicines and medical aid are necessaries for which an infant may
-legally contract, and for which he can render himself liable. In
-Massachusetts, it was held that he would not be liable merely because
-his father was poor and unable to pay [82]. |40|
-
-A master is not bound to provide medical assistance for his servant,
-but the obligation, if it exists at all, must arise from contract; nor
-will such a contract be implied simply because the servant is living
-under the master’s roof, nor because the illness of the servant has
-arisen from an accident met with in the master’s service [83]. But
-where a servant left in charge of her master’s children was made ill
-by suckling one of the children, and called in a medical man to attend
-her, with the knowledge and without the disapprobation of her mistress,
-it was decided that the doctor could make the father and master
-pay [84]. And a master is bound to provide an apprentice with proper
-medicines and medical attendance [85].
-
-In England, when a pauper meets with an accident, the parish where
-it occurs is usually liable for the surgeon’s bill. If, however, the
-illness of the pauper arises from any other cause than accident or
-sudden calamity, the parish in which he is settled is under legal
-liability to supply him with medical aid, although he may be residing
-in another parish. But all these questions with regard to paupers are
-determined according to the poor laws of the different countries [86].
-
-It has frequently happened that when a railway passenger or employee
-has been injured by a collision or accident, and some railway official
-has called in a doctor, the company has afterwards refused to pay
-the bill; and the courts have declined to make them do so, unless it
-be shown that the agent or servant who summoned the medical man had
-authority to do so. It has been held that neither a guard, nor the
-superintendent of a station, nor the engineer of the train in which
-the accident happened, had any implied authority, as incidental |41|
-to their positions, to render their companies liable for medical
-services so rendered [87]. The Court of Exchequer said, “It is not to
-be supposed that the result of their decision will be prejudicial
-to railway travellers who may happen to be injured. It will rarely
-occur that the surgeon will not have a remedy against his patient,
-who, if he be rich, must at all events pay; and if poor, the sufferer
-will be entitled to a compensation from the company, if they by their
-servants have been guilty of a breach of duty, out of which he will be
-able to pay, for the surgeon’s bill is always allowed for in damages.
-There will, therefore, be little mischief to the interests of the
-passengers, little to the benevolent surgeons who give their services.”
-But, in England, it has been decided that the general manager of a
-railway company has, as incidental to his employment, authority to
-bind his company for medical services bestowed upon one injured on his
-railway. In Illinois, a similar decision was given as to a general
-superintendent, although in New York judgment was given the other
-way [88].
-
-If an accident happen to a stage coach by which a passenger’s leg is
-broken, or his human form divine is otherwise injured, the coachman has
-no authority to bind his master by a contract with a surgeon to attend
-to the injury; nor if a lamp-lighter, by neglect, burn any person, has
-he, or any officers of the gas company, power to bind the company by a
-contract for the cure of the injured person [89]. If ordinary employees
-had such authority, then every servant who, by his negligence or
-misconduct, had caused injury to an individual, would have an implied
-authority to employ, on behalf and at the expense of his employer, any
-person he thought fit to remedy the mischief.
-
-
-
-
-|42|
-
-CHAPTER IV.
-
-WHO MAY PRACTISE.
-
-
-The law has nothing to do with the merits of particular systems or
-schools of medicine. Their relative merits may become the subject of
-inquiry when the skill or ability of a practitioner, in any given
-case, is to be passed upon as a matter of fact. But the law does not
-and cannot supply any positive rules for the interpretation of medical
-science. It is not one of those certain or exact sciences in which
-truths become established and fixed, but it is essentially progressive
-in its nature. No one system of practice has been uniformly followed,
-but physicians, from the days of Hippocrates, have been divided into
-opposing sects and schools. The sects of the dogmatists and the
-empirics divided the ancient world for centuries until the rise of the
-methodics, who in their turn gave way to innumerable sects. Theories
-of practice believed to be infallible in one age have been utterly
-rejected in another. For thirteen centuries Europe yielded to the
-authority of Galen. He was implicitly followed, his practice strictly
-pursued. Everything that seemed to conflict with his precepts was
-rejected; and yet, in the revolutions of medical opinion, the works of
-this undoubtedly great man were publicly burned by Paracelsus and his
-disciples; and for centuries following the medical world was divided
-between the Galenists and the chemists, until a complete ascendancy
-over both was obtained by the vitalists. This state of things has been
-occasioned by the circumstance that medical practitioners have often
-been more given to the formation of theories upon the nature of |43|
-disease and the mode of its treatment, than to that careful observation
-and patient accumulation of facts by which, in other sciences, the
-phenomena of nature have been unravelled. * * * It is not to be
-overlooked that as an art it has been characterised in a greater degree
-by fluctuations of opinion as to its principles and the mode of its
-practice than perhaps any other pursuit. That it has been distinguished
-by the constant promulgation and explosion of theories. That it has
-alternated between the advancement of new doctrines and the revival
-of old ones; and that its professors in every age have been noted for
-the tenacity with which they have clung to opinions, and the unanimity
-with which they have resisted the introduction of valuable discoveries.
-They still continue to disagree in respect to the treatment of diseases
-as old as the human race; and at the present day * * * a radical and
-fundamental difference divides the allopathists from the followers
-of Hahnemann, to say nothing of those who believe in the sovereign
-instrumentality. * * * The axiom that doctors differ is as true now as
-ever it was [90]. Thus spake Daly, J.; the reporter observes in a note:
-“It may, perhaps, be safely questioned whether the sister sciences of
-law and theology present any such unity or certainty of opinion as
-might enable them to arraign the medical profession.”
-
-In Great Britain and Ireland, since the passing of the Medical Act
-of 1858, every one registered under the provisions of that Act is
-entitled, according to his qualification, to practise medicine or
-surgery, or both (as the case may be), in any part of Her Majesty’s
-Dominions, and to recover on any court of law (should any patient
-neglect to pay) his reasonable charges for professional aid, advice and
-visits, and the costs of any medicine, or other medical or surgical
-appliances rendered or supplied by |44| him to his patient; but any
-one not so registered cannot recover any such charges in any court of
-law. Proof of registration is absolutely necessary for a recovery;
-but it will suffice if the registration has taken place before the
-trial [91].
-
-And as to who may be registered; the Act says any one may be who is a
-fellow, member, licentiate, or extra licentiate, of the Royal College
-of Physicians of London, or of the Royal College of Physicians of
-Edinburgh, or of the King and Queen’s College of Ireland; or fellow,
-member, or licentiate in midwifery, of the Royal College of Surgeons
-of England, or fellow or licentiate of the Royal College of Surgeons
-of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow,
-or of the Society of Apothecaries, London, or of the Apothecaries
-Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any
-university of the United Kingdom, or licentiate in surgery of any
-university in Ireland; or doctor of medicine by doctorate granted prior
-to August, 1858, by the Archbishop of Canterbury; or doctor of medicine
-of any foreign or colonial college, after examination, or who satisfies
-the Council of Education and Registration that there is sufficient
-reason for admitting him to be registered [92].
-
-In France, the medical profession is divided into two grades; in the
-higher grade are all doctors of medicine of the universities; those
-in the lower grade are _officiers de santé_. In Germany, the right
-to practise is conferred by a state licence granted on passing the
-_staats-examen_: the degree of doctor of medicine is almost always
-taken at some university after obtaining the state license. In Austria,
-the |45| right to practise is carried by the degree of doctor of
-medicine obtained from a university [93].
-
-The legislature of every colony of Great Britain has full power to
-make laws for the purpose of enforcing the registration within its
-jurisdiction of medical practitioners, including those registered under
-the Imperial Act.
-
-In Ontario, the medical profession is incorporated under the name and
-style of “The College of Physicians and Surgeons of Ontario,” and
-every person registered under the provisions of the Ontario Medical
-Act [94] is a member of the college. There is a “Council,” in part
-appointed by certain educational institutions, in part elected by
-practitioners. This council fixes the curriculum of studies, appoints
-examiners, and arranges the examinations of those desirous of admission
-to practise; it also arranges for the registration of those who pass
-the examinations, or had certain qualifications before July, 1870.
-Every one who passes the examinations and has complied with the rules
-and regulations of the council, and paid his fees, is entitled to
-registration, and by virtue thereof to practise medicine, surgery and
-midwifery in the Province. If registration is not granted to one he may
-compel it by a writ of mandamus [95].
-
-Registration is essential to entitle a practitioner to recover
-any charges for medical or surgical advice, or for attendance, or
-for performance of any operation, or for any medicine he may have
-prescribed or supplied. (This last clause does not apply to any
-licensed chemist or druggist.) And if any one unregistered, for hire,
-gain or hope of reward, practises or professes to practise medicine,
-surgery or midwifery, or advertises to give advice therein, he is
-liable |46| to a fine of from $25 to $100. And any one not registered
-who takes or uses any name, title, addition or description implying
-or calculated to lead people to infer that he is registered, or that
-he is recognized by law as a physician, surgeon, accoucheur, or a
-licentiate in medicine, surgery or midwifery, is liable to the same
-penalty. Any person who wilfully or falsely pretends to be a physician,
-doctor of medicine, surgeon, or general practitioner, or assumes any
-title, addition or description, other than he actually possesses and
-is legally entitled to, is liable to a fine of from $10 to $50. But it
-is not punishable to practise for love or charity, and any one who has
-the degree of doctor of medicine may place the letters “M.D.” after his
-name, even though he is not a registered practitioner, if he do not act
-as such for hire or gain [96].
-
-Where one partner was registered and the other was not, and there was
-painted on the sign after the name of the first “M.D., M. C. P. &
-S., Ont.,” and after the name of the other only “M.D.,” it was held
-that the use of the simple letters “M.D.,” in contradistinction to
-the full titles of the partner on the same sign was not the use of a
-title “calculated to lead people to infer registration,” and that the
-unregistered partner was not guilty of an offence under the act [97].
-
-In Ontario, provision is made for the registration of Homœopathists
-as well as of regular practitioners, and for the Eclectics who were
-practising in the Province for six years before 1874.
-
-A physician practising in another country, and performing medical
-services for a patient then residing there, may recover his fees in
-this Province notwithstanding he is not |47| registered [98]. A medical
-practitioner duly registered in England, under the Imperial Act, is
-entitled in Ontario to registration upon payment of fees without
-examination [99].
-
-In the United States, the common law doctrine, which favours the right
-of every man to practise in any profession or business in which he is
-competent, prevails to a great extent; and medicine being regarded by
-it as an honorific profession, no apprenticeship was required, but
-the practitioner always prescribed at his peril. This was also the
-doctrine of the civil law, which drew no barriers around either law or
-medicine. Any one who pleased might practise them without any previous
-qualification; subject always to responsibility for injury inflicted
-upon others.
-
-In the absence of any statutes, therefore, limiting the common law
-right to practise medicine inherent in every person, the term physician
-may there be applied to any one who publicly announces himself to be
-a practitioner of the art and undertakes to treat the sick, either
-for or without reward. The common law knows nothing of systems or
-schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical,
-Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer
-Doctor, Indianopathist, Clairvoyant Doctor and regular physician are
-alike. The scales of justice are no more affected by the large doses of
-the allopathist than by the infinitesimal supplies of the homœopathist.
-But the law will sometimes interfere where one not pretending to be
-a practising physician uses a peculiar system in his own family. A
-father, during the sickness of his children and wife, refused to
-provide any medical treatment, except that applied by himself, called
-the Baunscheidt system, which consists in pricking the skin of the
-patient in different parts of the body with an instrument armed with
-|48| a number of needles and operated by a spring, and then rubbing
-the parts affected with an irritating oil. The wife and three children
-had died within a month. The man practised the exanthematic treatment
-upon them, but did not even call in physicians who used that mode.
-The Superior Court of Pennsylvania deprived this believer in the
-Baunscheidt panacea of the custody of his surviving children [100].
-
-Before the common law every one undertaking to treat the sick
-professionally, and as the exercise of his vocation, is legally a
-physician. He has the rights of one, and when he assumes those rights
-the law lays upon him the heavy burdens and responsibilities of the
-profession. It is, of course, far otherwise if any statute prescribes
-particular qualifications for the practice of the profession and one
-undertakes to discharge its duties without such qualifications. Then
-he is doubly a wrong-doer; first, as against the statute; and, second,
-as against the public, who have a right to demand in him the ordinary
-proficiency of his profession [101].
-
-In Arkansas, California, Connecticut, Kentucky, Maryland,
-Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and
-Vermont, there appear to be no statutory requirements regulating the
-practice of physicians or surgeons. In Virginia, the practitioner
-only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine,
-Minnesota, Ohio and Wisconsin, a practitioner must either have a
-license from a medical board or society, constituted according to
-the law of the respective States, or else be a graduate of a medical
-college. In South Carolina and the District of Columbia, he must be
-licensed by the medical board; so, too, in Delaware. But this rule
-in Delaware does not apply to those who practise exclusively the
-|49| Thompsonian or botanic, or homœopathic systems; or practise
-gratuitously or for what is willingly given them.
-
-In New York State, early in the century, it was enacted that no one
-practising physic or surgery, without a license, could collect any
-debts incurred by such practice, and it was a penal offence so to
-practise. In 1830, the unauthorized practice of physic or surgery
-was made a misdemeanor punishable by fine or imprisonment, or both.
-Shortly afterwards the offence was made penal instead of criminal,
-and it was declared the provisions should not extend to any one using
-or applying for the benefit of any sick person any roots, barks, or
-herbs, the growth or produce of the United States. In 1844, all laws
-limiting the right to practise medicine or surgery were repealed; free
-trade in physic prevailed; all examinations, certificates and licenses
-were declared unnecessary; the repealing Act expressly permitted any
-person to practise physic subject to punishment, as for a misdemeanor,
-if he should be convicted of gross ignorance, malpractice, or immoral
-conduct. However, a change came, and, in 1874, the legislature declared
-that it was “a misdemeanor for any person to practise medicine or
-surgery in the State of New York, unless authorized so to do by a
-license or diploma from some chartered school, State board of medical
-examiners, or medical society,” or to practise under cover of a medical
-diploma illegally obtained. The penalty for the first offence is a fine
-of not more than $200; for a subsequent offence a fine of from $100 to
-$500, or imprisonment for not less than thirty days, or both [102]. In
-1880, it was further enacted that no person shall “practise physic
-or surgery within the State unless he is twenty-one years of age, and
-has been heretofore authorized so to do pursuant to the laws in force
-at the time of his authorization, or is hereafter authorized so to do,
-either by license from the regents of the University of the State |50|
-of New York, a diploma of an incorporated medical college within the
-State, or of one without the State approved of by some proper medical
-faculty within the State.” Every physician or surgeon, except those who
-had been practising ten years before 1880 (and a few others), had to
-register with the clerk of the county, where he practised, his name,
-residence, place of birth, together with his authority to practise.
-
-After the repeal of the old Medical Acts, and before the enactment
-of the law of 1874, the New York Court of Common Pleas had to define
-who was a physician or doctor, and it said the words simply meant,
-“a person who made it his business to practise physic; and it was
-wholly immaterial to what school of medicine he belonged, or whether
-he belonged to any. The legal signification of the term doctor means
-simply a practitioner of physic. The system pursued is immaterial.
-The law has nothing to do with the merits of particular systems.” The
-point came up in considering a case where an agreement of employment
-between an opera director and a vocalist provided for the forfeiture of
-a month’s salary in case the latter should fail to attend at any stated
-performance, except in the case of sickness, certified to by a doctor
-to be appointed by the director. The director appointed Dr. Quin, an
-homœopathist. Signor Corsi, the baritone, had a bad cold and a sore
-throat, but would not consult Dr. Quin, and proffered a certificate of
-an allopathist of his own choosing. This Max Maretzek would not take,
-and he refused to pay Corsi his salary. The singer sued, but the Court
-held that the provision was binding upon the artist, although the
-director had appointed a person in the practice of what is known as the
-homœopathic system of medicine. * * * The Court considered it was error
-to attempt in the then present state of medical science to recognize as
-a matter of law any one system of practice, or to declare that the |51|
-practitioner who follows a particular system is a doctor, and that one
-who pursues a different method is not [103].
-
-It has been held, however, that where a “regular physician” is spoken
-of, an allopathic is meant [104].
-
-In Iowa, the Court said, “As yet there is no particular system of
-medicine established or favoured by the laws of Iowa, and as no
-system is upheld none is prohibited. The regular, the botanic, the
-homœopathic, the hydropathic and other modes are alike unprohibited.
-Though the regular system has been advancing as a science for
-centuries, aided by research and experiment, by experience and skill,
-still the law regards it with no partiality or distinguishing favour,
-nor is it recognized as the exclusive standard or test by which the
-other systems are to be adjudged” [105].
-
-Notwithstanding the New York law of 1874, one can undertake to effect
-cures by manipulation without possessing a diploma. He may even
-maintain an action for the compensation agreed upon, although not a
-graduate and having no license to practise. A man professed to cure
-by rubbing, kneading and pressing the body. The court considered his
-system was rather one of nursing than of either medicine or surgery,
-and that it could not result in any injury to the person practised
-upon than that of possible financial loss [106]. Yet, in Maine, where
-a license is required, even a “medical clairvoyant” was held to come
-within the statute, and it was decided that he could not render his
-professional services without having the legal permission. In England,
-an unregistered person sued to recover his charges for galvanic
-operations, and for materials and electric fluid used therein. The jury
-decided in favour of the galvanizer, and the court |52| would not
-disturb the verdict, as the work was done before the Act of 1858 came
-into operation, but expressed a strong opinion that if the work had not
-been done when it was, it would have been impossible to hold that the
-case did not fall within the statute [107].
-
-A physician must practise according to the principles of his school.
-There are distinct and different schools of practice; allopathic or old
-school, homœopathic, Thompsonian, hydropathic or water cure; and if a
-physician of one of those schools is called in, his treatment is to be
-tested by the general doctrines of his school, not by those of other
-schools. It is presumed that patient and physician both understand
-this [108].
-
-A person professing to follow one system of medical treatment cannot
-be expected by his employer to practise another. While the regular
-physician is expected to follow the rules of the old school in the art
-of curing, the botanic physician must be equally expected to adhere to
-his adopted method. While on the part of every medical practitioner the
-law implies an undertaking that he will use an ordinary degree of care
-and skill in medical operations, and he is unquestionably liable for
-gross carelessness or unskilfulness in the management of his patients,
-still the person who employs a botanic practitioner has no right to
-expect the same kind of treatment or the same kind of medicine that
-a regular physician would administer. The law does not require a man
-to accomplish more than he undertakes, nor in a different manner from
-what he professes. So, if one is employed as a botanic physician, and
-performs his services with ordinary care and skill, in accordance
-with the system he professes to follow, that will be regarded as a
-legal defence to a suit for malpractice. It would show a full |53|
-compliance with his profession and undertaking, and if injury resulted
-to the plaintiff he could blame no one but himself [109].
-
-If a patient has not been deluded by any but himself, and voluntarily
-employs in one art a man who openly exercises another, his folly has no
-claim to indulgence. The old Mahomedan case, cited by Puffendorf with
-approbation, is very much to the point. A man who had a disorder in his
-eyes called on a farrier for a remedy. This worthy gave him a remedy
-commonly used by his quadrupedal patients. The man lost his sight, and
-brought an action against the farrier for damages; but the Judge said
-that no action would lie, for, if the complainant had not himself been
-an ass, he would never have employed a horse doctor. But when a case,
-the converse of this, came up, the Court remarked that, “stock and the
-human family are animals with many similitudes and some variances;
-so that, although it be admitted that one acquainted with the mode
-of treating diseases of the human family should not be relied on to
-select from the materia medica substances apt for the treatment of
-stock, still we think it clear that one having a scientific knowledge
-of the diseases of men must be presumed to have so much knowledge of
-the diseases of a mule as to enable him to determine whether a disease
-with which the animal is afflicted be of recent or long standing. An
-expert in the diseases of man is necessarily an expert in the diseases
-of animals, so as to make his opinion competent evidence upon a matter
-in reference to which he will swear that his scientific knowledge has
-enabled him to form an opinion.” And so a physician was allowed to give
-his opinion as to whether the disease with which a mule was afflicted
-was, or was not, of long standing, as he considered himself competent
-so to do from his knowledge |54| of the diseases to which human flesh
-is heir, although he knew nothing in particular about the diseases of
-stock [110].
-
-As one who employs a homœopathic or botanic physician knowingly cannot
-object to his bill because he was not treated in the way usual among
-orthodox practitioners; so, on the other hand, if a physician of one
-school is employed by one who has a _penchant_ for that particular
-system, and treats his patient according to a different system, he
-cannot recover for his services if he fail to benefit the patient [111].
-
-Proof that one practises physic is _prima facie_ evidence of his
-professional character; and if one holds himself out as a physician and
-surgeon, and acts as such, the law will hold him liable as such [112].
-
-A physician who merely casually makes up a prescription for a friend
-when meeting him upon the street, cannot be called his medical
-attendant; that term means one to whose care a sick person has been
-confided [113].
-
-
-
-
-|55|
-
-CHAPTER V.
-
-NEGLIGENCE AND MALPRACTICE.
-
-
-Malpractice, or _mala praxis_, may be defined to be an improper
-discharge of professional duties, either through want of skill or
-negligence. It is now more particularly applied to torts—when committed
-by a physician, surgeon, or apothecary.
-
-It is a great misdemeanor and offence at common law, whether it arise
-from curiosity and experiment, or from neglect; because it breaks the
-trust which the party has placed in the physician, tending directly to
-his destruction [114]. A medical man who is guilty of gross negligence,
-or evinces a gross ignorance of his profession, is criminally
-responsible for the consequences. And one who, by a culpable want of
-care and attention, or by the absence of a competent degree of skill
-and knowledge, causes injury to a patient, is liable to a civil action
-for damages; unless, indeed, such injury be the immediate result of
-intervening negligence on the part of the patient himself; or unless
-such patient has by his own carelessness directly conduced to such
-injury [115].
-
-It is sometimes difficult to distinguish between civil and criminal
-malpractice, or to say when one is criminally, and when only civilly
-responsible. But it may be said generally, that to constitute criminal
-liability there must be such a |56| degree of complete negligence in
-the practice as the law means by the word felonious [116].
-
-There may be malpractice by commission, _i. e._, from the want of
-ordinary skill in the discharge of professional duties; or malpractice
-by omission, _i. e._, from negligence in the discharge of such duties.
-
-The question, “Was there negligence?” will be answered from the stand
-point of the law, not from that of medicine, when a matter comes to be
-judicially investigated. The law as applicable to other professions
-and occupations will be applied to the medical or surgical case under
-consideration.
-
-Strictly speaking, the term _negligence_ is limited in its application
-to carelessness in the performance of professional duty; _carelessness_
-is its proper synonyme. Duties performed without care, caution,
-attention, diligence, skill, prudence, or judgment, are negligently
-performed. Acts are so designated which are performed by one
-heedlessly, even when there is no purpose to omit the performance of
-duty. It is _non-feasance_, not malfeasance. It is the omitting to do,
-and not the ill-doing—it is the leaving undone what one ought to have
-done—not the doing what one ought not to have done—this last being a
-want of skill. In its various degrees it ranges between simple accident
-and actual fraud, the latter beginning where negligence ends [117].
-
-Wharton, after criticising various definitions, proposes this,
-“Negligence, in its civil relations, is such an inadvertent
-imperfection, by a responsible human agent, in the discharge of a legal
-duty, as immediately produces, in an ordinary and natural sequence,
-a damage to another” [118]. |57| Negligence, in medical practice, is
-a violation of the obligation that medical men impliedly enter into
-when they accept the charge of a patient; such obligation enjoins care
-and caution in what they do, and in what they omit to do. A medical
-man is liable as well for want of skill, as for negligence, and an
-injured party may bring his action to recover for damage resulting from
-ignorance and carelessness, and recover on proving that he sustained
-damage from either [119].
-
-Physicians and surgeons have specified duties imposed upon them when
-they undertake the charge of a patient. Refusing to perform their part
-of the implied contract will constitute negligence, and for all injury
-resulting therefrom they will be held accountable. It will constitute
-a tort for which the law gives damages [120]. Of course a medical man,
-unless he be an officer of the Government, charged with specific duties
-which he thereby violates, has a legal right to decline to take charge
-of a particular case. When in charge, however, he is liable for any
-negligence, whether of omission or commission, which may produce injury
-to his patient. _Voluntatis est suscipere mandatum, necessitas est
-consummare_ [121].
-
-There is an implied obligation on a man holding himself out to the
-community as a physician and surgeon, and practising his profession,
-that he should possess the ordinary skill requisite for reasonable
-success, and that he should attend to the case with due care [122].
-If the patient knows of the practitioner’s want of skill, he cannot
-complain of the lack of that which he knew did not exist. |58|
-
-A surgeon does not become an actual insurer [123]; the implied contract
-is not to cure, but to possess and employ in the treatment of the
-case such reasonable skill and diligence as are ordinarily exercised
-by thoroughly educated surgeons; and in judging of the degree of
-skill and attention required, regard is to be had to the time and
-place. The law implies that in the treatment of all cases which they
-undertake medical men will exercise reasonable and ordinary care and
-diligence; they are bound always to use their best skill and judgment
-in determining the nature of the malady and the best mode of treatment,
-and in all respects to do their best to secure a perfect restoration
-of their patients to health and soundness. But they do not impliedly
-warrant the recovery of their patients, and are not liable on account
-of any failure in that respect, unless it is through some default of
-their own [124]. Tindal, C.J., in summing up to the jury in an action
-for improper treatment to a hand and wrist, whereby the plaintiff
-lost the use of her hand, well said, “Every person who enters into
-a learned profession undertakes to bring to the exercise of it a
-reasonable degree of care and skill. He does not undertake, if he is a
-surgeon, that he will perform a cure, nor does he undertake to use the
-highest possible degree of skill. There may be persons who have higher
-education and greater advantages than he has, but he undertakes to
-bring a fair, reasonable and competent degree of skill.”
-
-Wharton and Stillé thus state the law: “A physician and surgeon is
-only responsible for ordinary skill, etc., and for the exercise of his
-best judgment in matters of doubt. He is not accountable for a want of
-the highest degree of skill [125], nor for an erroneous, though honest
-conclusion, |59| according to his best light [126]. The law has no
-allowance for quackery. It demands qualification in the profession
-practised, not extraordinary skill such as belongs to few men of rare
-genius and endowment, but that degree which ordinarily characterizes
-the profession. And in determining whether the practitioner possesses
-ordinary skill, regard must be had to the advanced state of the
-profession at the time [127].
-
-As to what is ordinary or reasonable skill or care, the rule has
-sometimes been laid down thus favourably, “The least amount of skill
-with which a fair proportion of the practitioners of a given locality
-are endowed, is to be taken as the criterion by which to judge the
-physician’s skill or ability” [128]. Or, as another writer puts it,
-“It has been finally determined to consider the least amount of skill
-compatible with a scientific knowledge of the healing art as sufficient
-to predicate the existence of ordinary skill” [129]. To render a medical
-man liable even civilly for negligence, or want of due care or skill,
-it is not enough that there has been a less degree of skill than some
-other medical man may have shown, or a less degree of care than even
-he himself might have bestowed, nor is it enough that he himself
-acknowledges some degree of want of care; there must have been a want
-of competent and ordinary care and skill, and to such a degree as to
-have led to a bad result [130].
-
-In a city there are many means of professional culture which are
-inaccessible in the country. Hospitals can be walked, libraries
-visited, new books and appliances bought, |60| constant intercourse
-had with the greater lights of the profession. What is due diligence,
-therefore, in the city, is not due diligence in the country; and what
-is due diligence in the country is not due diligence in the city.
-Hence, the question, in each particular case, is to be determined,
-not by enquiring what would be the average diligence or skill of the
-profession (which would be a thing very difficult to reach), but
-what would be the diligence or skill of an honest, intelligent and
-responsible practitioner in the position in which the one in question
-was placed [131].
-
-The skill required is not an _absolute_ but a _relative_ qualification;
-and as such, therefore, always subordinated to whatever conventional
-standard of professional proficiency we may choose to adopt. Like
-morals, it may vary with times and places, or, if based upon
-representative intellects, it is clear that the ideal type selected
-must be one to which the majority, rather than the minority, of minds
-approximate [132]. A physician, when called upon to manage a case, is
-not required to apply the skill and care which could be applied by the
-perfect ideal physician, for the reason that from the limitation of the
-human intellect no perfect ideal physician exists in practice, and,
-from the limitation of human endurance, no perfect ideal physician,
-even if he existed, could watch a patient unintermittingly. But a
-physician, when called upon to manage a case, is bound to exercise
-the skill and vigilance which good and faithful physicians, under the
-circumstances in which he is placed, would exercise. If called upon in
-a country town, remote from the great centres of scientific activity,
-to attend to an exceptional case which requires immediate action, he
-is not liable if he does not employ those mechanisms which only a
-residence in such a centre of scientific activity would enable him to
-procure. On the other hand, a physician living in such a |61| centre
-is liable for negligence, if, when called upon in such a case, he does
-not use such mechanism, supposing its application to be advisable [133].
-
-A physician and surgeon is bound to possess the ordinary skill,
-learning and experience of his profession generally at the time in
-similar localities, and with similar opportunities for experience [134].
-
-A patient is entitled to the benefit of the increased knowledge of
-the day. The physician or surgeon who assumes to exercise the healing
-art is bound to be up to the improvements of the day. The standard of
-ordinary skill is on the advance; and he who would not be found wanting
-must apply himself with all diligence to the most accredited sources of
-knowledge [135].
-
-Sex is no excuse for negligence; there is no rule of law to the effect
-that less care is required of a woman than a man. A lady physician
-cannot as such claim any privilege of exemption from the care and
-caution required of men, any more than a woman acting as a locomotive
-engineer could be allowed to use less diligence to avoid mischief to
-others than men must use. Male and female are governed by the same rule
-in this respect: the rule of prudent regard for the rights of others
-knows nothing of sex [136]. Inasmuch as gratuitous services are more
-generally rendered by young and inexperienced physicians than by those
-who are well established in their business, a presumption naturally
-arises that one who renders such services is not possessed of great
-skill, and was not supposed to be by the patient. This presumption may
-be overcome by proof to the contrary; and the physician must be judged
-by the |62| standard to which he led the patient to believe he had
-attained; or, if he has done nothing to mislead his patient upon this
-point, his responsibility will be measured by the degree of skill which
-he is proved actually to possess [137].
-
-It has been laid down in Maine, that physicians and surgeons who offer
-themselves to the public as practitioners impliedly promise thereby
-that they possess the requisite skill and knowledge to enable them to
-heal such cases as they undertake with reasonable success; and that
-this rule does not require the possession of the highest, or even the
-average skill, knowledge and experience, but only such as will enable
-them to treat the case understandingly and safely [138].
-
-Considering how much the treatment of a case depends upon its varying
-phases, which change as quickly as the shifting hues of the heavens, it
-is hard for one medical man to come forward and condemn the treatment
-of a brother in the profession, and to say he would have done this or
-that, when probably, had he been in a position to judge of the case
-from the first, he would have done no better [139].
-
-If a physician does not bring to the treatment of an injury or of
-a disease the ordinary amount of skill possessed by those in his
-profession, it is immaterial how high his standing may be; if he has
-skill and does not apply it he is guilty of negligence, and if he
-does not have it then he is liable for the want of it. When a case of
-alleged malpractice is before the court, the questions to be considered
-are: Did the defendant possess the ordinary skill of persons acting as
-medical men? If he did, was he chargeable in not applying it in the
-treatment of the patient? Whether |63| he possessed greater skill,
-or had been successful in the treatment of other patients, is wholly
-immaterial. Where the point in issue is whether skill was applied in a
-given case, the possession of skill without proof that it was applied
-will be no defence [140].
-
-The law punishes negligence no less than want of skill. It is
-undoubtedly true that the physician is the best judge of the degree
-of attention which any case requires. Nor is it in the omission to
-make a given number of visits that negligence resides, but whenever
-any important step in the treatment of disease is neglected, or any
-important stage of it overlooked, which might have been used for the
-benefit of the patient, then it may be averred that the physician has
-been guilty of negligence, however assiduous he may otherwise have
-been at different periods of his treatment. Skill and diligence may be
-considered, therefore, as indissolubly associated, since skill judges
-of the measure of diligence required and also furnishes the latter with
-the eyes of observation and the hands of execution; while diligence on
-her part gives cumulative power to skill, and leaves no link wanting
-in the continuous train of treatment [141]. The measure of skill which
-a physician is bound to exercise is not affected by his refusal of the
-proffer of assistance from other medical men [142]. The Court said that
-such a refusal is no more than an implied declaration of ability to
-treat the case properly. By assuming and continuing the charge of the
-patient, the physician is under an obligation to exercise a degree of
-skill which is neither increased or diminished by such refusal.
-
-In considering the skill and knowledge of a practitioner regard must
-be had to the school to which he professes to |64| belong; and where
-there is no particular system established or favoured by law, and no
-system is prohibited, every physician is expected to practise according
-to his professed and avowed system. A botanic physician is to be gauged
-according to the botanic system, and a homœopathic physician by the
-homœopathic system: so if a botanic doctor, or a homœopathist, is sued
-for malpractice he may free himself from blame by showing that his
-practice was according to the rules of the school which he professed
-and was known to follow, and a departure from the received canons of
-his system will be taken as a want of ordinary skill. But the jury is
-not to judge by determining which school in their own view is best [143].
-
-A sign or other proof that one actually practises physic or surgery
-is _prima facie_ evidence of his professional character [144]. And
-when a physician’s skill is at issue he may adduce evidence to prove
-the existence of such general skill on his part, irrespective of the
-particular case as to which the question arises; and he may show this
-by the testimony of those in his profession who can speak from personal
-knowledge of his practice [145].
-
-The possession of a medical diploma is _prima facie_ of ordinary skill.
-But of course it must be shown that the college from which it emanated
-had authority to grant degrees in medicine [146].
-
-If, in the absence of a medical man, a non-professional person is
-called in to assist a person taken suddenly sick, such amateur is not
-liable for special or slight negligence, |65| that is for the lack of
-that diligence and skill belonging to a professed physician; but he
-is liable for gross negligence (the _culpa lata_ of the Latinists),
-that is, the lack of the diligence and skill belonging to ordinary
-unprofessional persons of common sense; while, as we have seen, the
-physician is liable for slight negligence (_culpa levis_), if he either
-undertakes the case without the ordinary qualifications of a physician
-under such circumstances, or manages it without the ordinary skill of
-such a physician [147].
-
-If a physician treats a patient without being requested so to do,
-he is held to a more strict account than in ordinary cases. In one
-instance, a medical man administered physic to a slave without the
-owner’s consent, and the court held him responsible for all the evil
-consequences which resulted [148]; and this rule is still more rigidly
-enforced when the volunteer by his officiousness excludes a competent
-practitioner who would have been otherwise obtainable. If one who is
-not a regular medical practitioner professes to deal with the life and
-health of others, he is bound to have and employ competent skill [149].
-
-The mere fact that he renders his services gratuitously, or out of
-charity, does not free the practitioner from all liability. But,
-according to some authorities, the attendant in such cases is held to
-a less strict accountability than when his services are based upon
-an implied contract, and is liable only for gross negligence [150].
-Amos, in his “Science of Law,” says, “The less the payment made in
-return for diligence, the less the diligence that is expected; and if
-no payment at all is made, as little diligence as possible is |66|
-usually expected, though it may be that some is.” Wharton cannot accept
-this doctrine from humane and other considerations [151]. And Ordronaux
-says that it may be considered as a received principle of law that, a
-physician, though rendering his services gratuitously, as in hospitals
-or among the out-door poor, is bound to exhibit the same degree of
-ordinary skill and diligence in the treatment of a patient as if he
-were acting under the incentive of a consideration or prospective
-reward. If he undertakes to execute the trust reposed in him, he is
-bound to do it well, or else he may be compelled to respond in damages
-to the party injured by his misfeasance. It is not the consideration
-which constitutes the foundation of his responsibility, but the fact
-that in voluntarily accepting the mandate, _spondet peritiam artis_,
-indiscriminately to all. He cannot apportion medical skill or his
-diligence to meet the prospective emoluments flowing out of any given
-case [152].
-
-In a criminal case, Denman, J., told the jury that it made no
-difference whether a medical man was dealing with a patient or acting
-as a volunteer, and dealing with a friend or with his own wife [153].
-But Cockburn, C.J., in a case where a patient in a hospital sued two
-surgeons for injury received from being scalded in a bath, in which
-he had been placed by the nurses on the orders of the surgeons, said,
-no doubt persons who went as patients into hospitals were not to be
-treated with negligence; but, on the other hand, medical gentlemen
-who gave their services gratuitously were not to be made liable for
-negligence for which they were not personally responsible. The jury
-gave a verdict in favour of the doctors [154].
-
-If a sick man applies to one, not a physician, for |67| gratuitous
-medical assistance, and this one either does not exert all his skill,
-or administers improper medicine to the best of his ability, he is not
-liable for damage [155].
-
-The amount of prudence which a man must exercise in selecting a
-physician, and the means to be cured, is the same that any prudent and
-reasonable man would do in any other matter [156].
-
-It is the duty of a patient to co-operate with his medical adviser, and
-to conform to the necessary prescriptions; and if, under the pressure
-of pain, he does not, or, if by refusing to adopt the remedies of the
-physician, he frustrates the latter’s endeavours, or, if he aggravates
-the case by his own misconduct, he cannot charge against the physician
-the consequences due distinctively to himself; for no one can take
-advantage of his own wrong. In such a case, even if the physician’s
-treatment was objectionable, he can only recover nominal damages; and
-if the injury was due to the patient’s fractiousness and disregard of
-the doctor’s orders (the latter being judicious), no action at all will
-lie [157].
-
-In Ohio, it was held that, in an action for malpractice in the
-treatment of a swollen ankle and diseased foot, the Judge had not erred
-in saying to the jury, “If you find that the defendant directed the
-plaintiff to observe absolute rest as a part of the treatment to his
-foot, and that direction was such as a surgeon or physician of ordinary
-skill would adopt or sanction, and the patient negligently failed to
-observe such direction, or purposely disobeyed the same, and that such
-negligence or disobedience approximately |68| contributed to the injury
-of which he complains, he cannot recover in this action; although
-he may prove that the defendant’s negligence and want of skill also
-contributed to the injury. The injured party must not have contributed
-at all.” The information given by a surgeon to his patient concerning
-the nature of his malady is a circumstance that should be considered in
-determining whether the patient, in disobeying the instructions of the
-surgeon, was guilty of negligence or not [158].
-
-The general doctrine of contributory negligence is this, that although
-there may have been negligence on the part of the plaintiff, yet,
-unless he might, by the exercise of ordinary care, have avoided the
-consequence of the defendant’s negligence, he is entitled to recover;
-if, by ordinary care, he might have avoided it, then he is the author
-of his own wrong [159]. The rule is laid down in another case as
-follows: If it be impossible to separate the injury occasioned by the
-plaintiff from that occasioned by the neglect of the defendant, the
-plaintiff cannot recover; if, however, they can be separated, for such
-injury as the plaintiff may show thus preceded solely from the want of
-ordinary skill or ordinary care of the defendant, he may recover [160].
-
-The patient must exercise ordinary care and prudence; he is not bound
-to observe the utmost possible caution. And the ordinary care required
-has been defined to be that degree of care which persons of ordinary
-care and prudence are accustomed to use and employ under similar
-circumstances [161]. In fact the plaintiff must use his own senses [162].
-Still, if he is rash and negligent, and yet the |69| physician has
-been so very neglectful that ordinary care on the part of the patient
-would not have prevented the unfortunate result, the plaintiff will be
-entitled to recover damages [163]. So, where the doctor’s negligence is
-the proximate cause of the injury, and that of the patient only the
-remote cause [164]. And proximate does not mean the first or nearest in
-order of time, but the first or nearest in order of cause [165].
-
-It is to be remembered that a physician may be called to prescribe for
-cases which originated in the carelessness of the patient; and though
-such carelessness would remotely contribute to the injury sued for,
-it would not relieve the physician from liability for his distinct
-negligence and the separate injury occasioned thereby. The patient
-may also, while he is under treatment, injure himself by his own
-carelessness; yet he may recover of the physician, if he carelessly
-or unskilfully treats him afterwards, and thus does him a distinct
-injury [166]. The burden of proving that the plaintiff’s own negligence
-contributed to the injury rests upon the defendant [167]. Evidence that
-the patient requested the defendant to perform an operation, or do
-an act, which caused the injury, does not tend to prove contributory
-negligence, if the injury was not the natural result of such act
-carefully performed [168].
-
-If the patient is insane, and so incapable of co-operating with the
-physician, contributory negligence is not imputable. And this inability
-the physician is bound to take into account [169]. |70|
-
-If the physician has injured the patient by his negligence, the
-refusal of the patient, or his custodian, to allow an experiment,
-by another physician, to repair the injury is not contributory
-negligence, unless he had reasonable assurance of the success of the
-experiment [170].
-
-The practitioner is liable where a patient suffers from his want of
-ordinary skill and diligence, even though the carelessness of those
-nursing the patient may have aggravated the case and rendered the
-ultimate condition of the patient worse than it otherwise would have
-been. Although this carelessness in nursing may be proved in mitigation
-of the damages sought against the physician, it will not serve to
-bar the right of action [171]. And where two surgeons, who gave their
-services gratuitously to the sick in a hospital, were sued by one
-Perionowsky, for maltreatment there by causing him to be placed in a
-bath so hot that he was scalded and injured, and it was proved that
-the bath, though ordered by the defendants, was actually administered
-by the nurses, and that the defendants were not present when it was
-given, and that it was no part of their duty personally to superintend
-such things. Cockburn, C.J., in summing up, told the jury that the
-surgeons would not be liable for the neglect of the nurses unless near
-enough to be aware of it and to prevent it [172]. And, in another case,
-the court held that if a jury were to find that the parents of the
-patient (a boy) were in charge of and nursed him during his sickness,
-and that they did not obey the directions of the physician in regard to
-the treatment and care of their son during such time, but disregarded
-the same, and thereby contributed to the several injuries of which he
-complains, he could not recover. If the injuries were |71| the result
-of mutual and concurring neglect of the parties no action to recover
-damages therefor will lie [173].
-
-The medical man has ofttimes to sail between Scylla and Charybdis.
-While, on the one hand, he is bound to consult the attainable
-literature in his profession, and to diligently gather in, for every
-case he undertakes to treat, the experience of his confreres—for in
-determining what is negligence, the improvements that are constantly
-taking place are always considered—at the same time he must not try new
-modes or methods too readily, lest a Judge say of him, as one said in
-a surgery case, “It appears from the evidence of the surgeons that it
-was improper to disunite the callus without consent. This is the usage
-and law of surgeons. Then it was ignorance and unskilfulness, in that
-very particular, to do contrary to the rule of the profession what no
-surgeon ought to have done. For anything that appears to the court,
-this was the first experiment made with this new instrument; and, if
-it was, it was a rash action, and he who acts rashly acts ignorantly;
-and although the defendants (a surgeon and an apothecary), in general,
-may be as skilful in their respective professions as any two gentlemen
-in England, yet the court cannot help saying that, in this particular
-case, they acted ignorantly and unskilfully, contrary to the known rule
-and usage of surgeons;” (and they had to pay the plaintiff £500 for the
-damage to his leg) [174]. Success is the only thing that justifies an
-innovation either in politics or physic.
-
-When it is proved that the physician has omitted altogether the
-established mode of treatment, and has adopted one that has proved to
-be injurious, evidence of skill, or of reputation for skill, is wholly
-immaterial, except to show (what the law presumes) that he possesses
-the ordinary |72| degree of skill of persons engaged in the same
-profession. In such a case, it is of no consequence how much skill he
-may have; he has demonstrated a want of it in the treatment of the
-particular case.
-
-The failure to use skill, if the surgeon has it, may be negligence; but
-when the treatment adopted is not in accordance with the established
-practice, but is positively injurious, the case is not one of
-negligence, but of want of skill. If the case is a new one, the patient
-must trust to the skill and experience of the surgeon he calls. So must
-he if the injury or disease is attended with injury to other parts,
-or other diseases have developed themselves, for which there is no
-established mode of treatment. But when the case is one as to which a
-system of treatment has been followed for a long time, there should be
-no departure from it, unless the surgeon who does it is prepared to
-take the risk of establishing by his success the propriety and safety
-of his experiment. This rule protects the community against reckless
-experiments, while it admits the adoption of new remedies and modes of
-treatment only when their benefits have been demonstrated, or where,
-from the necessity of the case, the surgeon or physician must be left
-to the exercise of his own skill and experience [175].
-
-Physicians are not bound to comply with the demands of the public; they
-may accept or refuse a call: but having accepted, one must continue in
-attendance upon the case until recovery, unless dismissed, or unless
-he has withdrawn in a proper way. Even if his services are gratuitous,
-he must continue them until reasonable time has been given to procure
-other attendance.
-
-A husband sued a medical man for neglecting to attend |73| his wife,
-according to agreement, during childbirth, and the jury gave him a
-verdict of $500; the court considered that the physician had broken his
-contract and was liable therefor, but reduced the damages to a nominal
-sum, as, in an action on contract, the husband could not recover for
-the personal injury and sufferings of the wife [176].
-
-If a physician at any time desires to withdraw from a case, he must
-give such reasonable notice as will enable the patient to obtain
-assistance elsewhere. He has a right to withdraw at any time,
-especially with his patient’s consent, but if he insists upon that
-assent as a shield from liability for any negligence of which he may
-have been guilty, or for any malpractice committed, the patient may
-show, if he can, that the consent was obtained by representations
-that were false; and then the consent will be no protection against
-liability for damage that had occurred before the consent was
-given [177].
-
-While it is quite competent for a physician and his patient to make
-any agreement they think fit, limiting the attendance to a longer or
-shorter period, or to a single visit; and while, if there is no such
-limitation, the physician can discontinue his attendance at his own
-pleasure, after giving reasonable notice of his intention to do so;
-yet, if he is sent for at the time of an injury by one whose family
-physician he has been for years, the effect of his responding to the
-call will be an engagement to attend upon the case so long as it
-requires attention, unless he gives notice to the contrary, or is
-discharged by the patient; and he is bound to use ordinary care and
-skill, not only in his attendance but in determining when it may be
-safely and properly discontinued [178]. Ordronaux says a physician
-cannot |74| abandon a case without due notice. To do so would
-constitute negligence of a grave character, and render him answerable
-for all injury sustained by the patient in consequence thereof. The
-contract is for the performance of a service of indefinite duration,
-and usually without stipulation for its continuance during any
-particular period. It is plainly a fraud upon the employer to abandon
-or neglect discharging the trust after having accepted it, for the
-acceptance constitutes a promise, and a promise is a good foundation
-upon which to rest a legal obligation. If the physician retires from
-it, he can only do so by placing the employer in as good circumstances
-as he found him, and by giving due notice of his intention [179].
-
-A medical man is liable to a civil action for injury resulting to
-a patient from his negligence or unskilful treatment, although the
-patient neither employed nor was to pay him. As Baron Parke said:
-“If an apothecary administers improper medicines to his patient, or
-a surgeon unskilfully treats him, and thereby injures his health, he
-will be liable to the patient, even where the father or friend of the
-patient may have been the contracting party with the apothecary or
-surgeon; for, though no such contract had been made, the apothecary,
-if he gave improper medicines, or the surgeon, if he took him as a
-patient and unskilfully treated him, would be liable to an action for
-a misfeasance” [180]. And as Richards, C.B., said: “From the necessity
-of the thing, the only person who can properly sustain an action for
-damages for an injury done to the person of a patient, is the patient
-himself, for damages could not be given on that account to any other
-person, although the surgeon may have been retained and employed by
-him to undertake the case” [181]; and in this same case, which was an
-|75| action brought by a husband and a wife for an injury done to the
-wife, Garrow, B., said; “In the practice of surgery, the public are
-exposed to great risks from the number of ignorant persons professing
-a knowledge of the art, without the least pretensions to the most
-necessary qualifications, and they often inflict very serious injury
-on those who are so unfortunate as to fall into their hands. In cases
-of the most brutal inattention and neglect, the patients would be
-precluded frequently from seeking damages by course of law, if it
-were necessary to enable them to recover, that there should have been
-a previous retainer, on their part, of the person professing to be
-able to cure them. In all cases of surgeons retained by any public
-establishments, it would happen that the patient would be without
-redress, for it could hardly be expected that the governors of an
-infirmary should bring an action against the surgeon employed by them
-to attend the child of poor parents, who may have suffered from his
-negligence and inattention” [182].
-
-As in the case of an attorney, so with a physician, it is not every
-mistake or misapprehension that will make him liable to an action for
-negligence. There is scarcely a case in which a physician is called in,
-in which he may not be charged with _culpa levissima_, or the omission
-to ward off every possible casualty; and if _culpa levissima_ makes
-him liable, then his liability becomes almost co-extensive with his
-practice. He is only responsible for _culpa levis_ [183].
-
-It must be remembered that the implied liability of a physician or
-surgeon, retained to treat a case professionally, extends no further,
-in the absence of a special agreement, than that he will indemnify his
-patient against any injurious consequences resulting from his want of
-the proper degree of skill, care or diligence, in the execution of his
-|76| employment; and in an action against the surgeon for malpractice,
-the plaintiff, if he shows no injury resulting from negligence or want
-of skill in the defendant, will not be entitled to recover even nominal
-damages [184].
-
-The question whether the physician possessed adequate skill, and
-exercised adequate care, is, in a case of malpractice, for the jury
-to decide. Theoretically, and we may add, literally, the jury have
-the unquestioned right to decide every controverted fact, even if its
-decision may involve the most abstrusively difficult and uncertain
-questions in the regions of scientific enquiry. But it is for the
-Judge to determine whether there is or not such evidence as ought
-reasonably to satisfy the jury that the fact sought to be proved is
-established. As Lord Cairns once put it, “The Judge has to say whether
-any facts have been established by evidence from which negligence _may
-be reasonably inferred_, the jury have to say whether from these facts,
-when submitted to them, _negligence ought to be inferred_.” It is for
-the Judge to say whether the case should or should not be submitted
-to the jury; and the rule is imperative that it should not be, unless
-the evidence be such that therefrom the negligence charged may be
-reasonably inferred [185].
-
-Judges are generally desirous of impressing on juries the necessity of
-construing everything in the most favourable way for the defendant,
-when such actions are brought against a surgeon. “It is notorious
-there are many cases in which jurors are not the most dispassionate or
-most competent persons to try the rights of parties, and an action of
-this kind (_i. e._, against a surgeon for malpractice) comes within
-this class. In such actions the Judge should |77| firmly assume the
-responsibility of determining himself whether sufficient evidence has
-or has not been given to compel him to leave the case to the jury” [186].
-
-Medical writers speak strongly against such actions. One says, “In
-the majority of cases these actions are the direct offspring of envy,
-hatred, malice and all uncharitableness, and when, rocked in the
-cradle of calumny and nursed by the hand of speculation, injury is
-often inflicted upon the character of the physician, who is at the
-same time left without any proper remedy at law. The effect, also, of
-such suits upon the public mind is apt to be pernicious, for success
-in obtaining damages often stimulates others into a repetition of
-the experiment, and the physician consequently practises his art
-in chains, being perpetually exposed to the risk of a suit, which
-may ruin his reputation as well as his fortune. It becomes lawyers,
-therefore, to consider, when called upon to institute such suits, that
-little value can be placed on the _ipse dixit_ of a layman sitting as
-critic upon the professional conduct of a physician. And that, aside
-from such personal delinquencies as drunkenness, or gross negligence,
-cruelty towards, or abandonment of his patient, the field in which the
-physician discharges his professional duties is practically _terra
-incognita_ to the unlearned, and one where no lay critic can follow
-him” [187].
-
-The same critic points out that the majority of suits for malpractice
-have been brought against surgeons and not against physicians.
-“Failure is rarely excused in a surgeon. He is expected to be an
-adroit medical carpenter who, with knife and saw and splint, can so
-re-construct the fractured or disjointed members of the human body as
-to leave no mark or line as evidence of their previous |78| disruption.
-On the other hand, the physician, enshrined within the penetralia
-of his mystic art, and mounted upon a Delphic tripod, inaccessible
-to vulgar criticism, pronounces his diagnosis and formulizes his
-prescriptions with unquestioned judgment. His diagnosis may be faulty,
-his medicines ill-selected, or ill-timed in their administration, and
-still no blame be incurred by him for any evil consequences that may
-ensue. For who will presume to say, in case of the patient’s death,
-that he had not naturally reached that last illness foreordained to
-all men, and of which the physician’s unsuccessful treatment is only
-official testimony? Who knows, in fact, when a man has reached his last
-illness until he dies? * * * And, as a corollary to this, strange as it
-may seem, one might, through unskilfulness, sacrifice a human life with
-more impunity than he could mutilate or deform a toe or a finger” [188].
-
-The question of the amount of damages for personal injuries arising
-from malpractice is one resting a good deal in the discretion of the
-jury, and must of necessity be more or less uncertain. The party must
-recover all his damages, present and prospective, in one action.
-If the damages are so excessive as to strike all mankind, at first
-blush, as beyond all measure unreasonable and outrageous, and such as
-manifestly show the jury to have been actuated by passion, partiality,
-corruption, or prejudice, the court will grant a new trial. Sometimes,
-however, courts have granted new trials for excessive damages where the
-excessiveness has fallen short of this.
-
-In considering what should be taken into account by a jury estimating
-the amount of damages to be awarded, the American courts have held,
-that the loss of time caused by the injury is to be considered [189].
-Also, the age and |79| situation in life of the injured one,
-the expenses incurred, the permanent effect upon the plaintiff’s
-capacity to pursue his professional calling, or to support himself as
-beforetimes, are essential factors [190].
-
-Bodily pain, too, is to be considered and compensated for; and so much
-of mental suffering as may be indivisibly connected with it; but mental
-anguish and agony cannot be measured by money—the courts consider—and
-there is no established rule authoritatively commanding such a futile
-effort [191]. In fact, the courts say, that one should get compensation
-for all the injuries that are the legal, direct, and necessary results
-of the malpractice [192].
-
-The late case of _Phillips_ v. _The South Western Railway Company_
-fully enunciates what, in the estimation of the English Judges, are
-to be considered in fixing the damages. Cockburn, C.J., said, that
-the heads of damages were the bodily injuries sustained, the pain
-undergone, the effect on the health of the sufferer, according to
-its degree and its probable duration as likely to be temporary or
-permanent, the expenses incidental to attempts to effect a cure,
-and the pecuniary loss sustained through inability to attend to
-a profession or business [193]. In the Court of Appeal, Bramwell,
-L.J., remarked, “You must give the plaintiff a compensation for
-his pecuniary loss, you must give him compensation for his pain and
-bodily suffering. Of course, it is almost impossible to give an
-injured man what can be strictly called compensation, but you must
-take a reasonable view of the case, and must consider, under all the
-circumstances, what is a fair amount to be awarded to |80| him” [194].
-Phillips, who was a physician of middle age and robust health, making
-£5,000 a year, was so injured by a railway company, that he was totally
-unable to attend to his business; his life was a burden and a source of
-utmost pain, and the probability was that he would never recover. The
-jury gave him £16,000, and the court refused to consider it excessive.
-
-A physician, who has received personal injuries, may recover damages
-for loss of business as a physician, although he has not such a
-degree as would entitle him to maintain an action for professional
-services [195]. The value of the fees which he would have received
-without suit may be estimated.
-
-An action cannot be maintained against the representatives of a
-deceased surgeon to recover damages arising from the unskilful
-treatment of a patient. Such actions do not survive [196].
-
-A medical practitioner who causes the death of a patient by such
-malpractice or negligence as would have entitled the patient (if death
-had not ensued) to maintain an action and recover damages against him
-in respect of the injury sustained thereby, is liable to an action for
-damages, notwithstanding the death of the patient, and although the
-circumstances under which the death was caused amount to felony. Such
-action may be brought for the benefit of the wife, husband, parent
-and child of the deceased, and the jury may give such damages as they
-may think proportioned to the injury resulting from such death to the
-parties respectively for whom and for whose benefit such |81| action
-is brought; but such injury must be a pecuniary loss, and the jury may
-not give damages as a _solatium_ [197]. In some of the American cases
-the mental anguish caused by the injury has been taken into account in
-estimating the damages to be given [198].
-
-Not more than one action, however, will lie for and in respect of
-the same subject-matter of complaint, and every such action must be
-commenced within twelve months after the death of the person injured.
-
-
-
-
-|82|
-
-CHAPTER VI.
-
-CRIMINAL MALPRACTICE.
-
-
-Whenever death ensues as the alleged consequence of malpractice it
-becomes necessary to inquire into the conduct of the physician, so as
-to determine how far his want of skill, or negligence, has conspired
-to produce it. The offence may, under certain circumstances indicating
-a wanton and malicious disregard of human life, amount to murder. Of
-course, a medical practitioner who should intentionally, and with
-malice, cause the death of a patient, would be held guilty of this
-crime; but in no case will an indictment for murder lie, unless there
-be a felonious destruction of life, with malice either express or
-implied. If a patient die from want of competent skill or sufficient
-attention the practitioner is guilty of manslaughter [199]. “If one
-that is of the mystery of a physician take upon him the cure of a
-man, and giveth him such physic so as he dieth thereof, without any
-felonious intent and against his will, it is no homicide.” So saith my
-Lord Coke. Blackstone says, “This is neither murder nor manslaughter,
-but misadventure, and he shall not be punished criminally.” On the
-one hand, we must be careful and most anxious to prevent people from
-tampering in physic so as to trifle with the life of man; and on the
-other hand, we must take care not to charge criminally a person who is
-of general skill because he has been unfortunate in a particular case.
-It is God who gives, man only administers, medicine; and the medicine
-|83| that the most skilful may administer may not be productive of
-the expected effect; but it would be a dreadful thing if a man were to
-be called in question, criminally, whenever he happened to miscarry in
-his practice. It would be most fatal to the efficiency of the medical
-profession if no one could administer medicine without a halter round
-his neck [200].
-
-At one time it was held, that if one, not a regular physician or
-surgeon, should administer a medicine or perform an operation with a
-fatal effect, it would be manslaughter at the least; but long since,
-by Sir Matthew Hale, (one of the greatest Judges that ever adorned the
-English Bench), this doctrine was questioned [201]. Now, however, both
-in England and America, it is well settled that it makes no difference
-whether the party be a regular practitioner or not; if he, _bona fide_
-and honestly exercising his best skill to cure a patient, performs an
-operation or administers a medicine which causes the patient’s death
-he is not guilty of manslaughter. “God forbid,” saith Lord Hale, “that
-any mischance of this kind should make a person not licensed, guilty
-of murder or manslaughter. This doctrine, that if any one dies under
-the hand of an unlicensed physician, it is felony, is apochryphal and
-fitted, I fear, to gratify and flatter doctors and licentiates in
-physic; though it may have its use, to make people cautious and wary
-how they take upon themselves too much, in this dangerous employment.”
-Hullock, B., remarked that it would be most dangerous for it to get
-abroad that if an operation should fail the surgeon would be liable to
-be prosecuted for manslaughter. And as to making a difference between
-regular and irregular practitioners the same learned Judge aptly put
-it, “in remote parts of the country many persons would be left to die
-if |84| irregular surgeons were not allowed to practise.” Or as another
-Judge put it, we should have many of the poorer sort of people die for
-want of help, lest their intended helpers might miscarry [202].
-
-Lord Lyndhurst agrees with the rule, but makes an exception. He says,
-“I agree that in these cases there is no difference between a licensed
-physician or surgeon and a person acting as a physician or surgeon
-without a license. In either case if a party having a competent degree
-of skill and knowledge makes an accidental mistake in the treatment
-of a patient, through which mistake death ensues, he is not thereby
-guilty of manslaughter; but if, where proper medical assistance can be
-had, a person, totally ignorant of the science of medicine, takes on
-himself to administer a violent and dangerous remedy to one labouring
-under disease, and death ensues in consequence of that dangerous remedy
-having been so administered, then he is guilty of manslaughter.” Webb,
-a publican, had given large doses of Morrison’s pills to one ill of
-small-pox [203].
-
-“If any one, whether he be a regular or licensed medical man or not,
-professes to deal with the life or health of others, he is bound to
-have competent skill to perform the task that he holds himself out to
-perform, and he is bound to treat his patient with care, attention
-and assiduity;” and if the patient dies for want of either, the
-practitioner is guilty of manslaughter. “Every person who enters
-into a learned profession undertakes to bring to the exercise of it
-a reasonable degree of care and skill” [204]. And if a medical man,
-though lawfully qualified to act as such, cause |85| the death of
-a person by the grossly unskilful or grossly incautious use of a
-dangerous instrument, he is guilty of manslaughter. No one is justified
-in making use of an instrument, in itself a dangerous one, unless he
-does so with a proper degree of skill and caution [205]. There must be
-competent knowledge and care in dealing with a dangerous drug; if a man
-is ignorant of the nature of the drug he uses, or is guilty of gross
-want of care in its use, it would be criminal culpability [206]. In
-Iowa, it was held that one assuming to act as a physician, who treats a
-patient in good faith and to the best of his ability, is not criminally
-responsible for the death of his patient, caused by the medicine he
-administers [207].
-
-“To substantiate the charge of manslaughter, the prisoner must have
-been guilty of criminal misconduct, arising either from the grossest
-ignorance, or the most criminal inattention; one or other of these
-is necessary to make him guilty of that criminal negligence and
-misconduct which is essential to make out a case of manslaughter.”
-Thus Lord Ellenborough laid down the law in the case of a man midwife
-who was on his trial for murder by malpractice [208]. Long since in
-the _Mirror_ [209] it was said, “If physicians or chirurgeons take
-upon them a cure, and have no knowledge or skill therein, or if they
-have knowledge, if nevertheless they neglect the cure, or minister
-that which is cold for hot, or take little care thereof, or neglect
-due diligence therein, and especially in burning and cutting off
-members, which they are forbidden to do, but at the peril of their
-patient; if their patients die or lose their members, in such cases
-they are manslayers or mayhemdors.” Park, J., |86| charged the
-jury very similarly in one of St. John Long’s celebrated cases.
-“If,” said his Lordship, “you think there was gross ignorance or
-scandalous inattention in the conduct of the prisoner, then you will
-find him guilty; if you do not think so, then your verdict will be
-otherwise” [210].
-
-Wharton considers that the position assumed by Lord Ellenborough
-depends upon the honesty and _bona fides_ of the practitioner; and
-that if he is pursuing a plan of bold imposture the law would be
-otherwise [211].
-
-In Long’s case, Baron Garrow said, “I make no distinction between the
-person who consults the most eminent physician and the cases of those
-whose necessities or whose folly may carry them into any other quarter.
-It matters not whether the individual consulted be the President of
-the College of Surgeons, or the humblest bone-setter of the village;
-but, be it one or the other, he ought to bring into the case ordinary
-skill and diligence. I am of opinion that if a person who has ever so
-much or so little skill sets my leg and does it as well as he can and
-does it badly, he is excused; but, suppose the person comes drunk,
-and gives me a tumbler full of laudanum, and sends me into the other
-world, is it not manslaughter? And why is that? Because I have a right
-to have reasonable care and caution.” In a subsequent case against the
-same practitioner, Bayley, B., said to the jury, “I have no hesitation
-in saying for your guidance, that if a man be guilty of gross neglect
-in attending to his patient after he has applied a remedy, or of gross
-rashness in the application of it, and death ensues in consequence, he
-will be liable to a conviction for manslaughter.” “I consider rashness
-will be sufficient to make it manslaughter. As, for instance, if I have
-the toothache, and a person undertakes to cure it by |87| administering
-laudanum, and says, ‘I have no notion how much will be sufficient,’ but
-gives one a cupful, which immediately kills; or if a person prescribing
-James’ powder says, ‘I have no notion how much should be taken,’ and
-yet gives one a tablespoonful, which has the same effect; such persons,
-acting with rashness, will, in my opinion, be guilty of manslaughter.
-A prosecution is for the public benefit, and the willingness of the
-patient cannot take away the offence against the public” [212].
-
-The matter has been well put in a Missouri case. “If,” said the Judge,
-“the party prescribing has so much knowledge of the fatal tendency
-of the prescription that it may reasonably be presumed that he
-administered the medicine from an obstinate and wilful rashness, and
-not from an honest intention and expectation of effecting a cure, he
-is guilty of manslaughter at least, though he might not have intended
-any bodily harm to the patient” [213]. It is the presence of intention
-which determines the moral complexion of an action, and whenever this
-intention (always presumed to be good) is proved to be bad, then, and
-then only, does a physician become criminally responsible for his
-wrongdoings. Doubtless, a bad intention may be at times inferred from
-the character of the misconduct; and neglect, particularly when gross,
-may be classed among those reasons which justify such an inference [214].
-
-What the law deems gross negligence has been thus defined in a case
-where a “Herbalist” was on trial for manslaughter, for the death of a
-patient through an overdose of colchium seeds and brandy for a cold.
-“Gross negligence might be of two kinds; in one sense, where a man, for
-instance, went hunting, and neglected his patient, |88| who died in
-consequence. Another sort of gross negligence consisted in rashness,
-where a person was not sufficiently skilled in dealing with dangerous
-medicines which should be carefully used, of the properties of which he
-was ignorant, or how to administer a proper dose. A person who, with
-ignorant rashness, and without skill in his profession, used such a
-dangerous medicine, acted with gross negligence. It was not, however,
-every slip that a man might make that rendered him liable to a criminal
-investigation. It must be a substantial thing. If a man knew that he
-was using medicines beyond his knowledge and was meddling with things
-above his reach, that was culpable rashness. Negligence might consist
-in using medicines in the use of which care was required, and of the
-properties of which the person using them was ignorant. A person who so
-took a leap in the dark in the administration of medicines, was guilty
-of gross negligence. If a man was wounded and another man applied to
-his wound sulphuric acid, or something which was of a dangerous nature,
-and ought not to be applied, and which led to fatal results, then the
-person who applied this remedy would be answerable, and not the person
-who inflicted the wound, because a new cause had supervened. But, if
-the person who dressed the wound applied a proper remedy, then, if
-a fatal result ensued, he who inflicted the wound remained liable.”
-In these words Willes, J., charged the jury, and they, after a long
-deliberation, brought in a verdict of “not guilty” [215]. And in the
-very recent case of _State_ v. _Hardister_ [216], it was held that a
-physician is criminally liable for his gross ignorance causing the
-death of his patient, but not for a mere mistake of judgment.
-
-However, in the celebrated case against the father and founder of the
-botanic or steam system of medicine, whose |89| favorite remedies
-were coffee, “well-my-gristle,” and “ram cats,” it was held, that
-if a person assuming to be a physician, through gross ignorance,
-but honestly and _bona fide_, administers medicine which causes the
-death of the patient, he is not guilty of manslaughter [217]. This was
-in the year 1809; and the doctrine laid down was followed in 1844
-in Missouri in an exactly similar case [218]. And quite recently in
-Iowa, where one Shulz was tried for manslaughter because his patient
-died under the Baunscheidt practice, _i. e._, pricking the body and
-rubbing in a certain kind of oil, the Court on review said: “In 2
-Bishop’s Criminal Law, (4th Ed.) sec. 695, the law upon this subject is
-declared as follows: ‘From the relationship of physician and patient
-the death of the latter not unfrequently arises. On this subject the
-doctrine seems to have been held that whenever one undertakes to cure
-another of disease or to perform on him a surgical operation, he
-renders himself thereby liable to the criminal law, if he does not
-carry to his duty some degree of skill, though what degree may not be
-clear; consequently, if the patient dies through his ill-treatment,
-he is indictable for manslaughter. On the other hand, a more humane
-doctrine is laid down, that since it is lawful and commendable for
-one to cure another, if he undertakes this office in good faith and
-adopts the treatment he deems best, he is not liable to be adjudged
-a felon, though the treatment should be erroneous, and in the eyes
-of those who assume to know all about this subject, which in truth
-is understood by no mortal, grossly wrong, and though he is a person
-called, by those who deem themselves wise, grossly ignorant of medicine
-and surgery. The former doctrine seems to be the English one, and so
-in England a person, whether a licensed medical practitioner or not,
-who undertakes to deal with the life or health of |90| people, is bound
-to have competent skill or suffer criminally for the defect. Now, if
-a man thinks he has competent skill, and makes no misrepresentation
-to his patients concerning the amount or kind of medical education
-actually received by himself, he seems in reason to stand on exactly
-the foundation occupied by every person who honestly undertakes
-medical practice after full advantages, so far as concerns his state
-of mind, and it is the mind to which we look in questions of legal
-guilt. Any person undertaking a cure, but being grossly careless and
-thus producing death, is for a different reason liable to a charge of
-manslaughter, whether he is a licensed practitioner or not.’ These
-cases seem to us to announce a correct rule. The interests of society
-will be subserved by holding a physician civilly liable in damages for
-the consequences of his ignorance, without imposing upon him criminal
-liability when he acts with good motives and honest intentions” [219].
-
-If the death of a man has been accelerated by the want of due skill
-and competency, or by the carelessness, of his physician, the latter
-cannot defend himself by proving that his patient was afflicted with
-a mortal disease [220]. If a man who has received a serious wound is
-placed under the charge of a surgeon who, in probing the wound or
-otherwise operating on the patient, immediately causes his death;
-then, if the surgeon has acted negligently, or maliciously, he is
-indictable for the homicide, and the original assailant only for an
-attempt. But, if the surgeon using due skill and care occasions death
-while he is endeavouring to heal the wound, then he who inflicted
-the wound is chargeable with the death; for he who does an unlawful
-act is responsible for all the consequences that in the ordinary
-course of events flow from it. It is an ordinary consequence of a
-wound that a surgeon should be called in to attend to it, |91| and
-it is a necessary incident of surgery that patients should die under
-the knife. It is no defence, where a death is not shewn to have been
-produced by the medical attendant’s negligence, that the deceased
-might have recovered if a higher degree of professional skill had been
-employed [221].
-
-If a person is assailed by a fatal disease, and there is no escape
-from it, save by a dangerous surgical operation, then, if he gives his
-free and intelligent consent to the operation, and it is skilfully
-performed, the surgeon cannot be blamed even though the patient perish
-under the knife. The German Jurists go still further and say, suppose
-a dangerous operation is required as the last hope of resuscitating an
-unconscious person; if the operation is performed with the skill usual
-to surgeons under such circumstances, and death ensue, the surgeon is
-blameless [222]. If a woman is in such a state of labor that her life
-can only be preserved by the sacrifice of that of the child, then
-it is not only the right but the duty of the attendant to save the
-mother at the expense of the babe. Wharton says that this position is
-indisputable [223].
-
-From the leading cases the following propositions may be extracted, say
-Wharton and Stillè, sec. 1063.
-
-1. If the defendant acted honestly and used his best skill to cure, and
-it does not appear that he thrust himself in the place of a competent
-person, it makes no difference whether he was at the time a regular
-physician or surgeon, or not.
-
-2. To constitute guilt, gross ignorance or negligence must be proved.
-|92|
-
-3. A defendant who, with competent knowledge, makes a mistake in a
-remedy is not answerable, but it is otherwise when a violent remedy,
-shewn to have occasioned death, is administered by a person grossly
-ignorant but with average capacity, in which case malice is presumed in
-the same way that it is presumed when a man _compos mentis_ lets loose
-a mad bull into a thoroughfare, or casts down a log of wood on a crowd.
-
-4. Where competent medical aid can be had, the application of violent
-remedies by an ignorant person, though with the best motives, involves
-him in criminal responsibility.
-
-5. Express malice, or an intent to commit a personal or social wrong,
-makes the practitioner criminally responsible in all cases of mischief.
-
-These well known writers say, that according to Caspar and Böcker, in
-the treatment of internal diseases, the physician can never be held
-guilty of criminal carelessness for failing to use any particular
-remedy, since there is never any remedy upon which all authorities are
-agreed, and since it is always possible the patient may recover without
-the use of such remedy [224].
-
-
-
-
-|93|
-
-CHAPTER VII.
-
-PROFESSIONAL EVIDENCE.
-
-
-It was decided nearly one hundred years ago, in the Duchess of
-Kingston’s case, that a medical man has no privilege to avoid giving in
-evidence any statement made to him by a patient, but that he is bound
-to disclose, when called upon to do so in a court of justice, every
-communication, however private and confidential, which has been made to
-him by a patient while attending him in a professional capacity [225].
-This has often been deemed a grievance by medical men, and considered
-a compulsory breach of professional ethics; for the relations between
-patient and physician, being necessarily of a confidential character,
-communications made to a physician are looked upon, by the profession,
-as confessions which should be kept religiously locked in the brain of
-the physician. Lord Mansfield said, “If a medical man was voluntarily
-to reveal those secrets, to be sure he would be guilty of a breach of
-honour and of great indiscretion, but to give that information which by
-the law of the land he is bound to do will never be imputed to him as
-any indiscretion whatever” [226].
-
-A French writer says, the tribunals neither ought, nor have they the
-power, to exact from a physician the revelation of a secret confided to
-him because of his office; at all events, he may and ought to refuse
-to tell. Religion, |94| probity, nay, the rights of society, make
-this the law. Still more are we bound to secrecy when not compelled
-to disclose. Upon this point casuists and jurisconsults are of one
-opinion [227].
-
-These communications between physician and patient, which may relate
-to the history of a transaction in which a wound has been received,
-or a particular disease communicated, whenever essential to the
-treatment of the patient’s case, are in some States of the American
-Union considered privileged communications, which the physician is
-either expressly forbidden, or not obliged, to reveal. This is the
-law in Arkansas, California, Indiana, Michigan, Iowa, Missouri,
-Minnesota, Montana, New York, Ohio and Wisconsin. In Wisconsin he is
-not compelled, and in the other States named he is not allowed to make
-the disclosure; but in Minnesota the prohibition extends only to civil
-cases; and in Iowa, Indiana and Minnesota, the seal can be removed by
-the patient himself. In these States the confession, in order to be
-protected against disclosure, must relate exclusively to such matters
-as are indispensable to the professional treatment of the patient.
-Communications made outside of this sphere acquire no immunity from
-having been entrusted to physicians, for at common law such are not
-deemed privileged, and wherever so recognized they are the creatures of
-statutory enactment [228].
-
-As stated, in some of the above-mentioned States, the party interested
-may waive the privilege, in which case the communication may be
-disclosed [229]. But in New York it is expressly enacted that “no
-person duly authorized to practise physic, or surgery, shall be allowed
-to disclose any information which he may have acquired in attending any
-|95| patient in a professional character, and which information was
-necessary to enable him to prescribe for such patient as a physician,
-or to do any act for him as a surgeon” [230].
-
-Yet, even there, the statute will not be construed so as to shield
-a person charged with a crime, instead of being a protection to the
-victim, the patient [231].
-
-The seal upon the physicians lips is not taken away by the patient’s
-death [232].
-
-Necessarily all communications to be privileged must be of a lawful
-character, and not against morality or public policy; hence a
-consultation as to the means of procuring an abortion on another is
-not privileged; nor, by parity of reason, would any similar conference
-which was held for the purpose of devising a crime or evading its
-consequences [233].
-
-It must appear not only that the information was acquired during
-professional attendance, but was such as was necessary to enable the
-physician to prescribe. It is for the party objecting to shew that the
-information sought to be obtained is within the statutory exclusion.
-“It will not do to extend the rule of exclusion so far as to embarrass
-the administration of justice. It is not even all information which
-comes within the letter of the statute which is to be excluded. The
-exclusion is aimed at confidential communications of a patient to
-his physician, and also such information as a physician may acquire
-of secret ailments by an examination of the person of his patient.
-The policy of the statute is to enable a patient, without danger of
-exposure, to disclose to his physician all |96| information necessary
-for his treatment. Its purpose is to invite confidence and to prevent
-a breach thereof. Suppose a patient has a fever, or a fractured leg or
-skull, or is a raving maniac, and these ailments are obvious to all
-about him, may not the physician who is called to attend him testify
-to these matters?” “Before information sought to be obtained from
-physicians, witnesses, can be excluded the court must know somewhat of
-the circumstances under which it was acquired, and must be able to see
-that it is within both the language and the policy of the law” [234].
-
-A report of the medical officer of an insurance company on the health
-of a party proposing to insure his life is not privileged from
-production; nor is the report of a surgeon of a railway company, as to
-the injuries sustained by a passenger in an accident, unless such a
-report has been obtained with a view to impending litigation [235].
-
-Representations made by a sick person of the nature and effects of the
-malady under which he is suffering are receivable as original evidence,
-whether made to a physician or to any other; though, if made to a
-physician, they are entitled to greater weight than if made to a man
-incapable of forming a correct judgment respecting the accuracy of the
-statements, from unacquaintance with the symptoms of diseases [236].
-When the bodily or mental feelings of a party are to be proved, his
-exclamations or expressions indicating present pain or malady are
-competent evidence [237]; and |97| the complaints and statements of
-the injured party, if made at the very time of the occurrence, are
-admissible as _res gestæ_, not only as to the bodily suffering, but
-as to the circumstances of the occurrence; and the time in question
-is not the time of injury, but the time when it is material to prove
-a condition of bodily or mental suffering, and that may be material
-for weeks, and perhaps months, after an injury has been inflicted.
-The statements are admissible even though made after the commencement
-of an action, though this may be a circumstance to detract from the
-weight of the evidence of a physician, so far as it was founded on
-the statements [238]. But statements or declarations of a sick or
-injured person, referring to his state and condition at a time past,
-and not furnishing evidence of a present existing malady, are to be
-carefully excluded, whether made to an expert or a non-expert [239],
-and statements in writing by patients to a medical man, describing
-the symptoms of the illness upon which the physician has advised the
-patient, are also inadmissible in evidence [240]. It has been said in
-Illinois, that as a physician must necessarily, in forming his opinion,
-be, to some extent, guided by what the sick person may have told him in
-detailing his pains and sufferings, not only the opinion of the expert,
-founded in part upon such data, is receivable in evidence, but that he
-may state what the patient said in describing his bodily condition, if
-said under circumstances which free it from all suspicions of being
-spoken with reference to future litigation and give it the character of
-_res gestae_ [241]. |98|
-
-On the other hand, in Massachusetts, in an action for personal
-injuries, a surgeon who had attended plaintiff was held competent to
-testify as to plaintiff’s condition from what he saw, but not from
-anything the patient told him [242]. A physician testified that the
-plaintiff stated she had received a blow in the stomach. The Court said
-that it would clearly have been competent for the physician, after
-having testified to the plaintiff’s condition and to the complaints
-and symptoms of pain and sufferings stated by her, to have given his
-opinion that they were such as might have been expected to follow
-the infliction of a severe blow. But it was not competent for the
-physician to testify to her statement that she had received a blow in
-her stomach [243]. And in Tennessee, the statement made by a man when
-his wounds were being examined, as to who made them, or as to the
-instrument with which they were inflicted, was deemed inadmissible [244].
-
-Memoranda, although not legal instruments in the proper sense of the
-term, have been considered as an inferior class of records, and as
-such entitled to some standing in courts. Such minutes of past facts
-may be used by experts while under examination, but only to refresh
-their memory, and not to take its place. For this purpose they may use
-written entries in note books, or even copies of them, provided always
-they can swear to the truth of the facts as there stated. Yet, if they
-can not from recollection speak to the fact any farther than as finding
-it stated in a written entry, their testimony will amount to nothing.
-It is not necessary that the writing should have been made by the
-expert himself, nor even that it should be an original |99| writing,
-provided, after inspecting it, he can testify to the facts from his own
-recollection [245].
-
-The English and American authorities agree that medical, or other
-scientific books, are not competent evidence in courts of law; they
-cannot be put in evidence, although the medical witnesses state that
-such books are works of authority in medicine. Tindal, C.J., thought
-that witnesses might be asked whether in the course of their reading
-they had found such-and-such a rule laid down; they might be asked how
-far their opinion was founded on books, and might refer to such books;
-they might be asked their judgment on the point, and the grounds of
-it, which may be in some degree founded on these books, as a part of
-their general knowledge, but the book itself could not be read. And
-as late as 1875, Mr. Justice Brett refused to allow Taylor’s Medical
-Jurisprudence to be read to the jury, saying: “That is no evidence in
-a court of justice. It is a mere statement by a medical man of hearsay
-facts of cases at which he was, in all probability, not present. I
-cannot allow it to be read.” And the refusal seems to be the rule in
-England. And Redfield, C.J., says, that when objected to, these books
-have not generally been allowed to be read in the United States, either
-to the Court or jury. And a very recent writer says, “The result of the
-cases on this subject shews clearly that the very decided weight of
-authority is against the admissibility in evidence of standard medical
-treatises.” Such is the rule in England, Ontario, Indiana, Maine,
-Maryland, Massachusetts, Michigan, North Carolina, Rhode Island and
-Wisconsin, supported by _dicta_ in California and New Hampshire, and
-opposed by decisions in Alabama and Iowa [246]. |100|
-
-In Iowa and Wisconsin such books have been allowed to be read, the
-Court in one case remarking, “The opinion of an author, as contained
-in his works, we regard as better evidence than the mere statement of
-those opinions by a witness, who testifies as to his recollection of
-them from former reading. Is not the latter secondary to the former?
-On the whole, we think it the safest rule to admit standard medical
-books as evidence of their opinions upon questions of medical skill or
-practice involved in the treatment.” In Wisconsin, however, the court
-seems now to have overruled its earlier decisions, and to have sided
-with the majority [247].
-
-In Illinois, a witness may, to test his knowledge, be cross-examined
-as to his reading of particular authors upon the subject, and as to
-whether reputable writers do not entertain certain views upon the
-subject. Paragraphs from standard authors, treating of the disease in
-question, may be read to the witness, and he may be asked if he agrees
-therewith, as one of the means of testing his knowledge; but care
-should be taken by the court to confine such cross-examination within
-reasonable limits, and to see that the quotations read are fairly
-selected so as to present the author’s views. Mr. Rogers questions the
-wisdom of this decision [248]. The witness, however, cannot read from a
-scientific work in his examination in chief, though he be an expert and
-agree with the views expressed by the author [249]. Nor can a passage
-from a book be got before a jury as evidence in an indirect manner,
-when it cannot be read to them. So it was decided where a medical man
-was asked if he was acquainted with a certain book; he replied, that he
-had heard of it, but had not read it. He was then asked |101| whether
-it was considered good authority, and he said it was. He was then asked
-to read a certain paragraph; this he did, and was re-called. Counsel
-then read from the book the same paragraph and asked if such a case as
-that stated was reported. Held to be error [250]. And in Ontario it has
-been held improper to ask medical witnesses, on cross-examination, what
-books they consider best upon the subject in question, and then to read
-such books to the jury; but they may be asked whether such books have
-influenced their opinion [251].
-
-Although, as a rule, scientific books cannot be read to a jury as
-evidence, they may be read to discredit the testimony of experts, who
-claim to be familiar with them and refer to them as authority. Where
-one borrows credit for his accuracy, by referring to books treating of
-the subject, and by implying that he echoes the standard authorities,
-the book may be resorted to, to disprove the statement of the witness,
-and to enable the jury to see that the book does not contain what
-he says it does, and thus to disparage the witness, and hinder the
-jury from being imposed upon by a false light [252]. It has been held
-again and again that scientific books cannot be read by counsel to
-the jury as a part of their argument. Shaw, C.J., of Massachusetts,
-says, “Facts or opinions cannot be laid before the jury, except by
-the testimony under oath of persons skilled in such matters.” Again,
-“where books are thus offered (_i. e._, to be read in argument), they
-are, in effect, used as evidence, and the substantial objection is,
-that they are statements wanting the sanction of an oath; and the
-statement thus proposed is made by one not present, and not liable to
-cross-examination. If the same author were cross-examined, and |102|
-called to state the grounds of his opinions, he might, himself, alter
-or modify it, and it would be tested by a comparison with the opinions
-of others. Medical authors, like writers in other departments of
-science, have their various and conflicting theories, and often defend
-and sustain them with ingenuity. But as the whole range of medical
-literature is not open to persons of common experience, a passage may
-be found in one book favorable to a particular opinion, when, perhaps,
-the same opinion may have been vigorously contested, and, perhaps,
-triumphantly overthrown, by other medical authors, but authors whose
-works would not be likely to be known to counsel or client, or to
-Court or jury. Besides, medical science has its own nomenclature, its
-technical terms and words of art, and also common words used in a
-peculiar manner, distinct from the received meaning in the general use
-of the language. From these and other causes, persons not versed in
-medical literature, though having a good knowledge of the general use
-of the English language, would be in danger, without an interpreter,
-of misapprehending the true meaning of the author. Whereas a medical
-witness could not only give the fact of his opinion, and the grounds on
-which it is formed, with the sanction of his oath, but would also state
-and explain it in language intelligible to men of common experience.
-If it be said that no books should be read, except works of good
-and established authority, the difficulty at once arises as to the
-question, what constitutes “good authority?” [253].
-
-In an English case, counsel, in addressing the jury, attempted to quote
-from a work on surgery; Alderson, B., would not allow him, saying,
-“You surely cannot contend that you may give the book in evidence,
-and if not, what right have you to quote from it in your address, and
-do that indirectly which you would not be permitted to do in |103|
-the ordinary course?” In Massachusetts, North Carolina, Michigan,
-California and New York, similar decisions have been given [254]; and
-in giving the dissenting opinion in _State and Hoyt_ [255], Loomis, J.,
-said, “Books may be crazy as well as men, and all sorts of theories
-relative to responsibility for crime are advocated in books. Courts do
-not take judicial notice of standard medical or scientific works, and
-the standard works of to-day may not long continue such, owing to new
-discoveries and advancing knowledge.” In this case the question was
-as to reading medical books on insanity on trials where the question
-of insanity arose; the book was Ray’s “Medical Jurisprudence of
-Insanity.” In a still later case [256], it was held to have been error
-for the attorney, on the argument, to read to the jury extracts from
-Browne’s “Medical Jurisprudence of Insanity.” The Court said, that it
-is peculiarly important that a defendant charged with a crime should be
-confronted by the expert witnesses against him, and that they should be
-cross-examined in his presence. But when the opinions of a writer are
-permitted to go to the jury, the writer is not sworn or cross-examined.
-If held admissible the question (of insanity) may be tried, not by the
-testimony, but upon excerpts from works presenting partial views of
-variant and perhaps contradictory theories [257].
-
-In Connecticut, however, in a murder case the Court (Loomis, J., and
-Park, C.J., out of the five Judges dissenting,) held, that standard
-medical works on insanity might be read to the jury by the counsel for
-the accused, when |104| discussing the question of his insanity. It
-was said that “in this jurisdiction (that of Connecticut) for a long
-series of years counsel have been permitted to read to the jury, as
-a part of their argument upon this part of their case, extracts from
-such treatises as by the testimony of experts have been accepted by
-the profession as authority upon that subject, such treatises as have
-helped to form the opinion expressed by the expert. The practice by
-repetition has hardened into a rule” [258]. In Indiana, it was held that
-if the extracts were merely argumentative and contained no opinions
-that could be regarded as properly matters of evidence, they might be
-admitted, subject to the instructions of the Court as to the law of
-the case and under the warning that they were not evidence. In Texas
-and in Delaware, similar decisions have been given [259]. And in Ohio,
-where, at the trial of a cause, counsel was forbidden to read to the
-jury Youatt’s work on Veterinary Surgery, the Court, on appeal, said,
-“It is not to be denied, but that a pertinent quotation or extract from
-a work on science or art, as well as from a classical, historical, or
-other publication, may, by way of argument or illustration, be not only
-admissible, but sometimes highly proper, and it would seem to make no
-difference whether it was repeated by counsel from recollection or
-read from a book. It would be an abuse of this privilege, however,
-to make it the pretence of getting improper matter before the jury
-as evidence in the cause.” As it did not appear that the proposed
-quotation was relevant or came within the appropriate and legitimate
-scope of the argument, or that the party was injured by its exclusion,
-the Court would not reverse on this ground [260]. Where the reading
-is allowed, it seems to be considered “a valuable privilege, yet so
-susceptible of abuse, that the |105| extent and manner of its exercise
-must be entrusted in a great measure to the sound discretion of the
-Court;”—“not a practice ever sanctioned directly or indirectly by the
-Court, nor one which has generally been considered by the Judges as of
-binding force in law, but rather as subject to the discretion which, it
-is true, has been usually exercised in favor of the accused in capital
-trials” [261].
-
-Where the exclusion rule obtains, counsel in addressing the jury has
-no right to quote the opinions of medical men as given in their works;
-if they do, it is the duty of the Court to instruct the jury that such
-books are not in evidence but theories simply of medical men [262]. But
-there is no question that, under all circumstances, books of science
-may be read in argument to the Court.
-
-Medical men are often called to give evidence as to dying declarations
-where there is a charge of homicide, and where the cause of the death
-of the declarant is the subject of the declaration. They should
-remember that the declaration will not be admissible unless the
-deceased was conscious of approaching death and made it under a sense
-of his impending doom; any hope of recovery, however slight, renders
-the declaration inadmissible; and the question turns rather upon the
-expectation of death at the time of making the declaration than upon
-the interval between it and the death [263].
-
-An entry made by a medical man, in the course of his profession, is
-admissible in evidence after his death, if it be against his interest;
-and such an entry will be received as evidence of collateral and
-independent matter, etc. When |106| the question was as to the age
-of a child, the book of the accoucheur who attended the mother was
-produced; it contained an entry as follows, “W. Fowden, Jun.’s, wife;
-_Filius circa hor. 3 post merid. nat._ etc. W. Fowden, 1768, April 22.
-_Filius natus_ wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word “Paid”
-was against the pecuniary interest of the accoucheur, so the entry was
-admitted to prove the date of the birth [264].
-
-In England the rule is thus laid down as to excluding experts from
-the room during the examination of witnesses; “medical or other
-professional witnesses, who are summoned to give scientific opinions
-upon the circumstances of the case as established by other testimony,
-will be permitted to remain in court until this particular class of
-evidence commences, but then, like ordinary witnesses, they will have
-to withdraw, and to come in one by one, so as to undergo a separate
-examination.” A similar rule prevails in Scotland and in the United
-States [265].
-
-It would seem that the court has power to limit the number of experts
-in any case [266].
-
-Taylor, in his well-known work on “Medical Jurisprudence,” lays down
-many valuable suggestions for the guidance of medical witnesses;
-among other things, he says, “In reference to _facts_, a medical
-witness must bear in mind that he should not allow his testimony to
-be influenced by the consequences that may follow from his statement
-of them, or there probable effect on any case which is under trial.
-In reference to _opinions_, their possible influence on the fate of
-a prisoner should inspire caution in |107| forming them; but, when
-once formed, they should be honestly and candidly stated, without
-reference to consequences.” “The questions put on either side should
-receive direct answers from the medical witness, and his manner should
-not be perceptibly different whether he is replying to a question
-put by the counsel for the prosecution, or for the defence.” “The
-replies should be concise, distinct and audible, and except where
-explanation may be necessary, they should be confined strictly to
-the terms of the question.” “Answers to questions should be neither
-ambiguous, undecided, nor evasive.” “The replies should be made in
-simple language, free from technicality.” “A medical witness may,
-without any imputation upon his _bona fides_, explain medical points to
-counsel, and correct him on medical subjects, when wrong in his views
-or statements, but he should avoid even the appearance of prompting
-counsel in the conduct of the case.”
-
-
-
-
-|108|
-
-CHAPTER VIII.
-
-MEDICAL EXPERTS.
-
-
-Whenever the subject matter of a legal enquiry is such that, from its
-partaking of the nature of a science, art or trade, inexperienced
-persons are unlikely to prove capable of forming a correct judgment
-upon it without assistance, then the opinions of witnesses possessing
-peculiar skill and knowledge in the matters in question are admissible
-in courts of justice. And it is only when the matter inquired of
-lies within the range of the peculiar skill and experience of the
-witnesses, and is one of which the ordinary knowledge and experience
-of mankind does not enable them to see what inference should be drawn
-from the facts, that the skilled witnesses may supply opinions as their
-guide [267]. The rule admitting the opinions of experts in such cases
-is founded on necessity, for juries are not selected with any view to
-their knowledge of a particular science, art or trade, requiring a
-course of previous study, experience or preparation [268].
-
-The rule of law on which the giving in evidence the opinion of
-witnesses, who know nothing of the actual facts of the case, is
-founded, is not peculiar to medical testimony, but is as a general
-rule applicable to all cases where the question is one depending on
-skill and science in any particular department. . . . In general it
-is the opinion of the jury which is to govern, and this is to be
-formed upon the |109| proof of the facts laid before them. But some
-questions lie beyond the scope of the observation and experience of
-men in general, yet are quite within the observation and experience
-of those whose peculiar pursuits and profession have brought that
-class of facts frequently and habitually under their consideration.
-When, therefore, a question arises in a court of justice upon any such
-subject, and certain facts are proved by other witnesses, one skilled
-in such subject may be asked his opinion as to the character of such
-facts; or he may be asked his opinions on certain facts observed by
-himself. This is true with regard to any question of science, because
-persons conversant with such science have peculiar means, from a larger
-and more exact observation and long experience in such department of
-science, of drawing correct inferences from certain facts observed by
-themselves or testified to by other witnesses. The opinion of such
-witnesses is designed to aid the judgment of the jury in regard to the
-influence and effects of certain facts which lie out of the observation
-and experience of persons in general [269]. These witnesses are called
-“experts.” This term seems to imply both superior knowledge and
-practical experience in the art or profession. But generally nothing
-more is required to entitle one to give testimony as an expert, than
-that he has been educated in the particular art or profession; for
-persons are presumed to understand questions pertaining to their own
-profession or business [270].
-
-The practice of admitting the evidence of experts is an old one: in the
-Roman Law they are frequently alluded to, and in the earliest Common
-Law reports they are spoken of as of established usage. Says Saunders,
-J., “and first I grant that if matters arise in our law which |110|
-concern other sciences or faculties we commonly apply for the aid of
-that science or faculty which it concerns. In a case of mayhem the
-defendant prayed the court that the wound might be examined, on which
-a writ was issued to the sheriff to cause to come “_medicos chirurgos
-de melioribus London. ad informandum Dominum regem et curiam de his quæ
-eis exparte Domini Regis injungerentur_ [271].”
-
-Some Judges and writers have very little respect for the evidence and
-opinions of experts. An Iowa Judge says, observation and experience
-“teach that the evidence of experts is of the very lowest order, and
-of the most unsatisfactory kind.” One from Maine, speaks of “the vain
-babblings and oppositions of science so called, which swell the record
-of the testimony of experts when the hopes of a party depend rather
-upon mystification than enlightenment.” An Illinois Judge quotes a
-distinguished occupant of the bench as saying, “if there was any
-kind of testimony not only of no value, but even worse than that, it
-was in his judgment that of medical experts.” Lord Campbell said,
-“Hardly any weight is to be given to the evidence of what are called
-scientific witnesses: they come with a bias on their minds to support
-the cause in which they are embarked” [272]. Taylor says, “Perhaps
-the testimony which least deserves credit with a jury is that of
-skilled witnesses. . . . Being zealous partisans their belief becomes
-synonymous with faith as defined by the apostle, and it too often is
-but the substance of things hoped for, the evidence of things not
-seen” [273]. On the other hand, Best says, “It would not be easy to
-overrate the value of the evidence given in many difficult and delicate
-enquiries, not only by medical men and physiologists, but by learned
-|111| and experienced persons in various branches of science, art and
-trade” [274]. And many Judges have spoken of the essential aid to courts
-and juries rendered by the opinion of the experienced, skilful and
-scientific witness who has a competent knowledge of the facts involved.
-
-When one takes his place as an expert before a court, a legal paradox
-is instituted on his behalf, by which he is allowed to testify—not as
-to what he knows, but to what he believes or forms an opinion upon,
-based necessarily on probabilities of analogy as well as experience.
-Nothing is required (in the absence of any statutory provision to the
-contrary) to entitle any one to give evidence as a medical witness,
-than that he has been educated in the science of medicine; and this he
-may be by study without practice, or by practice without study; it is
-not necessary that he should be a physician, or have studied for one,
-nor be a graduate, nor one licensed to practise, nor need he be or have
-been a practitioner [275]. One may be competent to testify as an expert,
-although his special knowledge of the particular subject of enquiry
-has been derived from the reading and study of standard authorities,
-and not from experience or actual observation. But one cannot qualify
-himself as an expert in a particular case merely by devoting himself
-to the study of authorities for the purposes of that case, when
-such reading and study is not in the line of his special calling or
-profession and is entered upon to enable him to testify in the case. In
-Vermont, however, it has been held that mere education as a physician,
-without some practice as such, is insufficient to qualify one as an
-expert; and in Arkansas, it is said, that competency must be shewn from
-study and experience. In New York, it has been held that one otherwise
-qualified, who is |112| a physician and surgeon, may give evidence,
-although not in full practice at the time; this fact merely goes to
-affect his credit [276].
-
-It is not necessary that the physician should have made the particular
-disease involved in the enquiry a specialty; medical men of practice
-and experience are experts, and their opinions are admissible in
-evidence upon questions that are strictly and legitimately embraced in
-their profession and practice. If one has made the matter in question a
-specialty, doubtless his opinion will be of more value than if he has
-not; and it has been said, that one who has devoted himself exclusively
-to one branch of his profession cannot give evidence as an expert on
-another [277]. For example, one not an oculist may speak as to the cause
-of injuries to an eye; one who has not made diseases of the mind a
-special study may give his opinion as to the existence of insanity; one
-not a practical chemist or analyst, but understanding the practical
-details of chemistry and the means of detecting poisons, may testify
-as to the tests in the chemical analysis of a stomach, and as to the
-tests usually applied to detect poison [278]. The law will even allow a
-physician to speak as to the length of time a mule has been suffering
-from a disease [279]. But one who has had no experience as to the effect
-upon health of illuminating gas cannot testify in relation thereto as
-an expert [280]. Nor can one who has for thirty years been exclusively
-treating the insane be permitted to testify, as an expert, on |113|
-the mental capacity of a person in the last stages of disease, who has
-not been previously insane [281].
-
-To render the opinion of a witness competent evidence, he must, in
-general, be in some way peculiarly qualified to speak on the subject,
-and have knowledge not possessed by the mass of persons of ordinary
-experience and intelligence [282]. Upon this principle, a priest who had
-studied physiology and psychology, in order that he might pass upon
-the mental conditions of communicants in his church, and who had so to
-decide daily, was permitted to speak as to the mental state of a woman
-whom he had attended in her last illness [283].
-
-It is a question of fact to be decided at the trial, by the
-Court, whether a witness offered as an expert has the necessary
-qualification [284]. And the matter cannot be referred to the decision
-of the jury. The decision of the Judge at the trial will not be
-interfered with by the Court, except in a clear and strong case [285].
-
-Any one offered as an expert who cannot establish the fact of special
-knowledge or skill, in the particular department which he is called
-upon to illuminate, will be rejected. A Court before permitting an
-expert to testify may examine him, or hear evidence, to satisfy itself
-that the witness is really what he assumes to be [286]. |114|
-
-“We find no test laid down,” says the Supreme Court of Indiana, “by
-which we can determine with mathematical precision just how much
-experience a witness must have had, how expert, in short, he must be,
-to render him competent to testify as an expert.” But it is for the
-Court to decide, within the limits of a fair discretion, whether the
-experience of the proposed expert has been such as to make his opinions
-of any value; mere opportunities for special observation will not be
-deemed sufficient [287].
-
-While the Court, or Judge, determines the competency of the witness to
-testify as an expert, the weight to be accorded to his testimony is
-for the jury to decide. The testimony of an expert is to be weighed
-and tested like any other kind of evidence, and is to receive just
-such credit as the jury may think it entitled to. It is intended to
-enlighten their minds, not control their judgment [288]. The jury are
-not bound by the opinions of medical experts: they may weigh their
-opinions like any other evidence. They may act against the greater
-number of opinions and in favour of the fewer; for the opinion of one
-expert may, on account of his greater knowledge and experience on
-the subject, or from his giving further details of the case, or more
-probable reasons for his opinions, be of greater value to the jury than
-the opposite opinions of several [289].
-
-Ordronaux holds that a physician, although confessedly possessing the
-ordinary experience of his profession, may _quoad_ some particular
-problem in medical science not be an expert in the best and most
-critical sense of the term. _Non omnes omnia possumus._ Once received
-as an expert, |115| the maxim “_Cuilibet in sua arte perito credendum
-est_,” must be applied, and he cannot be contradicted by any unskilled
-person [290].
-
-In 1869, the Chief Justice of the Kentucky Court of Appeal well
-said, that “the opinions of experts not founded on science, but on
-a mere theory of morals or ethics, whether given by professional or
-unprofessional men, are wholly inadmissible as evidence.” Hence the
-opinion of even physicians that no sane man in a Christian country
-would commit suicide, not being founded on the science or phenomena
-of the mind, but rather a theory of morals, religion and future
-responsibility, is not evidence [291].
-
-In the matter of expert testimony, as in other matters, the law does
-not recognize any particular school of medicine to the exclusion of
-others. The popular axiom that doctors differ is as true now as ever
-it was, and so long as it continues to be so, it is impossible for the
-law to recognize any class of practitioners, or the followers of any
-particular system, or method of treatment, as exclusively entitled to
-be regarded as “doctors” [292].
-
-The physician called to give evidence as an expert should understand
-at the outset that he is not called to express any opinion upon the
-merits of the case, but only on some questions of science raised by
-the facts proved; that he has no concern in the issue of the trial,
-and that whichever side calls him he is in no wise the witness—much
-less the advocate—of that side. He is truly an adviser of the Court,
-an _amicus curiæ_, rather than a party interested in the result of the
-trial. Balbus in his commentaries on the code says, “_Medici proprie
-non sunt testes, sed est magis judicium quam testimonium_.” Experts,
-no matter on what |116| they testify, simply supply data, as to
-whose competency, relevancy and weight, the Court is to judge, and
-as to which the Court is finally to declare the law. Where the facts
-testified to by experts are undisputed, and when they are the results
-of a particular science or art, with which such experts are familiar,
-then the Court accepts such facts, and declares the law that therefrom
-springs; where the facts are disputed then the jury is to determine
-where the preponderance of proof lies. But when the testimony of the
-expert touches either law or speculation, psychology or ethics, then
-such testimony is to be received as mere argument, which if admissible
-at all is to be treated simply as if addressed to the judgment of the
-Court [293].
-
-In his examination in chief an expert may not only give his opinion
-itself, but also the grounds and reasons of it; in fact it has been
-held that it is his duty to state the reasons of his opinion and the
-facts on which it is based, and if it is not sustained by them it is
-entitled to little weight [294].
-
-The opinion of a medical man is admissible upon, the condition of the
-human system at any given time; the nature and symptoms of disease;
-the nature and effects of wounds; the cause of death; the cause or
-effect of an injury; the character of the instrument with which a
-wound was produced; the effect of a particular course of treatment;
-the likelihood of recovery; the mental condition of a person; and on
-similar subjects. For instance, where one was indicted for endeavouring
-to procure abortion, the opinion that the woman was pregnant at the
-time is relevant [295]. Where the question was whether a certain |117|
-blow was sufficient to cause death; or whether a wound and fracture
-on the head was caused by a fall; or whether the fractures of the
-skull were caused by a gun; or whether a gun-shot wound caused death;
-the opinions of physicians were held admissible [296]. The opinion of
-medical experts will be received upon the question as to whether an
-abortion has been performed, or whether certain drugs are abortives, or
-certain instruments adapted to produce an abortion [297]. Experts may
-testify, after having made a chemical analysis of the contents of the
-stomach, as to the presence of poison in the body; and, without such
-analysis of a mixture, a chemist may speak of its ingredients [298].
-Those accustomed to make chemical and microscopic examinations of
-blood and blood stains may speak as to whether certain stains are
-made by human or other blood. So, too, they may speak as to the ink
-in questions as to handwriting [299]. So, too, they may be asked their
-opinions touching the permanency of any injury forming the subject of
-an action. Also, in an action for damages against a railway company, a
-physician may be asked at what period after the injury the plaintiff
-would be most likely to improve, if he were going to recover at
-all [300]. Where Barber sued Meriam for injury to his wife, and she had
-been treated professionally for some weeks by Dr. H., the opinion of
-another physician as to the effect of Dr. H.’s treatment was considered
-|118| admissible [301]. And so in a case of malpractice a medical man
-may be asked whether the practice pursued was good practice [302].
-He may be asked as to the nature and properties of the medicines
-employed by another physician in the case in question; also, as to the
-practice with regard to consultations; also, whether, in his opinion, a
-patient’s death was or was not the result of neglect or want of skill
-on the part of the attending physician [303]. But he cannot be asked
-his opinion as to the general skill of the physician on trial; nor the
-general reputation of the school which the doctor in trouble attended;
-nor can he say whether, from all the evidence in the case, the
-defendant was guilty of malpractice, for that is the question for the
-jury; nor can he say whether a physician has honorably and faithfully
-discharged his duty to his professional brethren [304].
-
-It has been held that a medical witness may give his opinion upon new
-and hitherto unknown cases whenever he swears that he can form such an
-opinion, even though at the same time he should admit that precisely
-such a case had never before fallen under his observation, nor under
-his notice in the books. The man of science is distinguished from the
-empiric in nothing more than in not relying on specifics, and also not
-waiting for the exact similitudes in things material and immaterial
-before forming a judgment as to their similarity [305].
-
-It must always be remembered that medical men, when called as skilled
-witnesses, may only say what, in their judgment, would be the result
-of certain facts submitted to their consideration, and may not give an
-opinion as to |119| the general merits of the case, nor on the very
-point which the jury has to determine, nor on things with which a jury
-may be supposed to be equally well acquainted [306].
-
-As a recent writer puts it, a medical man cannot testify as to matters
-not of skill in his profession, nor conclusions, nor inferences which
-it is the duty of the jury to draw for themselves. For instance, it
-was held that in a trial for murder the opinions of the surgeons as
-to the probable position of the deceased, when he received the blows
-which caused his death, are incompetent. The Judge said that he was
-not aware that surgeons were experts in the manner of giving blows
-of the description in question, or determining how the head must be
-placed so as most conveniently to receive them [307]. Whenever the
-subject matter of the enquiry is of such a character that it may be
-presumed to lie within the common experience of all men of common
-education, moving in ordinary walks of life, the rule is that the
-opinions of experts are inadmissible, as the jury are supposed—in all
-such matters—to be entirely competent to draw the necessary inferences
-from the facts spoken of by the witnesses [308]. Nor was the opinion of
-a medical witness admitted where the question, in an action for libel,
-was whether a physician in refusing to consult with the plaintiff
-had honorably and faithfully discharged his duty to the medical
-profession. The Judge said, the jury having all the facts before them
-were as capable of forming a judgment upon that point as the witness
-himself. Nor can an expert give an opinion of the opinion of another
-expert [309]. A medical man is considered an expert on the subject of
-the |120| value of medical services [310]. But he is not so considered
-when the question is one as to the amount of damages for a breach of
-contract not to practise physic in a certain town [311].
-
-The rule as to excluding experts from the court room during the
-examination of witnesses has been laid down, in England, thus: “Medical
-or other professional witnesses, who are summoned to give scientific
-opinions upon the circumstances of the case, as established by other
-testimony, will be permitted to remain in court until this particular
-class of evidence commences; but then, like ordinary witnesses, they
-will have to withdraw, and to come in one by one, so as to undergo
-a separate examination.” And in the United States the principle is
-similarly stated [312].
-
-
-
-
-|121|
-
-CHAPTER IX.
-
-EXPERTS IN INSANITY CASES.
-
-
-The opinion evidence of medical men in questions of insanity is not,
-as a rule, looked upon with any very great degree of favor by the
-courts who have to decide upon the competency, relevancy and weight
-of the opinions uttered. Chapman, C.J., of Massachusetts, in charging
-a jury said, “While they afford great aid in determining facts,
-it often happens that experts can be found to testify to anything
-however absurd” [313]. In another insanity case another Judge remarked,
-“Experience has shown that opposite opinions of persons professing to
-be experts may be obtained to any amount, and it often occurs that
-not only many days but many weeks are consumed in cross-examinations
-to test the skill and knowledge of such witnesses, and to test the
-correctness of their opinions,” (this was the case to a great degree
-in the well known Guiteau prosecution,) “thus wasting time and
-wearying the patience of both Court and jury, perplexing, instead
-of elucidating, the question involved in the issue” [314]. As to the
-perplexing instead of elucidating, a writer of the highest authority
-gives the following, “In a case of alleged child murder a medical
-witness, being asked for a plain opinion of the cause of death, said,
-that it was owing to ‘atelectasis and a general engorgement of the
-pulmonary tissue’.” And in a trial for an assault a |122| surgeon,
-in giving his evidence, informed the Court “that on examining the
-prosecutor, he found him suffering from a severe contusion of the
-integument under the left orbit, with great extravasation of blood and
-ecchymosis in the surrounding cellular tissue, which was in a tumefied
-state, and there was also considerable abrasion of the cuticle.” The
-Judge said, “You mean, I suppose, that the man had a bad black eye.”
-“Yes.” “Then why not say so at once” [315].
-
-Redfield, C.J., in his book on Wills, says, “Experience has shown both
-here and in England that medical experts differ quite as widely in
-their inferences and opinions as do other witnesses. This has become
-so uniform a result with the medical experts of late that they are
-beginning to be regarded much in the light of hired advocates, and
-their testimony as nothing more than a studied argument in favor of
-the side for which they have been called. So uniformly has this been
-proved in our experience that it would excite scarcely less surprise to
-find an expert called on one side testifying in any particular in favor
-of the other side, than to find the counsel upon either side arguing
-against their clients and in favor of their antagonists” [316].
-
-A Lord Chancellor once remarked that his experience taught him that
-there were very few cases of insanity in which any good came from the
-examination of medical men. Their evidence sometimes adorned a case,
-and gave rise to very agreeable and interesting scientific discussions,
-but after all they have little or no weight with the jury. And Mr.
-Justice Davis, of the Supreme Court of Maine, after stating that he
-thought juries far more trust-worthy than experts on the subject of
-insanity, said, “if there is any kind of testimony that is not only of
-no value but |123| even worse than that, it is in my judgment that of
-medical experts. They may be able to state the diagnosis of the disease
-more learnedly, but upon the question whether it had, at a given time,
-reached such a stage that the subject of it was incapable of making a
-contract, or irresponsible for his acts, the opinion of his neighbors,
-if men of good common sense, would be worth more than that of all the
-experts in the country” [317]. There is scarcely a single hypothesis
-as to responsibility (on the part of the insane), no matter how wild,
-which, among the large number of experts who have concerned themselves
-with this branch of study, has not its advocates. So says Wharton
-in his valuable treatise on Mental Unsoundness [318]; or as Cicero
-elegantly put it long ago, “_nihil tam absurde dici potest, quod non
-dicatur ab aliquo philosophorum_” [319].
-
-Considering these things, one is not surprised at Campbell, C.J., in
-the Bambridge case, saying to three medical men who had recorded their
-opinions in favor of the insanity of the testator: “You may go home to
-your patients, and I wish you may be more usefully employed there, than
-you have been here;” and to the jury he remarked, “We have had during
-the trial the evidence of three medical witnesses, and I think they
-might as well have stayed at home and attended to their patients.”
-
-On the other hand, Shaw, C.J., said, “such opinions (as to sanity,
-etc.) when they come from persons of experience, and in whose
-correctness and sobriety of judgment just confidence can be had, are
-of great weight, and deserve the respectful consideration of a jury.
-But the opinion of a medical man of small experience, or of one who
-has crude and visionary notions, or who has some favorite theory to
-|124| support is entitled to very little consideration. The value of
-such testimony will depend mainly upon the experience, fidelity and
-impartiality of the witness who gives it” [320]. And Chief Justice
-Gibson speaks with just emphasis of the the deference due, in their
-own department, to the knowledge obtained by men of a subject with
-which they have grappled all their lives [321]. The Supreme Court of
-Texas declared, “The opinions of medical men (on questions of insanity)
-are received with great respect and consideration, and properly so.”
-The Supreme Court of Pennsylvania says, “It is well settled that
-the knowledge and experience of medical experts is of great value
-in questions of insanity.” Equally strong are the utterances of the
-Court of Appeals of West Virginia and the Supreme Court of North
-Carolina [322].
-
-Where the point in question is the sanity of a person, the opinion
-of a medical man on the subject is, of course, admissible when that
-opinion is drawn from personal observation. This is the rule both in
-England and the United States [323]. But a medical man may also give his
-opinion on this subject, even though he has no knowledge of the person
-whose sanity is in question [324]. It has been suggested, that when a
-physician is asked his opinion on the facts stated by other witnesses,
-he should be first examined as to the particular symptoms of insanity;
-and as to whether all or any, and which of the circumstances spoken
-of by the witnesses upon the trial are to be regarded as |125| such
-symptoms; then inquire of him whether any and what combination of these
-circumstances would, in his opinion, amount to proof of insanity [325].
-
-It has been held to be improper to ask a medical witness whether the
-person, whose sanity was in question, possessed sufficient capacity
-to make a will, or to transact business, as these are matters of law,
-depending on the nature of the business [326]. In England such witnesses
-can only speak as to the state of mind, not as to the responsibility
-of a prisoner; this latter point is for the jury under the direction
-of the Judge [327]. So, on the plea of insanity at the time of making a
-contract, the opinion of the medical man who gave the certificate on
-which the defendant was confined as insane at or about the time, is
-only evidence for the jury, who must judge of the grounds upon which it
-was formed [328].
-
-In England, an expert cannot be asked, after being present at the whole
-trial, whether the defendant was insane, or whether the act complained
-of was an insane act, because these are questions for the jury and
-the witness must not be placed in the jury’s place; but he may be
-asked whether such and such appearances, proved by other witnesses,
-are in his judgment symptoms of insanity [329]. The particular facts
-proven by other witnesses may be taken and the expert may be asked
-“assuming these facts to be true, do they in your judgment indicate
-insanity on the part of the defendant at the time the alleged act was
-committed?” [330]. |126|
-
-As a rule the Court should not allow an expert to give his opinion
-upon facts proved by a witness unless he has heard all the testimony
-of the witness, because the entire testimony may be necessary in order
-to enable him to form an opinion in regard to the subject matter of
-inquiry [331].
-
-Where the facts are disputed, experts can only be questioned as to
-their opinion of a party’s sanity on a hypothetical case, or as to
-certain designated facts existing in the case supposing them to be
-true [332].
-
-The mode in which this hypothetical question is to be put has been much
-considered. In England, in the celebrated _Macnaghten_ case in answer
-to an inquiry of the House of Lords, whether “a medical man conversant
-with the disease of insanity, who never saw the prisoner previously
-to the trial, but who was present during the whole trial and the
-examination of the witnesses, can be asked his opinion as to the state
-of the prisoner’s mind at the time of the commission of the alleged
-crime; or his opinion whether the prisoner was conscious at the time
-of doing the act, that he was acting contrary to the law; or whether
-he was labouring under any and what delusion at the time?” The twelve
-judges replied, “We think the medical man, under the circumstances
-supposed, cannot in strictness be asked his opinion in the terms above
-stated, because each of these questions involves the determination
-of the facts deposed to, which it is for the jury to decide, and the
-questions are not mere questions upon a matter of science in which
-case such evidence is admissible. But where the facts are admitted or
-not disputed, and the question becomes substantially one of science
-only, it may be convenient to |127| allow the question to be put in
-that general form, though the same cannot be insisted on as a matter of
-right [333].”
-
-In Massachusetts, Chief Justice Shaw said, “The proper question to be
-put to the professional witness is this—If the symptoms and indications
-testified to by the other witnesses are proved and if the jury are
-satisfied of the truth of them, whether in their opinion the party was
-insane, and what was the nature and character of that insanity; what
-state of mind did they indicate; and what they would expect would be
-the conduct of such person in any supposed circumstances?” [334].
-
-In another well known case, the Judge said to the jury, “It is not the
-province of the expert to draw inferences of facts from the evidence,
-but simply to declare his opinion on a known, or hypothetical state
-of facts, and therefore the counsel on each side have put to the
-physicians such states of fact as they deem warranted by the evidence,
-and have taken their opinions thereon. If you consider any of these
-states of facts put to the medical witnesses are proved, then the
-opinions thereon are admissible evidence, to be weighed by you,
-otherwise their opinions are not applicable to the case” [335].
-
-The opinions of both experts and non-experts should have weight
-according to their opportunities and qualifications for examination of
-the state of mind of the person whose sanity is in question. First of
-all will be the family, or the physician who has attended the patient
-through the disease which is supposed to have disabled his mind; next
-are those who, without special learning on the subject, have had the
-best opportunities for judging—the members of his family and those
-whose intimacy in the family, have given them opportunities of seeing
-the patient at all times and |128| noticing the alienation of his
-mind; and last, come those who only occasionally and at intervals have
-seen him, and whose chances of studying his moods have been small [336].
-
-It has been held, in Massachusetts, that a physician who had not made
-insanity a special subject, and who, when consulted in such matters,
-always called in a specialist, is not competent to give an opinion on
-an hypothetical case put to him, unless he was the person’s attending
-physician; then his opinion is received, as it is his duty to make
-himself acquainted with the peculiarities, bodily and mental, of a
-person who is the subject of his care and advice [337]. And where a
-physician had for more than thirty years been exclusively treating the
-insane, he was not permitted to testify, as an expert, to the mental
-capacity of a person—not previously insane—who was in the last stages
-of disease [338].
-
-One not an expert may give an opinion, founded on observation, as to
-whether a person is sane or insane, notwithstanding the general rule,
-that persons not medical men cannot give their opinions as to the
-existence, nature or extent of disease in any one. The exception was
-first introduced in regard to the subscribing witnesses to a will, who
-were permitted to speak as to the testator’s state of mind; it has
-now been extended to all cases where the witness’ acquaintance with
-the party whose sanity is in dispute, or his means of observation,
-are sufficient to enable him to express his opinion as to the mental
-condition. The Courts of Massachusetts, Maine, New Hampshire and
-Texas, however, still adhere to the old rule and admit the evidence of
-non-experts only in cases of wills [339].
-
-
-
-
-|129|
-
-CHAPTER X.
-
-DEFAMATION.
-
-
-No man may disparage the reputation of another. Every one has a right
-to have his good name maintained, unimpaired. Words which produce any
-perceptible injury to the reputation of another are called defamatory:
-and if they are false they are actionable. False and malicious
-defamatory words, if in printing, writing, pictures or signs, and
-published, constitute a libel; if spoken, a slander. A caricature may
-be a libel; so may a chalk-mark on a wall, a statue, hieroglyphics, a
-rebus, an anagram or an allegory, or even ironical praise.
-
-Defamatory matter, whether published in the form of libel or slander,
-is actionable when it imputes a criminal offence (or a contagious or
-infectious disorder) or affects the plaintiff injuriously in his lawful
-profession, trade or business, or in the discharge of a public office,
-or generally when it is false and malicious, and its publication
-causes damage to the plaintiff either in law or in fact. Defamatory
-matter, the publication of which tends to degrade or disparage the
-plaintiff, or which renders him ridiculous, or charges him with want of
-honesty, humanity or veracity, or is intended to impair his enjoyment
-of society, fortune or comfort, is actionable as libel, but not as
-slander, unless special damage be proved [340]. |130|
-
-The person defamed by a libel has not only a civil remedy to recover
-damages but he may also, in some cases, proceed criminally by way of
-information or indictment and have the defamer punished as an offender
-against the state. If he proceeds by information he must in general
-waive his right to bring a civil action; but he may sue for damages
-after the offender has been convicted upon an indictment. An action
-for libel must be brought within six years; and an action for slander
-within two years, unless the words spoken are actionable only by reason
-of special damage, in which case the action may be brought at any time
-within six years.
-
-Whenever a special kind of knowledge is essential to the proper
-conduct of a particular profession, denying that a man possesses such
-special knowledge will be actionable if he belongs to that particular
-profession, but not otherwise. Thus to say of a physician, “Thou art
-a drunken fool and an ass. Thou wert never a scholar, nor even able
-to speak like a scholar,” is actionable, because no man can be a good
-physician unless he be a scholar [341]. Although one may with impunity
-say of a Justice of the Peace, “He is a fool, an ass and a beetle
-headed justice” [342]. So to say, of a midwife, “Many have perished
-for her want of skill;” or, “She is an ignorant woman, and of small
-practice and very unfortunate in her way; there are few she goes to
-but lie desperately ill, or die under her hands;” is actionable [343].
-Or of an apothecary, “He is not an apothecary; he has not passed any
-examination. Several have died that he had attended, and there have
-been inquests held upon them” [344]. Although one may safely say of a
-Justice of the Peace, “He is a blood sucker, and sucketh blood.” |131|
-
-It is actionable to say of a person in his professional character, “He
-is no doctor; he bought his diploma for $50” [345]. Any words imputing
-to a practising medical man, misconduct or incapacity in the discharge
-of his professional duties, are actionable _per se_. Thus, it is
-actionable, without proof of special damage, to accuse one of having
-caused the death of any patient through his ignorance or culpable
-negligence, as to say of a physician, “He killed my child by giving it
-too much calomel,” or, “He hath killed J. S. with physic, which physic
-was a pill;” or, “He was the death of J. P.; he has killed his patient
-with physic; it is a world of blood he has to answer for in this
-town through his ignorance; he did kill a woman and two children at
-Southampton; he did kill J. P. at Petersfield;” or, as an American did,
-“Dr. S. killed my children; he gave them teaspoonful doses of calomel,
-and it killed them. They did not live long after they took it. They
-died right off the same day” [346].
-
-So it is to say of an apothecary, “He poisoned my uncle; I will have
-him digged up again, and hang him,” or, “He killed my child; it was
-the saline injection that did it;” or, “I was told he had given my
-child too much mercury, and poisoned it; otherwise, it would have got
-well” [347].
-
-So it is actionable to say of a surgeon and accoucheur, “He is a bad
-character; none of the medical men here will meet him.” As such words
-impart the want of a necessary qualification for a surgeon in the
-ordinary discharge of his professional duties; or, “Dr. Tweedie has
-honorably and faithfully discharged his duties to his |132| medical
-brethren in refusing to act or consult with Ramadge (a physician),
-and we hope every one else will do the same” [348]. Or to call a
-practising medical man “a quack,” “a quacksalver,” “an empiric,” or “a
-mountebank,” or to say of him, “Thou gavest physic which thou knewest
-to be contrary to the disease,” or “Thou art no good subject, for thou
-poisonedst A. F.’s wound, to get more money of him.” Under the New York
-Statutes, a homœopathic physician may maintain an action for being
-called a quack [349]. And it seems that an action will lie, without
-averment of special damages, for slander imputing to a physician, that
-he has taken advantage of his character as a physician to abuse the
-confidence reposed in him, and commit acts of criminal conversation
-with a patient [350].
-
-In the case of libel, any words will be presumed defamatory which
-expose the plaintiff to hatred, contempt, ridicule or obloquy, which
-tend to injure him in his professional trade, or cause him to be
-shunned or avoided by his neighbours. Thus, to advertise falsely that
-certain quack medicines, “consumption pills,” were prepared by a
-physician of eminence, is a libel upon such physician [351].
-
-Whenever a medical man brings forward some new method of treatment and
-advertises it largely as the best, or only cure for some particular
-disease, or for all diseases at once, he may be said to invite
-public attention, and a newspaper writer is justified in warning the
-public against such advertisers, and in exposing the absurdity of
-their professions, provided he does so fairly and with reasonable
-judgment [352]. |133| A medical man, who had obtained a diploma and the
-degree of M.D., from an American College, advertised in England most
-extensively a new and infallible cure for consumption. The _Pall Mall
-Gazette_ published a leading article on these advertisements, in which
-they called the advertiser a quack and an impostor, and compared him to
-scoundrels “who pass bad coin.” This was considered as overstepping the
-limits of fair criticism, and a verdict was given for the plaintiff,
-with damages, one farthing [353]. So where the editor of the _Lancet_
-attacked the editor of a rival paper, _The London Medical and Physical
-Journal_, by rancorous aspersions on his private character, not fairly
-called for by what the plaintiff had done as an editor, the plaintiff
-recovered a verdict of £5 [354].
-
-On the other hand, it is not actionable to say of a surgeon, “He
-did poison the wound of his patient,” without some averment that
-this was improper treatment, for it might be proper for the cure of
-it. Nor to say of an apothecary, “He made up the medicine for my
-child wrong, through jealousy, because I would not allow him to use
-his own judgment” [355]. Nor to charge a physician or surgeon with
-“malpractice,” if it appear that the word was not used or understood
-in a technical sense; and to charge a physician or surgeon with mere
-want of skill, or with ignorance or neglect, is not actionable _per
-se_, though untrue, unless the charge be of gross want of skill, or the
-like, so as to imply general unfitness [356].
-
-Nor is it actionable to call a person who practises medicine or
-surgery, without legal qualification, a “quack or an |134| impostor,”
-for the law only protects lawful employment [357]. Even though a medical
-man be duly registered in Great Britain, still, if he is practising
-in a colony which requires registration without complying with the
-colonial law, he may safely be called “a quack,” “a charlatan,” “a
-scoundrel not to be entrusted with the lives of people” [358].
-
-Words imputing immoral conduct, profligacy or adultery, even when
-spoken of one holding an office or carrying on a profession or
-business, are not actionable unless they “touch him” in that office,
-profession or business. Thus, if adultery is alleged of a clergyman,
-it will be actionable, because if the charge were true, it would be a
-ground for degradation or deprivation, as it would prove him unfit to
-hold his benefice, or to continue the active duties of his profession.
-But if the same words are spoken of a physician, they will not be
-actionable without proof of special damage, as they do not necessarily
-affect the plaintiff in relation to his trade or profession [359].
-
-Nor unless the words are spoken in connection with the professional
-duties of the plaintiff will an action lie for the words, “He is so
-steady drunk, he cannot get business any more;” or “He is a twopenny
-bleeder” [360].
-
-It is no libel to write of a physician that he is in the habit of
-meeting homœopathists in consultation [361].
-
-Where the plaintiff considers that the words spoken touch him in his
-profession or trade, he must always aver in the pleadings that he was
-carrying on the profession of a physician or surgeon, or the trade
-of a druggist, at the |135| time the words were spoken. Sometimes
-this is admitted by the slander itself, and if so, evidence is of
-course unnecessary in proof of this averment. But in other cases,
-unless it is admitted on the pleadings, evidence must be given at
-the trial of the special character in which the plaintiff sues. As a
-rule, it is sufficient for the plaintiff to prove that he was engaged
-in the profession or trade, without proving any appointment thereto,
-or producing a diploma or other formal qualification. For the maxim
-_omnia presumuntur rite esse acta_ applies. But if the very slander
-complained of imputes to the medical practitioner that he is a quack or
-an impostor, not legally qualified for practice; or if the plaintiff
-aver that he is a physician and has duly taken his degree, then the
-plaintiff at the trial must be prepared to prove his qualification
-strictly by producing his diploma or certificate. In some cases the
-mere production of the diploma will not be sufficient proof of the
-plaintiff’s having the degree, but it may be necessary to prove that
-the seal affixed is the seal of a university having power to grant
-degrees; or in the case of the production of a copy of the diploma,
-that it has been compared with the original [362].
-
-Whether or no the words were spoken of the plaintiff in the way of his
-business is a question for the jury to determine at the trial. There
-should always be an averment in the statement of claim, that the words
-were so spoken, and it should also be shewn in what manner the words
-were connected by the speaker with the profession [363].
-
-Medical practitioners are of course equally liable with other men to
-an action for defamation, in respect of any |136| false and malicious
-communication, whether oral or written, made by them to the damage of
-another, in law or in fact; circumstances, however, frequently arise
-where, from the nature of their employment, it becomes their duty or
-interest to make some communication prejudicial to the character or
-conduct of another, and in such cases, where the occasion on which
-the communication was made rebuts the presumption of malice, (which
-the law infers from such a statement,) such communication is said
-to be privileged, and therefore, in order to sustain an action for
-defamation, the plaintiff must prove that the defendant was actuated by
-express or actual malice—that is, malice independent of the occasion
-on which the communication was made. The legal canon is, that a
-communication made _bona fide_, upon any subject matter in which the
-party communicating has an interest, or in reference to which he has
-a duty, is privileged, if made to a person having a corresponding
-interest or duty, although it contains criminatory matter, which
-(without this privilege) would be slanderous and actionable. This
-applies, moreover, though the duty be not a legal one, but only a
-moral or social duty of imperfect obligation, and also where the
-communication is made to a person not in fact having such interest
-or duty, but who might reasonably be, and is supposed by the party
-making the communication to have such interest or duty [364]. Even
-where the evidence of duty is not present to the mind, but the speaker
-is impelled by a sense of propriety, on which he does not pause to
-reflect, and which he refers to no special motive, nevertheless, if
-his conduct in speaking the words be within the occasion of interest
-or of duty which is capable of protecting, the communication will be
-considered privileged [365].
-
-Words spoken by the medical officer of a college concerning |137|
-the meat furnished to the institution; and words used by the medical
-attendant of a poor-law union about the wine supplied to the inmates,
-are privileged, in the absence of proof of actual malice [366]. A
-statement made by a physician that an unmarried woman is pregnant is
-not a privileged communication, unless made in good faith to one who is
-reasonably entitled to receive the information [367].
-
-
-
-
-|138|
-
-CHAPTER XI.
-
-RELATIONS WITH PATIENTS.
-
-
-It is a well settled doctrine that where one occupies a position
-which naturally gives him the confidence of another, or which in any
-way gives him an influence, or an undue advantage over the other,
-transactions between them require something more to give them validity
-than is necessary in other cases. The mere fact of the existence of
-such a relationship as naturally creates influence over the mind will
-lead the courts to infer the probability of undue influence having
-been exerted. Confidence has been held to imply the opportunity for
-influence, and when established, dispenses with any more direct
-proof of influence. In such cases the _onus_ is cast upon the person
-occupying such a relationship to establish the perfect fairness and
-equity of the transaction. He must shew that the other acted after full
-and sufficient deliberation and with all the information that it was
-material for him to have, in order to guide his conduct, and that he
-had either independent and disinterested advice, or as ample protection
-as such advice could have given him [368]. _Rhodes_ v. _Bates_ [369] lays
-it down that the donor must have had competent and independent advice.
-
-The relation between a medical man and his patient is one in which
-the probability of undue influence is inferred; |139| and so in
-dealings with their patients the acts of physicians are watched with
-great jealousy; not because the Court blames and discountenances the
-influence flowing from such relation, but because it holds that this
-influence should be exerted for the benefit of the person subject to
-it, and not for the advantage of the person possessing it [370]. The
-discontinuance of the relationship is only material if the influence
-has ceased with the relation; and the relation does not necessarily
-cease because the patient has not medicine actually administered to him
-at the time [371].
-
-Where a surgeon and apothecary obtained from a patient, eighty-five
-years old, an agreement to pay him £25,000, in consideration of past
-medical services, duly charged and paid for, and the promise of future
-medical and surgical assistance until death without charge, and kept
-the matter concealed until after the death of the patient, the Court,
-on the prayer of the patient’s executor, ordered the medical man to
-give up the agreement to be cancelled. So, when an octogenarian patient
-conveyed by deed of gift a property worth £1,000 to his physician,
-who was also his intimate friend, and the son of his benefactor, the
-Court set aside the deed for fraud. (In this case the consideration
-named in this deed was not the true one.) And even where a patient
-gave to his surgeon an annuity of £100 for the surgeon’s life, in
-consideration that he would live with him and give him the benefit of
-his professional assistance during his (the donor’s) life, it being
-shown that the surgeon had been told by an eminent physician, just
-before the deeds were drawn, that the patient could not recover or
-live long, and that the surgeon himself, about the same time, had said
-the patient could not live more than a month or so; the Court held
-the instruments could not be |140| maintained [372]. A patient, aged,
-feeble, deaf and of very weak mind, bestowed all his estate on the
-attending physician, who lived with him, and had controlling influence
-over him, for an extremely trifling compensation. The transaction was
-set aside, the Court saying: “Owing to the relation which the parties
-sustained towards each other, the deed was presumptively the result
-of undue influence, and therefore _prima facie_ void for that reason.
-It has been repeatedly declared by learned chancellors that the mere
-relation of patient and medical adviser was sufficient to avoid the
-contracts of the former made with the latter during the continuance of
-such relation” [373].
-
-A security given by an old man for £262 10_s._ to a dentist, in
-consideration of his old teeth being kept in order and new ones being
-supplied during the remainder of his life, had to be given up [374].
-And if a man pays an exorbitant bill to a doctor, the Court will grant
-him relief; and it will be no answer to his asking his money back to
-say that he intended to be liberal, unless such intentions can be
-clearly shown [375]. Even a sale to a patient by the medical man under
-whose care he is will be set aside if at an exorbitant price, and the
-purchaser has had no independent advice [376].
-
-But where the evidence showed that the patient’s own attorney prepared
-the papers, that he had independent advice, and understood what he
-was doing, and exercised his free will, and that the medical man had
-long attended him, the Court refused to set aside the deed, although
-the patient was eighty years of age [377]. And although a |141| gift
-made to a physician may be voidable, because of his standing in a
-confidential relation to the donor, a patient, yet, if after the
-confidential relation has ceased to exist, the donor intentionally
-elects to abide by the gift, and does, in fact, abide by it, it cannot
-be impeached after his death, even if it is not proved that the patient
-was aware that the gift was voidable at his election [378].
-
-There is, of course, nothing in the relation of medical attendant and
-patient which can prevent the one from entering into a contract with
-the other, where the transaction proceeds openly and fairly, and the
-relation of physician and patient has, in reality, no bearing upon
-it [379]. In the case of a sale by a patient to a physician, where there
-was no proof of inadequacy of price, the transaction was sustained [380].
-
-A strong case must be made to set aside a will on the ground of undue
-influence. Influence is not sufficient: there must be such a degree
-of influence as deprives the testator of the proper mastery over
-his faculties [381]. To invalidate a will, on the ground of undue
-influence, it must be shown that it was practised with respect to the
-will itself, or so contemporaneously with the will, or connected with
-it, as by almost necessary presumption to affect it; and flattery
-and obsequiousness, however degrading, will not constitute such an
-undue influence as will affect the acts of a capable testatrix [382].
-Many wills made in favour of medical men by their patients have been
-sustained, although disputed, and that even in cases where the patients
-have been aged, infirm women, with impaired minds [383]. |142|
-
-A physician, however, may fail to obtain the benefits which a
-grateful patient has wished him to have under a will, if—as was done
-in one case—after a long attendance on a patient, he thinks fit, when
-she is almost on her deathbed, to prepare and procure the execution
-of a will by which he becomes the principal object of her bounty,
-to the exclusion of her near relatives; and to do this without the
-intervention of any solicitor or other person competent to give her
-advice, and to guard her against undue influence; for in such a case
-the interests of the public require that his conduct should be regarded
-by Courts of Justice with the utmost jealousy [384]. In another case,
-it was said that although there is no rule of law which forbids a
-man to bequeath his property to his medical attendant, yet it is not
-a favourable circumstance for one in such a confidential position,
-with respect to a patient labouring under a severe disease, to take a
-large benefit under such patient’s will, more particularly, if it be
-executed in secrecy and the whole transaction assumes the character
-of a clandestine proceeding, and in such a case the _onus_ will lie
-very heavily upon the party benefited to maintain the validity of the
-will [385].
-
-Clairvoyant physicians may also get into trouble. An action was brought
-against one to set aside a marriage and a conveyance of property
-worth $25,000. The patient was old, feeble, deaf, childish and a firm
-spiritualist. The clairvoyant was a woman who pretended to be very
-modest and bashful and able to cure the deafness. After a course of
-treatment, mainly by manipulation, she told the old man that the
-spirits said that they must be married within two weeks, or something
-dreadful “would step in between them.” |143| By misrepresentations
-concerning her character and her friends she won the old man and his
-property. After the honeymoon the patient came to his senses, and
-prayed to get back his liberty and possessions, because of the fraud
-used. The Court granted his prayer [386].
-
-To promise a cure is unprofessional, and to obtain money on the faith
-of such a promise is sometimes dangerous. Brown falsely represented
-himself to A., an ignorant negro, to be a practising physician, and
-that he had restored sight to the blind. He persuaded A. that his
-(A.’s) house was infected with poison, and that it was in the bed
-occupied by his granddaughter, that she was poisoned, and that he could
-remove the poison if he was paid for so doing. A. gave him $22 to
-remove it. The Court held that Brown had been guilty of obtaining money
-under false pretences [387].
-
-A physician should take all possible care to prevent the spread
-of smallpox or any other contagious disease, and use all such
-precautionary measures as may appear desirable. So, where the paper
-upon the walls of a room in which there had been smallpox patients had
-become so soiled and smeared with the smallpox virus as to make its
-removal necessary, a physician or other attendant may order the paper
-to be torn down; and the landlord cannot successfully maintain an
-action against the physician for doing this [388].
-
-Apparently a surgeon may retain the limbs he cuts off a patient, upon
-the ground that parts of the body when severed become dead, and at
-common law there is no property in a dead human body. The point was
-once contested in Washington [389]. |144|
-
-A surgeon who attends a duel, although to save by his skill if
-possible the lives therein imperilled, will be held guilty of aiding
-and abetting the principal offender in the event of death ensuing [390].
-
-If a medical practitioner wilfully injures a patient he is liable to
-be indicted for an assault, and if death ensue from the injuries so
-inflicted he may be indicted for murder. And this is so even though
-the patient might have submitted at the time from the supposition
-that the treatment was for his good. Having or attempting to have
-carnal connection with a female patient under pretence of treating her
-medically is an assault [391]. Making a female patient strip naked,
-under pretence that the defendant, a medical practitioner, cannot
-otherwise judge of her illness, if he himself takes off her clothes,
-contrary to her wishes, is an assault. In this case the jury found that
-the defendant had stripped the girl wantonly, and not from any belief
-that it was necessary [392].
-
-Where a physician takes an unprofessional unmarried man with him to
-attend a case of confinement, and no real necessity exists for the
-latter’s assistance or presence, both are liable for damages; and it
-makes no difference that the patient, or her husband, supposed at the
-time that the intruder was a medical man, and therefore submitted
-without objection to his presence; or that the intruder accompanied the
-physician reluctantly on a dark and stormy night to carry a lantern
-or umbrella, and some instruments, and that there was only one room
-in the house. The Court remarked: “Dr. De May therefore took an
-unprofessional young unmarried man with him, introduced and permitted
-him to remain in the house of the plaintiff, when it was apparent that
-he could hear at least, |145| if not see, all that was said and done,
-and, as the jury must have found under the instructions given, without
-either the plaintiff or her husband having any knowledge or reason to
-believe the true character of the third party. It would be shocking
-to our sense of right, justice and propriety even to doubt that for
-such an act the law would afford an ample remedy. To the plaintiff
-the occasion was a most sacred one, and no one had a right to intrude
-unless invited, or because of some real and pressing necessity which it
-is not pretended existed in this case. The plaintiff had a legal right
-to the privacy of her apartment at such a time, and the law secures to
-her this right by requiring others to observe it and to abstain from
-its violation. The fact that at the time she consented to the presence
-of Scattergood, supposing him to be a physician, does not preclude her
-from maintaining an action, and recovering substantial damages upon
-afterward ascertaining his true character. In obtaining admission at
-such a time and under such circumstances, without fully disclosing
-his true character, both parties were guilty of deceit, and the wrong
-thus done entitles the injured party to recover the damages afterward
-sustained, from shame and mortification, upon discovering the true
-character of the defendants.” The action was brought by the wife [393].
-
-If physicians, who have certified to the insanity of a person, have
-not made the enquiry and examination which the statute requires, or if
-their evidence and certificate in any respect of form or substance are
-not sufficient to justify a commitment to an asylum, the authorities
-should not commit, and if they do it is their fault and not that of the
-physicians, provided the latter have stated facts and opinions truly
-and have acted with due professional care and skill [394]. |146|
-
-If a medical man takes upon himself the responsibility of imprisoning
-a person on the ground of insanity, upon mere statements made to him
-by others, he will be liable to an action, and also for an assault,
-unless he can indeed show that the party imprisoned was insane at
-the time [395]. He is not liable for an assault if he has signed a
-certificate under the Lunacy Acts and has done nothing more towards
-causing the confinement of the alleged lunatic [396]. A medical man
-or other person may justify an assault where it is committed for the
-purpose of putting a restraint upon a dangerous lunatic in such a state
-that it is likely he may do mischief to some one [397].
-
-In Ontario, except under order of the Lieutenant-Governor, no one
-can be admitted into a lunatic asylum without the certificate of
-three medical men, each attested by the signatures of two subscribing
-witnesses. Their certificates must state a personal and separate
-examination, and that after due enquiry the patient was found insane;
-and the physicians must also specify the facts upon which they formed
-their opinion of the insanity. In England, except in the case of
-paupers, two certificates are required [398].
-
-The practice of abortion is forbidden by the oath of Hippocrates. The
-act is recognized as a crime in almost every code of medical ethics:
-its known commission has always been followed by ignominious expulsion
-from medical fellowship and fraternity. At Common Law a child _en
-ventre sa mere_ is not considered a person the killing of whom is
-murder; but if one, intending to procure abortion, causes a child to be
-born so soon that it cannot live, and |147| it dies in consequence,
-it is murder [399]. And it is murder if one, attempting to procure
-abortion, either by means of drugs or instruments, cause the death of
-the woman [400].
-
-In most civilized countries it is now either a felony, or grave
-misdemeanor, to attempt to procure the miscarriage of a woman by any
-means; or to supply or procure any thing knowing that it is intended
-to be unlawfully used or employed to procure a miscarriage [401]. In
-some States the crime of abortion may be committed at any stage of
-pregnancy [402]. The thing prescribed must be noxious in its nature, but
-it is not necessary to prove that it will produce miscarriage [403].
-
-The burden of shewing that the use of instruments to produce abortion
-was necessary to save the life of the woman is on the accused [404].
-
-It is an indictable offence for a physician, or any one else,
-unlawfully and injuriously to carry along or to expose in a public
-highway, on which persons are passing, and near to the habitations
-of others, any person infected with the small-pox, or any contagious
-disorder; and it is for the accused to shew that the object of the
-carrying or exposure was lawful [405].
-
-In England, since 1840, it has been an indictable offence to innoculate
-for the small-pox [406]. So, too, it has been in Canada for a number of
-years [407]. |148|
-
-It has been held in the State of Alabama, that where a special
-prohibitory Act does not except the practising physician from its
-operation, he is liable if he administers intoxicating bitters to his
-patient, but not for using liquors necessary in compounding medicine
-manufactured and sold by him. The application of any other rule,
-it was said by the Court, would be fraught with difficulty, if not
-impracticability. So, too, in Kansas [408].
-
-Any registered practitioner who has been convicted of felony shall
-forfeit his right to registration, and the Medical Council may cause
-his name to be erased from the register; and if any one who has been
-convicted of felony presents himself for registration the registrar may
-refuse registration. But one’s name cannot legally be removed from the
-register without notice and an opportunity of being heard [409].
-
-A person who has met with personal injuries must exercise the same
-degree of care in the employment of a physician and surgeon, and in
-procuring and submitting to proper medical treatment, as a prudent and
-reasonable man would in any other matter; for those persons liable for
-the original injury will not be responsible for the further damage
-arising from the improper selection of a physician [410].
-
-If a family doctor, or the surgeon of a company or society, on leaving
-home, recommends in case of need, some other physician, who is not,
-however, in any sense in his employment, it does not make him in any
-way liable for injuries arising from the latter’s want of skill [411].
-
-
-
-
-|149|
-
-CHAPTER XII.
-
-DISSECTION AND RESURRECTION.
-
-
-A knowledge of the causes and nature of sundry diseases which affect
-the human body, and of the best methods of treating and curing such
-diseases, and of healing and repairing divers wounds and injuries to
-which the human frame is liable, cannot be acquired without the aid of
-anatomical examination. So saith the preamble to the British Anatomy
-Act of 1832. The chief hindrances to the pursuit of the study of
-anatomy have arisen from ignorance and superstition. A prejudice has
-prevailed in all nations against the violation of the human body after
-death. Even now, only philosophers like Jeremy Bentham are willing to
-have their bodies dissected by their friends. Simple association of
-thoughts causes the remains of a dead kinsman or friend to be treated
-with respect and tenderness; in the same way, the horror of death
-attaching to anything connected with the dead, and the religious idea
-that the soul outlives the body, and continues in a ghostly way to
-retain a connection with its old habitation of clay, have led to the
-respectful disposal of the corpse among most nations.
-
-The Ptolemy princes Philadelphus and Euergetes, who enabled their
-physicians to dissect the human body, and prevented the prejudices of
-ignorance and superstition from compromising the welfare of the human
-race, were far in advance of their times. Long after their day, the
-Koran denounced as unclean the person who touched a corpse, and |150|
-the rules of Islamism still forbid dissection; the old Moslem doctors
-only found opportunities of studying the bones of the human body in
-the cemeteries. Not until the days of Henry VIII. did the law make any
-provision for the cultivation and practice of the art of dissection.
-In 1540, more perhaps to strike terror into malefactors, than from
-any enlightened notion of forwarding knowledge, the Legislature gave
-permission to the masters of the Mystery of Barbers and Surgeons of
-London to take annually four persons, put to death for felony, for
-anatomies, and to make incision of the same dead bodies, or otherwise
-to order the same, after their discretions, at their pleasure, for
-their further insight and better knowledge, instruction, insight,
-learning, and experience, in the science or faculty of surgery [412].
-
-Elizabeth, in 1565, made a similar grant to the College of Physicians,
-that they, observing all decent respect for human flesh, “might dissect
-the four felons.” By 25 Geo. II. cap. 37 (1752), the bodies of all
-murderers executed in London and Westminster were to be given to the
-surgeons to be dissected and anatomised. But the legal supply of human
-bodies for anatomical examination still continued insufficient fully to
-provide the means of knowledge; and in order to furnish the necessary
-subjects, divers great and grievous crimes and murders were committed,
-the money paid, being the incentive. So, in 1832, the Anatomy Act [413]
-was passed. This Act proves clearly that Parliament regarded anatomy as
-a legal practice, and it provides for the licensing of those practising
-anatomy, allows any executor or other person, having lawful possession
-of any dead person (and not being an undertaker, etc.), to hand over
-the body for dissection (respect, however, being had to |151| the
-wishes of the deceased or his known relatives). Inspectorships of
-schools of anatomy were likewise established.
-
-In Canada, the bodies of convicts who die in a penitentiary, if
-unclaimed by the relatives, may be delivered to the professors of
-anatomy in any medical college, or to an inspector of anatomy [414].
-
-The first defender of the faith, Henry VIII., the illustrious Elizabeth
-of most famous memory, and the enlightened James, had several statutes
-passed in which the disinterring of the dead is mentioned, but they
-were chiefly enactments against witchcraft, conjuration, the use
-of dead men’s bones, and all sorts of sorceries. The parliament of
-James solemnly enacted, “that if any person should consult, covenant
-with, entertain, employ, feed or reward any evil and wicked spirit,
-to or for any intent or purpose, or take up any dead man, woman, or
-child out of his, her, or their grave, or any other place where the
-dead body rested, or the skin, bone, or any other part of any dead
-person, to be employed, or used, in any manner of witchcraft, sorcery,
-charm, or enchantment * * every such offender, his aiders, abettors,
-and counsellors, should suffer death as felons, and should lose the
-privilege and benefit of clergy and sanctuary” [415]. This philosophical
-enactment graced the statute book until the ninth year of George II.
-While these statutes against sorcery were in force, and the Judges
-still imbued with the superstitious spirit of the age, the presumption
-was very strong that bodies disinterred were removed for purposes
-of enchantment or witchcraft, and resurrection-men and students of
-anatomy, as their aiders and abettors, were in imminent jeopardy of
-suffering as felons; but as the belief in sorcery grew weaker the
-prospect of these men grew brighter, and they were relieved from the
-great danger that they ran. |152|
-
-Under the laws of Constantine, a woman could without blame repudiate
-her husband, if he was guilty of violating the tombs of the dead; and
-we are told that the Ostrogoths allowed divorce for this same reason.
-And among the Franks, one who took the clothing from a buried corpse
-was banished from society, and none could relieve his wants until the
-relations of the deceased consented [416]. As long ago as the tenth
-year of James I., at the assizes in Leicester, a man was tried for
-stealing winding sheets. Sir Edward Coke tells the matter thus: “One
-William Hain had in the night digged up the graves of divers several
-men and of one woman, and took the winding sheets from the bodies and
-buried the bodies again; and I advising hereupon, for the rareness of
-the case, consulted with the Judges at Sergeants’ Inn on Fleet street,
-when we all resolved, that the property of the sheets was in the
-executors, administrators, or other owner of them, for the dead body is
-not capable of any property, and the property of the sheets must be in
-somebody, and according to this resolution he was indicted of felony in
-the next assizes; but the jury found it but petit larceny, for which he
-was whipped, as he well deserved.” These learned people thought that
-if a winding sheet had been gratuitously furnished by a friend the
-property remained in the donor. For, quoth they, the winding sheet must
-be the property of somebody; a dead body, being but a lump of earth,
-hath no capacity; also, it is no gift to the person, but bestowed
-on the body for the reverence toward it, to express the hope of the
-resurrection; also, a man cannot relinquish the property he hath to his
-goods unless they be vested in another [417]. Subsequently, lawyers have
-generally concurred in these opinions; the coffin, too, is the property
-of the personal representative of the deceased [418]. |153|
-
-A still more interesting question arises as to who owns the corpse.
-It has been generally held that there is no property in it. Blackstone
-remarks, that, although the heir has a property in the monuments
-or escutcheons of his ancestor, he has none in his body or ashes.
-According to the law of England, after the death of a man, his
-executors have a right to the possession and custody of his body
-(although they have no property in it) until it is properly buried. A
-man cannot dispose of his body by will or any other instrument [419].
-A contract for the sale of a corpse, even to doctors, will not be
-enforced; it cannot be made an article of merchandise [420]. The
-relatives have the right of interring the body, and when this right
-is once exercised they have no further interest in it than to protect
-it from injury [421]. In Indiana, the Courts have diverged somewhat
-from the beaten track, and held that the surviving relatives are
-entitled to the corpse in the order of inheritance as property, and
-that they have a right to dispose of it as such, subject to whatever
-burial regulations are reasonable and proper for the public health and
-advantage [422].
-
-The English Anatomy Act, as has been seen, gives the executor or other
-person having the lawful possession of the body of any deceased person
-power to permit it to be anatomically examined. In England, the earlier
-writers on criminal law say nothing of the taking of a body from the
-grave, except that it is not theft. East, however, calls it a great
-misdemeanor; and there have been several convictions for this as an
-offence at Common Law. Doubtless the belief that it was an offence at
-Common Law was nearly connected |154| with the idea of the bodies
-being used for the dark purposes of the necromancer, and it would
-appear that no distinct authority upon the abstract point has been
-found in ancient legal records [423]. It is still an indictable offence,
-punishable with fine and imprisonment, or both [424]. And this even
-though the body has been taken in the interest of science, and for the
-purpose of dissection; or even if the motives of the offender were
-pious and laudable. In _Lynn’s_ case—(Lynn was indicted for entering a
-burying ground, taking a coffin up, and carrying away a corpse for the
-purposes of dissection)—it was urged that the offence was cognizable
-only by the ecclesiastical courts; but the Judges of the King’s Bench
-said that common decency required that a stop should be put to the
-practice; that it was an offence cognizable in a criminal court as
-being highly indecent, and _contra bonos mores_, at the bare idea alone
-of which nature revolted; that the purpose of taking up the body for
-dissection did not make it less an indictable offence. They refused to
-stay proceedings, but inasmuch as Lynn might have committed the deed
-merely through ignorance, they only fined him five marks. Since then
-others have been more severely dealt with. And in a very recent case,
-Stephen, J., said, “The law to be collected from these authorities
-seems to me to be this:—The practice of anatomy is lawful, though it
-may involve an unusual means of disposing of dead bodies, and though it
-certainly shocks the feelings of many persons; but to open a grave and
-disinter a dead body without authority is a misdemeanor, even if it is
-done for a laudable purpose.”
-
-It is, also, an indictable offence in many of the States to disinter a
-corpse, unless the deceased in his life-time had |155| directed such a
-thing, or his relatives consent to it; and that the resurrecting is for
-the purpose of dissecting does not improve matters [425]. In New York,
-removing dead bodies “for the purpose of selling the same,” or “from
-mere wantonness,” is punishable by both fine and imprisonment [426]. And
-in New Hampshire and Vermont such offences bring upon those convicted,
-fines, whipping, and imprisonment, as the Court may see fit.
-
-In Massachusetts, unclaimed dead bodies, and those of persons killed
-in duels, or capitally executed, are assigned to the medical schools
-of the State. The New York Act of 1789 must be considered as the
-first American Anatomy Law. The first section prohibits the removal
-of dead bodies for dissection, and the second section permits the
-Courts, in passing capital sentence, to award the body to the surgeons
-for dissection. Enactments similar to that of the New York Act, sec.
-1, have been passed by the following States: Alabama, Arkansas,
-California, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas,
-Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi,
-Missouri, Nebraska, New Hampshire, Ohio, Oregon, Pennsylvania, Rhode
-Island, Tennessee, Texas, Vermont, Virginia, West Virginia, and
-Wisconsin. The second section of the New York Act has developed into
-the Acts of twenty-four States, which have thus legalized dissection,
-and most of them have made specific provision for the dissection of the
-bodies of certain deceased criminals, chiefly murderers; these States
-are Alabama, Arkansas, California, Colorado, Connecticut, Georgia,
-Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan,
-Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York,
-Ohio, Pennsylvania, Tennessee, Vermont, and Wisconsin. Some of these
-States |156| have made no other provision for anatomical study beyond
-that mentioned [427]. We have already referred to the Canadian Act on
-this subject. In addition, the Ontario Act provides that the bodies of
-persons found dead, publicly exposed, or who at time of death had been
-supported in and by some institution receiving government aid (except
-lunatics in provincial asylums), shall, unless the person so dying
-otherwise direct, or the _bona fide_ friends or relations claim it, be
-given to public medical schools in the locality, or to public teachers
-of anatomy or surgery, or private medical practitioners, having
-three or more pupils, for whose instruction such bodies are actually
-required. Such medical practitioners must give security for the decent
-interment of the bodies after they have served their purposes; and
-then a written authority to open a dissecting room is given by the
-Inspector of Anatomy of the city, town, or place. The Inspector’s duty
-is to keep a register of bodies given up for dissection; a register
-of the qualified practitioners desiring bodies; to make an impartial
-distribution of the bodies in rotation; to visit the dissection rooms,
-and to report to the police magistrate or chief municipal officer, any
-improper conduct on the part of students or teachers [428].
-
-A person may be found guilty of the offence of disinterring a corpse,
-even though he was not actually present at the body-lifting, if with
-the intention of giving aid and assistance he was near enough to afford
-it, if required [429].
-
-Besides the danger he runs of being brought before a criminal tribunal,
-the body-lifter incurs the risk of civil proceedings being taken
-against him. It is true, as Blackstone says, the heir has no property
-in the body or ashes of |157| his ancestors; nor can he bring any
-civil action against such as indecently, at least, if not impiously,
-violate and disturb their remains when dead and buried; but that
-learned commentator goes on to remark: “The person, indeed, who has
-the freehold of the soil, may bring an action of trespass against such
-as dig and disturb it” [430]. This has been clearly established in a
-case in Massachusetts, where a father sued for the removal of the
-remains of his child, and recovered a verdict for $837 in an action
-of trespass _quare clausum fregit_. Mr. Justice Forster, in giving
-judgment, remarks that a dead body is not the subject of property,
-and after burial it becomes part of the ground to which it has been
-committed, earth to earth, dust to dust, ashes to ashes. The only
-action that can be brought is trespass _quare clausum_. Any one, said
-the Judge, in actual possession of the land may maintain this against
-a wrong-doer. The gist of the action is the breaking and entering, but
-the circumstances which accompany and give character to the trespass
-may always be shown either in aggravation or mitigation. Acts of
-gross carelessness as well as those of wilful mischief often inflict
-a serious wound to the feelings, when the injury done to property is
-comparatively trifling, and we know of no rule of law which requires
-the mental suffering of the party complaining, caused by the misconduct
-of the wrong-doer, to be disregarded [431].
-
-Willcock, in his “Laws relating to the Medical Profession,” in his
-tenth chapter, when considering the lawfulness or unlawfulness of
-taking bodies for the purpose of dissection, says: “The whole question
-must depend upon the proper answer to these inquiries. Is it a
-violation of property? |158| Is it a personal injury to any individual?
-Or is it an injury to the public? Every lawyer who has mentioned
-the subject has admitted that there is no violation of property in
-respect of the corpse itself, which is necessary to constitute the
-removal an offence; and Blackstone has distinctly stated that the only
-property violated is the grass and soil of the land wherein the body
-was interred, in respect of which the person may bring his action
-of trespass, and the law has not provided any punishment as for an
-offence. It is equally clear that it is not an injury to any person;
-for the shrewd lawyers of Coke’s time determined that the body was
-no person but a lump of clay; and the only injury which can give a
-right of action to—that is which amounts to a violation of any legal
-right of—a relative or master, is such as may be said to recoil upon
-him, by causing him expense, labor, or loss of valuable service. The
-unpleasantness which may arise from an attack upon prejudices, however
-intimately blended with good feeling and delicacy of sentiment, is
-ranked by the court with that class of wrongs which are technically
-designated _damna absque injuria_.”
-
-“In _Lynn’s_ case, the judges assumed to answer the third question,
-that is to assert that it is an injury to the public. Society is not
-injured by the disinterment of the dead for the purposes of science,
-for it could hardly exist without such a sacrifice of fastidiousness;
-society is not insulted by the secret abstraction of the corpse from
-the vermin which crowd to pollute it, and they who so curiously seek
-the remains of those they hold dear, behind the veil of science, would
-do well to pry for one moment into the secrets of the sepulchre. They
-alone are the violators of every sentiment of delicacy and benevolence
-who insult the disconsolate relatives with the tale of the robbery and
-the pursuit, and with the foul spectacle of dismemberment they may have
-at length discovered.” |159|
-
-It would appear that in a proper case the Court, in the interests
-of justice, will compel the exhuming and examination of a dead body
-which is under the control of a plaintiff, if there is strong reason
-to believe that without such examination a fraud is likely to be
-accomplished, and the defendant has exhausted every other method known
-to the law of exposing it. However, such an order should be made
-only upon a strong showing to that effect. “It would be a proceeding
-repugnant to the best feelings of our nature, and likely to be in many
-cases so abhorrent to the sensibilities of the surviving relatives,
-that they would prefer an abandonment of the suit to a compliance
-with the order.” Thus spake the court in a case where the order for
-exhuming was asked for and refused as not being justified under the
-circumstances. The action was on a policy of insurance, and the defence
-was, that the insured had falsely warranted that he had never received
-any serious personal injury, whereas his skull had been fractured in
-boyhood, and had been healed by trephining. To prove this, the company
-proposed to disinter his body, after the suit had been pending eighteen
-months, upon the sole testimony of his physician, that the deceased
-had said that he had been told of such an accident and operation. The
-counsel for the plaintiff called the proposal “revolting,” and said
-that to break the signet of the grave, and take from its resting place
-the sacred property of relatives to gratify the corporation’s mercenary
-curiosity, would be worse than Shylock’s demand [432].
-
-
-
-
-|160|
-
-CHAPTER XIII.
-
-DENTISTS.
-
-
-The need of dentists existed long before dentistry. The Preacher knew
-of the inconveniences which arise when the grinders are few. Marcellus,
-about B. C. 380, gave two receipts for toothache. One is, “Say,
-‘argidam, margidam, sturgidam;’” the other is, “Spit in a frog’s mouth
-and request him to make off with the complaint.” These are given in
-Glenn’s “Laws affecting Medical Men.”
-
-In England, in the tenth and eleventh centuries, priests and monks
-were the dentists of the day. Afterwards, a decree of the Council of
-Tours having forbad clergymen undertaking or engaging in any bloody
-operation, all surgical practice fell into the hands of blacksmiths and
-barbers. The latter soon became the more important class, and in 1461
-(as we have seen already), Edward IV. incorporated them as “The Freeman
-of the Mystery or Faculty of Surgery.” By degrees other persons assumed
-to practise pure surgery, and these two bodies, in 1560, were united by
-Act of Parliament, and became “The Masters or Governors of the Mystery
-and Commonalty of the Barbers and Surgeons of London.” By the third
-section of this Act [433], because of fear of the spread of contagious
-diseases, any one in the City of London using barbery or shaving, was
-forbidden to |161| occupy any surgery, letting of blood, or any other
-thing belonging to surgery, drawing of teeth only excepted. In those
-days one wishing to find a drawer of teeth had to resort to one of
-those shops where was exhibited the bandaged pole as a sign or symbol
-that “all the King’s liege people there passing by might know at all
-times whither to resort in time of necessity.”
-
-Something more than a sign is now required of dental surgeons. The
-Royal College of Surgeons in England has now the power to appoint
-examiners for testing the fitness of persons to practise as dentists,
-and to grant certificates of such fitness. To become a Licentiate of
-Dental Surgery in England, it is necessary to be engaged for four years
-in the acquirement of professional knowledge; to attend at a recognized
-school one course of lectures, at least, in anatomy, physiology,
-surgery, medicine, chemistry, and materia medica, and a second course
-on the anatomy of the head and neck; one course on metallurgy, and
-two on dental surgery and anatomy, dental physiology and mechanics;
-to have dissected for nine months; to have taken a course of chemical
-manipulation; to have attended a hospital for two or more sessions;
-and to have spent three years in acquiring practical familiarity in
-mechanical dentistry under a competent practitioner; and then to pass
-the examination required by the board.
-
-In Ontario, “The Royal College of Dental Surgeons” has power to appoint
-a Board of Directors, who have authority to fix the curriculum of
-studies to be pursued by students, to determine the period during which
-they must be employed under a practitioner, to appoint the examiners,
-and arrange the examinations, for those who desire to obtain a license
-to practise dental surgery in the province. The Board may also confer
-the title of “Master of Dental Surgery” upon any licentiate who passes
-certain examinations and |162| conforms with certain regulations. The
-College is composed of all those entitled to practise in the Province;
-and no one who is not a member of the College can practise dentistry
-for hire, gain or hope of reward, or pretend to hold, or take, or use
-any name, title, addition or description, implying that he holds a
-license to practise, or that he is a member of the College, or shall
-falsely represent, or use any title representing that he is a graduate
-of any dental college, under a penalty of $20 and costs for every
-offence, to be recovered in a summary way before a magistrate, or in a
-Division Court by suit. Persons contravening the Act cannot recover for
-work done or materials provided. Of course, the Act does not interfere
-with legally qualified medical practitioners [434].
-
-Dentists are subject to the same rules, as to negligence, as are
-physicians or surgeons [435], and if by a culpable want of attention and
-care, or by the absence of a competent degree of skill and knowledge,
-a D.D.S. causes injury to a patient, he is liable to a civil action
-for damages, unless, indeed, such injury be the immediate result of
-intervening negligence on the part of the patient himself, or unless
-such patient has by his own carelessness directly conduced to the
-injury [436]. The law is ever reasonable; so it only requires of a
-dentist a reasonable degree of care and skill in his professional
-operations, and will not hold him answerable for injuries arising
-from his want of the highest attainments in his profession. The rule
-is, that the least amount of skill with which a fair proportion of
-the practitioners of a given locality are endowed, is the criterion
-by which to judge of the professional man’s ability or skill [437].
-As far as the liability is concerned, no distinction is made |163|
-between those who are regular practitioners and those who are not so;
-the latter are equally bound with the former to have and to employ
-competent skill and attention.
-
-A patient must exercise ordinary care and prudence [438]; so that, if
-one tells the dentist to pull out a tooth, but does not say which one
-is to go, and the wrong one is taken out, the sufferer has no legal
-ground of complaint, unless, indeed, it is quite apparent which is
-the offending member. A patient may have been a little careless and
-negligent; still, if the dentist has been so very neglectful of his
-duty that no ordinary care on the part of the patient would have
-prevented the mistake or injury complained of, the injured party will
-recover, _i.e._, recover damages for the injury received [439].
-
-The fact that one has taken chloroform will not affect his rights
-or remedies against the tooth-puller for any mistake or negligence.
-The maxim _vigilantibus, non somnientibus jura subveniunt_, has
-no reference to people put to sleep by anæsthetics. In New York,
-two dentists undertook to extract a tooth from a patient while the
-latter was under the influence of laughing gas. During the operation
-the forceps slipped, and part of the tooth went down the patient’s
-throat, causing coughing and vomiting for four weeks, when—in a fit
-of coughing—the tooth came up, and relief followed. The patient sued
-for damages, and when the case came before it, the Court said, “The
-defendants (the dentists) knew that the plaintiff (the patient)
-while under the influence of the anæsthetic, had no control of his
-faculties, that they were powerless to act, and that he was unable to
-exert the slightest effort to protect himself from any of the probable
-or possible consequences of the operation which they had undertaken
-to perform. He was in their |164| charge and under their control
-to such an extent that they were required to exercise the highest
-professional skill and diligence to avoid every possible danger;
-for the law imposes duties upon men according to the circumstances
-in which they are called to act. In this case, skill and diligence
-must be considered as indissolubly associated. The professional man,
-no matter how skilful, who leaves an essential link wanting, or a
-danger unguarded in the continuous chain of treatment, is guilty of
-negligence, and if the omission results in injury to the patient, the
-practitioner is answerable. The quantum of evidence necessary to make
-out a _primâ facie_ case of negligence is very slight in some cases,
-while in others a more strict proof is required. Often the injury
-itself affords sufficient _primâ facie_ evidence of negligence. * * *
-There was evidence offered by the plaintiff showing, that while the
-defendant drew the tooth, the forceps slipped. This fact, combined with
-the unusual circumstance that the tooth went down instead of coming
-up, was sufficient to carry the case to the jury upon the question
-of negligence. The trial Judge held that while the affirmative was
-upon the plaintiff to prove negligence, the fact that the defendants,
-instead of taking the plaintiff’s tooth out, let it go down his
-throat, was sufficient evidence to carry the question of negligence
-to the jury, to the end that they might determine whether, in the
-light of all the circumstances, the defendants had exercised the skill
-and care which the exigencies of the case required. This ruling was
-correct” [440].
-
-Boyle’s case is an interesting one on the subject of the use of
-chloroform. He was a street-car driver; a vicious horse by a kick threw
-him from his platform, so that he hit his head against a tree-box.
-He was picked up insensible and carried into a surgery; this he was
-enabled to leave |165| in a couple of hours, and the following day
-went to work again. In course of time he had a toothache, and went to
-a Dr. Winslow’s to have it extracted, intending to take chloroform.
-The chloroform was administered, but did not operate as soon as usual,
-exciting rather than tranquilizing B. Insensibility, however, having
-been finally obtained, the teeth were taken out, the doctor giving
-the anæsthetic from time to time during the operation, as symptoms of
-returning consciousness appeared. Boyle walked home shortly afterwards,
-feeling, however, dizzy, and being uncertain in his gait; these
-unpleasant symptoms continued even after reaching his house. The next
-day, thickness of speech and numbness of one arm and side came on,
-with partial paralysis. From this he was still suffering, when a jury
-was called upon to say whether his state was due to the neglect of the
-dentist or not. The Judge told the jury that, even if they doubted
-the safety of the agent employed (chloroform), there was still a
-consideration of the highest reason which they ought not to disregard.
-He remarked, “All science is the result of a voyage of exploration,
-and the science of medicine can hardly be said to have yet reached
-the shore. Men must be guided therefore by what is probably true, and
-are not responsible for their ignorance of the absolute truth which
-is not known. If a medical practitioner resorts to the acknowledged
-proper sources of information—if he sits at the feet of masters of high
-reputation and does as they have taught him—he has done his duty, and
-should not be made answerable for the evils that may result from errors
-in the instruction which he has received. * * * He who acts according
-to the best known authority is a skilful practitioner, although
-that authority should lead him in some respects wrong. * * * If the
-plaintiff was from previous circumstances predisposed to paralysis,
-it might well happen that the extraction of his teeth, |166| without
-the chloroform, or the use of the chloroform without the extraction,
-would bring on a paralytic attack. Even if this was the case, still it
-would not be just to make the defendant answerable for consequences
-which he could not foresee, which were not the ordinary or probable
-result of what he did. He was only bound to look to what was natural
-and probable, to what might reasonably be anticipated. Unless such
-guard is thrown around the physician his judgment may be clouded, or
-his confidence shaken by the dread of responsibility, at those critical
-moments when it is all important that he should retain the free and
-undisturbed enjoyment of his faculties, in order to use them for the
-benefit of the patient” [441].
-
-In the olden time, front teeth were considered very valuable. Our
-ancestors appear to have used them in fighting, and the hurting of a
-man so as to render him less able in fighting to defend himself or
-annoy his adversary, was considered a misdemeanor of the highest kind,
-and spoken of by my Lord Coke as the greatest offence under felony. To
-cut off an ear or strike off a nose was nothing to the knocking out of
-a fore-tooth, for a nose or an ear is useless in a fight—doubtless they
-are in the way [442]. According to that system of punishment introduced
-into England by the Engles, which compensated every injury by a money
-payment, a front tooth was valued highly, and one who deprived another
-of such a member had to pay six shillings, while breaking a rib only
-cost half as much, and shattering a thigh only twelve shillings [443].
-
-The fact that a dentist extracts teeth for love and not for money
-does not relieve him of his liability for failure to perform his
-work properly [444]; and if one is foolish enough |167| to allow an
-ignorant apprentice to practise on his teeth, he can still recover from
-the dentist for any injuries [445]. It is a good answer to an action
-brought by a dentist to recover payment for his work and labor, that
-the defendant has been injured instead of benefited by the plaintiff’s
-treatment, either because of his want of skill or his negligence. So,
-when Mr. Gilpin went to Mr. Wainwright to have a tooth extracted, and
-Wainwright gave him chloroform, and then pulled out the wrong tooth,
-and Gilpin declined to pay for the performance, alleging a want of
-consideration, the dentist sued for his account, but the Court gave
-judgment against him [446]. If the dentist’s bill has been increased
-owing to his own mistake or wrong doing—as where being employed to pull
-out one tooth and insert a false one, he pulled out two, and so had to
-put in two; he cannot recover for this additional amount of work. Lord
-Kenyon well put this when he said: “If a man is sent for to extract a
-thorn which might be pulled out with a pair of nippers, and through his
-misconduct it becomes necessary to amputate the limb, shall it be said,
-that he may come into a court of justice to recover fee for the cure
-of the wound which he himself has caused?” [447]. To put the question
-is to give the answer. In fact, in such a case as the one put, it
-would appear that not only could no recovery be had for the additional
-services rendered necessary by the dentist’s own want of proper care,
-but the man whose grinders were thus made few would be entitled to a
-further deduction from the bill for the bodily suffering and damage he
-had sustained [448].
-
-One cannot reasonably expect to have teeth as well fitted to the mouth
-by art as nature. Mrs. Henry got a set of artificial ones from Dr.
-Simonds; when put into her |168| mouth, she complained that they felt
-odd and pained her. The plate was somewhat filed, but she was still
-dissatisfied, and declined to pay the bill. It was then agreed that she
-should take them away and try them for a day or two; this was done,
-and again she returned them, declining to pay. The doctor then sued,
-and the evidence as to whether the teeth fitted was conflicting. One
-testified that they were a good piece of work; another, that they were
-a fair average piece of work; while a third said that they were nothing
-extra. The Judge instructed the jury that if Simonds had used all the
-knowledge and skill to which the art had at the time advanced, that
-would be all that could be required of him. The verdict was for the
-defendant. On an application for a new trial the court considered the
-instructions erroneous and granted a new trial, saying: “that surgeons
-are held responsible for injuries resulting from a want of ordinary
-care and skill. The highest degree of skill is not to be expected,
-nor can it reasonably be required, of all. The instruction given was
-* * * * undoubtedly correct, and no more would be required of him. But,
-upon legal principles, could so much be required of him? We think not.
-If it could, then every professional man would be bound to possess
-the highest attainment, and to exercise the greatest skill in his
-profession. Such a requirement would be unreasonable” [449].
-
-It is a dangerous thing for both parties for the dentist to try a new
-instrument or a new _modus operandi_ for the first time—doing so the
-Court once said was a rash act, and he who acts rashly acts ignorantly.
-Using a new instrument is acting contrary to the known rule and usage
-of the profession [450]. One cannot become an experimentalist except at
-his own peril. |169|
-
-A dentist, at a lady’s request, prepared a model of her mouth, and
-made two sets of artificial teeth for her. In response to a letter
-notifying her that they were ready, and asking when he could come and
-put them in, the dentist received the following note: “My dear Sir, I
-regret, after your kind effort to oblige me, my health will prevent my
-taking advantage of the early day. I fear I may not be able for some
-days. Yours, etc., Frances P.” Very shortly the lady died. The dentist
-sued her executors for £21, but he failed to recover. The court held
-that a contract to make a set of teeth is a contract for the sale of
-goods, wares or merchandise within the meaning of the seventeenth
-section of the Statute of Frauds; and that as by the terms of the
-contract the teeth were to be fitted to the lady’s mouth, and as this,
-through no default on her part, was never done, her executors were not
-liable to the dentist for work done and materials provided; nor was the
-letter a sufficient memorandum within the meaning of the Act referred
-to. Counsel for the plaintiff and the Court seemed to differ widely
-in their opinions of the artistic nature of tooth-making. The former,
-arguing that the deceased had in truth contracted for the skill of the
-dentist, and that the materials were merely auxiliary to the work and
-labour, said this case was not to be distinguished from that of an
-artist employed to paint a picture; the ivory used was of insignificant
-value as compared to the skill employed. Judge Crompton, however, said:
-“Here the subject matter of the contract was the supply of goods.
-The case bears a strong resemblance to that of a tailor supplying a
-coat, the measurement of the mouth and the fitting of the teeth being
-analogous to the measurement and fitting of the garment” [451].
-
-A similar view of the standing of a dentist was taken by the Court in
-Michigan, when it held that he was a “mechanic.” The Court observed,
-“A dentist, in one sense, is |170| a professional man, but, in another
-sense, his calling is mainly mechanical, and the tools which he employs
-are used in mechanical operations. Indeed, dentistry was formerly
-purely mechanical, and instruction in it scarcely went beyond manual
-dexterity in the use of tools; and a knowledge of the human system
-generally, and of the diseases which might affect the teeth and render
-an operation important, was by no means considered necessary. Of late,
-however, as the physiology of the human system has become better
-understood, and the relations of the various parts and their mutual
-dependence become more clearly recognized, dentistry has made great
-progress as a science, and its practitioners claim, with much justice,
-to be classed among the learned professions. It is nevertheless true
-that the operations of the dentist are, for the most part, mechanical,
-and so far as tools are employed, they are purely so, and we could not
-exclude these tools from the exemption which the statute makes, without
-confining the construction of the statute within limits not justified
-by the words employed” [452]. On the other hand, in Mississippi, the
-Court said, “A dentist cannot be properly denominated a ‘mechanic.’ It
-is true that the practice of his art requires the use of instruments
-for manual operations, and that much of it consists in manual
-operations; but it also involves a knowledge of the physiology of the
-teeth, which cannot be acquired but by a proper course of study, and
-this is taught by learned treatises upon the subject, and as a distinct
-though limited part of the medical art, in institutions established for
-the purpose. It requires both science and skill, and if such persons
-should be included in the denomination of ‘mechanics,’ because their
-pursuit required the use of mechanical instruments and skill in manual
-operation, the same reason would include general surgeons under the
-same denomination, because the |171| practice of their profession
-depends in a great degree upon similar instruments and operative skill;
-nor could such a pursuit properly be said to be a trade” [453].
-
-False teeth have been considered necessaries for a wife. One Andrews
-had a conversation with Gilman, a dentist, as to the latter furnishing
-the former’s wife with a plate of mineral teeth, and he agreed to pay
-for certain other dental services rendered to Mrs. A. The plate was
-furnished while Mr. and Mrs. A. were living together, and it was quite
-suitable to the former’s circumstances and station in life; he saw it,
-knew whence it came, raised no objection to it, still he declined to
-pay for it. The Court, however, held him liable, not only because the
-wife being permitted to retain the plate, and the other circumstances,
-showed her authority to make the purchase, but also on the ground that
-the teeth were some of those necessaries wherewith a husband is bound
-to furnish his wife [454].
-
-A dentist must not take any unfair advantage of his patient. Some
-thirty years ago, one Captain Simpson, a very old seaman and a
-pensioner in Greenwich Hospital, gave a bill of exchange, payable
-eight months after date, for £262 10s. to one Davis, a London dentist,
-purporting to be for value received. Davis said, the real bargain was
-that he should during the whole of the Captain’s life attend to his
-teeth, and supply him with new ones from time to time. He also said
-that a new set of teeth would cost from £30 to £50. The bill was in the
-handwriting of D.; it was given in his house when no third person was
-by, and it was never heard of until after the captain’s death, which
-took place before it was due. There was no writing as to the teeth.
-The executors of Simpson declined to pay, whereupon Davis handed the
-note over to a creditor of his own, |172| who sued both parties.
-The executors filed a bill in chancery, impeaching the document for
-fraud, and asking that it might be delivered up to them. The Court
-thought that it was quite impossible for any reasonable being to draw
-any inference from the materials before it, but that it was a case of
-fraud—nay, a gross fraud, and the decree was made as asked [455]. Sir
-Launcelot Shadwell thought that the case had points of resemblance to
-that of _Dent_ v. _Bennett_ [456], in which a medical man bargained for
-a very large sum of money to attend a person of advanced years until
-death; but in that case the doctor had to attend to the whole human
-body, not merely to a particular part of it.
-
-One dentist must not imitate too closely the sign or card of a fellow
-practitioner. One Colton alleged that he had purchased from a Dr. G.
-Q. Colton the right to use the name “Colton Dental Association” in
-connection with the use of nitrous-oxide gas to alleviate pain in
-the extraction of teeth, and that he used the same in advertisements
-and prominently displayed it on signs; that the defendant, who had
-been in his employment, left him, opened dental rooms in the same
-street, issued cards announcing that he was “formerly operator at the
-Colton Dental Rooms,” and extracted teeth without pain by the use of
-nitrous-oxide gas, and put a sign to the same purport over his door,
-but the words “formerly operator at the,” upon cards and sign, were
-in small and almost illegible letters, while the words “Colton Dental
-Rooms” were very conspicuous; the signs were very similar in shape,
-size, &c., and were hung on the same side of the street, in the same
-manner, and might readily be mistaken the one for the other, especially
-by suffering patients impatient for relief. An injunction against the
-defendant’s cards and signs was granted [457]. |173|
-
-And where Morgan and Schuyler, two dentists, dissolved partnership,
-S. bought M.’s interest in the fixtures and in the lease of the
-room, and continued business therein. M. removed his name from the
-sign, but S. replaced it, and put above, in letters so small as to
-be nearly imperceptible, his own name with the words “successor to.”
-The agreement of dissolution did not prohibit M. from engaging in the
-business, so he opened an office therefor in another part of the city.
-He then applied to the Court to restrain his late partner from the
-use of his name as mentioned. He was successful in his action. But
-the Court thought that S. would have kept within his rights if he had
-merely described himself as “late of” the firm [458].
-
-
-
-
-|174|
-
-CHAPTER XIV.
-
-DRUGGISTS.
-
-
-A druggist, the Supreme Court of Louisiana says, means “one who sells
-drugs without compounding or preparing them: and so is a more limited
-term than apothecary [459].”
-
-A commission merchant, dealing principally in alcohol, is not a
-druggist, within the meaning of the Massachusetts’ Act, regulating the
-sale of alcohol by druggists [460]; and although whiskey may be sold by
-druggists in comparatively small quantities as medicine, and doubtless
-a great many people so take it, still it was held that fifty barrels of
-whiskey remaining in a bonded warehouse at the time of his death would
-not pass under the will of a wholesale and retail druggist bequeathing
-his stock of medical drugs, etc. The Court considered fifty barrels of
-whiskey wholly disproportionate to the ordinary stock of medicine and
-drugs kept on hand by the testator—too much sack for the bread [461].
-One may be an apothecary or druggist although he does not actually
-compound his medicines [462].
-
-In the early days in England, the grocers, or poticaries, who formed
-one of the trade guilds of London, united with their ordinary business
-the sale of such ointments, simples |175| and medicinal compounds as
-were then in use. In the days of Henry VIII., the medical department
-of the grocers’ trade being greatly increased, shops were established
-for the exclusive sale of drugs and medicinal and all kinds of
-chemical preparations. We have a graphic description of one of these
-apothecaries about the days of “Good Queen Bess,” in the words of the
-prince of English dramatists:
-
-           ——I do remember an apothecary,
- And hereabouts he dwells, which late I noticed
- In tatter’d weeds, with overwhelming brows,
- Culling of simples: meagre were his looks,
- Sharp misery had worn him to the bones,
- And in his needy shop a tortoise hung,
- An alligator stuff’d, and other skins
- Of ill-shaped fishes: and about his shelves
- A beggarly account of empty boxes,
- Green earthen pots, bladders and musty seeds,
- Remnants of pack thread and old cakes of roses
- Were thinly scattered to make up a show.
-
- ROMEO AND JULIET, Act. V., SC. 1.
-
-Until 1868, any person whatever might open what is called a chemist’s
-shop in England, and deal in drugs and poisons. In that year, however,
-the Pharmacy Act was passed, which prohibits any person engaging in
-the business of, or assuming the title of, Chemist and Druggist, or
-dispensing chemicals or drugs, unless he be registered under that Act.
-And to be registered one must pass an examination in Latin, English,
-arithmetic, prescriptions, practical dispensing, pharmacy, materia
-medica, botany and chemistry.
-
-Under the Ontario Act [463] there is a College of Pharmacy, managed
-by a Pharmaceutical Council who grant certificates of competency to
-practise as pharmaceutical chemists, prescribe the subjects on which
-candidates are to be |176| examined, and arrange for the registration
-of chemists. No one, save those registered or their employeés,
-is authorized to compound prescriptions of legally authorized
-medical practitioners. The Act, however, does not apply to medical
-practitioners. But, save as aforesaid, no one can retail, dispense,
-or compound poisons, or sell certain articles named, or assume or use
-the title of “Chemist and Druggist,” or “Chemist,” or “Druggist,” or
-“Pharmacist or Apothecary,” or “Dispensing Chemist or Druggist,” unless
-he has complied with the Act.
-
-The Code Napoleon recognizes two classes of vendors of drugs and
-medicines, apothecaries and druggists. The former, who are assumed to
-be pharmaceutically educated, are alone allowed to sell compounded
-medicine, the latter who are classed with grocers are only permitted to
-sell drugs of a simple character in bulk and at wholesale [464]. In the
-United States, wherever statutes do not otherwise direct, apothecaries
-and druggists are put upon the common law footing of provision vendors,
-and may sell in any quantities articles in which they deal.
-
-A druggist is held to a strict accountability in law for any mistake
-he may make in compounding medicine or selling his drugs. By the
-statute law of England it is declared to be the duty of every person
-using or exercising the art or mystery of an apothecary to prepare
-with exactness, and to dispense, such medicines as may be directed for
-the sick by any physician [465]. And by the same Act, for the further
-protection, security, and benefit of George the Third’s subjects it was
-declared, that if any one using the art or mystery of an apothecary,
-should deliberately or negligently, unfaithfully, fraudulently or
-unduly make, mix, prepare or sell any medicines, as directed by any
-prescription signed by any |177| licensed physician, such apothecary
-shall, on conviction before a Justice of the Peace, unless good cause
-be shown to the contrary, forfeit for the first offence £5, for second,
-£10, and for third he shall forfeit his certificate. But apart from any
-statute, whenever a druggist or apothecary (using the words in their
-general sense) sells a medicine, he impliedly warrants the good quality
-of the drugs sold; and besides that, he warrants that it is the article
-that is required and that it is compounded in every prescription
-dispensed by him _secundum artem_. Like the provision dealer, the
-pharmaceutist is bound to know that the goods he sells are sound,
-_i.e._, competent to perform the mission required of them, and being so
-presumed to know, he warrants their good qualities by the very act of
-selling them for such. The rule, “Let the buyer beware,” does not apply.
-
-In some way Fleet and Simple got cantharides mixed with some snake
-root and Peruvian bark. Unfortunately Hollenbeck, requiring some of
-this latter mixture, bought this that these druggists had, took it as
-a medicine, and in consequence suffered great pain, and had his health
-permanently impaired. He sued for damages, and recovered a verdict for
-$1,140. The defendants asked for a new trial, but the Court refused it
-saying, “Purchasers have to trust to a druggist. It is upon his skill
-and prudence they must rely. It is his duty to know the properties of
-his drugs, to be able to distinguish them from one another. It is his
-duty so to qualify himself, or to employ those who are so qualified,
-to attend to the business of compounding and vending medicines and
-drugs, as that one drug may not be sold for another; and so that, when
-a prescription is presented to be made up the proper medicine, and none
-other, be used in mixing and compounding it. The legal maxim should be
-reversed, instead of _caveat emptor_ it should be _caveat venditor_,
-_i.e._, let him be certain that he does not sell |178| to a purchaser
-or send to a patient, one thing for another, as arsenic for calomel,
-cantharides for, or mixed with snake root and Peruvian bark, or even
-one innocent drug calculated to produce a certain effect, in place of
-another sent for and designed to produce a different effect. If he does
-these things he cannot escape civil responsibility upon the alleged
-pretext that it was an accidental or an innocent mistake. We are asked
-by the defendants’ attorneys in their argument, with some emphasis,
-if druggists are in legal estimation, to be regarded as insurers. The
-answer is, we see no good reason why a vendor of drugs, should in his
-business be entitled to a relaxation of the rule which applies to
-vendors of provisions, which is, that the vendor undertakes and insures
-that the article is wholesome [466].”
-
-The general customer is not supposed to be skilled in the matter of
-drugs, but in the purchase he must rely upon the druggist to furnish
-the article called for; and in this particular business the customer
-who has not the experience and learning necessary to a proper vending
-of drugs, will not be held to the rule that he must examine for
-himself, it would be but idle mockery for the customer to make the
-examination when it would avail him nothing. On the contrary, the
-business is such that in the very nature of things, the druggist
-must be held to warrant that he will deliver the drug called for and
-purchased by the customer [467].
-
-It is the duty of the druggist to know whether his drugs are sound or
-not, and it is no answer to his want of knowledge to say, that the
-buyer had opportunities for inspection, and could judge for himself of
-the quality of goods [468].
-
-If a druggist miscompounds a medicine, or intentionally deviates from
-the formula, he commits a tortious act, and |179| if any injury
-arises to another through his ignorance or neglect he is liable. Even
-if a physician writes a prescription wrongly it is expected that the
-druggist will know enough to detect the error, and whether he does so
-or not he still compounds it at his peril. For one man’s negligence
-or omission of duty is no palliation of another’s, and under the
-doctrine of joint liability the apothecary or druggist who compounds,
-knowingly or not, a noxious prescription, commits a joint tort with the
-physician who writes it [469]. And in an action against a druggist for
-injury through the negligence of his clerk in selling sulphate of zinc
-for Epsom salts, it is no defence to say that the subsequent medical
-treatment was negligent [470].
-
-A wholesale druggist is liable in the same way as a retail, when he
-supplies substances notoriously dangerous to health or life, and
-he impliedly warrants the articles to be as represented by their
-conventional designation, and if they are not so, he is liable for all
-damages that may ensue from his misrepresentation [471].
-
-If a druggist affixes to a medicine, or drug, a label bearing his name
-and stating it to have been prepared by him, he makes the warrant only
-more notorious, and by so doing (inasmuch as it is an invitation to
-the public to confide in his representation), is ever after estopped
-from denying responsibility for any injury which may have arisen out
-of defects in its quality, or errors in its composition. So long as
-the label is attached, it is an affirmation of the good quality of
-the article and its correct composition, to every one who relies upon
-it when buying. But as some articles deteriorate in time, what is
-said in relation to the liability of the vendor applies only to the
-article at the time it leaves |180| his hands. He only warrants its
-good qualities then, but no longer, and his representation affirms
-that much, and no more [472]. The subject of labels was carefully
-considered in _Thomas_ v. _Winchester_ [473], where Ruggles C.J. gave
-judgment. Mary Ann Thomas was ordered a dose of extract of dandelion,
-her husband bought what he believed was dandelion from Dr. Foord,
-druggist and physician; but it was extract of belladonna. The jar
-was labelled ‘½ ℔ dandelion, prepared by A. Gilbert, No. 108 John
-street, N. Y.’ Foord bought it as dandelion from James S. Aspinwall,
-druggist, who bought it from defendant, a druggist, 108 John street.
-Defendant manufactured some drugs and purchased others, but labelled
-all in the same way. Gilbert was an assistant who had originally owned
-the business. The extract in the jar had been purchased from another
-dealer. The two extracts are alike in colour, consistency, smell and
-taste. Gilbert’s labels were paid for by defendant and used in his
-business with his knowledge and consent. A non-suit was moved for on
-the ground, that defendant being a remote vendor and there being no
-privity or connection between him and the plaintiff, the action could
-not be sustained. The Court said, “Gilbert, the defendant’s agent,
-would have been punishable for manslaughter if Mrs. Thomas had died in
-consequence of taking the falsely labelled medicine. Every one who by
-his culpable negligence causes the death of another, although without
-intent to kill, is guilty of manslaughter [474]. This rule applies not
-only where the death of one is occasioned by the neglectful act of
-another, but where it is caused by the neglectful omission of a duty
-by that other [475]. Although the defendant W. may not be answerable
-criminally for the neglect |181| of his agent, there can be no doubt as
-to his liability in a civil action, in which the action of the agent is
-to be regarded as the act of the principal. The defendant’s neglect put
-human life in imminent danger. Can it be said that there was no duty on
-the part of the defendant to avoid the creation of that danger by the
-exercise of greater caution? Or that the exercise of that caution was a
-duty only to his immediate vendee, whose life was not endangered? (He
-being a dealer and not a customer.) The defendant’s duty arose out of
-the nature of his business, and the danger to others incident to its
-mismanagement. Nothing but mischief like that which actually happened
-could have been expected from sending the poison falsely labelled into
-the market, and the defendant is justly responsible for the probable
-consequences of the act. The duty of exercising caution in this respect
-did not arise out of the defendant’s contract of sale to Aspinwall.
-The wrong done by the defendant was in putting the poison unlabelled
-into the hands of Aspinwall as an article of merchandise to be sold,
-and afterwards used, as the extract of dandelion by some person then
-unknown. The defendant’s contract of sale to Aspinwall does not excuse
-the wrong done the plaintiffs. It was part of the means by which the
-wrong was effected. The plaintiffs’ injury and their remedy would have
-stood on the same principle if the defendant had given the belladonna
-to Dr. Foord without price, or if he had put it in his shop without his
-knowledge under circumstances that would have led to its sale on the
-faith of the labels.”
-
-Ordronaux says (sec. 186): It cannot be denied that had Mrs. Thomas
-died, Foord would, equally with Gilbert, have been guilty of
-manslaughter, since whether he intended it or no, he was doing an
-unlawful act in dispensing a poison for a salutary medicine. While
-then it may be proper enough to rely upon labels and warranties of
-others, |182| in dealing with ordinary substances, still when it comes
-to articles of a character dangerous to health or life, the law will
-presume knowledge of their quality in those professionally dealing in
-them, and exact a degree of skill and care commensurate with the risks
-incurred. Here it is _caveat venditor_ instead of _caveat emptor_.
-
-In Kentucky, a druggist sold croton oil instead of linseed oil for a
-patient, who, in consequence of the mistake, died. His widow was held
-entitled to full damages against the seller [476].
-
-If a druggist negligently sell a deadly poison as and for a harmless
-medicine to A., who buys it to administer to B., and gives B. a dose of
-it as a medicine, from the effect of which he dies, a right of action
-against the druggist survives to B.’s representative, notwithstanding
-the want of privity of contract between B. and the druggist [477]. And
-this is the rule, also, when the sale has been made by the apothecary’s
-assistant [478].
-
-Joseph George, and Emma, his wife, sued Skivington, a druggist,
-alleging that he, in the course of his business, professed to sell a
-chemical compound made of ingredients known only to him, and by him
-represented to be fit for a hairwash without causing injury to the
-person that used it, and to have been carefully compounded by him; that
-Joseph thereupon bought of the defendant a bottle of this hairwash, to
-be used by Emma, as the defendant knew, and on the terms that it could
-be so safely used, and had been so compounded; yet the defendant had so
-negligently and unskilfully conducted himself in preparing and selling
-the hairwash, that it was unfit to be used for washing the hair,
-whereby the plaintiff, Emma, who used it for that |183| purpose was
-injured. The Court held that a good cause of action was shewn [479].
-
-A Massachusetts apothecary sold sulphide of antimony by mistake for
-black oxide of manganese. The two look alike, but differ in this, that
-the preparation of manganese may be safely mixed with chlorate of
-potassia for many useful purposes; but if that antimony is mixed with
-that chlorate, an explosive compound is formed. The buyer, supposing
-he had manganese, proceeded to mix it with potassia, having bought the
-article for that purpose. But, it being antimony, the compound which
-he made exploded, broke his head, damaged his hearing, and destroyed
-the furniture of his laboratory. Yet the Court held that the druggist
-was not chargeable with these damages, because he did not know that the
-article he sold was to be mixed with potassia, and did not sell it for
-that purpose. Kept or used by itself, as he sold it, it would have been
-innocuous. He was not to blame for the mixing, the real cause of the
-injury [480].
-
-In England [481], a chemist and druggist was indicted for manslaughter,
-but was acquitted. The deceased had been in the constant habit of
-getting aconite and occasionally henbane from Noakes; on this occasion
-he sent two bottles of his own, one marked, “Henbane, 30 drops at a
-time.” The druggist by mistake put the aconite into the henbane bottle,
-the dose of thirty drops was taken, and the customer was no more. Erle,
-C.J., told the jury that although there might be evidence of negligence
-sufficient for a civil action, still that they could not convict unless
-there was such a degree of complete negligence as the law meant by the
-word “felonious,” and that in this case he did not think there |184|
-was sufficient to warrant that. But Tessymond, a chemist’s apprentice,
-was found guilty of manslaughter for causing the death of an infant by
-negligently giving to a customer who asked for paregoric to give to the
-infant (a child of nine weeks old), a bottle with a paregoric label,
-but containing laudanum, and recommending a dose of ten drops [482].
-
-One Jones recovered against a chemist and druggist of the name of
-Fay, £100 for damages, because he, Fay, gave him blue pills for the
-painters’ colic, such physic being improper [483]. A man, on the
-advice of a friend, went to a drug store for ten cents worth of
-“black-draught,” a comparatively harmless drug, of which he intended
-to take a small glassful as a dose for diarrhœa. There was evidence
-given by the clerk who sold the mixture, that at the shop he asked for
-“black-drops,” the defendant, the proprietor, told him that that was
-poison, that the dose was from ten to twelve drops, and advised him to
-take another mixture; he refused, and the clerk (by the defendant’s
-direction), gave him two drachms of “black-drops” in a bottle, with a
-label bearing those two words written upon it, but nothing to indicate
-the dose, or that it was poison. The man took the bottle home, drank
-almost all its contents, and died the next morning from the effects of
-so doing. In an action brought by the representative of the deceased
-to recover damages for negligent killing by the defendant, it was held
-that the Courts should have submitted to the jury the question as to
-whether the defendant was not guilty of negligence in failing to place
-upon the bottle a label, shewing that its contents were poisonous, and
-that it erred in non-suiting the plaintiff. Afterwards in giving the
-judgment of the Court of Appeal, Finch, J., said, “on such a state of
-facts (as sworn to by the clerk) a verdict |185| against the defendant
-would not be justified. Although no label marked ‘poison’ was put upon
-the phial, and granting that by such omission the defendant was guilty
-of misdemeanor and liable to the penalty of the criminal law (under the
-statute of the State), still that fact does not make him answerable to
-the customer injured, or to his representative in case of his death,
-for either a negligent or wrongful act, when towards that customer he
-was guilty of neither, since he fairly and fully warned him of all and
-more than could have been made known by the authorized label. * * *
-If the warning was in truth given, if the deceased was cautioned that
-the medicine sold was a strong poison, and but ten or twelve drops
-must be taken, he had all the knowledge and all the warning that the
-label could have given, and could not disregard it and then charge the
-consequences of his own negligent reckless act upon the seller of the
-poison. But if no such warning was given, its omission was negligence,
-for the results of which the vendor was liable both at common law and
-by force of the statute.” But the Court considered that the clerk being
-himself the one who had been negligent stood in a position to provoke
-suspicion, arouse doubt and justify watchful and rigid criticism, and
-that this joined with the conduct of the deceased, developed a question
-of fact rather than of law, and that the Court below was right in
-saying that the case should have been submitted to the jury [484].
-
-Under the Ontario Pharmacy Act no one can sell certain poisons named
-without having the word “Poison,” and the name of the article,
-distinctly labelled upon the package; and if the sale is by retail, the
-name of the proprietor of the establishment where it is sold, and the
-address must also be on the label [485]. |186|
-
-Any person selling any poison, in violation of the Act, is liable to a
-penalty of not more than $20 and costs for the first offence, and $50
-and costs for every subsequent offence; and one-half of the penalty
-goes to the prosecutor; and no one selling in violation of the Act can
-recover his charges. And one wilfully or knowingly selling any article
-under pretence that it is a particular drug or medicine, when it is
-not, is liable to the above penalties, besides any other to which he
-may be liable irrespective of the Act [486].
-
-In Georgia it was held, that where a druggist in good faith recommended
-the prescription of another person to the owner of a sick horse, who
-thereupon ordered him to put it up and paid for it, the owner had no
-cause of action because the medicine had injured his horse, as the
-stuff was properly prepared according to the prescription [487].
-
-In England chemists and druggists are liable to the heavy penalty of
-£500 if they sell to brewers or dealers in beer anything to be used
-as a substitute for malt; they are also liable for adulterating, or
-selling any adulterated, medicine; and on a second offence of this
-kind, the name of the offender, his abode, and his crime may be
-published in the newspapers at his expense [488].
-
-An action can be maintained by a husband against a druggist to recover
-damages for selling to the plaintiff’s wife, secretly, from day to day
-large quantities of laudanum to be used by her as a beverage, and which
-are so used by her to the druggist’s knowledge, without the knowledge
-or consent of the husband, the druggist well knowing that the same was
-injuring and impairing her health, and concealing the fact of such
-sales and the use thereof from the husband; |187| in consequence of
-which use by her the wife became sick and emaciated, and her mind was
-affected, so that she was unable to perform her duties as such wife,
-and her affections became alienated from her husband, and he lost her
-society, and was compelled to expend divers sums of money in medical
-and other attendance upon her [489].
-
-In some of the American Courts it has been held that a statute
-forbidding the sale or keeping for sale without authority of spirituous
-or intoxicating liquors does not apply to druggists who keep such
-liquors only for the purpose of mixing them with other ingredients,
-according to prescriptions of physicians; and also for the purpose
-of manufacturing such compounds as are commonly used by druggists to
-be sold as medicines for remedies for sickness and disease [490]. The
-question has often come up whether a compound sold by a druggist is to
-be considered an intoxicating liquor, the sale of which is illegal,
-or not. The rule laid down is, that so long as liquors retain their
-characters as intoxicating liquors, capable of being used as beverages,
-notwithstanding that other ingredients—roots or tinctures—may have been
-mixed therewith, they fall under the ban of the law; but when they
-are so compounded with other substances as to lose their distinctive
-characters of intoxicating liquors, and are no longer desirable for
-use as stimulating beverages, they are medicine and their sale is not
-prohibited [491].
-
-In Indiana a _bona fide_ sale of intoxicating liquor by a druggist
-for medicinal purposes is not a violation of the statute regulating
-the sale of such liquors, although the statute contains no exception
-authorizing the sale of such |188| liquors, without license, for
-medicinal, chemical or sacramental purposes.
-
-And that is the law in North Carolina, but not in Arkansas [492]. In
-Iowa it was considered a breach of the law for a druggist to sell a
-quart of whiskey to a stranger upon his simple statement that he was
-accustomed to take it as a medicine and wanted it as such [493].
-
-In Texas, where a druggist can only sell ardent spirits upon the
-prescription of physicians in sickness, a druggist who is himself a
-physician may sell to a sick patient without a prescription from anyone
-else [494].
-
-
-
-
-|189|
-
-CHAPTER XV.
-
-PARTNERS, GOODWILL, ASSISTANTS.
-
-
-A partnership [495] between medical men is an association of persons,
-standing to one another in the relation of principals, for jointly
-carrying out the objects of their profession, with an agreement to
-share the profits.
-
-The general laws relating to partnerships apply to those of medical
-men or dentists. There can be no partnership, as between themselves,
-if the relationship of master and servant exists, or where there is
-no joint interest. No particular form of words is needed to create
-a partnership, nor need the agreement be in writing unless it is to
-last for more than a year from the date. If an agreement to form a
-partnership is broken an action will lie, if the terms of the agreement
-be clear and distinct; but the performance of such an agreement will
-not be compelled unless all the terms have been fixed and ascertained,
-and a definite time for its duration agreed on.
-
-If one has been induced to enter the partnership through the fraud
-or misrepresentation of the other, the party deceived may at his
-option avoid the contract. But he should act promptly on discovering
-the deception. Where a surgeon was induced to enter into partnership
-with, and pay a large premium to another, in consequence of |190|
-misrepresentations as to the amount of income derived from the
-practice, a dissolution was decreed and a return of part of the
-premium [496]; and where a practitioner took a partner and a premium,
-and agreed to continue practising for three years, concealing the fact
-that he was suffering from a disease which soon carried him off, his
-executor was ordered to return part of the premium [497].
-
-Partners are trustees and agents for one another, and must exercise
-the most perfect good faith towards one another. One cannot sue the
-other for his share of the profits until the accounts have been stated
-and settled between them. One medical man cannot, as a rule, bind his
-partner by borrowing money, even to pay partnership liabilities, or by
-making or drawing promissory notes or bills of exchange; but he may
-generally do so by simple contracts, within the scope of the business.
-
-In England, it appears that there is nothing illegal in the partnership
-of a qualified and an unqualified practitioner, and that it will be
-sufficient if only one member of the firm be registered [498].
-
-A partnership may be dissolved by mutual agreement, or by the effluxion
-of time. A wilful and permanent neglect of business is a ground for
-dissolution; so is gross misconduct by a partner in reference to
-partnership matters. Immoral conduct materially affecting the business
-will be a ground for dissolution; also, insanity, or permanent
-incapacity [499]. On a dissolution the partners may separately carry on
-the business at any place, unless restrained by agreement. |191|
-
-Sir John Leach considered that in a partnership, between professional
-persons, upon the death of one partner the good-will of the business
-belonged to the survivor, and that he was not bound to account to the
-representatives of the deceased partner for it [500].
-
-A good-will attaches to a professional, as well as to any other kind of
-business, and it is and may be the subject of purchase and sale; and
-although it is not computable, and the sale of it is not enforceable by
-an action for specific performance if it has not been estimated, yet it
-does stand on the same footing as any other business, if the parties
-have fixed a determinate price upon it, or have provided any other way
-of fixing its value [501]. The good-will of a medical man’s business
-is an asset of his estate which his representatives can sell, and for
-which they must account if it is sold. But it is not clear that the
-representatives can be compelled to find a purchaser [502].
-
-Jessel, M. R., recently asked the question, “What is the meaning of
-selling a medical practice?” And in answering his query he said,
-“It is the selling of the introduction of the patients of the doctor
-who sells to the doctor who buys, he has nothing else to sell except
-the introduction. He can persuade his patients, probably, who have
-confidence in him to employ the gentleman he introduces as being a
-qualified man, and fit to undertake the cure of their maladies, but
-that is all he can do. Therefore, when you talk of the sale of a
-non-dispensing medical practice—of course, when a man keeps what is
-called a doctor’s shop, there is a different thing entirely to sell—you
-are really talking of the sale of the introduction to the patients, and
-the length, the |192| character and duration of the introduction, the
-terms of the introduction are everything. And there is something more,
-according to my experience, in cases of the sale of medical practices;
-there is always a stipulation that the selling doctor shall retire from
-practice either altogether or within a given distance. It is so always,
-and there is also sometimes a stipulation that he will not solicit the
-patients, or shall not solicit them for a given time. They are both
-very important stipulations as regards keeping together the practice
-for the purchasing doctor” [503].
-
-The general rule of law is, that any contract in general restraint of
-trade or industry is illegal and void as contrary to public policy;
-but such contracts are valid if they operate merely as a partial
-restraint, and are made for good consideration, and not unreasonable.
-Whether they are reasonable or not, is for the Court, not the jury, to
-say. A contract made with an assistant, or with a partner, that upon
-separating from the principal, or partner, he will not practise within
-a certain section of country, or for a certain time, is valid when made
-in consideration of instruction to be given, or pecuniary or other
-benefits to be enjoyed in consequence of the partnership. The limits
-must be reasonable, and when the contract is not to practise within so
-many miles of a certain place, the distance will be measured “as the
-crow flies,” unless otherwise mentioned [504].
-
-Covenants, on the part of an assistant to a surgeon and apothecary,
-not to practise on his own account for fourteen years, in a certain
-town, or within ten miles of the town; and not at any time to practise
-within five, seven, ten, twenty miles of certain places, have been
-all respectively |193| held good [505]. The comparative populousness
-of the district forbidden ought not to enter into consideration at
-all; and an assistant to a dentist was held bound by a covenant not to
-practise in London, notwithstanding that city had a population of over
-a million [506]. But a stipulation not to practise within one hundred
-miles of York, in consideration of receiving instruction in dentistry,
-was held void [507].
-
-A promise, whether verbal or written, made without good consideration
-by a medical man not to exercise or carry on his profession within
-certain limits is void. The stipulations in a contract not to
-practise are divisible, and if part of them be unreasonable, and
-therefore illegal and void, the agreement is not void altogether; and
-the remaining stipulations, if valid, will not be affected by the
-illegality of the others [508].
-
-The relations of medical men to their apprentices, assistants and
-pupils, are, as a rule, regulated by the ordinary law of master and
-servant. No particular words are needed to create the relationship
-of master and apprentice, or master and assistant, the intention of
-the parties will be considered, nor need the agreement be in writing,
-unless it is not to be performed within a year from the making
-thereof [509]. A master is liable on contracts entered into by his
-apprentice or assistant, when he has authorized him to enter into any
-such contract, either expressly, or by implication. For instance, if an
-assistant usually orders drugs |194| on credit, and the master usually
-pays, the master will be held liable to pay for any goods of a similar
-nature which the assistant may get for his own and not his master’s
-use [510]. The master is also, as a rule, liable to a civil action for
-the wrongful acts of his assistant, unless they be beyond the ordinary
-scope of his employment; the plaintiff, however, must prove that the
-injury was produced by want of proper skill, where the act complained
-of is said to have arisen through want of skill [511]. But the master
-will not be criminally responsible for the acts of his assistant or
-apprentice, if the latter has caused the death of any one, unless,
-indeed, he has expressly commanded or taken part in the acts [512]. In a
-case of criminal negligence, the apprentice himself is responsible; if
-a party is guilty of negligence, and death results, the party guilty of
-that negligence is also guilty of manslaughter.
-
-An apprentice, or pupil, cannot be dismissed in as summary a way as an
-ordinary servant for misconduct. In one case it was held that though a
-person has a right to dismiss a servant for misconduct, still he has no
-right to turn away an apprentice because he misbehaves; and that the
-case of a young man, say of seventeen, who under a written agreement,
-is placed with a medical man as “pupil and assistant,” and with whom a
-premium is paid, is a case between that of apprenticeship and service;
-and if such an one on some occasions comes home intoxicated, this alone
-will not justify the surgeon in dismissing him. But if the “pupil
-and assistant,” by employing the shop boy to compound the medicines,
-occasions real danger to the surgeon’s practice, this would justify the
-surgeon in dismissing him [513]. |195|
-
-Pupils and others admitted to hear the lectures of medical men,
-whether such lectures are delivered _ex-tempore_, or from memory, or
-from notes, although they may go to the extent, if they are able to do
-so, of taking down the whole by means of shorthand, can do so only for
-the purposes of their own information, and cannot publish the lectures
-for profit without the consent of the lecturer [514].
-
-
-
-
-|197|
-
-INDEX.
-
-
- A.
-
- ABORTION—
-   Evidence of experts in cases of, 116.
-   Criminality of, 146, 147.
-
- ACCIDENT—
-   Payment of medical men in cases of, 40, 41.
-
- ACCOUNT—
-   Must be in detail, 22.
-
- ADVERTISING QUACKS—132, 133.
-
- AMPUTATED LIMBS—
-   Ownership of, 143.
-
- ANATOMY—
-   A lawful study, 154, 157, 158.
-   Hindrances to study of, 149, 152.
-   In early days, 149, 150.
-   Provision made for study of, in England, 150, 153.
-   —  —  —  —  — in Canada, 151, 156.
-   —  —  —  —  — in United States, 155, 156.
-
- ANATOMY ACT OF 1832—153.
-
- ANGUINEUM—2.
-
- APOTHECARIES—
-   In England in early days, 11.
-   Incorporated in England, 12.
-   How regulated, 12.
-   Duties of, 12.
-   Fees of, 15, 16.
-
- ARTIFICIAL TEETH.—_See_ TEETH.
-
- ASSAULTS ON PATIENTS—
-   Attempting carnal intercourse with, 144.
-   Wantonly stripping patient, 144.
-   Taking layman to midwifery case, 144.
-   Liability for committing one as insane, 146.
-
- ASSISTANTS AND APPRENTICES—
-   Rules regulating, 193.
-   Master liable for, civilly, 193, 194.
-   — not liable criminally, 194.
-   — may recover for services of, 20.
-   Misconduct of, 194.
-
- ATTENDANCE—
-   Medical men neglecting, 72, 73.
-   Withdrawing from, 73, 74.
-
- B.
-
- BARBERS—
-   As practitioners, 4, 5, 6.
-
- BAUNSCHEIDT SYSTEM—
-   Layman practising, 47.
-   Liability for using, 89.
-
- BODIES—
-   Supply of, for dissecting, 150–156.
-
- BODY-SNATCHING—_See_ RESURRECTION, 152–157.
-
- BOOKS—_See_ SCIENTIFIC BOOKS, 99–105.
-
- BOTANIC PHYSICIANS—52, 54, 88.
-
- C.
-
- CARELESSNESS—_See_ NEGLIGENCE.
-   Of patient, 67–69.
-   When physician criminally liable for, 85–88, 91.
-   In treating internal diseases, 92.
-
- CHARACTER—
-   Defamation of, when actionable, 131, 134.
-
- CHEMIST AND DRUGGIST—_See_ DRUGGISTS.
-
- CHLOROFORM—
-   Care needed in using, 163–166.
-
- CIVIL LIABILITY—
-   For negligence—_See_ NEGLIGENCE.
-   For stealing corpse, 157.
-
- CLAIRVOYANT PHYSICIAN—
-   Must be licensed in Maine, 52.
-   Misrepresentations by, 142.
-
- CLERICAL PRACTITIONERS—3.
-
- COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT—
-   When not privileged, 93.
-   When privileged, 94–96.
-
- CONSULTATIONS—23.
-
- CONTAGIOUS DISEASES—
-   Precautions necessary when attending, 21, 143.
-   Exposing people suffering from, 147.
-
- CONTRIBUTORY NEGLIGENCE—
-   Of patient, 67–69.
-
- CORPSE—
-   Stealing, 152.
-   Who owns the, 153.
-   Selling, 153.
-   Raising, a misdemeanor, 154–156.
-   Civil liability for raising, 157.
-   Exhuming, when ordered, 159.
-
- CRIMINAL LIABILITY—_See_ CRIMINAL MALPRACTICE.
-
- CRIMINAL MALPRACTICE—
-   Definition of, 55 in, 82.
-   Immaterial whether physician licensed or not, 83, 84, 91.
-   What makes, 84, 85.
-   Physician acting honestly and _bonâ fide_, 89, 92.
-   Mistakes of druggists, 180, 181.
-
- CRITICISM—
-   When justifiable, 132, 133.
-
- CURE—
-   Not essential to right to pay, 20, 21.
-   No cure, no pay, 24.
-   Promising, 143.
-   Curious cures, 2, 3, 8.
-
- CONTRACT—
-   Between physician and patient, 141.
-   Not to practice, 192, 193.
-
- D.
-
- DAMAGES—
-   For personal injuries, 78, 80.
-   Rules for determining, 78, 79.
-   Not recoverable against representatives, 80.
-   In cases of death, 80, 81.
-   Only one action for same cause, 81.
-   Against negligent druggists, 177–185.
-   —  — dentists, 162–167.
-
- DEATH—
-   Damages when negligence causes, 80, 81.
-   Evidence of experts as to cause of, 116–119.
-
- DECLARATIONS OF SICK PEOPLE—
-   When evidence, 96–98.
-
- DEFAMATION—129–137.
-   What libel, what slander, 129.
-   When actionable, 129, _et seq._
-   Civil and criminal remedies, 130.
-   Imputing want of knowledge, 130.
-   — unprofessional conduct, 131–132.
-   — immorality, 134.
-   Holding up to ridicule, 132.
-   Justifiable criticism not, 132, 133.
-   Evidence in actions for, 135.
-   When physician liable for, 135–137.
-
- DENTISTS—Chapter XIII.
-   Early practitioners, 160, 161.
-   Subjects of examination for, 161, 162.
-   In Ontario, must be licensed, 162.
-   Liability for negligence, 162, 167.
-   Pulling wrong tooth, 163, 167.
-   Skill requirable, 164, 166.
-   Acting gratuitously, 166.
-   When services are useless, 167.
-   Are they mechanics? 169, 170.
-   Defrauding patient, 171, 172.
-   Appropriating signs of others, 172.
-
- DILIGENCE—
-   Must go along with skill, 64.
-
- DIPLOMA—
-   _Prima facie_ proof of skill, 64.
-
- DISCRETION—
-   As to modes of treatment, 25.
-   As to number of visits, 63.
-
- DISSECTION—
-   Provisions made for, 150, 151.
-   English Anatomy Act, 153.
-   Lawfulness of, considered, 157, 158.
-
- DRUGGISTS—Chapter XIV.
-   Definition, 174.
-   Old time, 175.
-   Requirements of, 175–176.
-   Liability for miscompounding, 176–178.
-   —  — mistakes, 177–185.
-   —  — quality of drug, 178.
-   — criminally, 180.
-   — for selling adulterating substances, 186.
-   —  —  — deleterious drugs, 186.
-   —  —  — intoxicants, 187, 188.
-   Warrants drug to be as represented, 179.
-   Label a warranty, 179–180.
-
- DRUGS—
-   Physician may charge for, 24.
-   Mistakes in selling, 177–186.
-
- DRUIDS—1–3.
-
- DUEL—
-   Medical man attending, 144.
-
- DUTY OF PHYSICIAN—
-   On undertaking charge of patient, 57.
-   Not bound to take charge, 57.
-   To possess ordinary care, diligence and knowledge, 58–61.
-   In cases of small-pox, 22, 144, 147.
-
- DYING DECLARATIONS—
-   Evidence in certain cases, 105.
-
- E.
-
- EARLY PRACTITIONERS—Chapter I.
-
- ENGLAND—
-   Early practitioners in—Chapter I.
-   Who may practice, 43.
-   Women may practice, 14.
-
- ENTRIES AGAINST INTEREST—
-   Admissible as evidence, 105, 106.
-
- EXPERIMENTS—
-   Liability on making, 71, 72, 168.
-
- EVIDENCE—_See_ EXPERTS AND EXPERT EVIDENCE, SCIENTIFIC BOOKS.
-
- EXPERTS AND EXPERT EVIDENCE—
-   Fees to medical witnesses, 27, _et seq._
-   Excluding at trial, 106, 120.
-   Limiting number at trial, 106.
-   Rules for guidance, 106, 107.
-   When evidence of, admitted, 108, 117–120, 127.
-   Who may be experts, 109–114, 128.
-   The Court decides who may be, 113, 114.
-   Experts among the Romans, 109.
-   Opinions concerning, 110, 121–124.
-   Need not have made a special study, 112.
-   Better if they have, 112, 127.
-   Jury to decide weight to be given to, 114.
-   Opinions on morals, 115.
-   Do not speak as to merits, 115, 118, 125, 127.
-   Advisers of the Court, 115, 116.
-   Should state grounds of opinion, 116.
-   Admissible only as to matters of skill, 119.
-   Are not jurors, 119, 125.
-   Opinions on opinion, 119.
-   In insanity cases, 121–128.
-   What they may be asked, 124, 125.
-   Must hear all the evidence, 126.
-   Hypothetical cases, how put, 126, 127.
-
- F.
-
- FAMILY PHYSICIAN—
-   Recommending another, 148.
-
- FEES—_See_ PAYMENT OF MEDICAL MEN.
-   Under Roman Law, 15.
-   Of physicians, not recoverable at Common Law, 15, 16.
-   Recoverable under Medical Act, 15, 17.
-   Of surgeons and apothecaries, 15, 16.
-   Of physician and surgeon, 16.
-   In Scotland and the Colonies, 17.
-   In America, 17.
-   No express promise to pay necessary, 18.
-   How fixed, 18, 19.
-   Must be reasonable, 19.
-   In some countries fixed by law, 19.
-   Services of assistants, 20.
-   Not dependant upon cure, 20, 21.
-   But services must be of benefit, 20–24, 167.
-   Account should be in detail, 23.
-   For friendly visits, 24.
-   For drugs, 24.
-   Where no cure, no pay, 25.
-   To medical witnesses, 26, 27.
-   To medical experts, 27–31.
-   Exorbitant charges, 140.
-   Who must pay, 32.
-
- FRANCE—
-   Who may practise in, 44.
-
- FRIEND—
-   Prescribing as, fees, 24.
-   Not medical attendant, 24.
-
- G.
-
- GERMANY—
-   Who may practise in, 44.
-
- GIFTS TO MEDICAL MEN—
-   Are closely watched, 139.
-   When set aside, 139, 140.
-   When sustained, 140, 141.
-
- GOODWILL—
-   In professional partnerships, 191.
-   Sale of, 191.
-
- GRATUITOUS SERVICES—
-   Liability of physicians for, 61, 65, 66.
-   —  — unprofessional men, 66, 67.
-   —  — dentists, 166.
-
- GROSS NEGLIGENCE—
-   What is, 87, 88.
-   Liability for, 55.
-
- H.
-
- HAIR-DYE—
-   Noxious, damages for, 182.
-
- HOMŒOPATHISTS—
-   Regulations as to, in Ontario, 66.
-   Are Physicians in New York, 50, 54.
-   Are not Quacks, 132.
-   Consulting with, 134.
-
- HUSBAND—
-   When liable for attendance on wife, 35, 39.
-   When liable for artificial teeth for wife, 171.
-   Suing druggist for damages to wife’s health, 186.
-
- HYPOTHETICAL CASE—
-   How put, 126, 127.
-
- I.
-
- IGNORANCE—
-   Liability for gross ignorance, 55–61.
-   Criminal liability for gross, 55–88, 91, 92.
-   Imputing, when actionable, 130.
-
- IMMORALITY—
-   When actionable to impute, 134.
-
- IMPROPER TREATMENT—
-   When a defence to action, 20–24, 167.
-   Charges for, 20, 22, 167.
-
- INFANT—
-   Medicines and medical aid, necessary for, 39.
-
- INFECTIOUS DISORDERS—
-   Exposing persons suffering from, 147.
-   Duty of physicians in cases of, 22, 143, 147.
-
- INSANE PATIENT—
-   Not liable for negligence, 69.
-
- INSANITY CASES—
-   Evidence of experts, 121–128.
-   Opinions concerning, experts in, 121–124.
-   When expert evidence admissible, 124.
-   How to examine witnesses, 124–125.
-   Putting hypothetical cases, 126, 127.
-   Evidence of non-experts, 128.
-   Experts can only give opinions, 129.
-   Liability for committing in, 145–146.
-   Requisites for committal, 146.
-
- INTOXICATING LIQUORS—
-   When unlawful to give, 148.
-   Druggists selling, 187–188.
-
- IRELAND—
-   Early practitioners in, 6.
-
- L.
-
- LABEL OF DRUGGIST—
-   Is a warranty, 179–180.
-
- LECTURES—
-   Cannot be published by students attending them, 195.
-
- LIBEL—_See_ DEFAMATION.
-
- M.
-
- MALPRACTICE—_See_ CRIMINAL MALPRACTICE.
-   Defined, 55.
-   Consequences of, 55.
-   Civil and criminal, 55, 56, 83.
-   Some injury must be proved, 76.
-   Is a question for the jury, 76.
-   Cases of, should be construed in favor of physician, 76, 77.
-   Cases against physician rare, 77.
-   Actionable to charge one with, 133.
-
- MANIPULATION—
-   Practising, without license, 51.
-
- MANSLAUGHTER—_See_ CRIMINAL MALPRACTICE.
-   Physicians acting honestly and _bonâ fide_, 89, 90.
-   Druggist making mistake, 180–184.
-
- MASTER AND SERVANT—_See_ ASSISTANTS AND APPRENTICES.
-   Payment of medical attendance, 40.
-
- MEDICAL ACT OF ENGLAND—
-   Recovery of fees under, 17.
-
- MEDICAL ACT OF ONTARIO—
-   Recovery of fees under, 17.
-
- MEDICAL MAN—
-   Chaucer’s definition of, 7.
-   Had to be graduates in old times, 7.
-   Divisions under Henry VIII, 8.
-   Qualifications necessary to practise, 9, 48.
-   Qualifications under Henry VIII, 10.
-   No branches in America or Colonies, 17.
-   Discretion as to mode of treatment, 25.
-   As witnesses, 26.
-   Who must pay, 32–41.
-   Who may practise, 42.
-   The law favors no school, 42, 47.
-   Must practise according to school, 52, 53, 54.
-   One practising liable as, 54.
-   Duties when assuming charge, 57, 72, 73.
-   Must exercise ordinary care and diligence, 58.
-   Must keep up with the age, 61, 71.
-   Not liable for bad nursing, 70.
-   Rashly trying new experiments, 71.
-   Accepting retainer must attend, 72, 73.
-   Withdrawing from attendance, 73, 74.
-   Liability when not employed by patient, 74.
-   Action against, for defamation, 135–137.
-   Administering intoxicants, 148.
-   Relations with patients, 138–146.
-   Care necessary in choosing, 148.
-
- MEDICINE—
-   When first studied in England, 6.
-   First statute concerning, 8.
-   Evidence of experts as to, 118.
-
- MEMORANDA—
-   When may be used in court, 98.
-
- MIDWIFE—
-   Defamatory words when actionable, 130.
-
- MISREPRESENTATIONS—
-   To obtain money, 142, 143.
-
- MISTLETOE—1.
-
- MORALS—
-   Expert opinions on, 115.
-
- N.
-
- NECESSARIES—
-   Medicine and medical aid, 35, 39.
-   Artificial teeth, 171.
-
- NEGLIGENCE OF MEDICAL MEN—
-   Communicating contagious diseases, 22.
-   Liability for gross negligence, 55.
-   Judged from legal stand point, 56.
-   Defined, 56, 57.
-   Liability for, when causing injury, 57, 63, 167.
-   Medical men must exercise reasonable care and diligence, 58.
-   Sex no excuse, 61.
-   Where services are gratuitous, 65.
-   —  —  — voluntary, 65, 66.
-   Proximate cause, 69.
-   When requested to perform operation, 69.
-   Aggravated by nursing, 70.
-   General reputation unavailing, 71, 86.
-   Injurious treatment, 72.
-   Neglecting to attend, 72, 73.
-   Where not employed by patient, 74, 75.
-   Not liable for every mistake, 75.
-   Is a question for the jury, 76.
-   Amount of damages recoverable, 78–80.
-   Action for, does not survive against representatives, 80.
-   Where death is caused by, 80, 81.
-   Criminal negligence, 82–85.
-   Immaterial whether physician licensed or not, 83, 84.
-   Acting _bona fide_ no criminal liability, 89, 90.
-   Patient affected by mortal disease, 90, 91.
-   Imputing want of skill, when actionable, 130, 133.
-   Of dentists, 162, _et seq._
-   Of druggists, 177, _et seq._
-
- NEGLIGENCE OF PATIENT—
-   Responsible for careless choice of physician, 53.
-   Knowledge of physician’s ignorance, 57, 67.
-   Disobeying or neglecting orders, 67, 68.
-   What is contributory negligence, 68.
-   Insane patient’s negligence, 69.
-
- NEW YORK—
-   Who may practise in, 49–51.
-
- NURSING—
-   Aggravating the case, 70.
-   Liability of medical man for, 70.
-
- O.
-
- ONTARIO—
-   Who may practise medicine in, 45.
-   —  —  — dentistry in, 162.
-   —  —  — as druggists in, 176.
-
- OPINION—_See_ EXPERT EVIDENCE.
-
- P.
-
- PARENT AND CHILD—
-   Liability of parent for doctor’s bill, 33.
-   Rule in England and United States, 37, 38.
-   Statutory liability in England, 38, 39.
-
- PARTNERSHIP AMONG MEDICAL MEN—
-   Definition of, 189.
-   General rules applicable, 189.
-   Fraudulently inducing one to enter into, 189.
-   Conduct of partners, 190.
-   Dissolution, 190.
-   Interest of survivor, 191.
-
- PATIENT—_See_ RELATIONS WITH.
-   Calling homœopath, 54.
-   Physician not bound to take, 57, 72.
-   Must exercise prudence in selecting doctor, 67.
-   Must co-operate with doctor, 67, 68.
-   Must exercise ordinary care and prudence, 68, 69.
-   Physician withdrawing from, 73, 74.
-   Not employing physician, 74, 75.
-   Suffering from mortal disease, 90, 91.
-   Submitting to dangerous operation, 91.
-   Communication with physician not privileged, 93.
-
- PAYMENT OF MEDICAL MEN—_See_ FEES.
-   Physician called in by stranger, 32–35.
-   Wife may bind husband for, 35, 36.
-   As between parent and child, 35–39.
-   —  — master and servant, 40.
-   Paupers, 40.
-   Liability of railways in accidents, 40, 41.
-
- PECULIAR PEOPLE—38, 39.
-
- PERSIA—
-   Medical fees in, 19.
-
- PHARMACY, COLLEGE OF—
-   In Ontario, 175, 176.
-
- POISONS—
-   Should be marked, 184.
-   Selling illegally, 185.
-
- POST MORTEM—
-   Fees for, 27.
-
- PRACTISE—
-   Who may, 42, _et seq._
-   Contracts not to, 192, 193.
-
- PRACTICE—
-   Sale of, 191, 192.
-
- PRIVILEGED COMMUNICATIONS—
-   Communications between physician and patient not, 93.
-   Are by statute in some States, 94, 95.
-   Must be lawful to be, 95.
-   Necessary for physician to prescribe, 95.
-   Report of officer of insurance company, 96.
-   Defamatory statements when, 136, 137.
-
- PROFESSIONAL EVIDENCE—
-   Representation by patient as to malady, 96–98.
-   Mem. made by physician, 98, 105.
-   Scientific books not admissible, 99–105.
-   Dying declarations when admissible, 105.
-   Entries against interest admissible, 105.
-   Rules for guidance of medical witness, 106, 107.
-   Exclusion of experts, 120.
-
- Q.
-
- QUACKS—
-   When medical men may be called, 133, 134.
-   When not, 132.
-
- R.
-
- RASHNESS—86.
-
- REGISTRATION OF MEDICAL MEN—
-   Before recovery of fees, 17, 18, 45.
-   Before practice in England and Ontario, 44, 45.
-   Who may be registered in England, 44.
-   —  —  —  —  — Ontario, 45.
-   Non-registered practitioners are quacks, 133.
-   Striking off registry for felony, 148.
-
- REGULAR PHYSICIAN—
-   An allopathic, 51.
-
- REPRESENTATION BY PATIENT—
-   As to malady, when evidence, 96–98.
-
- REPUTATION—
-   Unavailing in accidents for negligence, 71, 86.
-
- RESTRAINT OF TRADE—
-   When such contracts are allowable, 192, 193.
-
- RESURRECTION—
-   Stealing winding sheet, 152.
-   Taking body a misdemeanor, 154.
-   Assisting at, 156.
-   Civil liability for, 157.
-   Ordered in proper cases, 159.
-
- RELATIONS WITH PATIENTS—
-   No one can take advantage of a trust reposed, 138.
-   Practitioner must shew fairness of dealings with patients, 138.
-   Undue influence, when inferred, 138–140.
-   Gifts to medical men set aside, 139, 140.
-   Exorbitant charges relieved against, 140.
-   When patient has independent advice, 140, 141.
-   Contracts open and fair, 141.
-   Wills in favour of medical men, 141, 142.
-   Misrepresentations by medical men, 142.
-   Promises of cure, 143.
-   Duties in cases of small-pox, 143.
-   Right to limbs, 143.
-   Assaults on patients, 144–146.
-
- ROYAL COLLEGE OF PHYSICIANS. Edinburgh—11.
-
- ROYAL COLLEGE OF PHYSICIANS. Ireland—11.
-
- ROYAL COLLEGE OF PHYSICIANS. London—9.
-
- S.
-
- SALE OF PRACTISE—191, 192.
-
- SCHOOLS OF MEDICINE—
-   The law favors no school, 42, 43, 47, 51, 115.
-   Physician must practise according to his school, 52.
-   Considered in determining skill needed, 63, 64.
-   Experts may be of any school, 115.
-
- SCIENTIFIC BOOKS—
-   Not admissible as evidence, 99.
-   Rule different in Iowa and Wisconsin, 100.
-   Cannot be read to jury, 100–103.
-   Can be used to test witness, 101.
-   Can be read to jury in some States, 103–105.
-   When cannot be quoted to jury, 105.
-   Can be read to the court, 105.
-
- SCOTLAND—
-   Early practitioners in, 5.
-
- SIGN—
-   An evidence of professional character, 64.
-   Of dentists in old days, 161.
-   Misleading, 173.
-
- SKILL—
-   Physician must have ordinary, 57, 58.
-   What is ordinary, or reasonable skill, 59.
-   Amount required, 59–62.
-   —  — varies, 60, 61.
-   Liability if skill not applied, 62.
-   Skill and diligence must be joined, 63.
-   School considered in determining, 64.
-   Proof of skill, 64.
-   Required in non-professional, 64, 65.
-   —  — volunteer, 65.
-   —  — gratuitous services, 65, 66.
-   —  — dentists, 162.
-
- SLANDER—_See_ DEFAMATION.
-
- SMALL-POX—
-   Duties of physician in cases of, 143.
-   Innoculation, 147.
-   Exposing patients with, 147.
-
- SMITHS—
-   As practitioners, 4.
-
- SUPERSTITIOUS PRACTICES—2, 3, 8.
-
- SURGEONS—
-   United with barbers, 4–6.
-   Union dissolved, 5.
-   Qualification under Henry VIII, 9.
-   Fees, 15.
-   Right to amputated limbs, 143.
-   Attending duels, 144.
-
- T.
-
- TEETH—
-   Value of, 166.
-   Dentists pulling wrong tooth, 163.
-   Artificial, need not be perfect, 163, 168.
-   Contract for purchase of, 169.
-   Artificial are necessaries, 171.
-
- U.
-
- UNDUE INFLUENCE—
-   When exercised over patient, 138, 140.
-   Setting aside will for, 141, 142.
-   Exercised by dentist, 171.
-
- UNITED STATES—
-   As a rule any one may practise, 47.
-   The law sometimes interferes, 47.
-   Statutory requirements, 48, 51.
-
- UNPROFESSIONAL MEN—
-   Liable for gross negligence, 65.
-   Liability for gratuitous services, 66, 67.
-   When criminally liable, 92.
-   Admitting, at a confinement, 144.
-
- UNREGISTERED PHYSICIAN—
-   Practising for reward, 45, 46.
-   —  — charity, 46.
-
- V.
-
- VACCINATION—
-   Negligence of physician, 22.
-
- VISITS—
-   Physician best judge of number, 23.
-   As a friend, 24.
-
- VOLUNTEER—
-   Held more strictly than one called in, 65, 66.
-
- W.
-
- WIFE—
-   May generally bind husband to pay doctor, 35, 36.
-   But husband may select physician, 36.
-   Cannot bind him for clairvoyant services, 36.
-   Selling deleterious drugs to, 186.
-
- WILL—
-   In favour of medical man, 141, 142.
-
- WITNESS—_See_ EXPERTS.
-   Fees to medical men, 26, 37.
-
- WOMEN PHYSICIANS—
-   Among the Druids, 2.
-   In England in early times, 2, 3, 10, 14.
-   Penalty for practising, 7.
-   In Greece and foreign lands, 13.
-   In United States, 14.
-   In England under the Medical Act, 14.
-   In Ontario, 14.
-   As liable for negligence as men, 61.
-
-
-
-
-Printed for the Publishers by MOORE & CO., 20 Adelaide Street East,
-Toronto.
-
-
-
-
-ENDNOTES.
-
-
-[1] The Faërie Queene, b. III., cap. 5, sts. 31, 32, 33.
-
-[2] 32 Henry VIII., cap. 42.
-
-[3] 21 & 22 Vic. cap. 90.
-
-[4] 3 Henry VIII. cap. 11.
-
-[5] _Rose_ v. _Coll. of Phy._, 3 Salk. 17: 6 Mod. 44.
-
-[6] 55 Geo. III. cap. 194. sec. 5.
-
-[7] _Apoth. Co._ v. _Lotinga_, 2 Moo. & R. 499; Glenn’s Laws Affecting
-Medical Men, p. 207.
-
-[8] True Blue Laws of Connecticut, by J. H. Trumbull, 1876.
-
-[9] Prof. H. C. Bolton, _Pop. Sci. Monthly_, vol. 18 p. 191.
-
-[10] 3 Ortolan, Expli. des Instituts, sec. 1199, quoted in Ordronaux’s
-Jurisprudence of Medicine.
-
-[11] _Poucher_ v. _Norman_, 3 B. & C. 744; _Chorley_ v. _Bolcot_, 4 T.
-R. 317; _Veitch_ v. _Russell_, 3 Q. B. 925.
-
-[12] _Battersby_ v. _Lawrence_, Car. & M. 277.
-
-[13] Per _Bramwell, B._; _Ellis_ v. _Kelly_, 6 H. & N. 226; _Allison_
-v. _Haydon_, 3 C. & P. 246; _Apothecaries Co._ v. _Lotinga_, 2 Moo. &
-R. 495: _Battersby_ v. _Lawrence_, Car. & M. 277.
-
-[14] _Gensham_ v. _Germain_, 11 Moore 1; _Towne_ v. _Gresley_, 3 C. &
-P. 581; _Handey_ v. _Henson_, 4 C. & P. 110; _Morgan_ v. _Hallen_, 8
-Ad. & E. 489.
-
-[15] Stair I. 12; 5.
-
-[16] _Adams_ v. _Stevens_, 26 Wend. 451.
-
-[17] 21 & 22 Vict. cap. 90, sec. 27; _Simpson_ v. _Dismore_, 9 M. & W.
-47; R. S. Ont. cap, 142, secs, 35–36.
-
-[18] _Hewitt_ v. _Wilcox_, 1 Met. 154.
-
-[19] _Adams_ v. _Stevens_, 26 Wend. 451; _Baxter_ v. _Gray_, 4 Scott,
-N. R. 374; _Mock_ v. _Kelly_, 3 Ala. 387; _Beekman_ v. _Planter_, 15
-Barb. 550; _McPherson_ v. _Chedell_, 24 Wend. 15; _Simmons_ v. _Means_,
-8 Sm. & Marsh, 397; _Smith_ v. _Watson_, 14 Vt. 322.
-
-[20] Ordronaux, sec. 39; Willcocks on the Medical Profession, p. 111.
-
-[21] _Tuson_ v. _Batting_, 3 Esp. N. P. 192; _Baxter_ v. _Gray_, 4
-Scott, N. R. 374.
-
-[22] Affaire Tallien Jour. du Palais, vol. 3; An. XI., XII. p. 210.
-
-[23] _Collins_ v. _Grady_, 13 Louis. An. 95; 2 Louis. 331.
-
-[24] _People_ v. _Monroe_, 4 Wend. 200; _Blogg_ v. _Parkers_, Ry. & M.
-N. P. C. 125.
-
-[25] Story on Bailments, sec. 375.
-
-[26] _Farnsworth_ v. _Garrard_, 1 Camp. 38; _Adler_ v. _Buckley_, 1
-Swan (Tenn.) 69; _Gallagher_ v. _Thompson_, Wright (Ohio), 466.
-
-[27] _Basten_ v. _Butter_, 7 East, 479.
-
-[28] _Adler_ v. _Buckley_, 1 Swan (Tenn.), 69.
-
-[29] _Hill_ v. _Featherstonhaugh_, 7 Bing. 574; _Seare_ v. _Prentise_,
-8 East, 350.
-
-[30] _Duffit_ v. _James_, cited _Baston_ v. _Butter_, 7 East, 480;
-_Kannen_ v. _McMullen_, 1 Peake, 85; _Bellinger_ v. _Craigue_, 31 Barb.
-534; _Long_ v. _Morrison_, 14 Ind. 595.
-
-[31] _Kannen_ v. _McMullen_, 1 Peake, 83; _Hupe_ v. _Phelps_, 2
-Starkie, 424.
-
-[32] _Piper_ v. _Menifee_, 12 B. Monr. 467.
-
-[33] Ordronaux p. 92.
-
-[34] _Landon_ v. _Humphrey_, 9 Conn. 209.
-
-[35] Peake’s N. P. C. 83, 84.
-
-[36] _Hughes_ v. _Hampton_, Const. Rep. (S. C.) 745.
-
-[37] _Wheeler_ v. _Sims_, 5 Jur. 151; _Newton_ v. _Ker_, 14 Louis. An.
-704.
-
-[38] _Tuson_ v. _Batting_, 3 Esp. 191.
-
-[39] _Miller_ v. _Beal_, 26 Ind. 234.
-
-[40] _Collins_ v. _Graves_, 13 Louis. An. 95; _Villalobas_ v. _Mooney_,
-2 Louis. 331.
-
-[41] _Todd_ v. _Myers_, 40 Cal. 357.
-
-[42] _Succession of Duclos_, 11 Louis. An. 406; _Sheldon_ v. _Johnson_,
-40 Ia. 84; _Guerard_ v. _Jenkins_, 1 Strobh. 171; Ordronaux, sec. 47.
-
-[43] _Roberts_ v. _Kerfoot_, cited Glenn’s Laws, p. 201; _Stackman_ v.
-_Vivian_, 34 Beav. 290.
-
-[44] Ordronaux, sec. 43.
-
-[45] _Bassett_ v. _Spofford_, 11 N. H. 167.
-
-[46] _Smith_ v. _Hyde_, 19 Verm. 54; _Mock_ v. _Kelly_, 3 Alab. 387;
-Jones on Bailm. 99; Ordronaux, secs. 21 and 15.
-
-[47] _McClallen_ v. _Adams_, 19 Pick, 333; Ordronaux, sec. 48.
-
-[48] _Parkinson_ v. _Atkinson_, 31 L. J., C. P. 199; _Turner_ v.
-_Turner_, 5 Jur., N. S., 839.
-
-[49] _Clark_ v. _Gill_, 1 Kay & J. 19; _Webb_ v. _Paige_, 1 Car. & Kir.
-23.
-
-[50] _Hammond_ v. _Stewart_, 1 Stra. 510.
-
-[51] _In re Askin & Charteris_, 13 U. C. R. 498.
-
-[52] _In re Harbottle & Wilson_, 30 U. C. R. 314.
-
-[53] R. S. O. cap. 79, sec. 10.
-
-[54] Iowa Code, 1873, sec. 1814; North Carolina Laws, 1871, cap. 139,
-sec. 13; Rhode Is. Pub. Stat. 1882, p. 733; Indiana Rev. Stat. 1881, p.
-94, sec. 504.
-
-[55] _Belts_ v. _Clifford_, Warwick Assizes, Lent, 1858.
-
-[56] _Webb_ v. _Paige_, 1 Car. & Ker. 23.
-
-[57] _Buchman_ v. _State_, 59 Ind. 1.
-
-[58] In _Re Roelker_. 1 Sprague, 276.
-
-[59] _People_ v. _Montgomery_, 13 Abb. Pr. (N. S.), 207.
-
-[60] Juris. of Med. secs. 114–116; 1 Tay. Med. Jur. p. 19; 2 Phil. Ev.
-4th Am. Ed., p. 828; 1 Redf. on Wills, pp. 154–155.
-
-[61] Exparte _Dement_, 53 Ala. 389.
-
-[62] _Summer_ v. _State_, 5 Tex. Ct. of App. 574.
-
-[63] Smith on Contracts, 85.
-
-[64] _Bradley_ v. _Dodge_, 45 How., N. Y., Pr. 57; _Craine_ v.
-_Bandoine_, 65 Barb., N. Y., 261; _Harrison_ v. _Grady_, 13 L. T., N.
-S., 369; _Spaun_ v. _Mercer_, 8 Neb., 537.
-
-[65] _Watling_ v. _Walters_, 1 C. & P. 132.
-
-[66] _Boyd_ v. _Sappington_, 6 Watts, 247.
-
-[67] _Smith_ v. _Watson_, 14 Vt. 332.
-
-[68] _Harrison_ v. _Grady_, 13 L. T., N. S. 369; _Cooper_ v. _Lloyd_, 6
-C. B., N. S. 519; Roper on Husband and Wife, 2nd ed. v. ii. p. 114.
-
-[69] _Harrison_ v. _Grady_, supra; _Thorpe_ v. _Shapleigh_, 67 Me. 235.
-
-[70] _Webber_ v. _Spaunpake_, 2 Redf., N. Y., 258.
-
-[71] _Berier_ v. _Galloway_, 71 Ill. 517; _Hartmann_ v. _Tegart_, 12
-Kan. 177.
-
-[72] _Potter_ v. _Virgil_, 67 Barb. N. Y., 578.
-
-[73] _Wood_ v. _O’Kelley_, 8 Cush. 406.
-
-[74] Parsons on Contracts, vol. i. p. 302–303; _Blackburn_ v. _Mackey_,
-1 C. & P. 1.
-
-[75] _Crantz_ v. _Gill_, 2 Esp. 471.
-
-[76] _Rogers_ v. _Turner_, 59 Mo. 116; _Deane_ v. _Annis_, 14 Me. 26;
-_Swain_ v. _Tyler_, 26 Vt. 1.
-
-[77] _Cooper_ v. _Phillips_, 4 C. & P. 581.
-
-[78] 31 & 32 Vict. cap. 122, sec. 37.
-
-[79] _Reg._ v. _Downes_, 1 Q. B. D. 25.
-
-[80] _Reg._ v. _Hines_, 80 Cen. C. C. Sess. Pap. 309; _Reg._ v.
-_Wagstaffe_, 10 Cox. C. C. 530.
-
-[81] _Reg._ v. _Morby_, 8 Q. B. D. 571.
-
-[82] _Blackburn_ v. _Mackey_, 1 C. & P. 1; _Hoyt_ v. _Casey_, 14 Mass.
-397.
-
-[83] _Wennall_ v. _Adney_, 3 B. & P. 24; _Sellen_ v. _Norman_, 4 C. &
-P. 80.
-
-[84] _Cooper_ v. _Phillips_, 4 C. & P. 581.
-
-[85] _R._ v. _Smith_, 8 C. & P. 153.
-
-[86] Glenn’s Law of Medical Men, pp. 197–199.
-
-[87] _Cox_ v. _Midland Counties Railway_, 3 Ex. 268; _Cooper_ v. _N. Y.
-C._ 13 N. Y. Sup. Ct. 276.
-
-[88] _Walker_ v. _Great Western Railway_, 2 L. R. Ex. 228; _Cairo,
-etc., Railroad Company_ v. _Mahoney_, 82 Ill. 73; _Stephenson_ v. _N.
-Y. & H. R. R. Co._, 2 Duer. 341.
-
-[89] Per Parke, B., and Rolfe, B., in _Cox_ v. _Mid. Co. Railway_,
-supra.
-
-[90] _Corsi_ v. _Maretzck_, 4 E. D. Smith 1 (1855).
-
-[91] 21 & 22 Vict. cap. 90, secs. 31, 32; _Wagstaffe_ v. _Sharpe_, 3 M.
-& W. 521; _Shearwood_ v. _Hay_, 5 Ad. & E. 383; _Turner_ v. _Reynall_,
-14 C. B. N. S. 328.
-
-[92] 21 & 22 Vict. cap. 90, sec. 15.
-
-[93] Enc. Brit. Vol. xv. p. 799.
-
-[94] R. S. O. cap. 142.
-
-[95] _Reg._ v. _Coll. Phy. & Sur._, 44 Ont. Q. B. 564.
-
-[96] _Reg._ v. _Hessel_, 44 Ont. Q. B. 53 _Reg._ v. _Campbell_, Q. B.
-D. (Ont.) June, 1883.
-
-[97] _Reg._ v. _Tefft_, 45 Ont. Q. B. 144.
-
-[98] _Wilmot_ v. _Shaw_, 2 C. L. Times, 96.
-
-[99] _Reg._ v. _Coll. P. & S._ 16 C. L. J. 30; R. S. O. cap. 142, sec.
-23.
-
-[100] _Re Heinemann’s Appeal_, 96 Pa. St. 112.
-
-[101] Ordronaux’s Inst. of Med., secs. 5 and 6; _Sutton_ v. _Tracy_, 1
-Mich. 243.
-
-[102] N. Y. Laws, cap. 436.
-
-[103] _Corsi_ v. _Maretzek_, 4 E. D. Smith, 1.
-
-[104] _Bradbury_ v. _Bardin_, 35 Conn. 577.
-
-[105] _Bowman_ v. _Woods_, 1 Iowa, 441.
-
-[106] _Smith_ v. _Lane_, 24 Hun, 632.
-
-[107] _Bibber_ v. _Simpson_, 59 Me. 181; _Thistleton_ v. _Frewer_, 31
-L. J. Ex. 230.
-
-[108] _Patten_ v. _Wiggin_, 51 Me. 594.
-
-[109] _Bowman_ v. _Woods_, 1 Iowa, 441.
-
-[110] _Horton_ v. _Green_, 64 N. C. 64.
-
-[111] Ordronaux, sec. 8.
-
-[112] _Sutton_ v. _Tracy_, 1 Mich. 243; _Reynolds_ v. _Graves_, 3 Wisc.
-416.
-
-[113] _Langdon_ v. _Mut. Life Ins. Co._, 5 Hun. N. Y. 1.
-
-[114] Per Cur., in _Dr. Greonvelt’s_ case, 1 Lord Ray, 213.
-
-[115] Glenn, p. 251; Addison on Torts, Ed. 3rd, p. 17.
-
-[116] Glenn, p. 252; Erle, C.J., _R._ v. _Noakes_, 4 F. & F. 920.
-
-[117] _Gardiner_ v. _Heartt_, 3 Denio, 232–236; McClelland’s Civil
-Malpractice, cap. 17.
-
-[118] Wharton on Negligence, sec. 3.
-
-[119] _Carpenter_ v. _Blake_, 60 Barb. 488.
-
-[120] McClelland, cap. 17.
-
-[121] Wharton, sec. 731.
-
-[122] _Wilmot_ v. _Howard_, 32 Vt. 447; _Long_ v. _Morrison_, 14 Ind.
-595; _Patten_ v. _Wiggin_, 51 Me. 594.
-
-[123] _Hancke_ v. _Hooper_, 7 C. & P. 81.
-
-[124] _Patten_ v. _Wiggin_, 51 Me. 594.
-
-[125] _Leighton_ v. _Sargent_, 7 Fost. 460; _Simonds_ v. _Henry_, 39
-Me. 155; _Hancke_ v. _Hooper_, 7 C. & P. 81; _McCandless_ v. _McWha_,
-22 Pa. St. 261; _Carpenter_ v. _Blake_, 60 Barb. 488; _Utley_ v.
-_Burns_, 70 Ill. 162; _Barnes_ v. _Means_, 82 Ill. 379.
-
-[126] _Heath_ v. _Gibson_, 3 Oregon, 64.
-
-[127] _Slater_ v. _Baker_, 2 Wils. 359; _McCandless_ v. _McWha_, sup.;
-Wh. and Still. Medic. Juris. sec. 1087.
-
-[128] Bouvier’s Institutes, secs. 1004–1005.
-
-[129] Ordronaux’s Jurisp. of Medicine, sec. 23.
-
-[130] _Rich_ v. _Pierpoint_, 3 F. & F. 35.
-
-[131] Wharton on Negligence, sec. 734.
-
-[132] Ordronaux, sec. 22.
-
-[133] Wharton on Negligence, sec. 640.
-
-[134] _Small_ v. _Howard_, 128 Mass. 131; _Hathorn_ v. _Richmond_, 48
-Vt. 557.
-
-[135] Woodward, J., in _McCandless_ v. _McWha_, 22 Pa. Rep. 261.
-
-[136] _Mich. Cent. Rw._ v. _Hasseneyer_, 48 Mich. 205; _Fox_ v.
-_Glastonbury_, 29 Conn. 204.
-
-[137] Shearman & Red., sec. 432.
-
-[138] _Patten_ v. _Wiggen_, 51 Me. 594.
-
-[139] _Rich_ v. _Pierpoint_, per Erle, C.J., 3 F. & F. 35.
-
-[140] _Carpenter_ v. _Blake_, 60 Barb. 488.
-
-[141] Ordronaux’s Jur. of Med., sec. 68.
-
-[142] _Potter_ v. _Warner_, 91 Pa. St. 362; 36 Am. Rep. 668.
-
-[143] _Bowman_ v. _Woods_, 1 Greene (Iowa), 441; _Corsi_ v. _Maretzek_,
-4 E. D. Smith, 1.
-
-[144] _Sutton_ v. _Tracy_, 1 Mich. 243.
-
-[145] _Mertz_ v. _Detweiler_, 8 W. & Serg. 376; _Seare_ v. _Prentice_,
-8 East, 348; _Carpenter_ v. _Blake_, 60 Barb. 518.
-
-[146] _Hunter_ v. _Blount_, 27 Ga. 76; _Leighton_ v. _Sargent_, 7
-Foster, N. H. 476.
-
-[147] Wharton on Negligence, sec. 29.
-
-[148] _Hood_ v. _Grimes_, 13 B. Monr. 188.
-
-[149] _Ruddock_ v. _Lowe_, 4 F. & F. 519; _R._ v. _Simpson_, 4 C. & P.
-407, note.
-
-[150] Shearman & Redfield on Negligence, sec. 432; _Ritchey_ v. _West_,
-3 Ill. 385; _Shiells_ v. _Blackburne_, 1 H. Bl. 159; _Wilson_ v.
-_Brett_, 11 M .2 & W. 113; _Pippin_ v. _Shepherd_, 11 Price, 400.
-
-[151] Wharton on Negligence, sec. 731 n.
-
-[152] Jur. of Med. sec. 27.
-
-[153] _R._ v. _Macleod_, 12 Cox. C. C. 534.
-
-[154] _Perionowsky_ v. _Freeman_, 4 F. & F. 977.
-
-[155] _Shiells_ v. _Blackburne_, 1 H. Bl. 159.
-
-[156] _Boynton_ v. _Somersworth_, 58 N. H. 321.
-
-[157] McClelland, Civil Malpractice; Wharton on Negligence, sec. 737;
-_Leighton_ v. _Sargent_, 7 Fost. 460; _McCandless_ v. _McWha_, 22 Pa.
-St. 261.
-
-[158] _Geiselman_ v. _Scott_, 25 Oh. St. 86.
-
-[159] _Parker_ v. _Adams_, 12 Metc. 417.
-
-[160] _Hibbard_ v. _Thompson_, 109 Mass. 286.
-
-[161] _Cleveland, etc., Rw._ v. _Terry_, 8 Oh. St. 570.
-
-[162] _Ch. & R. I. Rw._ v. _McKean_, 40 Ill. 218; _Eakin_ v. _Brown_, 1
-E. D. Smith, 36.
-
-[163] _Clark_ v. _Kerwin_, 4 E. D. Smith, 21; _Parker_ v. _Adams_, 12
-Mete 417.
-
-[164] _Kerwhaker_ v. _Cleveland, etc., Rw._ 3 Oh. 172; _Ind. and Cin.
-Rw._ v. _Caldwell_, 9 Ind. 397.
-
-[165] _Ch. etc., Rw._ v. _Goss_, 17 Wisc. 428.
-
-[166] Chapman, C.J., _Hibbard_ v. _Thompson_, 109 Mass. 288.
-
-[167] _Gramm_ v. _Boener_, 56 Ind. 497.
-
-[168] _Fisk_ v. _Wait_, 104 Mass. 71.
-
-[169] _People_ v. _N. Y. Hospital_, 3 Abb. N. C. 229.
-
-[170] _Chamberland_ v. _Morgan_, 68 Penn. St. 168.
-
-[171] _Wilmot_ v. _Howard_, 39 Vt. 447.
-
-[172] _Perionowsky_ v. _Freeman_, 4 F. & F. 977.
-
-[173] _Potter_ v. _Warner_, 91 Penn. St. 362.
-
-[174] _Slater_ v. _Baker_, 2 Wils. 359.
-
-[175] _Carpenter_ v. _Blake_, 60 Barb. 488.
-
-[176] _Hunter_ v. _Ogden_, 31 U. C. R. 132.
-
-[177] _Carpenter_ v. _Blake_, Sup.
-
-[178] _Ballon_ v. _Prescott_, 64 Me. 305.
-
-[179] Ordronaux, sec. 14; Shearman & Red., sec. 441.
-
-[180] _Longmeid_ v. _Holliday_, 6 Ex. 767.
-
-[181] _Pippin_ v. _Sheppard_, 11 Price, 400.
-
-[182] _Gladwell_ v. _Steggall_, 5 Bing. N. C. 733.
-
-[183] Wharton on Negligence, sec. 735.
-
-[184] _Craig_ v. _Chambers_, 17 Ohio St. 253.
-
-[185] _Fields_ v. _Rutherford_, 29 (Ont.) C. P. 113; _Metropolitan R.
-W. Co._ v. _Jackson_, L. R. 3 App. 193, 197.
-
-[186] _Fawcett_ v. _Mothersell_, 14 C. P. (Ont.) 104; _Jackson_ v.
-_Hyde_, 28 U. C. R. 295.
-
-[187] Ordronaux, sec. 54.
-
-[188] Ordronaux, sec. 86.
-
-[189] _Jones_ v. _Northmore_, 46 Vt. 587.
-
-[190] _Whalen_ v. _St. Louis, etc., Ry._, 60 Mo. 323; _Indianapolis,
-etc., Ry._ v. _Gaston_, 58 Ind. 224; _Leighton_ v. _Sargent_, 11
-Foster, N. H. 120.
-
-[191] _Johnson_ v. _Wills_, 6 Nev. 224.
-
-[192] _Curtis_ v. _Rochester & S. Ry._ 20 Barb. 282.
-
-[193] L. R., 4 Q. B. D. 407.
-
-[194] L. R., 5 C. P. D. 280.
-
-[195] _Holmes_ v. _Halde_, 74 Me. 28.
-
-[196] _Jenkins_ v. _French_, 58 N. H. 532; Broom’s Maxims, 702. But see
-_Hegerich_ v. _Keddie_, 32 Hun, 141; _Yertore_ v. _Wiswall_, 16 How.
-Pr. 8.
-
-[197] Lord Campbell’s Act, 9 & 10 Vict. cap. 93; R. S. O. cap. 128;
-_Lett_ v. _St. Lawrence & Ottawa Rw._, 1 Ont. Rep. 545; _Blake_ v.
-_Midland Rw._, 18 Q. B. 93; _Bradburn_ v. _G. W. R._, L. R., 10 Ex. 3.
-
-[198] _Morse_ v. _Auburn & S. Rw._, 10 Barb. 623.
-
-[199] Glenn, p. 259
-
-[200] _R._ v. _Long_, 4 C. & P. 398; _R._ v. _Crick_, 1 F. & F. 519.
-
-[201] 4 Coke Inst. 251; 4 Bla. Com. 197; 1 Hale, P. C. 429.
-
-[202] _Rex_ v. _Van Butchell_, 3 C. & P. 629; _Rice_ v. _The State_, 8
-Mo. 561; _Com._ v. _Thompson_, 6 Mass. 134.
-
-[203] _Rex_ v. _Webb_, 1 M. & Rob. 405, See also _Rex_ v. _Simpson_, 4
-C. & P. 407 n.
-
-[204] Bolland, B., in _Rex_ v. _Spiller_, 5 C. & P. 19; _Lamphier_ v.
-_Philpot_, per Tindal, C.J, 8 C. & P. 575.
-
-[205] Per Coleridge, J.; _Rex_ v. _Spilling_, 2 M. & Rob. 107.
-
-[206] _R._ v. _Chamberlaine_, 10 Cox, C. C. 486; Blackburn, J.
-
-[207] _State_ v. _Shulz_, 55 Ia. 628.
-
-[208] _Rex_ v. _Williamson_, 3 C. & P. 635; 14 Eng. Com. Law Rep. 297.
-
-[209] Cap. 4, sec. 16.
-
-[210] _Rex_ v. _St. John Long_, 4 C. & P. 378; 19 Eng. Com. Law Rep.
-404.
-
-[211] Wharton on Homicide, sec. 148.
-
-[212] _Rex_ v. _St. John Long_, 4 C. & P. 423; 19 E. C. L. R. 440.
-
-[213] _Rice_ v. _The State_, 8 Mo. 561.
-
-[214] Ordronaux, secs. 80, 77. But see _R._ v. _Nancy Simpson_, 4 C. &
-P. 407 n.
-
-[215] _Rex_ v. _Markuss_, 4 F. & F. 356.
-
-[216] 38 Ark. 605.
-
-[217] _Com._ v. _Thompson_, 6 Mass. 134.
-
-[218] _Rice_ v. _State_, 8 Mo. 561.
-
-[219] 55 Iowa, 698.
-
-[220] _R._ v. _Webb_, 1 M. & R. 405; Wharton on Homicide, sec. 405.
-
-[221] _R._ v. _Lee_, 4 F. & F. 63; _Com._ v. _McPike_, 3 Cush. 181;
-_Com._ v. _Hackett_, 2 Allen, 137; Wharton on Homicide, sec. 385.
-
-[222] Wharton on Homicide, sec. 554.
-
-[223] Wharton on Homicide, sec. 557.
-
-[224] Medical Jurisprudence, sec. 1059.
-
-[225] _Duchess of Kingston’s Case_, 20 Howell St. Tr. 573; _Wilson_ v.
-_Rastall_, 4 T. R. 760; _Greenough_ v. _Gaskill_, 1 Myl. & K. 103; _R._
-v. _Gibbons_, 1 C. & P. 97; _Broad_ v. _Pitt_, 3 C. & P. 579.
-
-[226] _Duchess of Kingston’s Case_, supra.
-
-[227] Belloc. Cours de Med. leg. 17.
-
-[228] 1 Greenleaf on Evidence, sec. 248; _Campan_ v. _North_, 39 Mich.
-606.
-
-[229] _Harris_ v. _Russel_, 16 Ind. 209; _Staunton_ v. _Parker_, 19
-Hun. 55; _Fraser_ v. _Jenneson_, 42 Mich. 206.
-
-[230] 2 N. Y. Rev. St. 406, sec. 73; _Hunn_ v. _Hunn_, 1 Thomp. & C.
-499.
-
-[231] _Pierson_ v. _People_, 79 N. Y. 434.
-
-[232] _Cohen_ v. _Continental, etc., Ins. Co._, 41 N. Y. Super. Ct.
-296; _Grattan_ v. _Metropolitan L. Ins. Co._, 80 N. Y. 281.
-
-[233] _Hewitt_ v. _Prime_, 21 Wend. 79.
-
-[234] _Edington_ v. _Ætna Life Ins. Co._, 77 N. Y. 564, but see
-_Edington_ v. _Ætna Life Ins. Co._, 67 N. Y. 185.
-
-[235] _Lee_ v. _Hammerton_, 10 L. T.; N. S. 730; _Mahony_ v. _Nat.
-Widow’s Life Assurance Fund_, L. R. 6 C. P. 252; _Baker_ v. _London &
-S. W. Railway_, L. R. 3 Q. B. 91; _Cossey_ v. _L. B. & C._, L. R. 5 C.
-P. 146; _Skinner_ v. _G. N. R._, L. R. 9 Ex. 298.
-
-[236] _Aveson_ v. _Lord Kinnaird_, 6 East 188; Taylor on Evidence,
-secs. 580, 581, 7th ed.
-
-[237] _Bacon_ v. _Charlton_, 7 Cush. 586; _Chapen_ v. _Marlborough_, 9
-Gray 244; _Barber_ v. _Merriam_, 11 Allen 322.
-
-[238] _Kennard_ v. _Burton_, 25 Me. 39; _Gray_ v. _McLaughlin_, 26 Ia.
-279; _Brown_ v. _N. Y. C._, 32 N. Y. 597; _Caldwell_ v. _Murphy_, 11 N.
-Y. 344; _Barber_ v. _Merriam_, sup.; _Denlon_ v. _State_, 1 Swan 279;
-_Matteson_ v. _N. Y. C._, 35 N. Y. 487.
-
-[239] _Chapin_ v. _Malborough_, sup.; _Lush_ v. _McDaniel_, 13 Ired. L.
-485; _Rogers_ v. _Cain_, 30 Tex. 284; _Wilson_ v. _Granby_, 47 Conn.
-
-[240] _Witt_ v. _Witt_, 3 Sw. & Trist. 143.
-
-[241] _Ill. Cen. R. R._ v. _Sutton_, 42 Ill. 438.
-
-[242] _Rowell_ v. _Lowell_, 11 Gray 420.
-
-[243] _Roosa_ v. _Boston Loan Co._, 132 Mass. 439; _Quaife_ v. _C. & N.
-W. R._, 48 Wis. 513.
-
-[244] _Denton_ v. _State_, 1 Swan 279.
-
-[245] Greenleaf on Evid. sec. 436; Ordronaux sec. 124; Glenn, p. 284.
-
-[246] _Collier_ v. _Simpson_, 5 C. & P. 73; _Reg._ v. _Thomas_, 13 Cox
-Cr. Cas. 77; Redfield on Wills, p. 145; _People_ v. _Hall_, 48 Mich.
-486; Rogers on Expert Evidence, sec. 180; _Brown_ v. _Sheppard_, 13 U.
-C. R. 178.
-
-[247] _Bowman_ v. _Woods_, 1 Ia. 44; _Luning_ v. _State_, 1 Chandler
-(Wisc.) 264; _Ripon_ v. _Bittel_, 30 Wisc. 362; _Stirling_ v. _Thorp_,
-54 Wisc.
-
-[248] _Con. Mut. Life Ins. Co._ v. _Ellis_, 89 Ill. 516; Expert
-Testimony, sec. 182.
-
-[249] _Com._ v. _Sturtevant_, 117 Mass. 123.
-
-[250] _Marshall_ v. _Brown_, 15 N. W. Rep. 55.
-
-[251] _Brown_ v. _Sheppard_, 13 U. C. R. 178.
-
-[252] _Pinney_ v. _Cohill_, 12 N. W. Rep. 862; _Ripon_ v. _Bittell_, 30
-Wisc. 362.
-
-[253] _Ashworth_ v. _Kittridge_, 12 Cush. 193.
-
-[254] _Reg._ v. _Crouch_, 1 Cox Cr. Cas. 94; _Washburn_ v. _Cuddihy_,
-8 Gray 430; _Huffman_ v. _Click_, 77 N. C. 54; _Fraser_ v. _Jennison_,
-42 Mich. 206, 214; _People_ v. _Wheeler_, 9 Pac. Coast L. J. 581;
-_Robinson_ v. _N. Y. C._, 24 A. L. J. 357.
-
-[255] 46 Conn. 330.
-
-[256] _People_ v. _Wheeler_, 9 Pac. C. L. Jour. 581.
-
-[257] See also _Collier_ v. _Simpson_, 5 C. & P. 73; _Ordway_ v.
-_Haynes_, 50 N. H. 159; _People_ v. _Anderson_, 44 Cal. 65; _Carter_
-v. _State_, 2 Cart. 617; _Gale_ v. _Rector_, 5 Bradw. 484; _Harris_ v.
-_Panama R. Co._, 3 Bosw. 7.
-
-[258] _State_ v. _Hoyt_, 46 Conn. 330.
-
-[259] _Harvey_ v. _State_, 40 Ind. 516; _Wade_ v. _De Witt_, 20 Texas
-398; _State_ v. _West_, 1 Houston Cr. Cas. Del. 371.
-
-[260] _Legg_ v. _Drake_, 1 Ohio St. 286.
-
-[261] Per Loomis, J., _State_ v. _Hoyt_, sup.; _Wade_ v. _De Witt_, 20
-Tex. 398, 400; _Luning_ v. _State_, sup.; Experts and Expert Testimony
-by U. C. Moak, 24 A. L. J. 267.
-
-[262] _Yoe_ v. _State_, 49 Ill. 410.
-
-[263] _Russell_ on Crimes, 4th ed. vol. iii. p. 250.
-
-[264] _Higham_ v. _Ridgway_, 10 East 109.
-
-[265] Taylor’s Evid., vol. ii., sec. 1259; Alison’s Criminal Law of
-Scotland, 542; Wharton’s Evid., vol. i. p. 492.
-
-[266] _Sizer_ v. _Burt_, 4 Denio, 426; _Anthony_ v. _Smith_, 2 Bos.
-(N.Y.) 503, 508; _Fraser_ v. _Jameson_, 42 Mich. 206. 223.
-
-[267] 1 Smith Lead. Cas., 6th Ed. 509; _Kennedy_ v. _People_, 30 N. Y.
-245.
-
-[268] _Chicago, etc._, v. _McGiven_, 78 Ill. 347; _Hartford Pro. Ins.
-Co._ v. _Harmer_, 20 Oh. St. 457.
-
-[269] _Commonwealth_ v. _Rodgers_, 7 Metc. 5, per Shaw, C.J.
-
-[270] 1 Greenl. Evid., sec. 440; _Jones_ v. _White_, 11 Hump. 268.
-
-[271] Plowden, 125; Year Books, vol. v.
-
-[272] _Whittaker_ v. _Parker_, 42 Ia. 586; _State_ v. _Watson_, 65 Me.
-74; _Rutherford_ v. _Morris_, 77 Ill. 404; _Tracy_ Peerage, 10 Cl. &
-Fin. 191.
-
-[273] Taylor on Evidence, sec. 50, Ed. 1872.
-
-[274] Best on Evidence, sec. 574.
-
-[275] _State_ v. _Wood_, 53 N. H. 484; _Masons_ v. _Fuller_, 45 Vt. 29;
-_New Orleans, etc., Rw._ v. _Allbretton_, 38 Miss. 247; _Re Toomes_, 54
-Cal. 515.
-
-[276] _Fairchild_ v. _Bascomb_, 35 Vt. 410; _Polk_ v. _State_, 36 Ark.
-117; _Roberts_ v. _Johnson_, 58 N. Y. 613.
-
-[277] _Hathaway_ v. _Nat. Life Ins. Co._, 48 Vt. 335, 351; _Fairchild_
-v. _Bascomb_, supra.
-
-[278] _Castner_ v. _Sliker_, 33 N. J. (L.) 97; _State_ v. _Reddick_, 7
-Kan. 143; _State_ v. _Henkle_, 6 Ia. 380; _State_ v. _Cook_, 17 Kan.
-391.
-
-[279] _Horton_ v. _Green_, 64 N. C. 64.
-
-[280] _Emerson_ v. _Lowell Gas Light Co._, 6 Allen, 146.
-
-[281] _Heald_ v. _Wing_, 5 Me. 392.
-
-[282] _Harris_ v. _Panama R. R. Co._, 3 Bosw. (N. Y.), 77; _Fairchild_
-v. _Bascomb_, 35 Vt. 398.
-
-[283] _Re Toomes_, 54 Cal. 575.
-
-[284] Greenleaf’s Evidence, 12th Ed., I. p. 483; _Livingstone’s case_,
-14 Grat. 592.
-
-[285] _Lorg_ v. _First German Congregation_, 63 Pa. St. 156; _Hills_ v.
-_Home Ins. Co._, 129 Mass., 544, 551.
-
-[286] _Lester_ v. _Pittsford_, 7 Vt. 161; _Mendum_ v. _Com._ 6 Rand.
-704; _Tullis_ v. _Kidd_, 12 Ala. 648; _Sinclair_ v. _Rourk_, 14
-Ind. 540; _Winans_ v. _N. Y., etc., R. R. Co._, 21 How. (U. S.) 88;
-_Boardman_ v. _Woodman_, 47 N. H. 121; _Davis_ V. _State_, 35 Ind. 496.
-
-[287] _Forgery_ v. _First Nat. Bank_, 66 Ind. 123, 125; _McEwen_ v.
-_Bigelow_, 40 Mich. 217; _Kilborne_ v. _Jennings_, 38 Iowa, 533.
-
-[288] _Mitchell_ v. _State_, 58 Ala. 418; _Forgery_ v. _First Nat.
-Bank_, 66 Ind. 123; _Parnell_ v. _Commonwealth_, 86 Pa. St. 269;
-_Carter_ v. _Baker_, 1 Sawy. (U. S. C. C.) 525.
-
-[289] _Tatum_ v. _Mohr_, 21 Ark. 355; _Getchell_ v. _Hill_, 21 Minn.
-464.
-
-[290] Ordronaux Principles, sec. 108–110.
-
-[291] _St. Louis Mut. Ins. Co._ v. _Graves_, 6 Bush. 290.
-
-[292] _Corsi_ v. _Maretzek_, 4 E. D. Smith, 1.
-
-[293] Wharton on Mental Unsoundness, sec. 282.
-
-[294] _Keith_ v. _Lothrop_, 10 Cush. 453; _Clark_ v. _State_, 12 Ohio,
-483.
-
-[295] Rules Relating to Opinion Evidence, 26 A. L. J. 486; _State_ v.
-_Smith_, 32 Me. 370; _Young_ v. _Makepeace_, 103 Mass. 50.
-
-[296] _State_ v. _Powell_, 7 N. J. (L.), 269; _Davis_ v. _State_,
-38 Ind. 37; _Gardner_ v. _People_, 6 Parker, C. C. 202; overruling,
-_Wilson_ v. _People_, 4 Park., C. C. 619; _State_ v. _Jones_, 68 N. C.
-443.
-
-[297] _State_ v. _Smith_, Supra; _Regina_ v. _Stitt_, 30 U. C. C. P.
-30; _State_ v. _Wood_, 53 N. H. 484.
-
-[298] _State_ v. _Bowman_, 78 N. C. 509; _State_ v. _Slagh_, 83 N. C.
-630.
-
-[299] _Com._ v. _Sturtevant_, 117 Mass. 122.
-
-[300] _Newell_ v. _Doty_, 33 N. Y. 83; _Buell_ v. _N. Y. C._, 31 N. Y.
-Ct. of App. 314; _Matteson_ v. _N. Y. C._ 62 Barb. 366; S. C. 35 N. Y.
-487.
-
-[301] 11 Allen, 322.
-
-[302] _R._ v. _Whitehead_, 3 C. & K. 203; _Rich_ v. _Pierpont_. 3 F. &
-F. 36; _Twombly_ v. _Leach_, 11 Cush. 405.
-
-[303] _Mertz_ v. _Detweeler_, 8 W. & S. 376; _Wright_ v. _Hardy_, 22
-Wisc. 368.
-
-[304] _Leighton_ v. _Sargent_, 11 Fost. N. H. 120; _Williams_ v.
-_Poppleton_, 3 Oregon, 139; _Hoener_ v. _Koch_, 84 Ill. 408; _Ramadge_
-v. _Ryan_, 9 Bing. 333.
-
-[305] _State_ v. _Clark_, 12 Ired. 151; _Page_ v. _Barker_, 40 N. H.
-477.
-
-[306] _Ramadge_ v. _Ryan_, 9 Bing. 335; _R._ v. _Searle_, 1 M. & Rob.
-75; _Fenwick_ v. _Bell_, 1 C. & Kir. 312; _Gibson_ v. _Williams_, 4
-Wend. 320; _Morse_ v. _State_, 6 Conn. 9.
-
-[307] _Kennedy_ v. _People_, 39 N. Y. 245.
-
-[308] _New England Glass Co._ v. _Lovell_, 7 Cush. 319.
-
-[309] _Ramadge_ v. _Ryan_, supra; _Campbell_ v. _Richards_, 5 B. & Ad.
-840.
-
-[310] _Reynolds_ v. _Robinson_, 64 N. Y. 595; _Shafer_ v. _Deans
-ad’mor_, 29 Ia. 144.
-
-[311] _Linn_ v. _Sigsbee_, 67 Ill. 75; see _Bradbury_ v. _Barden_, 35
-Conn. 580.
-
-[312] 2 Taylor’s Evid., sec. 1259; 1 Wharton’s Evid., sec. 492.
-
-[313] Bost. Med. and Sur. Journ., Feb. 25. 1869.
-
-[314] Grier, J., in _Winans_ v. _N. Y. & E. R._ 21 How. (U. S.) 88.
-
-[315] Taylor’s Med. Jur. 6 Am. Ed. 53.
-
-[316] Vol. i. p. 103.
-
-[317] Redfield on Wills, vol. i. cap. 3, sec. 13.
-
-[318] Sec. 195.
-
-[319] De Divinatione, II. 58.
-
-[320] _Com._ v. _Rodgers_, 7 Metc. 5.
-
-[321] Wharton on Mental Unsoundness, sec. 293.
-
-[322] _Thomas_ v. _State_, 40 Texas, 65; _Parmell_ v. _Com._, 86
-Pa. St. 260; _Jarrett_ v. _Jarrett_, 11 W. Va. 627; _Flynt_ v.
-_Bodenhamer_, 80 N. C. 205.
-
-[323] _Rex_ v. _Searle_, 1 Mood. & Rob. 75; _R._ v. _Offord_, 5 C. &
-P. 168; _McAllister_ v. _State_, 17 Ala. 434; _Delafield_ v. _Parish_,
-25 N. Y. 9; _Com._ v. _Rodgers_, 7 Metc. 5; _Clark_ v. _State_, 12 Oh.
-483; _Davis_ v. _State_, 35 Ind. 496.
-
-[324] _Puryear_ v. _Reese_, 46 Tenn. 21; _White_ v. _Bailey_, 10 Mich.
-155; _Dickenson_ v. _Barber_, 9 Mass. 225.
-
-[325] _People_ v. _McGann_, 3 Parker Cr. Cas. 272, 298.
-
-[326] _White_ v. _Bailey_, 10 Mich. 155; _Fairfield_ v. _Bascomb_, 35
-Vt. 398.
-
-[327] _R._ v. _Richards_, 1 F. & F. 87.
-
-[328] _Lovatt_ v. _Tribe_, 3 F. & F. 9.
-
-[329] _R._ v. _Higginson_, 1 Car. & R. 129; _R._ v. _Searle_, 1 Mood. &
-Rob. 75; _Malton_ v. _Nesbit_, 1 C. & P. 72; _R._ v. _Wright_, Russ. &
-Ry. 456; see also, _Tingley_ v. _Congill_, 48 Mo. 297.
-
-[330] _R._ v. _Frances_, 4 Cox C. C. 57; _R._ v. _Searle_, sup.
-
-[331] _Page_ v. _State_, 61 Ala. 18; _Davis_ v. _State_, 38 Md. 41.
-
-[332] _Fairchild_ v. _Bascomb_, 35 Vt. 398; _State_ v. _Windsor_, 5
-Harring. 512; _U. S._ v. _McGlue_, 1 Curtis C. C. 1; _McAlister_ v.
-_State_, 17 Ala. 434; _Woodbury_ v. _Obear_, 7 Gray, 467; _Hunt_ v.
-_Lowell Gas Light Company_, 8 Allan, 169.
-
-[333] 10 Clark & Fin. 200.
-
-[334] _Com._ v. _Rodgers_, 7 Metc. 5.
-
-[335] _U. S._ v. _McGlue_, 1 Cur. C. C. 1.
-
-[336] _Burton_ v. _Scott_, 3 Rand. 399; 27 A. L. J. 148.
-
-[337] _Com._ v. _Rich_, 14 Gray, 335; _Hastings_ v. _Rider_, 99 Mass.
-625; _Russell_ v. _State_, 53 Miss. 36.
-
-[338] _Heald_ v. _Wing_, 5 Me. 392; _Whetherbee_ v. _Whetherbee_, 38
-Vt. 454.
-
-[339] 27 Alb. L. J. 126.
-
-[340] Glenn’s Laws of Med. Men, p. 212.
-
-[341] _Cawdry_ v. _Highley_, Cro. Car. 270; Godb. 441.
-
-[342] _Bill_ v. _Neal_, 1 Sev. 52.
-
-[343] _Flower’s_ Case, Cro. Car. 211; _Wharton_ v. _Brook_, Vent. 21.
-
-[344] _Southee_ v. _Denny_, 1 Ex. 196.
-
-[345] _Bergold_ v. _Puckta_, 2 Thomp. & C. N. Y. 532.
-
-[346] _Johnson_ v. _Robertson_, 8 Port. R. 586; _Poe_ v. _Mondford_,
-Cro. Eliz. 620; _Tutty_ v. _Alewin_, 11 Mod. 221; _Secord_ v. _Harris_,
-18 Barb. 425; see, also, _Watson_ v. _Vanderlash_, Het. 69.
-
-[347] _Davis_ v. _Ockham_, Sty. 235; _Edsall_ v. _Russell_, 4 M. & G.
-1090.
-
-[348] _Southee_ v. _Denny_, 1 Ex. 196; _Ramadge_ v. _Ryan_, 9 Bing. 333.
-
-[349] _Long_ v. _Chubb_, 5 C. & P. 55; _Allen_ v. _Eaton_, 1 Roll. Abr.
-54; _Goddart_ v. _Haselfoot_, 1 Viner’s Abr. (S. A.) pl. 12; _White_ v.
-_Carroll_, 42 N. Y. 161.
-
-[350] _Ayre_ v. _Craven_, 2 Ad. & E. 2.
-
-[351] _Clarke_ v. _Freeman_, 11 Beav. 112; _Ramadge_ v. _Wakley_, cited
-9 Bing. 333.
-
-[352] Odgers on Libel and Slander, p. 50.
-
-[353] _Hunter_ v. _Sharpe_, 4 F. & F. 983; and see _Morrison_ v.
-_Harmer_, 4 Scott, 524.
-
-[354] _Macleod_ v. _Wakley_, 3 C. & P. 311.
-
-[355] _Sugoe’s_ Case, Hetl. 175; _Edsall_ v. _Russell_, 4 M. & G. 1090.
-
-[356] _Rodgers_ v. _Cline_, 56 Miss. 808; _Camp_ v. _Martin_, 23 Conn.
-86; _Jones_ v. _Diver_, 22 Ind. 184.
-
-[357] _Collins_ v. _Carnegie_, 1 A. & E. 695.
-
-[358] _Skirving_ v. _Ross_, 31 C. P. (Ont.) 423.
-
-[359] _Ayre_ v. _Craven_, 2 A. & E. 2; _Dixon_ v. _Smith_, 5 H. & N.
-450.
-
-[360] Anon. 1 Ham. 83; _Foster_ v. _Small_, 3 Whart. 138.
-
-[361] _Clay_ v. _Roberts_, 9 Jur. (N. S.) 580.
-
-[362] Odgers on Slander, p. 69; _Rutherford_ v. _Evans_, 4 C. & P. 79;
-_Collins_ v. _Carnegie_, 1 Ad. & E. 697; _Moises_ v. _Thornton_, 3 Esp.
-4; _Wakley_ v. _Healey_, 4 Ex. 53.
-
-[363] _Van Tassel_ v. _Capson_, 1 Denio. 250; _Kinney_ v. _Nash_, 3
-Comst. 177; _Ayre_ v. _Craven_, sup.
-
-[364] Glenn’s Laws of Med. Men, 230; _Harrison_ v. _Bush_, 5 El. & B.
-344.
-
-[365] Per Pigot, C.B., in _Bell_ v. _Parke_, 10 Ir. C. L. Rep., N. S.,
-288.
-
-[366] _Humphreys_ v. _Stilwell_, 2 F. & F. 590; _Murphey_ v. _Kellett_,
-13 Ir. C. L. Rep. N. S. 688.
-
-[367] _Alpen_ v. _Morton_, 21 Oh. St. 536.
-
-[368] _Clarke_ v. _Hawke_, 9 Grant, 52; _Denison_ v. _Denison_, 13 Gr.
-596; _Hoghton_ v. _Hoghton_, 15 Beav. 299; _Haguenin_ v. _Baseley_, 14
-Ves. 300; Story, I Eq. Jur. sec. 314. But see _Andeureid’s_ Appeal, 89
-Pa. St. 114; _McEwan_ v. _Milne_, 5 Ont. R. 100.
-
-[369] Law Rep. 1 Ch. 252.
-
-[370] _Hoghton_ v. _Hoghton_, sup.; _Dent_ v. _Bennett_, 4 Myl. & C.
-276; _Cadwallader_ v. _West_, 48 Mo. 483.
-
-[371] _Clarke_ v. _Hawke_, sup.; _Dent_ v. _Bennett_, sup.
-
-[372] _Dent_ v. _Bennett_, sup.; _Gibson_ v. _Russell_, 2 Y. & Coll. C.
-C. 104; _Popham_ v. _Brooke_, 5 Russ. 104.
-
-[373] _Cadwallader_ v. _West_, 48 Mo. 483.
-
-[374] _Allan_ v. _Davis_, 4 De G. & Sim. 133.
-
-[375] _Billage_ v. _Southbee_, 9 Hare, 534, 540.
-
-[376] _Peacock_ v. _Kesnot_, 8 L. T. 292; _Wright_ v. _Proud_, 13 Ves.
-136.
-
-[377] _Pratt_ v. _Barker_, 1 Sim. 1.
-
-[378] _Mitchell_ v. _Homfray_, 8 Q. B. D. 587.
-
-[379] _Aheare_ v. _Hogan_, Dru. 322.
-
-[380] _Doggett_ v. _Lane_, 12 Mo. 215.
-
-[381] _Middleton_ v. _Sherbourne_, 4 Y. & Coll. 358.
-
-[382] _Jones_ v. _Godrich_, 5 Moo. P. C. 16.
-
-[383] _Farlar_ v. _Lane_, 29 L. T. 2; _Jones_ v. _Godrich_, 5 Moo. P.
-C. 16; _Reece_ v. _Pressey_, 2 Jur. N. S. 380.
-
-[384] _Greville_ v. _Lylee_, 7 Moo. P. C. 320; _Durnell_ v. _Corfield_,
-3 L. T. 323; 1 Robarts, 51; _Major_ v. _Knight_, 4 N. C. 661.
-
-[385] _Ashwell_ v. _Lomi_, L. R. 2 P. & D., 477. See also _Crispell_ v.
-_Dubois_, 4 Barb. 393.
-
-[386] _Hides_ v. _Hides_, 65 How. Pr. Rep. 17; _Middleton_ v.
-_Sherburne_, 4 Y. & Coll. 358.
-
-[387] _Brown_ v. _State_, 9 Baxter, 45.
-
-[388] _Seavey_ v. _Preble_, 64 Me. 120.
-
-[389] 3 Co. Inst. 203; 20 A. L. J. 320.
-
-[390] _Reg._ v. _Cuddy_, 1 C. & K. 210; _Reg._ v. _Coney_, L. R. 8 Q.
-B. D. p. 569.
-
-[391] _R._ v. _Case_, 19 L. J. M. C. 174; _R._ v. _Stanton_, 1 Car. &
-Kir. 415.
-
-[392] _Rex_ v. _Rosinski_, 1 Moo. C. C. 19.
-
-[393] _De May_ v. _Roberts_, 46 Mich. 160; 41 Am. Rep. 154.
-
-[394] _Pennell_ v. _Cummings_, 75 Me.
-
-[395] _Fletcher_ v. _Fletcher_, 1 E. & E. 420; _Anderson_ v. _Burrows_,
-4 C. & P. 210.
-
-[396] _Hall_ v. _Semple_, 3 F. & F. 337.
-
-[397] _Scott_ v. _Wakem_, 3 F. & F. 333.
-
-[398] R. S. O. cap. 220, secs. 8, 9; 16 & 17 Vict. cap. 96, secs. 4 &
-5; (Imp. Stat.).
-
-[399] _Reg._ v. _West_, 2 C. & K. 784.
-
-[400] _R._ v. _West_, 2 C. & K. 784; _Mitchell_ v. _Connor_, 78 Ky.
-204; Russell on Crimes, vol. i, pp. 670, 740; _State_ v. _Dickinson_,
-41 Wis. 299.
-
-[401] Imp. Stat. 24 & 25 Vict. cap. 100, secs. 58, 59; Can. Stat. 32 &
-33 Vict. cap. 20, secs. 59, 60.
-
-[402] _State_ v. _Slagle_, 83 N. C. 630; _State_ v. _Fitzgerald_, 49
-Ia. 260.
-
-[403] _State_ v. _Gedicke_, 43 N. J. L. 86; _Reg._ v. _Fraser_, 9 Cox
-C. C. 228; _Reg._ v. _Hannah_, 13 Cox, C. C. 54.
-
-[404] _Bradford_ v. _People_, 20 Hun. (N. Y.) 309.
-
-[405] _Rex._ v. _Burnett_, 4 M. & S. 272; _Rex._ v. _Sutton_, 4 Burr.
-2116; _Rex._ v. _Vantandillo_, 4 M. & S. 73.
-
-[406] 3 & 4 Vict. cap. 29, sec. 8; 30 & 31 Vict. cap. 84, sec. 32.
-
-[407] 16 Vict. cap. 170, sec. 1.
-
-[408] _Carson_ v. _State_, Ala. Sup. Ct. Dec. 1881; 25 A. L. J. 366;
-_State_ v. _Kansas_, 29 Kans. 384; and see post Druggists.
-
-[409] R. S. Ont. cap. 142, sec. 34; _Reg._ v. _Coll. of P. & S._, 44
-Ont. Q. B. 146.
-
-[410] _Boynton_ v. _Somersworth_, 58 N. H. 321.
-
-[411] _Hitchcock_ v. _Burgett_, 38 Mich. 501.
-
-[412] 32 Hy. VIII., cap. 42.
-
-[413] 2 & 3 Wm. IV., cap. 75.
-
-[414] 32 & 33 Vict., cap. 29, sec. 100.
-
-[415] 1 Jac. I., cap. 12.
-
-[416] 1 Russ. on Crimes, 465.
-
-[417] 3 Inst. 110; 12 Co. 113 a.
-
-[418] 2 East P. C. 652.
-
-[419] _Williams_ v. _Williams_, L. R., 20 Ch. D. 659; _Reg._ v.
-_Sharpe_, Dea. and Bell, C. C. 160.
-
-[420] Am. Law T., July, 1871.
-
-[421] _Guthrie_ v. _Weaver_, 1 Mo. App. 136; 4 Brady, 502; _Wynkoop_ v.
-_Wynkoop_, 6 Wright, 293.
-
-[422] _Bogert_ v. _Indianapolis_, 13 Ind. 138.
-
-[423] Willcock, cap. 10.
-
-[424] 2 East P. Cr. 652; _R._ v. _Gilles_, Russ. & Ry. 366, n.; _R._
-v. _Lynn_, 2 T. R. 733; _Reg._ v. _Sharpe_, 1 D. & B. 160; _Reg._ v.
-_Price_, L. R. 12 Q. B. D. 247.
-
-[425] _Tate_ v. _State_, 6 Black. (Ind.) 111; _Com._ v. _Loring_,
-8 Pick. (Mass.) 370; _Com._ v. _Marshall_, 11 Pick. 350; _Com._ v.
-_Cooley_, 10 Pick. 37.
-
-[426] 2 R. S. 688, sec. 13.
-
-[427] 23 Albany L. J. 421.
-
-[428] R. S. O. cap. 143.
-
-[429] _Tate_ v. _State_, 6 Black. 111.
-
-[430] 2 Com. 429.
-
-[431] _Meagher_ v. _Driscoll_, 99 Mass. 281; _Barnstable_ v.
-_Thatcher_, 3 Metc. 243; _Bracegirdle_ v. _Orford_, 2 M. & S. 77;
-_Brewer_ v. _Dero_, 11 M. & W. 625.
-
-[432] _Granger’s Ins. Co._ v. _Brown_, 57 Miss. 308.
-
-[433] 32 Henry VIII. cap. 42.
-
-[434] R. S. O. cap. 144.
-
-[435] _Simonds_ v. _Henry_, 39 Me. 153.
-
-[436] Glenn’s Laws, p. 251.
-
-[437] McClelland’s Civil Malpractice, p. 19.
-
-[438] _Eakin_ v. _Brown_, 1 E. D. Smith, 36.
-
-[439] _Clarke_ v. _Kerwin_, 4 E. D. Smith, 21: _Parker_ v. _Adams_, 12
-Metc. 417.
-
-[440] _Keily_ v. _Cotton_, 26 Alb. L. J. 483.
-
-[441] _Boyle_ v. _Winslow_, 5 Phil. (Pa.) 136.
-
-[442] Russell on Crimes, vol. I. p. 720.
-
-[443] Taswell-Langmead, English Constit. History, p. 41.
-
-[444] _Street_ v. _Blackburn_, 1 H. Bl. 159; _Wilson_ v. _Brett_, 11 M.
-& W. 113.
-
-[445] _Hancke_ v. _Hooper_, 7 C. & P. 81.
-
-[446] Glenn’s Laws, p. 209.
-
-[447] Peake’s N. P. C. 83, 84.
-
-[448] _Piper_ v. _Menifee_, 12 B. Monr. 465.
-
-[449] _Simonds_ v. _Henry_, 39 Me. 155.
-
-[450] _Slater_ v. _Balter_, 2 Wils. 359, 362.
-
-[451] _Lee_ v. _Griffin_, 1 E. B. & S. 272.
-
-[452] _Maxon_ v. _Perrott_, 17 Mich. 332.
-
-[453] _Whitcomb_ v. _Reid_, 31 Miss. 567.
-
-[454] _Gilman_ v. _Andrews_, 28 Vt. 24.
-
-[455] _Allen_ v. _Davis_, 4 DeG. & S. 133.
-
-[456] 4 My. & C. 269.
-
-[457] _Colton_ v. _Thomas_, 2 Brews. 308.
-
-[458] _Morgan_ v. _Schuyler_, 79 N. Y. 490; S. C. 35 Am. Rep. 543.
-
-[459] _State_ v. _Holmes_, 28 La. Ann. 765.
-
-[460] _Mills_ v. _Perkins_, 120 Mass. 41.
-
-[461] _Klock_ v. _Burger_, 50 Md. 575.
-
-[462] _Haniline_ v. _Commonwealth_, 13 Bush. 350.
-
-[463] R. S. O. cap. 145.
-
-[464] Code of Med. Pol. 332, 333.
-
-[465] 55 Geo. III., cap. 194, sec, 5.
-
-[466] 13 B. Monr. 219.
-
-[467] _Jones_ v. _George_, 13 Rep. 738; Tex. Sup. Ct. (1882).
-
-[468] Chitty on Contracts, p. 393.
-
-[469] _Howe_ v. _Young_, 16 Ind. 312; 2 Hilliard on Torts, p. 297, sec.
-A.
-
-[470] _Brown_ v. _Marshall_, 47 Mich. 576.
-
-[471] _VanBracken_ v. _Fondar_, 12 John. 468; _Jones_ v. _Murray_, 3
-Monr. 85; _Marshall_ v. _Peck_, 1 Dana. 609.
-
-[472] Ordronaux, secs. 183–184.
-
-[473] 2 Selden, 397, (N. Y.)
-
-[474] 2 R. S. sec. 662, 319.
-
-[475] 2 Car. & Kir. 368.
-
-[476] _Hansford_ v. _Payne_, 11 Bush. 380.
-
-[477] _Norton_ v. _Sewall_, 106 Mass. 143.
-
-[478] _Ibid._
-
-[479] _George_ v. _Skivington_, L. R. 5 Exch. 1.
-
-[480] _Davidson_ v. _Nicholls_, 11 Allen, 514.
-
-[481] _R._ v. _Noakes_, 4 F. & F. 920.
-
-[482] 1 Lewin C. C. 169.
-
-[483] 4 F. & F. 525.
-
-[484] _Wohlfarht_ v. _Beckert_, 27 Hun, 74: 92 N.Y. 490.
-
-[485] R. S. O., c. 145, sec. 27.
-
-[486] Sections, 28–31.
-
-[487] _Ray_ v. _Burbank_, 6 Ga. 505.
-
-[488] 56 Geo. III. cap. 58, sec. 3; 31 & 32 Vict. cap. 121, sec. 24; 23
-& 24 Vict. cap. 84, sec. 30.
-
-[489] _Hoard_ v. _Peck_, 56 Barb. 202.
-
-[490] _Common._ v. _Ramsdell_, 130 Mass. 68.
-
-[491] _State_ v. _Laffer_, 38 Iowa, 422; _Common._ v. _Ramsdell_,
-supra; _Common._ v. _Hallett_, 103 Mass. 452; _Common._ v.
-_Butterrick_, 6 Cush. 247.
-
-[492] _Nixon_ v. _State_, 76 Ind. 524; _State_ v. _Wray_, 72 N. C. 253;
-_Woods_ v. _State_, 36 Ark. 36; S. c. 38 Am. Rep. 22.
-
-[493] _State_ v. _Knowles_, 57 Iowa, 669.
-
-[494] _Boone_ v. _State_, 10 Tex. Ct. App. 418.
-
-[495] See Glenn’s Laws, cap. viii.
-
-[496] _Jauncey_ v. _Knowles_, 29 L. J. Cha. 95.
-
-[497] _Mackenna_ v. _Parkes_, 36 L. J. Cha. 366.
-
-[498] _Turner_ v. _Reynall_, 14 C. B. N. S. 328. See, also, _Reg._ v.
-_Tefft_, 45 Ont. Q. B. 144.
-
-[499] _Anon._, cited 2 K. & J. 446.
-
-[500] _Farr_ v. _Pearce_, 3 Mad. 74; _Austen_ v. _Boys_, 24 Beav. 598;
-2 DeG. & J. 626.
-
-[501] _McIntyre_ v. _Belcher_, 10 Jur. N. S. 239.
-
-[502] _Christie_ v. _Glark_, 16 (Ont.) C. P. 544; 27 Q. B. 21.
-
-[503] _May_ v. _Thomson_, L. R. 20 Ch. D. 718.
-
-[504] _Dingnan_ v. _Walker_, 33 L. T. 256.
-
-[505] _Davis_ v. _Mason_, 5 T. R. 118; _Carnes_ v. _Nesbitt_, 7 H. & N.
-778; _Sainter_ v. _Ferguson_ 7 C. B. 716; _Hastings_ v. _Whitley_, 2
-Ex. 611; _Haynard_ v. _Young_, 2 Chit. 407; _McClurg’s Appeal_, 58 P.
-St. 51; Parsons on Contracts, vol. ii. p. 748.
-
-[506] _Mallan_ v. _May_, 11 M. & W. 653.
-
-[507] _Horner_ v. _Graves_, 7 Bing. 735.
-
-[508] _Mallan_ v. _May_, supra. Generally on this subject, see Glenn’s
-Laws, cap. viii.
-
-[509] Glenn’s Laws, cap. viii.
-
-[510] _Nickson_ v. _Brohan_, 10 Mod. 109.
-
-[511] _Hancke_ v. _Hooper_, 7 C. & P. 81.
-
-[512] _R._ v. _Bennett_, 29 L. J.; M. C. 27; _R._ v. _Tessymond_, 1
-Lewin C. C. 169.
-
-[513] _Wise_ v. _Wilson_, 1 C. & K. 662.
-
-[514] _Abernethy_ v. _Hutchinson_, 3 L. J, 209; _Nicols_ v. _Pitman_,
-L. R. 26 Ch. D. 374.
-
-
-
-
-TRANSCRIBER’S NOTE
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-Original printed spelling and grammar are retained, with a few
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-common printer’s error has been corrected silently; fairly often a
-short word such as “a” was printed twice on successive lines. Thus, for
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-In the index, ditto marks and white space were used in combination to
-indicate words repeated from line to line. In this edition, em dashes
-are used instead. Thus the line beginning “Provision made for study
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-Page 58. The quotation beginning in the last paragraph has no closing
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-Cas. (Del. 371”.
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-retained because it is in a quotation.
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-inadmissible as evidence.’
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-alleged child murder a medical witness, being asked for a plain opinion
-of the cause of death, said, that it was owing to “atelectasis and a
-general engorgement of the pulmonary tissue.”’ was changed to ‘gives
-the following, “In a case of alleged child murder a medical witness,
-being asked for a plain opinion of the cause of death, said, that it
-was owing to ‘atelectasis and a general engorgement of the pulmonary
-tissue’.”’
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-Page 126. Closing quotation mark was added to the end of the paragraph
-containing the following opening mark: ‘judges replied, “We think’.
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-Page 130. “physican” to “physician”.
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-Page 134 note. “(N. S.) 580)” retained despite evident error.
-
-Page 155. Full stop removed from “chiefly murderers.;”.
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-Page 172. “particnlar” to “particular”.
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-containing the following opening mark: ‘Court refused it saying,
-“Purchasers have to trust’.
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-Page 181. “manslaugher” to “manslaughter”.
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-Page 184 note. The rightmost right parenthesis was removed from “_Clay_
-v. _Roberts_, 9 Jur. (N. S.) 580)”.
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-Page 191 note. “_Christie_ v. _Glark_” is retained; but there is no
-mention of this case in the TABLE OF CASES CITED beginning on page vii.
-
-Page 209, Index, Heading “Parent and Child”. “Liablility” to
-“Liability”.
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-
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author	nfenwick <nfenwick@pglaf.org>	2025-02-05 09:24:33 -0800
committer	nfenwick <nfenwick@pglaf.org>	2025-02-05 09:24:33 -0800
commit	e891482252eb6313e7495a927511f754ac36a87d (patch)
tree	6b9be02fdfabd63d44bf554218cf11cb78df675f /old/51293-0.txt
parent	2bb849e9234d7b0c65303a8b50b832fc02796a5f (diff)