TRANSCRIBER’S NOTES:
—Obvious print and punctuation errors were corrected.
—Bold text has been rendered as =bold text=.
—Multiple and antiquate spelling of specialistic words, expecially in
French and German, have beed manteined out of consistency and due to
the impossibility of determining what the spelling whas at the time
this work was composed.
MEDICAL
JURISPRUDENCE
FORENSIC MEDICINE
AND
TOXICOLOGY
BY
R. A. WITTHAUS, A.M., M.D.
_Professor of Chemistry, Physics, and Hygiene in the University of the
City of New York, etc., etc._
AND
TRACY C. BECKER, A.B., LL.B.
_Counsellor at Law, Professor of Criminal Law and Medical
Jurisprudence in the University of Buffalo_
_WITH THE COLLABORATION OF_
J. CLIFTON EDGAR, M.D.; D. S. LAMB, M.D.; W. B. OUTTEN, M.D.;
HON. WM. A. POSTE; EDWARD S. WOOD, M.D.;
E. V. STODDARD, M.D.;
HON. GOODWIN BROWN; J. C. CAMERON, M.D.; E. D. FISHER, M.D.;
H. P. LOOMIS, M.D.; ROSWELL PARK, M.D.; IRVING C. ROSSE, M.D.;
F. P. VANDENBERGH, M.D.; J. H. WOODWARD, M.D.;
GEORGE WOOLSEY,M.D.
VOLUME ONE
NEW YORK WILLIAM WOOD & COMPANY 1894
COPYRIGHT, 1894,
BY WILLIAM WOOD & COMPANY
PRESS OF
THE PUBLISHERS’ PRINTING COMPANY
132-136 W. FOURTEENTH ST.
NEW YORK
CONTENTS.
PAGE
INTRODUCTION, v
MEDICAL JURISPRUDENCE, 1
The Legal Relations of Physicians and Surgeons. T. C.
BECKER, 3
The Law of Evidence Concerning Confidential Communications.
CHAS. A. BOSTON, 89
Synopsis of the Laws Governing the Practice of Medicine.
W. A. POSTE and CHAS. A. BOSTON, 135
FORENSIC MEDICINE.
THANATOLOGICAL, 293
The Legal Status of the Dead Body. T. C. BECKER, 295
The Powers and Duties of Coroners. A. BECKER, 329
Medico-Legal Autopsies. H. P. LOOMIS, 349
Personal Identity. J. C. ROSSE, 383
Determination of the Time of Death. H. P. LOOMIS, 437
Medico-Legal Consideration of Wounds. G. WOOLSEY, 457
Medico-Legal Consideration of Gunshot Wounds. ROSWELL PARK, 591
Death by Heat and Cold. E. V. STODDARD, 627
Medico-Legal Relations of Electricity. W. N. BULLARD, 661
Medico-Legal Consideration of Death by Mechanical Suffocation.
D. S. LAMB, 705
Death from Submersion or Drowning. J. C. ROSSE, 793
Death from Starvation. E. V. STODDARD, 813
INTRODUCTION.
THE terms FORENSIC MEDICINE, LEGAL MEDICINE, and MEDICAL JURISPRUDENCE
have heretofore been used interchangeably to apply to those branches
of state medicine and of jurisprudence which have to deal with the
applications of medical knowledge to the elucidation of questions of
fact in courts of law, and with the legal regulation of the practice of
medicine.
MEDICO-LEGAL SCIENCE therefore includes all subjects concerning which
members of the legal and medical professions may seek information of
one another, each acting in his professional capacity. It consists
of two distinct branches: that treating of medical law, to which
the designation of MEDICAL JURISPRUDENCE properly applies; and that
relating to the application of medical, surgical, or obstetrical
knowledge to the purposes of legal trials, FORENSIC MEDICINE.[1]
The term STATE MEDICINE, which is sometimes erroneously used as
synonymous with forensic medicine, properly applies to a more extended
field of medical inquiry; _i.e._, to all applications of medical
knowledge to the public welfare. State medicine, therefore, while
excluding medical jurisprudence, includes, besides forensic medicine,
public hygiene, medical ethics, medical education, and military and
naval medicine.
TOXICOLOGY, the science of poisons, may be divided into _medical
toxicology_, whose object is the prevention or cure of all forms of
poisoning, and _forensic toxicology_, whose aim is the detection of
criminal poisoning. In its last-named relation toxicology differs from
forensic medicine in one important particular. In all cases other than
those of poisoning in which questions involving medical knowledge
arise, the answers are entirely within the functions of the physician,
the surgeon, or the obstetrician, but the problems of forensic
toxicology require for their solution the further aid of the chemist
and the pharmacologist.
Forensic medicine is an applied science, partly legal, partly medical,
calling for information and investigation in widely divergent lines,
and becoming more minutely ramified with the progressive advances in
medical knowledge and in those sciences of which medicine is itself
an application. Its development has been dependent partly upon the
slow though progressive tendency of medicine from the condition of an
empirical art toward that of an exact science, and partly upon the
more rapid and more advanced development of criminal jurisprudence.
Medical jurisprudence had reached a high development during the early
history of the Roman Empire, and at a period long anterior to the first
recognition of forensic medicine.
Although the literature of modern medico-legal science is very
largely written from the medical point of view and by physicians, its
earlier history is to be found in fragmentary form, partly in medical
literature, but principally in the writings of historians, in the
earlier criminal codes, and in the early records of legal proceedings.
In the earliest historical periods the functions now exercised by
the priest, the lawyer, and the physician were performed by the
same person, who, presumably, made use of what medical knowledge he
possessed in the exercise of his legal functions. Among the Egyptians
at a very early period it is certain that medical questions of fact
were considered in legal proceedings, and that the practice of medicine
was subject to legal regulation. According to Diodorus,[2] “when a
pregnant woman was condemned to death, the sentence was not executed
until after she was delivered.” The same author tells us[3] that “the
physicians regulated the treatment of the sick according to written
precepts, collected and transmitted by the most celebrated of their
predecessors. If, in following exactly these precepts which are
contained in the sacred books, they did not succeed in curing the sick,
they could not be reproached, nor could they be prosecuted at law; but
if they have proceeded contrary to the text of the books, they are
tried, and may be condemned to death, the legislator supposing that but
few persons will ever be found capable of improving a curative method
preserved during so long a succession of years and adopted by the most
expert masters of the art.” With the system of legal trial in use among
the Egyptians[4] it is difficult to imagine that the question of the
existence of pregnancy in the one case, or of malpractice in the other,
would not be the subject of contest, and, if contested, determined
without the testimony of obstetricians or of physicians.[5]
Medical knowledge among the Hindoos was further advanced than among
the Egyptians. In the Rig Veda (about 1500 B.C.) occur a few medical
references, among which is the statement that the duration of pregnancy
is ten (lunar) months.
The earliest purely medical Sanskrit texts are the Ayur Vedas of
Châraka and Sûsruta, which were probably written about 600 B.C., but
which are undoubtedly compilations of information which had been handed
down during many centuries before that time. In each of these is a
section devoted to poisons and their antidotes (Kalpa), in which it is
written that a knowledge of poisons and antidotes is necessary to the
physician “because the enemies of the Rajah, bad women, and ungrateful
servants sometimes mix poison with the food.” Full directions are
also given for the recognition of a person who gives poison, and to
differentiate the poisons themselves, whose number, from all the
kingdoms of nature, is legion. The age at which women may marry is
fixed at twelve years, while men may not marry before twenty-five. The
duration of pregnancy is given as between nine and twelve lunar months,
the average being ten. The practice of medicine is restricted to
certain castes, and requires the sanction of the Rajah, and the method
of education of medical students is prescribed.[6]
It is singular that the Greeks were apparently destitute of any
knowledge of legal medicine. Although medicine and jurisprudence were
highly developed among them, allusions to any connection between the
two are of very rare occurrence and uncertain.
The Hippocratic writings (_ca._ 420 B.C.) contain many facts which
are of medico-legal interest: the possibility of superfœtation was
recognized;[7] the average duration of pregnancy was known, and
the viability of children born before term was discussed,[8] the
relative fatality of wounds affecting different parts of the body was
considered,[9] and the Hippocratic oath makes the physician swear that
he “will not administer or advise the use of poison, nor contribute to
an abortion.” The position of the physician in Greek communities was an
exalted one. No slave or woman might be taught medicine,[10] although
later free-born women were permitted to practise in their native
places. Homer also refers to physicians as men of learning and of
distinction.[11] The Greek physician was therefore in a position, both
from his information and from his standing in the community, to aid in
the administration of justice.
The Greeks were also extremely litigious and possessed a code of
criminal procedure which was elaborate, and in many respects resembled
those now in use in England and the United States.[12] The writings of
the Greek orators, Demosthenes, Æschines, Lysias, Antiphon, Isocrates,
etc., which have come down to us substantiate the claim of Ælian
that “to Athens mankind is indebted for the olive, the fig, and the
administration of justice.”[13]
The writings of the Greek physicians contain no reference to any legal
application of their knowledge, and certain passages in the writings
of the orators seem to indicate that, while a physician was called to
inspect and treat a wounded person, the testimony as to the patient’s
condition was given in court by others.
Thus in the case against Euergos and Mnesibulus, in which an old woman
had died some days after an assault, Demosthenes[14] states that he
notified the accused to bring a surgeon and cure the woman; but that
as they did not do so, he himself brought his own surgeon and showed
him her condition in the presence of witnesses. Upon hearing from the
surgeon that the woman was in a hopeless condition, he again explained
her state to the accused and required them to find medical aid.
Finally, on the sixth day after the assault the woman died. He further
asserts that these statements would be proved by the depositions.[15]
The third Tetralogy of Antiphon[16] (B.C. 480) relates to a case in
which the defence was essentially the same as that which was the
subject of a vast amount of medical expert testimony in a celebrated
trial for murder in New York not many years ago. A person wounds
another, who dies some days afterward. The assailant is accused of
murder and sets up the defence that the deceased perished, not from
the wounds inflicted, but in consequence of unskilful treatment by the
physicians.
In neither of these cases is any mention made of physicians having been
called upon for testimony; indeed, the statements would lead to the
inference that they were not. In another case in which a poor and sick
citizen is accused of malingering to obtain the customary pecuniary
aid from the State, Lysias[17] summons no medical evidence but relies
entirely upon a statement of his client’s case.[18]
Medical legislation was not more advanced during the ascendancy of
the Roman Empire, although medical science was greatly developed,
principally by the labors of Celsus, and of Galen and other Greek
physicians. A few cases are mentioned by the historians which would
seem to indicate a closer connection between law and medicine than
had existed among the Greeks, but they refer rather to the custom of
exposing the bodies of those who had died by violent means to public
view, in order that any one might express his opinion as to the cause
of death, than to any appeal to medical science in the administration
of justice. Thus Suetonius[19] says that the physician Antistius
examined the dead body of Julius Cæsar (B.C. 44), and declared that of
all the wounds only that received in the breast was mortal.
Pliny[20] cites an early instance of contested interpretation of
post-mortem appearances in the case of Germanicus, who died A.D.
19, by the action of poison, said the enemies of Piso, because the
heart did not burn. The friends of Piso, while admitting the fact
of non-consumption, attributed it to the deceased having had heart
disease. The same author[21] quotes Masurius as having declared a child
born after thirteen (lunar) months to be legitimate, in an action for
the possession of property, on the ground that no certain period of
gestation was fixed. The Emperor Hadrian (A.D. 117-138), according to
Gellius, sought medical information in a similar case, and decreed the
legitimacy of a child born in the eleventh (lunar) month, “after having
considered the opinions of ancient philosophers and physicians.”[22]
Although the Justinian collections, the “Codex” (A.D. 529), the
“Institutes” (A.D. 533), the “Digests,” or “Pandects” (A.D. 534),
and the “Novels” (A.D. 535-564), prepared by the best legal talent
of the age, under the direction of Tribonian, do not provide for the
summoning of physicians as witnesses; they contain an expression which
indicates that at that time the true function of the medical expert
was more correctly appreciated than it is to-day. His function was
stated to be judicial rather than that of a witness.[23] There is
also a provision that in cases of contested pregnancy, midwives (who
were considered as belonging to the medical profession) should, after
examination of the woman, determine whether or no pregnancy exist, and
that their determination should be final. The practice of medicine,
surgery, and midwifery was regulated. Those desiring to practise must
have been found competent by an examination. The number of physicians
in each town was limited. They were divided into classes, and were
subject to the government of the Archiatri. Penalties were imposed upon
those guilty of malpractice or of poisoning. The Justinian enactments
contain abundant internal evidence of having been framed in the light
of medical knowledge. They contain provisions relating to sterility
and impotence, rape, disputed pregnancy, legitimacy, diseased mental
conditions, presumption of survivorship, poisoning, etc., which
indicate that the medical knowledge of the time was fully utilized in
their construction.[24]
The Germanic peoples at about the same period possessed codes in
which traces of a rudimentary medical jurisprudence existed. The most
ancient of these was the Salic law (A.D. 422), in which the penalties
to be paid for wounds of different kinds are fixed. The Ripuarian law,
of somewhat later date, takes cognizance of the crime of poisoning.
The laws of the Bavarians, Burgundians, Frisians, Thuringians, and
Visigoths contain practically nothing of medico-legal interest. The Lex
Alamannorum has numerous provisions relating to wounds, and expressly
provides that the gravity of the injury shall be determined by a
physician.[25]
During the period of about a thousand years, intervening between
the Justinian and Caroline (_vide infra_) codes, the advancement of
medicine and jurisprudence suffered almost complete arrest. The guilt
or innocence of an accused person was determined rather by his own
confession under torture, or by “the judgment of God” as shown by
ordeal or by judicial combat, than by testimony either expert or of
fact.
Even during the night of the Middle Ages, instances are recorded in
which the opinions of physicians were sought to determine questions of
fact in judicial proceedings.
In the duchy of Normandy, in 1207-45, the laws provided for the
examination of those claiming to be sick (to evade military service or
appeal to judicial duel), of persons killed, and of women.[26]
In a decretal of Innocent III., in 1209, the question whether a certain
wound was mortal was determined by physicians.[27]
There is extant in the statutes of the city of Bologna, under date of
1249, an entry to the effect that Hugo di Lucca had been assigned the
duty, when called upon by the podesta, and after having been sworn, to
furnish a true report in legal cases.[28]
In the kingdom of Jerusalem (_ca._ 1250) a person claiming exemption
from trial by battle because of sickness or of wounds was visited by
a physician (_fisicien au miége_) and a surgeon (_sérorgien_), who
examined him and made oath as to his condition.[29]
Sworn surgeons to the king are also mentioned in letters patent of
Philippe le Hardi in 1278, of Philippe le Bel in 1311, and of Jean II.
in 1352.[30] That of Philippe le Bel refers to Jean Pitardi as one of
“his well-beloved sworn surgeons in his Chastelet of Paris,” whose
functions are partly indicated by the extracts from the registers given
below.
The registers of the Châtelet at Paris from 1389 to 1392 record several
instances in which medical aid was rendered in judicial proceedings.
Under date of March 22d, 1389-90, “Maître Jehan Le Conte, sworn surgeon
to the king our sire,” reports to Maître Jehan Truquam, lieutenant to
the provost, that “upon that day in the morning one Rotisseur had gone
from life unto death in consequence of the wounds which he had received
on the Monday evening preceding.”[31] Under date of July 22d, 1390,
is an account of the examination of one Jehan le Porchier, accused of
intent to poison the king (Charles VI.), in which there is reference
to a very early instance of toxicological expert evidence. In the
wallet of the accused certain herbs were found. The account proceeds:
“Richart de Bules, herbalist, was summoned, to him the above-mentioned
herbs were shown, and he was commanded that he should examine them and
consider well and duly, reporting the truth of what he should find.
The said Richart, after having examined them with great diligence,
reported that in the box in which these herbs were he had found six
leaves, namely: one leaf of _jacia nigra_, and one of round plantain,
called in Latin _plantago minor_, and four of sow-thistle (_lasseron_),
called in Latin _rosti poterugni_, and says that the leaf of _jatria
nigra_ is poisonous, but that in the others there is no poison known
to the deponent.”[32] On August 12th, 1390, “Jehan Le Conte and Jehan
Le Grant, sworn surgeons of our sire the king,” are present at the
torture of a prisoner, but for what purpose does not appear. In another
case the same Jehan Le Conte testified that a wound in the head of a
deceased person was made with an axe.[33] At a later period in Italy,
the infliction of “the question” took place under medical supervision.
Zacchias devotes a chapter, _De Tormentis et Pœnis_,[34] to the
consideration of the different methods of torture, the degrees of pain
and danger attending each, and the conditions of age, sex, and health
which render its application inadmissible.[35]
During this period, as indeed from the earliest times, the practice
of medicine was regulated by law. Thus a law of King Roger of Sicily
(1129-54) punished those who practised medicine without authority with
imprisonment and confiscation of goods; and an edict of Frederick II.
(1215-46) imposed like penalties upon those who presumed to practise
except after graduation at the school of Salernum.[36]
Medico-legal science was formed in the middle of the sixteenth century
by a simultaneous awakening of jurists and physicians to the importance
of the subject.
It was in Germany that expert medical testimony was first legally
recognized. In 1507, George, Bishop of Bamberg, proclaimed a criminal
code in his domains. This was subsequently adopted by other German
states, and finally was the model upon which the _Caroline Code_, the
first general criminal code applying to the whole empire, was framed
and proclaimed at the Diet of Ratisbon in 1532.[37]
These codes, particularly the Caroline, distinctly provide for
utilizing the testimony of physicians. Wounds are to be examined by
surgeons who are “to be used as witnesses;”[38] and in case of death
one or more surgeons are to “examine the dead body carefully before
burial.”[39] They also contain provisions for the examination of women
in cases of contested delivery, or suspected infanticide;[40] for the
regulation of the sale of poisons;[41] for the detection and punishment
of malpractice;[42] and for examination into the mental condition in
cases of suicide and of crime.[43]
An early work on the practice of criminal law, based on the Caroline
Code, was published by the Flemish jurist, Josse de Damhouder, in 1554.
It contains a chapter treating of the lethality of wounds, which should
be determined by expert physicians and surgeons,[44] and describes
the course which is to be pursued in the judicial examination of dead
bodies. This is probably the earliest printed book (other than the laws
themselves) containing reference to medico-legal examinations,[45] and
antedates the writings of physicians upon the subject.
Although it was only in 1670 that the Ordinances of Louis XIV. gave
to France a uniform criminal code, medico-legal reports were made by
physicians and surgeons to the courts more than a century before.
Indeed, the earliest medico-legal work written by a physician[46] is
the 27th book of the Œuvres d’Ambroise Paré, first printed in 1575,
in which he directs the forms in which judicial reports shall be
made in various medico-legal cases.[47] During the remainder of the
sixteenth century France produced but three treatises on medico-legal
subjects.[48] One of these, written by the jurist A. Hotman, distinctly
mentions the employment of physicians to determine questions of fact.
In Italy works on medical jurisprudence were published at the close of
the sixteenth and beginning of the seventeenth century. The earliest
of these was a chapter of Codronchius, treating of the “method of
testifying in medical cases,” in 1597.[49] At about the same time, but
certainly later, appeared the work of Fortunatus Fidelis, to whom the
honor of being the first writer on medical jurisprudence is given by
many.[50]
The great work of Paulus Zacchias, physician to Pope Innocent X., was
first printed at Rome, 1621-35. This medico-legal classic contains
in the first two volumes the “_Quæstiones_” and in the third the
decisions of the Roman Rota. It treats of every branch of medico-legal
science, and discusses physiological questions of legal interest,
besides dealing with questions such as the infliction of torture and
miracles.[51]
Although the “Quæstiones Medico-legales” of Zacchias was the first
systematic work upon medical jurisprudence, his countrymen in
succeeding centuries have contributed but little to this science. It is
only during the latter part of the present century that Italians have
again become prominent in medico-legal literature.
In France legal medicine progressed but little from the time of Paré to
the latter part of the eighteenth century. Several treatises appeared,
being chiefly upon legitimacy and kindred subjects,[52] with a few
treating of reports, signs of death, etc.[53]
Toward the end of the eighteenth century the labors of Louis, Petit,
Chaussier, and Fodéré elevated legal medicine to the rank of a science.
The investigations of Louis (Ant. L.) were numerous and important in
this as in other subjects,[54] and the “_causes célébres_” contain
reports of many trials in which he threw light upon doubtful medical
questions.[55] Antoine Petit, a contemporary of Louis, contributed an
extensive work on the duration of pregnancy as affecting legitimacy.[56]
Somewhat later Fr. B. Chaussier, between 1785 and 1828, published
at Dijon a number of treatises on infanticide, viability, surgical
malpractice, etc.[57] Fodéré, a Savoyard, was the first to publish a
systematic treatise on medical jurisprudence in France, which was first
printed in 1798 and in a much enlarged form in 1813.[58] This last
edition is an exhaustive treatise upon all branches of legal medicine
and public hygiene, and won for its author the appointment as Professor
of Forensic Medicine in the University of Strassburg.
At about the same period appeared the works of Mahon[59] and of
Belloc,[60] both of which went through three editions in ten years, and
those of Biessy.[61]
The most industrious and original of French professors of legal
medicine was Orfila. A native of Minorca, he graduated in medicine
at Paris in 1811, and devoting himself to chemical and toxicological
investigations, published the first edition of his “Traité des
Poisons” in 1814. This work, which may be regarded as the foundation
of experimental and forensic toxicology, went through five editions
to 1852, and was translated into several foreign languages. The first
edition of his “Leçons de Médecine légale” appeared in 1821, and the
fourth in 1848. Besides these Orfila published a work on the treatment
of asphyxia and a great number of papers on medico-legal subjects,
principally in the _Annales d’Hygiène_, of which he was one of the
founders with Andral, Esquirol, Leuret, and Devergie. Orfila occupied
the chair of chemistry and medical jurisprudence in the University
of Paris for upward of thirty years, and was employed as expert in
innumerable cases before the courts.
Contemporaneous with Orfila, and almost as prominent, was Devergie, the
first edition of whose “Médecine légale,” in three volumes, appeared in
1836, and the third in 1852.
In 1820 the first edition of the Manual of Briand and Brosson was
published. This work, the tenth edition of which was published in 1879,
is the first in which a jurist was associated with a physician in the
authorship,[62] and is one of five of which one of the authors is a
lawyer.[63]
Special treatises on the medico-legal relations of insanity were
published by Georget (1821), Falvet (1828), Esquirol (1838), and Marc
(1840), and on midwifery by Capuron (1821).
Tardieu, Professor of Legal Medicine in the University of Paris
(1861-79), published a most important series of monographs on hygienic
and medico-legal subjects,[64] besides many papers, principally in the
_Annales d’Hygiène_, _etc._, and testified before the courts in many
“_causes célébres_.”
The first work of medico-legal interest to appear in Germany was the
“Medicus-Politicus” of Rodericus à Castro, a Portuguese Jew living in
Hamburg, printed in 1614, which deals principally with medical ethics
and the relations of physicians, but contains chapters on simulated
diseases, poisoning, wounds, drowning, and virginity.[65]
It was only toward the end of the seventeenth century that the
subject was scientifically treated, and during the latter part of
the seventeenth century and the beginning of the eighteenth great
progress was made in the development of forensic medicine in Germany.
Johannes Bohn, one of the originators of the experimental method of
investigation in physiological chemistry and physics, at the University
of Leipzig, was also one of the earliest German contributors to the
literature of legal medicine. Besides smaller works he published two
noteworthy treatises: in 1689 a work on the examination of wounds
and the distinction between ante-mortem and post-mortem wounds, and
between death by injury, strangulation, and drowning.[66] In 1704 a
work giving rules for the conduct of physicians in attending the sick
and in giving evidence in the courts.[67] At about the same period M.
B. Valentini, professor in the University of Giessen, published three
important works, containing collections of medico-legal cases, and of
the opinions and decisions of previous writers.[68] Another extensive
collection of cases and decisions was published in 1706 by J. F.
Zittmann, from a MS. left by Professor C. J. Lange, of the University
of Leipzig;[69] and still another by J. S. Hasenest[70] appeared in
1755.
During the latter part of the eighteenth century, the Germans
cultivated legal medicine assiduously, and a great number of works upon
the subject were published. Among these may be mentioned those of M.
Alberti, professor at the University of Halle;[71] H. F. Teichmeyer,
of the University of Jena;[72] A. O. Gölicke, of the universities of
Halle and Duisburg, who was the first to prepare a bibliography of
the subject;[73] J. F. Fasel (Faselius), professor at Jena;[74] J. E.
Hebenstreit and C. S. Ludwig, professors at Leipzig;[75] C. F. Daniel,
of Halle;[76] J. D. Metzger, professor at Königsberg, the author of
a number of works, one of which, a compendium, was translated into
several other languages;[77] J. V. Müller, of Frankfurt;[78] J. C. T.
Schlegel, who collected a series of more than forty dissertations by
various writers;[79] M. M. Sikora, of Prague;[80] J. J. von Plenck,
professor in Vienna, who published a work on forensic medicine and
one on toxicology;[81] K. F. Uden, subsequently professor in St.
Petersburg, who was the first to publish a periodical journal devoted
to legal medicine, which was afterward continued by J. F. Pyl at
Stendal;[82] and J. C. Fahner.[83]
At this period compends for students were published in Germany, which
indicate by their number the extent to which this science was the
subject of study. Among these those of Ludwig (1765), Kannegieser
(1768), von Plenck (1781), Frenzel (1791), Loder (1791), Amemann
(1793), Metzger (1800), and Roose may be mentioned.
The Germans of the present century have maintained the pre-eminence
in legal medicine achieved by their forefathers. Among a great
number of investigators and writers a few may be mentioned: C. F. L.
Wildberg, professor at Rostock, was a most prolific writer, edited
a journal devoted to state medicine, and contributed a valuable
bibliography of the subject;[84] A. F. Hecker, professor at Erfurth
and afterward at Berlin, and J. H. Kopp each edited and contributed
extensively to a medico-legal journal.[85] A much more important
periodical was established in 1821 by Adolph Henke, professor in
Berlin, and was continuously published until 1864. Henke also wrote
a great number of articles and a text-book on legal medicine.[86]
Jos. Bernt, professor at Vienna, published a collection of cases, a
systematic treatise, and a number of monographs,[87] as well as the
MS. work left by his predecessor in the chair, F. B. Vietz. A handbook
containing an excellent history of medico-legal science was published
by L. J. C. Mende, professor at Griefswald,[88] who also contributed
a number of monographs, chiefly on obstetrical subjects. K. W. N.
Wagner contributed but little to the literature of the subject, but
it was chiefly by his efforts, while professor in the University
of Berlin, that a department for instruction in state medicine was
established there in 1832. A. H. Nicolai, also professor at Berlin,
published a handbook[89] besides numerous articles in the journals.
F. J. Siebenhaar published an encyclopædia of legal medicine, and
in 1842 established a journal devoted to state medicine, which in
its continuations was published until 1872.[90] J. B. Friedreich,
professor at Erlangen, after editing a journal devoted to state
medicine from 1844 to 1849, established one of the most important of
current medico-legal periodicals in 1850,[91] to both of which he
was a frequent contributor until his death in 1862. Ludwig Choulant,
professor at Dresden, and more widely known as the author of important
contributions to the history of medicine, published two series of
reports of medico-legal investigations.[92]
The foremost forensic physician of this period in Germany was
unquestionably John Ludwig Casper, professor in the University of
Berlin and “forensic physician” (gerichtlicher Physicus) to that city,
who greatly extended the department established in the university
under Wagner. He made innumerable investigations, some of which are
preserved in several collections of cases,[93] others in his classic
Handbook,[94] and still others in the periodical which he established
in 1852, and which is now the most important current medico-legal
journal.[95]
It is necessary in this place to make mention of one work by living
authors, as its appearance marked a new departure in medico-legal
literature, and as in it the fact that forensic medicine extends over
so wide a field of inquiry as to require treatment at the hands of
specialists was first recognized. To Josef von Maschka, professor in
the University of Prague, the credit is due of having been the first
to produce, with the collaboration of twenty-two colleagues, a truly
systematic work on modern forensic medicine.[96]
English works upon this subject did not exist prior to the present
century,[97] although physicians were employed by the courts to
determine medical questions of fact at a much earlier date. Paris and
Fonblanque, in the third Appendix of their “Medical Jurisprudence,”
give the text of reports by the Colleges of Physicians of London and
of Edinburgh concerning the cause of death as early as 1632 and 1687
respectively.[98]
Lectures on medical jurisprudence were given at the University of
Edinburgh by A. Duncan, Sr., at least as early as 1792.[99] The title
of Professor of Medical Jurisprudence in a British university was
conferred for the first time, however, upon A. Duncan, Jr., at the
University of Edinburgh in 1806.[100]
The first English work on medical jurisprudence worthy of consideration
is the medical classic known as Percival’s “Medical Ethics.” This
was first published in 1803, and contains in its fourth chapter an
admirable epitome of legal medicine.[101] A more elaborate work, based
very largely, however, upon the writings of continental authors,
was published by G. E. Male in 1816.[102] In 1821 Professor John
Gordon Smith published the first systematic treatise on forensic
medicine,[103] and was one of the first in Great Britain to show the
importance of the subject.
Two years later, in 1823, appeared the elaborate and scholarly work
of Dr. Paris and Mr. Fonblanque, the first in the English language
in whose authorship members of the medical and legal professions
were associated.[104] In 1831, Prof. Michael Ryan published the
first edition of his “Manual of Medical Jurisprudence” from the
memoranda of his lectures on the subject in the Westminster School of
Medicine.[105] A similar work was published by Professor T. S. Traill,
of the University of Edinburgh, in 1836.[106] The awakened interest in
medico-legal subjects among the medical profession during the decade
1830-40 is evidenced by the publication in the medical journals of
the lectures of A. Amos, in 1830-31; of A. T. Thomson, at the London
University, in 1834-35; of H. Graham, at Westminster Hospital, in
1835; of W. Cummin, at the Aldersgate Street School, in 1836-37; and
of T. Southwood Smith, at the Webb Street Theatre of Anatomy, in
1837-38.[107]
Among the noteworthy contributions to the science previous to 1850
are the writings of Dease (1808), Haslam (1817),[108] Christison, the
successor of Professor Duncan in the University of Edinburgh, and best
known as a toxicologist, Forsyth (1829),[109] Chitty (1834),[110]
Watson (1837),[111] Brady (1839),[112] Skae (1840),[113] Pagan
(1840),[114] and Sampson (1841).[115]
In 1836, Dr. Alfred Swaine Taylor (b. 1806, d. 1880), the first
Professor of Medical Jurisprudence in Guy’s Hospital, published his
“Elements of Medical Jurisprudence.” This, the most important work upon
the subject in the English language, is now in its twelfth English
and eleventh American edition. During forty years of devotion to
forensic medicine Dr. Taylor also contributed other important works and
numerous papers, published for the most part in the Reports of Guy’s
Hospital.[116] In 1844, Dr. Wm. A. Guy, Professor of Forensic Medicine
in King’s College, published the first edition of his excellent
work.[117] In 1858, Fr. Ogston, Professor of Medical Jurisprudence
in the University of Aberdeen, published a syllabus and subsequently
(1878) a complete report of his lectures.[118] In 1882, C. M. Tidy,
Professor of Chemistry and Forensic Medicine in the London Hospital,
who had previously (1877) been associated with W. B. Woodman in the
authorship of a valuable handbook, began the publication of a more
extended work, which was interrupted by his death in 1892.[119]
The first Spanish work on legal medicine was that of Juan Fernandez
del Valles, printed in 1796-97.[120] No further contribution to
medico-legal literature was furnished by Spain until the appearance in
1834 of the work of Peiro and Rodrigo, which went through four editions
in ten years.[121] Ten years later, in 1844, Pedro Mata, Professor of
Legal Medicine and Toxicology at Madrid, published the first edition of
a work, which in the development of its subsequent editions, has become
the most important on the subject in the Spanish language.[122]
The first Portuguese medico-legal treatise was that of Jose Ferreira
Borjes, first printed at Paris in 1832.[123]
A posthumously published report of the lectures of Albrecht von Haller
was the earliest Swiss work on forensic medicine.[124]
In Sweden the earliest medico-legal publication was a comprehensive
treatise by Jonas Kiernander, in 1776,[125] which was followed in 1783
by a translation of Hebenstreit, by R. Martin. The voluminous writings
of the brothers Wistrand (A. T. and A. H.), including a handbook,
were published at Stockholm, between 1836 and 1871. Between 1846 and
1873, several articles upon medico-legal subjects were published at
Helsingfors, in Finland, by E. J. Bonsdorff, O. E. Dahl, and J. A.
Estlander. In 1838 Skielderup[126] published his lectures on legal
medicine, delivered at Christiania, and Orlamundt[127] published
a handbook at Copenhagen in 1843. The earliest recognition of
medico-legal science in Russia was in the lectures of Balk,[128] begun
in 1802 at the then newly founded University of Dorpat.
Although dissertations upon subjects of medico-legal interest were
published at the University of Leyden as early as the middle of the
seventeenth century,[129] and the works of Pineau,[130] Zacchias,[131]
Ludwig,[132] von Plenk,[133] and Metzger[134] were printed in Holland,
either in Latin or in the vernacular, no original systematic work on
legal medicine in the Dutch language has yet appeared.
The only Belgian contribution to the literature of forensic medicine,
other than articles in the journals, is a text-book by A. Dambre, first
published at Ghent in 1859.[135]
Two medico-legal works have been printed in the Japanese language, one
a report of the lectures of Professor Ernst Tiegel, at the University
of Tokio,[136] the other a treatise by Katayama.[137]
In the United States the development of forensic medicine has kept pace
with that in the mother country. In an introductory address delivered
at the University of Pennsylvania in 1810, the distinguished Dr.
Benjamin Rush dwelt eloquently upon the importance of the subject.[138]
In 1813, Dr. James S. Stringham was appointed Professor of Medical
Jurisprudence in the College of Physicians and Surgeons of New
York, and a syllabus of his lectures was published in the following
year.[139] At the same period (1812-13) Dr. Charles Caldwell delivered
a course of lectures on medical jurisprudence in the University of
Pennsylvania.[140] In 1815, Dr. T. R. Beck was appointed Lecturer on
Medical Jurisprudence in the College of Physicians and Surgeons of the
Western District of the State of New York; and soon after Dr. Walter
Charming was appointed Professor of Midwifery and Medical Jurisprudence
in Harvard University. In 1823, Dr. Williams, in the Berkshire Medical
Institute, and Dr. Hale, of Boston, each lectured upon the subject.[141]
In 1819, Dr. Thomas Cooper, formerly a judge in Pennsylvania, and at
that time Professor of Chemistry and Mineralogy in the University of
Pennsylvania, reprinted, with notes and additions, the English works
of Farr, Dease, Male, and Haslam.[142] The works of Ryan, Chitty,
Traill, and Guy were also reprinted in this country shortly after their
publication in England.
In 1823, Dr. Theodric Romeyn Beck published at Albany the first edition
of a treatise as admirable for scholarly elegance of diction as for
profound scientific research. This remarkable work, _facile princeps_
among English works on legal medicine, has had twelve American and
English editions, and has been translated into German and Swedish.[143]
Papers upon medico-legal subjects or reports of lectures were published
by J. W. Francis,[144] J. Webster,[145] R. E. Griffith,[146] R.
Dunglison,[147] J. Bell,[148] and S. W. Williams[149] between 1823
and 1835. In 1840, Amos Dean, Professor of Medical Jurisprudence at
the Albany Medical College, published a medico-legal work, followed
by another in 1854, which with the later work of Elwell are the only
treatises on forensic medicine upon the title-pages of which no
physician’s name appears.[150]
Numerous papers and tracts upon medico-legal subjects were published by
J. J. Allen, T. D. Mitchell, H. Howard, D. H. Storer, J. S. Sprague,
J. S. Mulford, J. F. Townsend, and A. K. Taylor between 1840 and 1855.
In the latter year appeared the first edition of the admirable work of
Francis Wharton and Dr. Moreton Stillé, the first American product of
the collaboration of members of the two professions, now in its fourth
edition.[151]
Between 1855 and 1860 no systematic treatises on legal medicine were
published, although the medical journals contained numerous articles
bearing upon the subject. In 1860 the first edition of a treatise
written from the legal aspect was published by J. J. Elwell.[152] In
1869 Dr. J. Ordronaux, recently deceased, widely known as a teacher of
legal medicine and a graduate in law as well as in medicine, published
a treatise which has been extensively used as a text-book.[153] At the
present time the great number and variety of articles published in
the medical and legal journals, bearing upon every branch of forensic
medicine and of medical jurisprudence, and written for the most part
by specialists, is evidence of the assiduity with which the science is
cultivated.
The wide appreciation of the importance of medico-legal science in
the United States is also indicated by the fact that at the present
time there are but few medical schools in which the subject is not
taught. To ascertain the extent of medico-legal instruction at the
present time, a circular of inquiry was sent to the deans of 124
medical schools and of 56 law schools in the United States and British
provinces. Answers were received from 103 medical colleges. Of these
only 3 are without a teacher of “medical jurisprudence.” In 38 the
teacher is a physician, in 50 he is a lawyer, in 5 he is a graduate
in both professions, and 3 have two teachers, one a lawyer, the
other a physician. The average number of lectures given is 21, and
the average in those schools in which the teacher is a lawyer, and
therefore presumably teaches only medical jurisprudence, is 15. The
medico-legal relations of their subjects are taught in their lectures
by the neurologist in 62 schools, by the surgeon in 66, by the
obstetrician in 69, and by the chemist (toxicology) in 91. It appears
from these reports that not only is the importance of medico-legal
science appreciated, but that in the majority of our medical schools
the distinction between medical jurisprudence and forensic medicine
is recognized in the fact that the instructor is a lawyer, who
presumably teaches medical jurisprudence, while the different branches
of forensic medicine and toxicology are taught by the specialists
most competent to deal with them. Every practising physician requires
thorough instruction in medical jurisprudence, which, being strictly
legal, is best taught by one whose profession is the law. The general
practitioner only requires so much knowledge of the different branches
of forensic medicine as will enable him to intelligently fulfil his
obligations in such medico-legal cases as will be forced upon him as
results of his ordinary practice. He can become a medical expert only
by a particular study of and a large experience in some particular
branch of the subject.
In our law schools the teaching of medico-legal science is not as
general as in schools of medicine. Of 35 law schools, only 10 have
professors of medical jurisprudence. Of these 6 are lawyers, 1 is a
physician, 2 are graduates in both professions, and 1 is a doctor of
divinity.
In this work the existence of specialists in the various branches
of medico-legal science has been recognized for the first time in a
treatise in the English language. Each branch has been assigned to
a specialist in that subject, or at least to one who has made it a
particular study.
In the arrangement of the matter, the primary division into the three
sciences of medical jurisprudence, forensic medicine, and toxicology
has been adopted. The division of pure medical jurisprudence is
contained in the present volume, while the legal aspects of neurology,
obstetrics, etc., will be treated of in future volumes along with the
subjects to which they relate. In the division of forensic medicine the
classification of Casper has been followed: _i.e._, _Thanatological_;
including those branches in which the subject of inquiry is a dead body
(contained in the present volume). _Bio-thanatological_; relating to
questions concerning both dead bodies and living persons (in the second
volume). _Biological_; relating to living persons (in the second and
third volumes). The applications of the microscope to forensic medicine
will be treated of in the second volume. The fourth volume will contain
the division relating to toxicology.
R. A. W.
MEDICAL JURISPRUDENCE.
THE LEGAL RELATIONS
OF
PHYSICIANS AND SURGEONS,
INCLUDING
THEIR ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND
SURGERY; THEIR LEGAL DUTIES AND OBLIGATIONS; THEIR RIGHT
TO COMPENSATION; THEIR PRIVILEGES AND DUTIES WHEN
SUMMONED AS WITNESSES IN COURTS OF JUSTICE,
AND THEIR LIABILITY FOR MALPRACTICE.
BY
TRACY C. BECKER, A.B., LL.B.,
_Counsellor-at-Law; Professor of Criminal Law and Medical
Jurisprudence in the Law Department of the University of Buffalo;
Chairman Executive Committee New York State Bar Association, etc._
LEGAL STATUS OF PHYSICIANS.
CHAPTER I.
OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY.
LEGAL DEFINITION AND HISTORY OF THE TERMS PHYSICIAN AND SURGEON.
AT common law the right to administer drugs or medicines or to perform
surgical operations was free to all. And such was the rule of the
Roman civil law. But the importance of prescribing certain educational
qualifications for those who made such practices their means of gaining
a livelihood soon became apparent, and as early as the year 1422,
during the reign of Henry the Fifth in England, an act of Parliament
was adopted forbidding any one, under a penalty of both fine and
imprisonment, from “using the mysterie of fysyck unless he hath studied
it in some university and is at least a batchellor of science.”
As a result of this and other statutory regulations, a class of
professional men grew up, who were called “physicians,” because they
professed to have the qualifications required by such legal regulations
to wisely prescribe drugs and medicines for the cure of diseases.
A chirurgeon or surgeon—Latin, chirurgus; Greek, _χειρουργος_,
compounded of _χειρ_, the hand, and _ἐργειν_, to work—as the
derivation of the word shows, was one who professed to cure disease or
injuries by manual treatment and appliances.
It would be more interesting than profitable to trace the history
of these terms, and of the professions of medicine and surgery from
the early times, when the clergy administered healing to the body as
well as to the soul, and when barbers were generally surgeons, and
blood-letting by the knife-blade and the use of leeches caused the
common application of the term “leech” to those who practised surgery.
_Definition._—For the purposes of this treatise, however, it will
be sufficient to define the term “physician,” as meaning any one who
professes to have the qualifications required by law to practise
the administration of drugs and medicines, and the term “surgeon,”
as meaning any one who professes to have the like qualifications to
perform surgical operations, for the cure of the sick or injured.
For a list of the early statutes of England relating to the practice of
medicine the reader may consult Ordronaux’ “Jurisprudence of Medicine,”
p. 5, note 2.
The present statutory regulations throughout the United States and in
England and Canada will be more particularly referred to and synopsized
hereafter in this volume.