1. Protection against all improper interference with his professional
ministrations.
2. Protection for his professional career by the exclusion of
unauthorized practitioners.
3. Immunity from responsibility for evil consequences that may result
without his fault from his medical or surgical treatment of patients.
4. Enforcement of his right to receive due compensation for his
professional services.
These rights are not granted him arbitrarily by the state; they are
founded in natural justice, but made definite and enforced by human
legislation. Take, for an example, his right to receive due
compensation for his services. This right was not recognized by the old
Roman law in the case of advocates and physicians, nor by the common law
of England until the passing of the Medical Act in 1858. Surgeons and
apothecaries could receive remuneration for their services, but not
physicians. These were presumed to attend their patients for an
_honorarium_ or honorary, that is, a present given as a token of honor.
Certainly, if Doctors by common agreement waived their right to all
compensation, or agreed to be satisfied with any gift the patient might
choose to bestow, they would be entitled to honor for their generosity;
but they are not obliged to such conduct on the principles of natural
justice. For by nature all men are equal, and therefore one is not
obliged, under ordinary circumstances, to work for the good of another.
If he renders a service to a neighbor, equity or equality requires that
the neighbor shall do a proportionate good to him in return. Thus the
equality of men is the basis of their right to compensation for services
rendered. The physician's right to his fee is therefore a natural right,
and on his patient rests the natural duty of paying it. Not to pay the
Doctor's bill is as unjust as any other manner of stealing.
As to the amount of compensation to which the Doctor is justly entitled,
Ewell's "Medical Jurisprudence" remarks: "By the law of this country,
all branches of the profession may recover at law a reasonable
compensation for their services, the amount of which, unless settled by
law, is a question for the jury; in settling which the eminence of the
practitioner, the delicacy and difficulty of the operation or of the
case, as well as the time and care expended, are to be considered. There
is no limitation by the common law as to the amount of such fees,
provided the charges are reasonable. The existence of an epidemic does
not, however, authorize the charge of an exorbitant fee.
"A medical man can also recover for the services rendered by his
assistants or students, even though the assistant is unregistered; it is
not necessary that there should be any agreed specified price, but he
will be allowed what is usual or reasonable.
"It is not the part of the physician's business, ordinarily, to supply
the patient with drugs; if he does so he has a right to compensation
therefor. If the agreement is "No cure, no pay," he cannot, however,
even recover for medicines supplied, if the cure is not effected. His
right to recover for professional services does not depend upon his
effecting a cure, or upon his service being successful, unless there is
a special agreement to that effect; but it does depend upon the skill,
diligence, and attention bestowed" (pp. 3 and 4).
Further details on this point belong more properly to the lecturer on
Medical Law. We are now concerned with the principles underlying special
legislation. The main principle regulating all compensation is that
there shall be a sort of equality between the services rendered and the
fee paid for them. Ignorant people sometimes find fault with the amount
charged as a Doctor's fee. There may, of course, be abuses by excess;
but men have no right to complain that a Doctor will ask as much for a
brief visit as a common laborer can earn in a day. This need not seem
unfair if it be remembered that the physician had to prepare, during
many years of primary, intermediate, and professional studies, before he
could acquire the knowledge necessary to write a brief prescription.
Besides, it may be that his few minutes' visit is the only one that day;
and yet he has a right to live in decent comfort on his profession
together with those who depend on him for support.
We must, however, remember, on the other hand, that excessive fees are
nothing else than theft; for theft consists in getting possession of
another's property without just title. The following rules of Dr. Ewell
are sensible and fair:
"The number of visits required must depend upon the circumstances of
each particular case, and the physician is regarded by the law as the
best and proper judge of the necessity of frequent visits; and, in the
absence of proof to the contrary, it will be presumed that all
professional visits made were deemed necessary and were properly made.
"There must not be too many consultations. The physician called in for
consultation or to perform an operation may recover his fees from the
patient, notwithstanding that the attending physician summoned him for
his own benefit, and had arranged with the patient that he himself would
pay." (This, of course, does not mean that the practitioner has a right
thus to shift the burden of pay from his own shoulders.) "Where a
medical man has attended as a friend, he cannot charge for his visit.
Where a tariff of fees has been prepared and agreed to by the physicians
of any locality, they are bound by it legally as far as the public are
concerned (that is to say, they cannot charge more than the tariff
rates), and morally as far as they themselves are concerned" (p. 5).
In these rules Dr. Ewell regards chiefly what conduct the courts of
justice will sustain. It is evident that the Doctor is never entitled to
run up his bill without any benefit to his patient; where there is no
service rendered at all, there can be no claim to compensation. Still it
is not necessary that actual benefit has resulted to the patient; it
suffices for the claim to the fee that measures have been taken with a
view to such benefit. Even when no physical advantage can reasonably be
hoped for from the visit, the consolation it affords the patient and his
friends may render those who are to bear the expense fully willing that
it should be often repeated and, of course, charged on the bill.
Provided care be taken that they understand the situation, no injustice
is done them. "_Scienti et consentienti non fit injuria_" is a good
moral maxim.
II. We have said that the rights conferred on the physician by the state
are conditioned on his performing certain duties. He owes the same
duties to his patients in virtue of the contract, explicit or implicit,
that he makes with them by taking the case in hand. Under ordinary
circumstances, neither the state nor the patients can oblige him to
exercise his profession at all; but, if once he has taken a case in
hand, he can be justly held not to abandon it till he has given his
patient a fair opportunity of providing another attendant; even the fear
of contagion cannot release him from that serious obligation.
The duties arising from the physician's twofold contract, with the
state and with his patients, are chiefly as follows:
1. He must acquire and maintain sufficient knowledge of his profession
for all such cases as are likely to come in his way. No Doctor has the
right to attempt the management of a case of which he has not at least
ordinary knowledge. In matters of special difficulty, he is obliged to
use special prudence or ask for special consultation. The courts justly
hold him responsible for any serious injury resulting from gross
ignorance; in such cases they will condemn him for malpractice. I would
here remark that, in an age in which the science of medicine is making
such rapid progress, every Doctor is in duty bound to keep up with the
improvements made in general practice, and in his own specialty if he
has one.
2. A second duty is that of proper diligence in treating every single
case. Many a patient suffers injury to health or even loses his life in
consequence of a Doctor's neglect. Gross negligence is an offence that
makes him punishable by the court, if it results in serious injury. But
even if such injury cannot be juridically proved, or has been
accidentally averted, the moral wrong remains and is to be settled with
the all-seeing Judge. Still, in ordinary ailments, no one is obliged to
take more than ordinary trouble.
3. A third duty of the physician is to use only safe means in medical
and surgical practice. He has no right to expose his patient to needless
danger. What is to be thought of the use of such remedies as will either
kill or cure? They cannot be used as long as safer remedies are
available and capable of effecting a cure; for neither Doctor nor
patient has a right to expose a human life to unnecessary risk. But when
no safer remedies are going to effect a cure, then prudence itself
dictates the employment of the only means to success. In such a case,
however, the patient, or his parents or guardian, should, as a rule, be
informed of the impending danger, so that they may give or refuse their
consent if they please. For, next to God, the right to that life belongs
to them rather than to the physician. The same duty of consulting their
wishes exists when not life but the possible loss of a limb is at stake,
or the bearing of uncommon sufferings. Moralists teach that a man is not
obliged in conscience to submit to an extraordinarily painful or
revolting operation even to save his life. Certainly, when the natural
law leaves him at liberty, the physician cannot compel him to submit to
his dictation; all he can do is to obtain his consent by moral
persuasion.
4. As a consequence from the Doctor's duty to use only safe means it
follows that he cannot experiment on his patients by the use of
treatment of which he does not know the full power for good or evil. Nor
is he excused from responsibility in this matter by the fact that the
experiment thus made on one patient may be very useful to many others.
His contract is with the one now under treatment, who is not willing, as
a rule to be experimented upon for the benefit of others. And even if
the patient should be willing, the Doctor cannot lawfully expose him to
grievous danger unless it be the only hope of preserving his life. This
follows from the principle explained before, that human life belongs
chiefly to God and not to man exclusively.
5. There are various kinds of medical treatment to which we can scarcely
have recourse without exposing ourselves to serious evil consequences.
Such is the use of cocaine, morphine, and even in special cases of
alcohol. The drugs in themselves are useful, but they often lead to evil
results. Now in the use of all such drugs as are apt to be beneficial in
one way and injurious in another, we must ever be guided by the rules
formerly explained concerning evil indirectly willed, or rather
permitted to result, while good results are directly willed or intended.
If the Doctor is satisfied that a dose of morphine or an application of
cocaine will do more good than harm, he can, of course, prescribe or
apply it. Still in such matters he must remember that the good effect is
but temporary, while its pernicious consequences, especially when habits
are thus contracted, are likely to be permanent and cumulative. Besides,
the good results affect the body only, the evil often affect body and
soul. Many a wreck in health and morals has been caused by imprudent
recourse to dangerous treatment, where a little more patience and wisdom
would have been equally efficient in curing the bodily ailment, without
any deleterious consequences. If once a patient becomes a slave to the
morphine or cocaine habit, the only cure is to cut off all the supply of
the drug either at once or, at any rate, by daily diminution. To leave
him free control of the poison is to co-operate in his self-destruction.
6. The sixth duty of a Doctor is of a different kind. There exists a
tacit or implicit contract between him and his patients that he shall
keep their secrets of which he becomes possessed in his professional
capacity. It is always wrong wantonly to betray the secrets of others;
but the Doctor is bound by a special duty to keep his professional
secrets; and it is doubly wrong and disgraceful in him to make them
known. For instance, if he has treated a case of sickness brought on by
sinful excesses of any kind, he is forbidden by the natural law to talk
about it to such as have no special right to know the facts. Parents and
guardians are usually entitled to be informed of their children's and
their wards' wrong-doings, that they may take proper measures to prevent
further evil. Besides, the Doctor is properly in their service; he is
paid by them, and, therefore, his contract is with them rather than with
the children. He can, therefore, prudently inform them of what is wrong,
but he cannot inform others.
It is a debated question in Medical Jurisprudence whether the Doctor's
professional knowledge of criminal acts should be privileged before the
courts, so that he should not be forced to testify to a crime that he
has learned from his patients while acting as their medical adviser.
Dr. Ewell speaks thus on the subject (p. 2): "The medical witness should
remember that, by the common law, a medical man has no privilege to
avoid giving in evidence any statement made to him by a patient; but
when called upon to do so in a court of justice, he is bound to disclose
every communication, however private and confidential, which has been
made to him by a patient while attending him in a professional
capacity. By statute, however, in some of the United States,
communications made by a patient to a physician when necessary to the
treatment of a case are privileged; and the physician is either
expressly forbidden or not obliged to reveal them. Such statutes exist
in Arkansas, California, Indiana, Iowa, Ohio, Michigan, Minnesota,
Missouri, Montana, New York, and Wisconsin. The seal upon the
physician's lips is not even taken away by the patient's death. Such
communications, however, 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 would be any
similar conference held for the purpose of devising a crime or evading
its consequences.
"A report of a medical official 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 railroad company as to the injuries
sustained by a passenger in an accident, unless such report has been
obtained with a view to impending litigation."
The practical rule for a Doctor's conscience on the subject of secrecy
is, that he must keep his professional secrets with great fidelity, and
not reveal them except in as far as he is compelled to do so by a court
of justice acting within its legal power or competency. If so compelled,
he can safely speak out; for his duty to his patient is understood to be
dependent on his obedience to lawful authority.
As to the question of Jurisprudence whether the courts _ought_ to treat
the physician's official secrets as privileged, in the same way as they
do a lawyer's secrets, this will depend on the further question whether
the same reasons militate for the one as for the other. The lawyer's
privilege is due to the anxiety of the state not to condemn an innocent
man nor a guilty man beyond his deserts. To avert such evil, the accused
party needs the assistance of a legal adviser who can guide him safely
through the mazes and technicalities of the law, and, even should he be
guilty, who can protect him against exaggerated charges and ward off
unmerited degrees of punishment. Now, this can scarcely be accomplished
unless the attorney for the defence learn from his client the entire
truth of the facts. But the client could not safely give such
information to his lawyer if the latter's professional secrets were not
held sacred by the court of justice.
Can the same reasons or equivalent ones be urged in behalf of the
physician? I do not see that they can. And I notice besides that, if he
be excused from testifying against his patients, all their servants and
attendants would seem to be entitled to the same privilege. Many
persons, I think, labor here under a confusion of ideas; a Doctor is as
sacredly bound to keep his patients' secrets as a lawyer is in regard to
his clients, but it does not follow that the law cannot grant a
privilege to the one and refuse the same to the other, for reasons which
require it in the case of the lawyer and not in that of the Doctor.
III. Besides the rights and duties which arise for the physician from
his contracts with the state and with his patients, there are other
claims on his conscience, which proceed from his character as a man, a
Christian, and a gentleman.
1. _As a man_, he is a member of the human family, not a stranger
dwelling amid an alien race, but a brother among brothers. He cannot
say, as did the first murderer, Cain, "Am I my brother's keeper?" But
rather he must carry out the behest of the great Father of the human
family: "God has given to each one care of his neighbor."
The maxim of Freemasons is that every member of that secret society must
come to the assistance of every brother-mason in distress. But the law
of nature and of nature's God is wider and nobler; it requires every man
to assist every fellow-man in grievous need. The rich glutton at whose
door lay Lazarus dying of want was bound, not by any human but by the
higher law, to assist him; and it was for ignoring this duty that the
soul was buried in hell, as the gentlest of teachers expresses it.
(_a_) As physicians, as men, you will have duties to the poor, who
cannot pay you for your services; they are your fellow-men. Their bill
will be paid in due time. He is their security who has said: "Whatsoever
you have done to the least of these, you have done it unto Me." He may
pay you in temporal blessings, or in still higher favors, if you do it
for His sake; but pay He will, and that most liberally: "I will repay,"
says the Lord. The rule of charity for physicians is that they should
willingly render to the poor for the love of God those professional
services which they are wont to render to the rich for pecuniary
compensation. While thus treating a poor patient they should be as
careful and diligent as they would be for temporal reward; what is done
for God should not be done in a slovenly fashion.
(_b_) In this connection of regard for the poor, allow me also to call
your attention, gentlemen, to a point which students of medicine are apt
to forget at times, and yet which both God and the world require you
ever to bear in mind: it is the respect which every man owes to the
mortal remains of a departed brother. I do not know that a people has
ever been found, even among barbarians, who did not honor the bodies of
their dead. For the good of humanity, dead bodies may at times be
subjected to the dissecting-knife, but never to wanton indignities.
Reason tells you to do by others as you wish to be done by, and
Revelation adds its teaching about a future resurrection and
glorification of that body of which the Apostle says that "it is sown in
dishonor, but it shall rise in glory." Be men of science, but be not
human ghouls. There is such a thing as retribution. But lately a former
millionaire died in a poorhouse and left his body as a cadaver for
medical students. We cannot afford to ignore the mysterious ways of
Divine Justice. Ever handle human remains in a humane manner; and as
soon as they have answered the purpose of science, see that they be
decently interred, if possible.
2. There are other duties that you owe not as men but _as Christians_.
All of us enjoy the blessings of Christian civilization, even those who
are not Christians themselves. We are dealt with by others on Christian
principles, and we ought to treat others in the same spirit. What duties
does this impose?
(_a_) When your patients are in real danger of death, let them have a
good chance to prepare properly for their all-important passage into
eternity. Give them fair warning of their situation. Doctors and
relations are often afraid of alarming the patients and thus injuring
their health. But those who attend Catholic patients at least soon find
out by experience that the graces and consolations of the Last
Sacraments usually bring a peace of mind that benefits even the bodily
health. In any case, the interests of the future life are too important
to be ignored.
(_b_) For the same reason, the physician should not prescribe such doses
of morphine or other anæsthetics as will render the patient unconscious
at a time when he ought to be preparing to meet his Judge. This would be
not kindness but cruelty. A little suffering more in this life may save
much suffering in the next. If a Catholic priest, on being called to a
patient's bedside, finds that the family's physician has been so
inconsiderate, he cannot help protesting against employing such a man in
Catholic families.
(_c_) If you attend a woman in childbirth, you may be asked by a
Christian mother not to let her child die without Baptism. The vast
majority of Christians believe that this sacrament is necessary to
obtain supernatural happiness. The ceremony is easily performed: no
harm can come of it, but immeasurable good for eternity. It should
properly be performed by the clergy. But if this cannot be done, any
man, woman, or child, even one not a Christian himself, can administer
the sacrament. Every Doctor in a Christian land should understand how to
do it, and do it with unerring accuracy. It were a disgrace for him to
be ignorant of what even an ordinary child is expected to know. The
ceremony is so simple; and yet, being an institution of Christ, no man
can modify it to suit his notions; if what is done is not just what
Christ appointed to be done, it will be of no avail. Notice, therefore,
carefully every detail. You will take a little water, say a cupful, real
water--cold or lukewarm, that matters not--you will slowly pour it on
the head of the child, and, _while you do so_, you will say, "I baptize
thee in the name of the Father, and of the Son, and of the Holy Ghost."
That is all. Notice, you must say the words while the water is being
poured on the child. For "I baptize" means "I wash"; pour, therefore, or
wash while you say, "I wash." Should you hereafter wish to refresh your
memories on this matter, you can do so by consulting the "Century
Dictionary," which explains Baptism, and in particular Catholic Baptism,
as "consisting essentially in the application of water to the person
baptized by one having the intention of conferring the sacrament, and
who pronounces at the same time the words, 'I baptize thee in the name
of the Father, and of the Son, and of the Holy Ghost.'" If a cup of
water given to the thirsty brings a blessing, how much more the giving
of the water of salvation! Should it happen that the child is in danger
of dying before delivery, it should be baptized in the womb provided it
be at all possible to cause the water to reach or wash its body,
projected upon it by any instrument whatever; but the water should flow
over the body, not merely over the cyst enclosing it, for the cyst is no
part of the child. Even if but an arm or other minor portion of the body
is washed, the baptism is probably valid. If any doubt about the valid
administration is left, the infant after delivery should be carefully
baptized _under condition_, as it is called; that is, with the condition
added that, if the former ceremony was validly conferred, there is no
intention of giving a second baptism. For that would not be right; since
the sacrament cannot be validly received more than once; it is a sacred
initiation, but it were mockery to initiate one that is already
initiated.
Should a physician be present when a pregnant woman has recently
expired, and the child may still be living in the womb, it will be an
easy and important task to perform the Cesarean section as soon as
possible, and baptize the little one before it dies. In all this there
is no money, but what is far more precious, the securing of eternal
happiness. I add with great pleasure that many physicians are wont to
comply with all these instructions most carefully, and even to instruct
midwives and nurses in the best manner of rendering such services.
3. Lastly, we must consider the duties which a Doctor owes to others and
to himself _as a gentleman_. It may not be easy to define what is meant
by "a gentleman," and yet to some extent we all know it; we recognize a
gentleman when we meet one, we pay him sincere homage in our hearts. We
readily allow him to influence us and to guide us. We esteem him
instinctively as a superior being, as we distinguish a precious stone
from a common pebble; so we value a gentleman for precious qualities
exhibited in the beauty of his conduct. His conduct ever exhibits two
characteristic marks: a proper degree of dignity or respect for self,
and a proper degree of politeness or respect for others. Self-respect
will not allow him to do anything which is considered vulgar,
unmannerly, gross, rude, or selfish; he will avoid the two extremes, of
self-neglect on the one hand and self-display on the other. His respect
for others will make him treat all around him so as to make them feel
comfortable in his presence; he will avoid whatever gives pain or causes
embarrassment to even the lowest member of society.
Gentlemanliness has much to do with every one's success in life, and in
particular with a Doctor's success. It is especially when sick that we
are sensitive to everything displeasing in the conduct of others. It is
not then the bold thinker or the extensive reader that is the acceptable
visitor to the sick-room; but the gentlemanly consoler who always says
the right thing at the right time, whose very eye expresses and whose
countenance reflects the thought and sentiment most appropriate on the
occasion.
There are most able physicians who are not gentlemen, and there are in
the medical profession gentlemen who are rather poor physicians; but as
a rule, I believe, the gentleman will thrive where the genius will
starve. It is more or less the same in other professions. I know learned
lawyers to-day who are far from prosperous, while men ten times their
inferiors in learning are getting rich. I remember a most skilful
physician, now no more on earth, who was a very genius in the science of
medicine; but he was so filthy in his habits, he would so
unceremoniously chew tobacco at all times, that many dreaded his
visits, and would sooner have a man of less ability but gentler manners
as their family physician.
Gentlemen, habits good and bad cannot be put on and off like a
dress-coat; they are lasting qualities, the growth of years, the result
of constant practice and self-denial or self-neglect. And, as I wish you
success in life, allow me to conclude this lecture by recommending to
you the assiduous cultivation of gentlemanly habits. Cultivate them now,
while you are preparing for future labors. You wrong yourselves, and you
insult your companions and your professors, when you neglect in their
presence the conventionalities of polite society.
Uniting the external decorum of a gentleman with a thorough knowledge of
your profession, and with what is still more important, the virtues of a
conscientious man and a sincere Christian; ever true to the sound
principles of morality which I have endeavored to explain and to
inculcate in these lectures: you will be an honor to yourselves, an
ornament to your noble profession, the glory and joy of your Alma Mater,
a blessing to the community in which Providence will cast your lot as
the dispensers of health and happiness and length of days to your
fellow-men.