A sufficient number, accurately observed and well attested by

unimpeachable authorities, have led to the conclusion that the healthy

adult, in a total deprivation of food, can exist for a period not

exceeding ten to twelve days. On one of the Inman line of steamers, a

young man, aged twenty years, endured absolute deprivation of all food

and water during eleven days, recovery following.[961]

Sarah Jacobs, a child of thirteen years (“the Welsh fasting girl”), had

been exhibited by her parents as a miraculous being under the pretence

that she had eaten nothing during _two years_.

The child being placed under complete surveillance by four nurses from

Guy’s Hospital for eight days, during which period no food was taken,

died on the ninth day.

The post-mortem examination showed all organs of the body to be in a

healthy condition. The stomach was empty, with the exception of three

teaspoonfuls of a thin acid fluid. The intestines were also empty and

their walls were not thinned. A layer of fat, half an inch or more in

thickness, was found under the skin of the chest and abdomen. The liver

was in a healthy condition, as also the kidneys and spleen. The bladder

was empty.

The parents were tried on a charge of manslaughter and were convicted

of causing death by criminal negligence.[962]

Caspar gives the details of a case observed by him of a man aged

thirty-six years, who endured total abstinence from all food for eleven

days, recovery following.[963]

Cases are reported of miners who have been imprisoned by accidents

in mines for eight, nine, and nine and one-half days, with recovery

following rescue at the end of this time.[964]

While the period stated may serve as a maximum limit to which life may

be extended in acute starvation, there are circumstances which must be

considered as modifying this.

=Body Condition.=—It need hardly be stated that the individual in

perfect health can sustain complete inanition longer than the enfeebled

or diseased. The presence or absence of _fat_ modifies considerably the

power of endurance.

=Age.=—Infants bear starvation badly and succumb more quickly than the

adult. The aged, while they bear a moderate amount of food better than

the young adult, do not endure a complete deprivation for so long a

time.

=Cold.=—The depressing influence of cold upon the vital functions,

especially in the young and feeble, renders it a powerful factor in

shortening the duration of life in starvation.

=The Supply of Water.=—When all food is withheld, free use of water

as a drink tends to increase the length of the interval before death.

In several cases of protracted fasting, the use of water in moderate

amount has been resorted to with the apparent result of amelioration

of some of the distressing symptoms and lengthening the period of

endurance.

Dr. Tanner, a physician, attempted in July and August, 1880, at New

York, a complete fast of forty days’ duration, with the exception

of the free use of water. In this case absolute abstinence from all

nourishment is questioned, as no strict medical surveillance was

maintained.

The Italian Succi, at New York, in 1890, undertook a voluntary

abstinence from food for forty days, under surveillance, with the use

of simple liquids and of some narcotic substance. He completed the

fast, but beyond this fact the case is without scientific value.

=Catalepsy.=—Certain abnormal conditions of the nervous system are

met where the activity of the vital functions is very considerably

lowered and the various processes of the economy are in a condition

of semi-suspension. Cases of this character have been observed where

the supply of food has been almost entirely suspended for a period

of several days, with but little emaciation and other symptoms

characteristic of inanition.

WAS STARVATION ACCOMPANIED BY OTHER ILL TREATMENT?

This question may arise where evidences of starvation are apparent.

Such cases are met among young children neglected or abused by parents

or those in whose care they may have been placed, or among the

alienated or sick in the care of cruel or unsympathetic attendants.

Infants placed with “wet-nurses” or found in the so-called “baby farms”

also furnish cases which fall under this head.

A careful examination into the collateral circumstances of the case,

together with the results of a careful post-mortem examination, usually

render a positive answer to this question possible.

POST-MORTEM EXAMINATION.

The dead body exhibits appearances quite characteristic.

=Emaciation= is very marked and sometimes reaches an extraordinary

degree, surpassing that of prolonged and wasting diseases.

In extreme cases the fat entirely disappears throughout the body;

the omentum and mesentery are entirely devoid of it, as well as the

subcutaneous and intermuscular cellular tissue. The muscles are

atrophied and the _heart_ is sometimes considerably reduced in size;

the liver and kidneys in some cases show great reduction of volume. The

spleen also is small and often softened.

The =stomach= and =intestines= usually display an extensive thinning

of their walls, so much so that their contents may be distinguished

through them; their calibre also is frequently found to be diminished,

though occasionally they may be distended with gas. Usually they are

empty, or contain only a small quantity of bile and fecal matter. In

some cases various foreign substances which have been swallowed by the

victims to appease hunger have been found in them.

The thinning of the walls, so constantly noted, has been considered as

a specially characteristic symptom of starvation.[965]

The congestion, softening, and ulcerations which have been observed

in some cases cannot be considered as evidences of starvation or as

its results, but rather as being due to an enteritis induced by the

ingestion of improper substances.

The =gall bladder= is usually found filled with dark and inspissated

bile. In death by starvation the entire organs of the body exhibit no

specific form of disease. Evidences of the existence of an organic

affection observed in the post-mortem examination at once raise the

question:

WAS DEATH CAUSED BY STARVATION OR DISEASE?

Was the original disease aggravated by a failure to supply the patient

with food, or are the lesions observed the result of starvation?

A positive conclusion can be reached in such cases by carefully

considering the results of a post-mortem examination together with

other facts elicited by the inquiry.

Harriet Staunton,[966] a young girl, had been kept in close confinement

by four interested persons, and removed in great haste, when in a

condition of extreme prostration, to Penge, where she died, on the

day succeeding her removal, in a state of extreme exhaustion and

emaciation. Fat was absent from every part of the body; the stomach and

intestines were empty, contracted, and their walls were greatly thinned.

A small deposit of tubercle was found at the summit of the left lung

and a recent deposit of miliary tubercle beneath the arachnoid, upon

the surface of one of the cerebral hemispheres. No other tuberculous

deposits were found. The opinion given by the physicians making the

post-mortem examination was that death resulted from starvation. This

opinion was shared by Professor Virchow, of Berlin, who stated that the

tuberculous deposits found could not explain the cause of death.

In this case the extreme emaciation, entire absence of fat, thinning

of the intestinal walls, etc., were the determining conditions. While

extreme emaciation alone is not sufficient to decide the case to be

one of starvation, its existence, taken in connection with some of

the conditions found constantly in persons known to have died of

starvation, is a strongly corroborative fact. Nor can its absence be

taken as conclusive evidence that death occurred from other cause than

starvation, since in some cases of death from inanition emaciation has

not been extreme and in a few cases not at all marked.[967] Instances

of this character are reported by Taylor and others.

DISEASES PRODUCED BY STARVATION.

The effect of insufficient alimentation in the production of disease

has long been recognized. It is understood that this result follows the

deficiency in either quality or quantity. The so-called “famine fever,”

prevalent in times of dearth, has afforded extensive opportunity for

observation of the effects produced. The symptoms developed are those

directly referable to impoverishment of the blood. Pallor, emaciation,

nervous depression, derangement of the digestive organs, and muscular

enfeeblement appear in every case.

The development of strumous, herpetic, and cutaneous diseases generally

is marked.

Of the secondary effects, the cachectic condition induced expresses

itself in pulmonary phthisis largely, while in infants and very young

children intestinal disorders are specially frequent. Organic diseases

already existing are seriously aggravated; wounds fail to heal, become

ulcerative and sometimes gangrenous; while all degenerative processes

are rapidly hastened to a fatal issue.[968]

INDEX.

ABDOMEN, contusions of, 580

post-mortem examination of, 370

wounds of, 580

ABDOMINAL VISCERA, rupture of, 582

wounds of, 582

ABSCESS of brain, 563

ACTIONS TO RECOVER FOR SERVICES (see Privileged Communications), 26

amount of recovery in, 45

elements to be proved in, 47

evidence in, 22-48

ACTIONS FOR MALPRACTICE, 73-87

ADIPOCERE, 451

AGE, determination of, 399

ALCOHOLISM, 564

ANTHROPOMETRY, 432

APNŒA, 709, 796

ARTERIES, wounds of, 578

ASPHYXIA, 708

by submersion, 796, 797

external appearances due to, 715

internal appearances due to, 718

AUTOPSIES, 301, 349

in cases of poisoning, 356, 371

late, 378

of fragments, 380

order of, 356

BILLS FOR SERVICES, effect of, 43

BLADDER, rupture of, 585

wounds of, 585

BLANK CHARGES, wounds by, 617

BLOOD, coagulation of, 488, 701

condition of, after burns, 653

extravasation of, in brain, 565

on weapons, 535

stains, 350

BODY (see Dead Body), examination of, 537

temperature of, 629

BONES, identification of, 390

old or recent? 391

BOOKS, medical, when and where used in court, 64

of original entry, when admissible as evidence, 48

of physician, see Privileged Communications

BRAIN, abscess of, 563

concussion of, 561

congestion of, in drowning, 796

extravasation of blood in, 565

post-mortem examination of, 362

wounds of, 569

BULLETS, 595

loss of weight of, 601

track of, 595

BURKING, 775

BURNS, 360, 639

by acids, 641

burning oil, 640

corrosives, 641

electrical currents, 664, 676

flame, 640

fused metals, 640

lightning, 694

petroleum, 641

cases of, 657

causes of death by, 645

classification of, 642

constitutional effects of, 644

local effects of, 643

period of death from, 649

post-mortem appearances of, 647

whether ante- or post-mortem, 649

CADAVERIC CHANGES (see Post-mortem), 441

CADAVERIC SAPONIFICATION, 451

CASES of burns, 657

of hanging, 760

of strangulation, 726

of suffocation, 787

CATALEPSY, 822

CAUSE OF DEATH, see Coroners

from burns, 645

severe mechanical injury, 499

submersion, 797

wounds, 496, 497

CAUSE OF DEATH,

hemorrhage as, 497

latent disease as, 503

shock as, 499

was it natural? 503

wounds as secondary, 509

CLOTHING, examination of, 352, 537

COLD, effects of extreme, 630

COMBUSTION, spontaneous, 647

COMMUNICATIONS, privileged (see Privileged Communications), 33

COMPENSATION, see Physician and Patient; Expert Witness; Coroners;

Medical Examiners

CONCUSSION, 472

of brain, 561

spinal cord, 573

CONGENITAL PECULIARITIES, identity from, 403

CONSTITUTIONALITY of statutes regulating practice of medicine and

surgery, 7-11

CONTRACTS between physician and patient (see Physician and

Patient), 25

CONTRE-COUP, 559, 611

CONTUSIONS, 358, 467, 470, 523

by lightning, 695

of abdomen, 580

of head, 558

of neck, 570

CORONER (see Post-mortem Examinations), 331

is _virtute electionis_ in America, 332

duties of, are both judicial and ministerial, 332

judicial authority of, relates to inquiries into cases of

death, 332

jurisdiction of, 332

kinds of, at common law, 331

presumption that he has acted in good faith, 332

protected under same principles which protect judicial

officers, 333

Effect of evidence and verdict, 343

at common law was equivalent to indictment by grand jury, 343

not so now, yet inquisition has same power until grand jury passes

upon the case, 343

Evidence before, when admissible upon a subsequent trial, 344

Inquest, all evidence must be presented to jury, 342

coroner cannot hold a second inquest while the first is

undischarged, 334

coroner has power to hold, 332, 334

is a judicial investigation, 333

must be held in view of the body, 335

separate inquests must be held over each of several bodies, 333

Jury and inquest, coroner may compel attendance of witnesses, 341

Jury and inquest, jurors must be from jurisdiction wherein coroner

is empowered to act, 341

jurors must be sworn by coroner, 341

jurors must investigate and determine the facts, 341

jurors must view the body, 341

jurors not challengeable, 341

witnesses must be sworn by the coroner, 342

Massachusetts, see Medical Examiners

office abolished by statute in, 338

statutory provisions in, 338

who may hold an inquest, 338

New York, coroner may issue warrant of arrest of person charged with

the death, 341

must, after examination of charges, hold defendant to answer or

discharge him, 341

must proceed to examine charges against accused upon his

arrest, 341

inquisition and testimony must be filed, 340

jurors must inspect the body and hear the testimony, 340

jury must render verdict and certify it by an inquisition, 340

six or more jurors must be sworn, 340

statutory provisions, 339

testimony must be reduced to writing, 340

when inquest may be held, 339

Powers of,

cannot delegate authority or appoint deputy, 333

contract will bind county for payment of reasonable

compensation, 336

may employ professional skill to aid him, 335

may have body disinterred, 335

may issue process of apprehension, 343

Return of inquisition, 342

inquisition should be signed by the coroner and jury, 343

should certify that witnesses before the coroner were sworn, 343

verdict of the jury is final, 342

Rights of accused party before, 342

has not the right to be represented by counsel or to cross-examine

witnesses, 342

is not permitted to produce witnesses to show himself

innocent, 342

privilege of prisoner upon arrest, 344

testimony may be taken by the coroner in his absence, 342

under New York criminal code defendant is entitled to a hearing

before a magistrate, 344

CRANIOMETRY, 394

CREMATION, 389

CUSTOM of physicians to serve each other gratuitously, 52

DEAD BODY,

autopsies, 301, 349

changes in, 441

chemical examination of, 303

cooling of, 441

coroners’ duties concerning (see Legal Status of, Appendix), 301

crimes against (see Legal Status of, Appendix), 299

disposal of, 298

dissection, when permitted (see Legal Status of, Appendix), 302

district attorney’s powers concerning, 303

duty of burial, 298

examination of gunshot wounds, 610

exhumation of, 300

external examination of, 358

flaccidity of, 442

internal examination of, 360

legal status of, 297

Appendix, giving statutes concerning, 304

physical examination of (see Autopsies), 302

post-mortem examination of (see Autopsies; Post-mortem

Examiners), 303

putrefaction of, 445

right of burial or removal, 301

saponification of, 451

seizure for debt forbidden, 299

statutes regulating interment or exhumation, etc., generally, 304

Alabama, 309

Arizona, 309

Arkansas, 309

California, 310

Colorado, 311

Connecticut, 311

Delaware, 312

Florida, 312

Georgia, 312

Idaho, 313

Illinois, 313

Indiana, 313

Iowa, 314

Kansas, 314

Kentucky, 314

Louisiana, 315

Maine, 315

Maryland, 315

Massachusetts, 316

Michigan, 316

Minnesota, 317

Mississippi, 317

Missouri, 318

Montana, 318

Nebraska, 318

Nevada, 319

New Hampshire, 319

New Jersey, 320

New Mexico, 320

New York, 320

North Carolina, 321

North Dakota, 321

Ohio, 322

Oklahoma, 322

Oregon, 323

Pennsylvania, 323

Rhode Island, 324

South Carolina, 324

Tennessee, 324

Texas, 325

Vermont, 325

Virginia, 325

Washington, 326

West Virginia, 326

Wisconsin, 326

temperature of, 441, 453

DEATH, apparent, 439

from anæsthetics, 516

burns, causes of, 645

period of, 649

whether accidental, suicidal, or homicidal? 657

cold, 633

post-mortem appearances in, 634

electrical currents, 683

hanging, proof of, 757

latent disease, 503

natural causes, 503

slight injuries, 507

starvation, 813

strangulation, proof of, 721

submersion, 794, 798

suffocation, proof of, 784

surgical operations, 515, 624

wounds, causes of, 496, 497

signs of, 440

time of, 437

DEFORMITIES, identity from, 403

DELIRIUM TREMENS, 514, 624

DIAPHRAGM, rupture of, 579

wounds of, 579

DIPLOMA OR LICENSE, how proved in court, 20

DISLOCATIONS, 476

DROWNING (see Submersion), 793

ECCHYMOSES, 467

ante-mortem, 444

post-mortem, 443, 444, 485

ELECTRIC CARS, 668

ELECTRIC LIGHT, effects of, on eyes, 676

ELECTRICAL APPARATUS, injuries from, 664

ELECTRICAL CURRENTS, burns from, 664, 676

direct injuries from, 671

direct symptoms of injury from, 676

fatal, 682

high tension, 666

indirect injuries from, 670

injury from, 664

internal symptoms caused by, 678

mechanical effects of, 675

mental symptoms from, 689

muscular contraction from, 677

ELECTRICAL RESISTANCE, 673

ELECTRICITY, 661

medical, 664

static, 673

ELECTROCUTION, 683

EROSION, 471

ERYSIPELAS, 511

EXAMINATION of body, 537

of clothing, 537

of surroundings, 541

EXCORIATION, 471

EXPERIMENTS, testing powder-marks, 613

with cadavers, 607

EXPERT WITNESS (see Privileged Communications), 49-72

compensation of, 60

competency of, 61

conduct of, in court, 65

definition of, 53

examination of, scope of, 65, 68

impeachment of, 64

in civil and criminal cases, 61

medical books, how may be used in examining, 64

practical suggestions, 70

summons of court must be obeyed, 60

system in Germany and France compared with that in United States, 54

EXPOSURE, effects of, 630

EXTREMITIES, wounds of, 589

FACE, wounds of, 569

FALLS, 549

FARADISM, 672

FIREARMS, evidence from, 600

examination of, 612

FLASH, identity by, 619

FOOTPRINTS, 427

FRACTURES, 359, 474, 491, 553

by gunshot wounds, 610

of ribs, 574

skull, 559

spine, 571

spontaneous, 474

GALL-BLADDER, wounds and rupture of, 584

GARROTTING, 571, 707

GENITAL ORGANS, post-mortem examination of, 376

wounds of, 588

GUNSHOT WOUNDS, see Wounds, Gunshot

HÆMATOMATA, 468

HAIR, identity from, 406

on weapons, 535

HANDWRITING, 434

HANGING, 707, 735

accidental, cases of, 774

cases of, 760

homicidal, 759

cases of, 767

judicial, cases of, 770

post-mortem appearances, 746

proof of death by, 757

suicidal, 758

cases of, 760

symptoms in, 740

treatment in, 744

HEALTH, BOARDS OF, see Practice of Medicine and Surgery

physicians reporting contagious diseases to, not liable for mistaken

reports, 23

powers, how governed, 23, 24

HEAD, post-mortem examination of, 361

wounds of, 557

HEART, in strangulation, 719

post-mortem examination of, 366

rupture of, 578

wounds of, 575

HEAT, effects of extreme, 635

HEMORRHAGE, 483, 497, 716

HYPOSTASES, 443, 716

internal, 444

IDENTIFICATION, 383

by flash of gunpowder, 619

from congenital peculiarities, 403

deformities, 403, 430

entire skeleton, 392

imprints, 427

injuries, 403

scars, 419

stigmata, 426

tattooings, 421

teeth, 401

in death from submersion, 802

of burnt remains, 389

human bones, 390

mutilated remains, 408

recently dead, entire cadaver, 415

surface signs for, 419

IMPRINTS, 427, 542

INCISED WOUNDS, see Wounds

INFANTS, liability of, for medical services, 37

INFORMATION, duty of patient as to (see Physician and Patient), 33

INJURIES, coagulation of blood in, 488

fatal, acts performed after, 493

identification from, 403

medical inspection of, 101

of abdominal walls, 580

viscera, 580

spinal cord, 571

spine, 571

slight, death from, 507

whether ante- or post-mortem, 482

INQUEST, see Coroners

INSANE PERSONS, liability of, for medical services, 39

INSOLATION, 636

INSULATION of electrical conductors, 667

INTESTINES, post-mortem examination of, 371

wounds of, 586

KIDNEYS, post-mortem examination of, 370

rupture of, 584

wounds of, 584

LARYNX, in death from hanging, 754

strangulation, 718

post-mortem examination of, 369

LICENSE (see Practice of Medicine and Surgery), 7

(or diploma), how proved in court, 20

licensed physician presumed competent as an expert witness, 58

licensed practitioner, pretending to be, when not a misdemeanor, 22

statutes requiring, constitutional, 7

suits cannot be maintained by persons without, 18

unlicensed practitioner not presumed competent as expert witness, 62

when may be compelled by courts, 14

when presumed, 19

LIGHTNING, 690

burns from, 694

contusions by, 695

effects on internal organs, 702

loss of consciousness from, 696

memory from, 696

paralysis from, 697

pathology of, stroke of, 700

staining of skin by, 696

symptoms produced by, 693, 696

wounds by, 695

LIVER, post-mortem examination of, 375

rupture of, 582, 808

wounds of, 582

LUNGS, in death from strangulation, 719

submersion, 805

post-mortem examination of, 368

wounds of, 575

LYMPHORRHAGIA, 470

MALPRACTICE, 73-87

abortion is, 74

civil cases concerning, 80

contributory negligence in, 87

criminal cases concerning, 73

damages for, 83

definition of, 73

degree of care and skill in, 80

evidence in, 84

inspection before trial in, 85

partners liable for, 84

MANNLICHER RIFLE, effects of, 619

MARKS OF POWDER, 608

MARRIED WOMEN, liability of, for medical services, 37

MASTER, liability of, for services rendered servant, 39

MASSAGE, not practising medicine or surgery, 28

MEDICAL EXAMINERS, see Coroners

contract of coroner with, binds county to payment of reasonable

compensation, 336

coroners may employ, 335

In Massachusetts:

cannot hold autopsy unless authorized, 338

cannot hold an inquest, 338

in place of coroners, 338

MEDICAL SOCIETIES, by-laws of, 15

fee bill, 22

MEDICINE AND SURGERY, see Physician and Patient; and Practice of

Medicine and Surgery

MUSCULAR CONTRACTION, from electrical current, 677

MUTILATED REMAINS, identification of, 408

NAILS, identification from, 406

NECK, contusions of, 570

wounds of, 569

ŒSOPHAGUS, post-mortem examination of, 369

OVERLYING, 774

PANCREAS, post-mortem examination of, 375

PATIENT, rights of, concerning confidential communications, 96

PHYSICIAN, action for professional services, 133

his books containing confidential entries, 110

his rights and duties concerning confidential communications, 132

receiver not entitled to his books of account, 110

what is a professional capacity? 123

PHYSICIAN AND PATIENT,

contracts between, compensation for services, 37

conditional and unconditional, 34

consulting physicians, 44

duties of patient, 29, 30

physician, 28

employment, how terminated, 26, 28, 30

may be declined, 24

estates of deceased persons, when liable for, 43

express or implied, 26

express, 27

implied, elements of, 28

infants, liability of, 43

insane persons, when liable, 45

married women, generally not liable, 43

masters, liable for services rendered servants, 45

measure of recovery for, 45

patient presumed liable, 37

person calling in physician not presumed liable, 36, 41

physicians treating each other, when they may recover, 47

railway company, when liable for, in case of accident, 42

railway physicians, authority of, 42

relation of physician and patient, 119

compensation for services, right to sue for in United States, 26

how lost, 19

students’ services, 44

skill and care required of (see Malpractice), 28, 31, 32, 33

schools of medicine not recognized by courts, 15

standard of school professed must be attained, 31

stranger may not be called in without patient’s consent, 29

PITHING, 572

POISONING, 597

POSITION OF VICTIM, 541, 546

POST-MORTEM APPEARANCES, in death from burns, 647

cold, 634

hanging, 746

starvation, 822

strangulation, 713

submersion, 801, 804

sunstroke, 638

POST-MORTEM CHANGES, 441

ecchymoses, 443, 485

hypostasis, 443

lividity, 443

rigidity, 442, 453

POST-MORTEM EXAMINATIONS (see Autopsies, Coroners), 354

when and ow made by coroner, 337

POST-MORTEM WOUNDS, 355

POWDER-MARKS, 608, 612

PRACTICE OF MEDICINE AND SURGERY (see Physician and Patient), 7-25

acquirement of right, regulated by statutes, 7

constitutionality of, statutes regulating, 8

criminal cases, proof of, 19, 22

license for, may be compelled, 14

how proved, 20

medical societies and by-laws of, 14

fee bills, 15

massage not, 22

patent medicines, 14

statutory regulations concerning, in:

Alabama, 137

Arizona, 139

Arkansas, 140

California, 141

Colorado, 144

Connecticut, 145

Delaware, 148

Dist. of Columbia, 149

Florida, 150

Georgia, 151

Idaho, 152

Illinois, 153

Indiana, 155

Iowa, 157

Kansas, 160

Kentucky, 160

Louisiana, 162

Maine, 164

Maryland, 165

Massachusetts, 167

Michigan, 167

Minnesota, 168

Mississippi, 169

Missouri, 171

Montana, 173

Nebraska, 175

Nevada, 177

New Jersey, 178

New Hampshire, 181

New Mexico, 181

New York, 183

North Carolina, 189

North Dakota, 191

Ohio, 193

Oklahoma, 193

Oregon, 194

Pennsylvania, 197

Rhode Island, 203

South Carolina, 203

South Dakota, 204

Tennessee, 205

Texas, 207

Utah, 209

Vermont, 211

Virginia, 212

Washington, 215

West Virginia, 219

Wisconsin, 222

Wyoming, 223

Great Britain, 224

Scotland, 224

England, 224

Ireland, 224

Brit. Columbia, 238

Manitoba, 242

N. Brunswick, 248

Newfoundland, 255

N. W. Terr., 258

Nova Scotia, 262

Ontario, 268

Prince Edw. Is., 278

Quebec, 284

PRIVILEGED COMMUNICATIONS, 91

cause of death, 111

communications to physician not privileged at common law, 91

“confidential communications,” 115, 118

between physician and patient, when privileged, 94

dependent upon professional capacity, 98

effect of excluding privileged evidence, 130

evidence admitted not to be commented on, 111

in criminal actions, 101

in lunacy proceedings, 103

of abortion, 102

of adultery, 102

of crime in civil actions, 101

of criminal intimacy, 102

of habitual drunkenness, 103

of value of physician’s services, 133

to establish privilege, 106

function of the court, 128

ground of privilege, 91

harmless admission no ground for exception, 111

how evidence of physician taken in New York, 97

how privilege established, 131

in actions for divorce, 102

in criminal actions, 101

“information,” 97, 115

“matters confided,” 99

“matter committed,” 97, 118

“matter necessary to enable a physician to prescribe or a surgeon to

act,” 124

mental condition of patient, 103

necessity, 98

objections to evidence, 109

when made, 110

objection once made need not be repeated, 111

partner of physician, as privileged witness, 122

patient’s ignorance immaterial, 110

rights concerning confidential communications, 96

physician defined, 105

“duly authorized,” 105

as witness to establish privilege, 131

physician’s advice, 98

books, 110

cannot refuse to disclose when patient waives privilege, 99

knowledge, 98

presumption from failure to give privileged evidence, 130

privilege is patient’s, not physician’s, 107

“professional capacity,” 123

purpose of statutes prohibiting disclosures, 96

relation of physician and patient, 119, 122

result of legislation, 134

rights and duties of physician, 132

statutory privileges concerning confidential communications, 93

statutory privileges for waiver of privilege, 96

surgeon defined, 105

testamentary causes, 103

waiver after death of patient, in New York, 98

waiver of privilege after patient’s death, 108

by application for insurance, 111

by proof of death to insurance company, 111

by contract, 112

by infant, 108

by patient’s attorney, 107

by representative of deceased patient, 103

by requesting physician to witness will, 113

certificate of death, 115

effect of, 107, 110

infant’s, 113

taking physician’s deposition, 112

testimony of patient, 111

what constitutes, 111

what evidence is excluded, 97

what is privileged, 115

when patient may be contradicted by physician, 112

who may waive, 106

whose testimony is privileged, 105

witness, 97

PROJECTILE, course of, 615

evidence from, 600

PUNCTURED WOUNDS, see Wounds

PUTREFACTION, 445, 453

circumstances favoring, 447

retarding, 448

of immersed bodies, 450, 810

PYÆMIA, 511

RACE, determination of, from hair, 393

skeleton, 393

RAILWAY COMPANIES, when liable for medical services, 41

RAILWAY PHYSICIANS, authority as to employing nurses, 42

REPORTS, medico-legal, 381

RESISTANCE, electrical, 673

RESPIRATION, suspended, 439

RIBS, fracture of, 574

RIFLE, Mannlicher, 619

RIGOR MORTIS, 442, 453, 701

RUPTURE of abdominal organs, 582

bladder, 585

gall-bladder, 584

of heart, 578

internal organs, 553

kidneys, 584

liver, 582, 808

spleen, 584

stomach, 586

SAPONIFICATION, 451

SCALDS, 639

SCARS, in relation to identity, 419

SCHOOLS OF MEDICINE not recognized by courts, 15

SEPTICÆMIA, 510

SEX, determination of, 400

SHARKS, bites of, 808

SHOCK, 499

SHOT-GUNS, wounds by, 607

SIGNS OF DEATH, 440

SKIN, marks on, 419

SKULL, fracture of, 559

measurements of, 394

SMALL SHOT, wounds by, 617

SMOTHERING, 774

SPINAL CORD, concussion of, 573

post-mortem examination of, 377

wounds of, 571

SPINE, dislocation of, 572

fracture of, 571

wounds of, 571

SPLEEN, post-mortem examination of, 371

rupture of, 584

wounds of, 584

SPONTANEOUS COMBUSTION, 647

STABS, 463

STAINS, could assailant have escaped without? 538

STARVATION, acute, 817

chronic, 818

death from, 813

diseases produced by, 824

or disease, which was cause of death? 823

period of death from, 820

post-mortem appearances in, 822

whether accompanied by other ill-treatment, 822

STATURE, determination of, 398

STERNUM, fracture of, 574

STIGMATA, 426

STOMACH, post-mortem examination of, 373

rupture of, 586

wounds of, 586

STRANGULATION, 707, 708

accidental, 724

cases of, 734

cases of, 726

external appearances due to, 713

homicidal, 725

cases of, 726

internal appearances due to, 727

post-mortem appearances, 713

proof of death by, 721

simulated, 725

stages of, 710

suicidal, 724

cases of, 732

symptoms of, 708

treatment of, 712

STRUGGLE, signs of, 536

SUBMERSION, 793

asphyxia by, 796

cadaveric signs in death by, 804

circumstances modifying time of, 810

definition of, 796

mode of death by, 797

post-mortem appearances, 801

stages and symptoms of death by, 798

treatment of apparently drowned, 802

whether accidental, suicidal, or homicidal, 807

SUFFOCATION, 707, 774

accidental, 785

cases of, 787

by submersion, 796

cases of, 787

external causes of, 774

homicidal, 785

cases of, 790

internal causes of, 775

mechanical, 705

post-mortem appearances, 781

proof of death by, 784

suicidal, 785

cases of, 790

symptoms of, 777

treatment, 779

SUNSTROKE, 636

SURGEON, definition of term, 56

duties of, see Physician and Patient

SURGICAL OPERATIONS, death from, 515

SURVIVAL, 556

SYNCOPE, 796, 799

TATTOOING, 421

TEETH, determination of identity from, 401

TEMPERATURE of body, 629

of dead body, 441, 453

TETANUS, 513

THORAX, post-mortem examination of, 365

wounds of, 573

TIME OF DEATH, 437

how determined, 452

VEINS, air in, 579

wounds of, 578

WEAPONS, 353, 524

evidence from, 600

as to origin of wounds, 533, 549

examination of, 612

presence of blood and hair on, 535

was it fired from a distance or near? 612

WITNESS, see Expert Witness; Privileged Communications

physician as expert and ordinary witness, 50

when must testify as, 60

WOUNDS, 358, 457

as directly cause of death, 497

as secondary cause of death, 509

by what instrument made? 517, 524

cause of death from, 496, 497

coagulation of blood in, 488

consequences of non-fatal, 556

contused, 467, 470, 523

death from, after long periods, 508

definitions of, 459

description of, 482

direction of, 529

eversion of lips of, 489

evidence from weapon, 533, 549, 600

examination of, 476

from crushing, 553

falling, 549

lightning, 695

gunshot, 593

by blank charges, 617

by shot-guns, 607

gunshot, by small shot, 617

complications of, 624

course of projectile, 615

death from surgical operations in, 624

description of, 594

dimensions of perforations, 609

direction of, 599

examination of, 594

of body in, 610

of entrance, 614

of exit, 614

situation of, 598

treatment of, 620

imputed, 544

incised, 460, 517, 557

diagnosis of, 462

kinds of, 459

lacerated, 471, 523

mortal, 460

nature of, 548

number and extent of, 531

of abdominal viscera, 580

walls, 580

arteries and veins, 578

bladder, 585

brain, 569

diaphragm, 579

extremities, 589

face, 569

gall-bladder, 584

genital organs, 588

head, 557, 558

heart, 575

intestines, 586

kidneys, 584

liver, 582

lungs, 575

neck, 569

spinal cord, 571

spine, 571

spleen, 584

stomach, 586

thoracic viscera, 573

thorax, 573

throat, incised, 526

origin of, evidence from weapons, 533, 549

punctured, 463, 518, 557

regionally considered, 557

retraction of sides of, 490

severe, 460

situation and position of, 527, 548

slight, 460

whether accidental, 547

ante-mortem or post-mortem, 482

necessarily the cause of death, 500

self-inflicted or by another, 525, 544, 548

which of several was first inflicted? 544

two was cause of death? 500

FOOTNOTES:

[1] The distinction made in the text and in the title of this work

is not new. It was recognized by the father of medico-legal science,

Zacchias, in his two prefaces, one to the “lector medicus,” the other

to the “lector legumperitus” (“Quæst. Med. Leg.,” Ed. Venet., 1727,

fol.). In a note to the introduction of the “Medical Jurisprudence”

of Dr. Paris and Mr. Fonblanque (the first work produced by joint

authorship of a physician and a lawyer, in 1823) is the following (p.

i.): “Some authors have objected to the term _Medical Jurisprudence_

as implying a knowledge of the laws relating to medical topics, rather

than an acquaintance with the medical science necessary for the

elucidation of legal subjects. As it is our peculiar object to unite

the sciences and to show their mutual relevance, the title becomes most

applicable to this, although it may have been improperly affixed to

former works.” The title of one of two existing French works in whose

authorship a lawyer is associated is: “Traité de Médecine légale, de

Jurisprudence médicale et de Toxicologie,” par Le Grand du Saulle, Geo.

Berryer et Gab. Pouchet, 2d ed., 8vo, Paris, 1886.

[2] “Bibl. Hist.,” I., ii., 77; Miot’s transl., Paris, 1834, i., 157.

[3] _L. c._, I., ii., 82; transl., i., 165.

[4] _L. c._, I., ii., 75, 76; transl., i., 152.

[5] The “Papyros Ebers,” in the University of Leipzig, the most ancient

medical text known, was written about 1550 B.C., and is probably one

of the books referred to by Diodorus. It contains no statement bearing

upon our subject. It is, however, simply a collection of descriptions

of remedies, and their uses, including the incantations to be used with

them. (See “Papyros Ebers,” H. Joachim, Berlin. 1890.) The same is true

of the Berlin and Leyden papyri. The Bibl. Nat. (Tf. 2) possesses a

Chinese manuscript on legal medicine. The catalogue does not, however,

state to what period it belongs.

[6] For an account of early Indian medicine, see Th. A. Wise, “Review

of the Hist. of Med.,” Lond., 1867, i., 272 _et passim_; “Hindu System

of Medicine,” 1845, by the same author; Haeser, “Lehrb. d. Gesch. d.

Med.,” 3. ed., i., 5-40.

[7] Hippocr.: “De Superfœtatione,” ed. Littré, viii., 472.

[8] Hippocr.: “De Septimestri partu;” _ibid._, “De Octimestri partu,”

ed. Littré, viii., 432, 436, 452.

[9] “Aphorismi,” vi., 18, 24; “De Morbis,” ed. Littré, vi., 144.

[10] Petit, S.: “Leges Atticæ,” Lugd. Bat., 1742, lib. iii., tit. 8.

[11] “Od.,” iv., 229; xvii., 384.

[12] For an excellent account of Attic criminal procedure, see Kennedy,

C. R.: “Demosthenes’ Orations,” ed. Bohn, iii., 326-372.

[13] “Var. Hist.,” iii., 38.

[14] Kennedy’s transl., ed. Bohn, v., 95.

[15] What the contents of these depositions were and by whom made is

unknown, as the papers referred to by the orator are not given. In

the Attic courts the testimony was taken at a preliminary trial, and

referred to at the trial by the orator.

[16] “Oratores Attici,” C. Müller, Paris, 1877, i., 20.

[17] “Oratores Attici,” C. Müller, ed. Didot, Paris, 1877, i., 200-203.

[18] In a doubtful fragment of Lysias the expression “as physicians

andmidwives declare” (_ὡσπερ οὶ ἰατροὶ καὶ αὶ μαῑαι ἁπερηναντο_) is

used in connection with the question whether a fœtus has life and may

be murdered. _Cf._ “Orat. Attici,” Müller and Hunziker, Paris, Didot,

1858, ii., 257.

[19] “Jul. Cæs.,” 82.

[20] “Hist. Nat.,” xi., 71.

[21] “Hist. Nat.,” vii., 4.

[22] A. Gellius: “Noct. Att.,” 1. 3, c. 16: “requisitis veterum

philosophorum et medicorum sententiis.” The word “_veterum_” seems to

indicate that the emperor consulted books, not living physicians.

[23] “Medici non sunt proprie testes, sed majis est judicium quam

testimonium.”

[24] For accounts of the medico-legal provisions of the Justinian

enactments, see: G. A. v. d. Pfordten, “Beiträge z. Gesch. d. ger.

Med. aus d. Justin. Rechtssam.,” Würzburg, 1838: M. F. Eller, Bull.

Med. Leg. Soc. N. Y., 1879, i., 226-237; and Friedreich, Blt. f. ger.

Anthr., Nürnberg, 1850, I., iii., 1-64; 1862, xiii., 188-215.

[25] See Mende: “Handb. d. ger. Med.,” Leipzig. 1819, i., 83-87.

[26] “Etablissements et Coûtumes, Assises et Arrêts de l’Echiquier de

Normandie au xiii. Siècle,” A. J. Marnier, Par., 1839: “veue d’homme

en langueur, veue de méfaits, veue d’homme occis et veue de femme

despucelée.”

[27] “Ut peritorum judicio medicorum talis percussio asseveretur non

fuisse letalis,” Mende, “Handb. d. ger. Med.,” i., 91.

[28] Hensschel, in “Janus,” Breslau, 1847, ii., 135.

[29] Assises de Jérusalem,” Beugnot, Paris, 1841-43, quoted by Ortolan,

_l.c._, _infra_.

[30] Ortolan: “Débuts d. l. Méd. lég.,” Ann. d’Hyg., Par., 1872, 2 s.,

xxxviii., 361.

[31] “Registre Criminel du Châtelet de Paris,” Par., 1861, i., 255.

[32] _Ibid._, i., 313.

[33] _Ibid._, i., 375, 409.

[34] “Quæst. Medico-legales,” t. ii., lib. vi., tit. ii.: vol. ii., pp.

33-49, ed. Venet., fol., 1737.

[35] See also “Reg. Crim. Chât. de Paris.,” i., 204, ii., 429; Desmaze:

“Hist. Méd. Lég.,” 11-20, 33-41.

[36] Isensee: “Gesch. d. Med.,” i., 216.

[37] “Constitutio criminalis Carolina.” The first edition was printed

at Mayence, 1533, fol., by J. Schöffer. See also Kopp, “Jahrb. d.

Staatsarznk.,” Frankf., 1808, i., 183.

[38] “Con. cr. Car.,” art. 147.

[39] _Ibid._, art. 149.

[40] _Ibid._, arts. 35, 36, 131, 133; “Bambergische

Halssgerichts-Ordenung.” Bamb., 1507, art. 44.

[41] “Con. cr. Car.,” art. 37.

[42] _Ibid._, art. 134.

[43] _Ibid._, arts. 135, 179, 219.

[44] “Non per quoslibet, nec per insipidos et imperitos, sed tantum per

peritos ac doctos medicos aut chirurgos,” p. 245.

[45] “Praxis Rerum Criminalium,” Antw., 1554 (the dedicatory epistle is

dated 1551), pp. 245-252, 223-228.

[46] Wildberg, “Bibl. Med.-for.,” Berl., 1819, Nos. 553, 554, 1,124,

1,125, 1,126, 1,304, 1,835, 1,836, 2,342, cites nine works earlier

than 1575. These are, however, monographs on the period of gestation,

witchcraft, fasting girls, drunkenness, and wounds of the head.

Works on toxicology were written at a much earlier date: the _Θηριακά_

and _Αλεξιφάρμᾶκα_, of Nicander, _ca._ B.C. 135; _θeπερὶ δηλητηρίων

φαρμάκων_, of Dioscorides, _ca._ A.D. 50; the treatises, “De

Venenis,” of Petrus de Abbano (_ca._ A.D. 1250), first printed Mantua,

1472; of Arnoldus da Villanova (_ca._ A.D. 1300), first printed (_sine

loc. et an._) _ca._ 1470; of Santes de Ardoynis, Venice, 1492, and of

F. Ponzetti, Venice, 1492, are among the earliest. Works on toxicology

are not considered in this Introduction, the historical sketch of that

science being reserved for a later volume.

[47] Ed. Malgaigne, 1840, t. iii., l. xxvii., pp. 651-658; ed. princ.,

Paris, 1575, fol., pp. 931-944. On the title-page of an earlier work,

printed in 1562, Paré is referred to as “chirurgien ordinaire du Roi,

et Juré à Paris.” Ploucquet, “Lib. Med. dig.,” Tüb., 1809, iv., 349,

mentions a monograph by “Tygeon, Th.,” printed at Lyons, 1575.

[48] S. Pineau: “De notis Integritatis et Corruptionis Virginum,”

Paris, 1598; A. Hotman: “De la Dissolution du Mariage par

l’Impuissance,” etc., Paris, 1581; de la Corde, “Ergo Virgo ... lac in

mammis habere potest,” Paris, 1580. Wildberg, _l. c._, Nos. 555, 1,308,

1,309, are not properly medico-legal.

[49] In his “De Vitiis Vocis,” etc., Frankf., 1597. He had previously

published a treatise, “De morbis veneficis ac veneficiis,” Venet., 1595.

[50] “De relationibus medicorum ... in quibus ea omnia quæ in

forensibus ac publicis causis medici referre solent,” etc., Panormi,

1602. Mongitore, “Bibl. Sic.,” Panormi, 1707-14. i., 199, mentions

an edition of 1598, Pan., under the title: “Bissus [Birrus?], sive

medicorum patrocinium,” etc.

[51] “Quæstiones Medico-legales,” Rome, 1612-35, 3 t., fol. See also

Kerschensteiner: Friedr. Bl. f. ger. Med., etc., Nürnb., 1884, xxxv.,

401-410.

[52] Wildberg, “Bibl. Med.-for.,” gives the titles of thirty-four

treatises on legitimacy, impotence, sterility, signs of virginity,

etc., published in France during this period.

[53] On reports: Réné Gendri, 1650; Nicolas de Blegny, 1684; J. Devaux,

1693; Prevot, 1753; H. M. Maret, 1757. On signs of death: P. E. Dionis,

1718; J. B. Winslow, 1740; S. J. Bruhier, 1745.

[54] On the signs of death, 1752; on the distinction between suicide

and murder by hanging, 1763; on the duration of pregnancy, 1764, etc.

These and other articles on drowning, etc., are collected in his

“Œuvres diverses de Chirurgie,” 2 vols., Par., 1788.

[55] Cases of Monbailly, Syrven, Calas, Cassaigneux, Baronet, etc.

[56] “Recueil de pièces relatives à la question des naissances

tardives,” Amst. and Par., 1766, 2 vols.

[57] “Consult. Méd.-lég. s. u. Accus. d’Infanticide,” 1785; “Obs.

Chir.-lég.,” 1790; “Méd.-lég.,” 1809; “Consult. et Rapp. sur diverses

obj. d. Méd.-lég.,” 1824; “Mém. méd.-lég. s. l. Viabilité,” 1826;

“Consult. Méd.-lég. s. u. cas d’amp. d. l. Cuisse,” 1828.

[58] “Les Lois éclairées par les Sciences physiques,” Par., 1798, 3

vols., 8vo; “Traité de Méd.-lég. et d’Hyg. publ.,” Par., 1813, 6 vols.,

8vo.

[59] “Méd.-lég.,” etc., Rouen, 1801; Paris, 1807, 1811.

[60] “Cours. de Méd.-lég.,” Paris, 1809, 1811, 1819.

[61] “Aperçu et obs. s. l. Méd.-lég.,” Lyon, 1811; “Secours aux

Asphyxies,” Lyon, 1818; “Man. d. Méd.-lég.,” Lyon, 1821.

[62] In the later editions Chaudé took the place of Brosson, and a

chemist, J. Bouis, was added.

[63] Devergie, “Méd.-lég.,” 1836, contains a legal chapter by de

Robécourt. Paris and Fonblanque, “Med. Jurispr.,” Lond., 1823; Wharton

and Stillé, “Med. Jur.,” Phila., 1855; Le Grand du Saule, Berryer et

Pouchet, “Tr. de Méd.-lég. de Jur. méd. et de Tox.,” 2d ed., Par., 1881.

[64] “Sur les Attentats aux Mœurs,” 1st ed., 1857; 7th ed., 1878;

“Sur l’Avortement,” 1856, 1861, 1868; “Sur la Pendaison,” etc., 1865,

1870, 1879; “Sur l’Empoisonnement” (with Z. Roussin), 1867, 1875; “Sur

l’Infanticide,” 1868; “Sur la Folie,” 1872; “Sur les Blessures,” 1879;

“Sur les Maladies, etc.,” 1879.

[65] Lib. iv., cap. ix.: Qua ratione morbum simulantes deprehendi

queant; cap. x.: testificandi methodus circa eos, quibus venenum fuit

exhibitum; cap. xi.: testificandi ratio in vulneribus capitis; et in

iis qui aquâ fuerunt suffocati; cap. xii.: Quomodo amissa virginitas:

et alterius utrius conjugis sterilitas deprehendatur.

[66] “De renunciatione vulnerum,” etc., Lips., 1689, 8vo (“Egregium

opus,” Haller).

[67] “De officio medici duplici, clinico nimirum et forensi,” Lips.,

1704, 4to (“Eximius liber,” Haller).

[68] “Pandectæ Medico-legales,” etc., Francof., 1701, 4to;

“Novellæ Medico-legales,” etc., Francof., 1711, 4to; “Corpus Juris

Medico-legale,” etc., Francof., 1722, fol.

[69] “Medicina forensis, hoc est responsa facultatis medicæ Lipsiensis

ad quæstiones et casus medicinales, ab anno 1650 usque 1700,” Francof.,

1706, 2 vols., 4to.

[70] “Der medicinische Richter, oder Acta physico-medico forensia

Collegii medici Onoldini,” Onolzbach, 1755, 4to.

[71] “Systema Jurisprudentiæ Medicæ,” etc., 6 vols., 4to, Halle,

Leipzig, and Görlitz, 1725-47.

[72] “Institutiones Medicinæ legalis et forensis,” Jena, 1723, 1731,

1740, 1762.

[73] “Medicina forensis demonstrativa,” etc., Frankf., ad Viadr., 1723;

“Introductio in historiam litterariam scriptorum qui medicinam forensem

commentarius suis illustraverunt,” Frankf., 1723, 1735.

[74] “Elementa Medicinæ forensis,” Jena, 1767, published posthumously.

[75] Hebenstreit: “Anthropologia forensis,” Lips., 1753; Ludwig:

“Institutiones Medicinæ forensis,” ed. 2, Lips., 1774.

[76] “Beiträge zur medicinischen Gelehrsamkeit,” etc., Halle.

1748-54; “Sammlung medicinischen ... Zeugnissen,” etc., Leipz., 1776;

“Institutionum Medicinæ publicæ,” etc., Lips., 1778.

[77] “Kurzgefasstes System der gerichtlichen Arzneywissenschaft,”

Königsb. u. Leipz., 1793.

[78] “Entwurf der gerichtlichen Arzneiwissenschaft,” etc., Frankf.,

1796-1801, 4 vols.

[79] “Collectio Opusculorum selectorum ad Medicinam forensem

spectantium.” Lips., 1785-90, 6 vols.

[80] “Conspectus Medicinæ legalis,” etc., Prague, 1780.

[81] “Elementa Medicinæ et Chirurgiæ forensis,” Viennæ, 1781;

“Toxicologia,” etc., Viennæ, 1785.

[82] Magazin für die gerichtliche Arzneikunde und medicinische

Polizei, Stendal, 1782-87, 6 vols. Pyl also published “Aufsätze und

Beobachtungen aus der gerichtlichen Arzneiwissenschaft,” Berlin,

1783-93, 8 vols. Uden was the first to edit a medical journal in Russia.

[83] “Vollständiges System der gerichtlichen Arzneikunde,” Stendal,

1795-1800; “Beiträge zur praktischen und gerichtlichen Arzneikunde,”

Stendal, 1799.

[84] Jahrb. der gesam. Staatsarzneikunde, Leipzig, 1835-40, 7 vols.;

Bibliotheca Medicinæ publicæ,” Berol., 1819, 2 vols. Between 1804 and

1849 Wildberg published fifteen books and treatises on medico-legal

subjects.

[85] Kritische Jahrb. f. d. Staatsarznk. f. d. xix. Jahrb., 1806-09.

Jahrb. d. Staatsarznk., 1808-19.

[86] Zeitschrift für die Staatsarzneikunde, Erlangen, 1821-64, 118

vols.; “Lehrbuch der ger. Med.,” 1te Aufl., Berlin, 1812, 13te Aufl.,

Berlin, 1859.

[87] “Visa Reperta,” Wien, 1827-45, 3 vols.; “Systematisches Handb. d.

ger. Med.,” Wien, 1te Aufl., 1813, 5te Aufl., 1846.

[88] “Ausfürl. Handb. d. ger. Med.,” Leipzig, 1819-32, 6 vols.

[89] “Handb. d. ger. Med.,” Berlin, 1841.

[90] “Enzyklop. Handb. d. ger. Arzneyk.,” Leipzig. 1838-40, 2 vols.;

Magazin f. die Staatsarzneykunde.

[91] Centralarch. f. d. ges. Staatsarznk., Ansbach, 1844-49; Blätter

f. d. gerichtliche Anthropologie, Erlangen, 1850, now published

at Erlangen under the title Friedreich’s Blätter f. ger. Med. u.

Sanitätspolizei.

[92] “Gutachten u. Aufsätze,” etc., Leipzig, 1847; “Auswahl von

Gutachten,” etc., Dresden, 1853.

[93] “Beiträge z. medicin. Statistik,” etc., Berl., 1825-35, 2 vols.;

“Denkwürdigkeiten z. medicin. Statistik,” etc., Berl., 1846; “Gerichtl.

Leichen-Oeffnungen,” Berl., 1851-53, 1850-52; “Klinische Novellen,”

etc., Berl., 1863.

[94] “Pract. Handb. d. ger. Med.,” Berl., 1te Aufl., 1857-58; 8te

Aufl., Berl., 1889, also translation of Geo. Balfour, New Sydenham

Soc., London. 1861-65. The fourth and succeeding editions, published

after Casper’s death (1864), were edited by Karl Liman, his successor

in the chair of medical jurisprudence (d. 1892).

[95] Vierteljahresschr. f. ger. u. öffentl. Med., Berl., 1852, edited

after Casper’s death by Horn, 1865-70, Eulenberg, 1871-90, Wernich,

1891.

[96] “Handb. d. ger. Med.,” Tübingen, 1881-82, 4 vols.

[97] Daniel: “Bibl. d. Staatsarznk.,” Halle, 1784, No. 107, mentions:

“E. Prat, Rationarium chirurgicum, oder nothwendiges Handbuch des

Wundarztes, wie er Bericht an die Obrigkeit thun soll u. s. w., aus

dem Engl.,” Hamb., 1684. 4, 690. 8. The same title is reproduced by

Wildberg (No. 239) in 1819, and the edition of 1684 is mentioned by

Ploucquet, “Initia” (1803), Suppl. iv., 36, and “Litt. med. dig.”

(1809), iii., 54, the name of the author being given as “Pratt

(Elias).” This may be an early work by Ellis Pratt, but we can

find no mention of it elsewhere. In the years 1734, 1761, and 1787

dissertations on abortion were defended at Edinburgh by Arnot, Harris,

and Murray. Three treatises on death from suffocation by Goodwyn,

Frank, and Coleman appeared in 1788-91. In 1788 S. Farr published at

London his “Elements of Medical Jurisprudence,” to which Percival

(“Med. Ethics,” Oxford, 1849, p. 102) justly refers as “a valuable

epitome of S. F. Faselii’s “Elementa Medicinæ Forensis [Regiom., 4to,

1787], in English by Dr. Farr.”

[98] “Med. Jur.,” iii., p. 226 _seq._ Report that Joseph Lane died of

poison (1623). Report that Sir James Standsfield was strangled and not

drowned, with account of autopsy (1687). Also extracts from the medical

evidence in the cases of Spencer Cowper (from 13 Howell’s “State

Trials”); Mary Blandy (Oxford, 1752); John Donellan (Warwick, 1781);

and R. S. Donnall (Launceston, 1817).

[99] “Heads of Lectures on Medical Jurisprudence, or the Institutiones

Medicinæ legalis,” vi., 24 pp., 8vo, Edinb., 1792.

[100] See Beck “Med. Jur.,” 7th ed., xvi., and note.

[101] In the preface Dr. Percival says: “This work was originally

entitled ‘Medical Jurisprudence,’ but some friends having objected

to the term _Jurisprudence_ it has been changed to _Ethics_.” An

unfinished and unpublished edition, written prior to 1794 and

containing Chapter IV., was printed about 1800 (see Editor’s Preface,

p. 2, and note, Author’s Preface, pp. 25, 26, ed. Oxford, 1849).

[102] “An Epitome of Juridical or Forensic Medicine,” etc., viii., 199

pp., 8vo, London, 1816, also in Th. Cooper’s “Tracts on Med. Jur.,”

Phila., 1819. In the preface the author refers to the lectures of Prof.

Duncan.

[103] This excellent work (“The Principles of Forensic Medicine”) went

through three editions in six years. Dr. Smith, who was a teacher of

medical jurisprudence in the Royal Institution, Westminster Hospital,

and University of London, and also published a number of papers in

the Edinb. M. and S. Jour., and “Hints for the Examination of Medical

Witnesses,” Lond., 1829, died at the age of forty-one in 1833, after

fifteen months’ imprisonment in a debtors’ prison.

[104] “Med. Jur.,” 3 vols., 8vo, London, 1823. See note 1, p. v.

[105] “A Manual of Med. Jur.,” London, 1831, 2d ed., 1836, Amer. ed.,

with notes by R. E. Griffith, Phila., 1832.

[106] “Outlines of a Course of Lectures on Med. Jur.,” Edinb., 1836, 2d

ed., 1840, Amer. ed., Phila., 1841.

[107] A. Amos, Lond. M. Gaz., 1830, vii.; 1831, viii. A. T. Thomson,

Lond. M. and S. J., 1834-35, vi.; 1835, vii.; also Lond. Lancet,

1836-37, i., ii. (Thomson’s lectures were printed in German in book

form, Leipzig, 1840.) H. Graham, Lond. M. and S. J., 1835, vi., vii.

W. Cummin, Lond. M. Gaz., 1836-37, xix. T. S. Smith, Lond. M. Gaz.,

1837-38, xxi.; 1838, xxii.

[108] Dease: “Med. Jur.,” and Haslam: “Med. Jur. Insanity,” along with

the treatises of Farr and of Male, are reprinted in Cooper’s “Tracts on

Med. Jur.,” Phila., 1819.

[109] Synop. Mod. Med. Jur.,” Lond., 1829.

[110] “Treatise on Med. Jur.,” Lond., 1834; Phila., 1836.

[111] “Homicide by External Violence,” Lond., 1837.

[112] “Med. Jur.,” Dublin, 1839.

[113] “Cases in Leg. Med.,” Edinb., 1840.

[114] “Med. Jur. of Insanity,” Lond., 1840.

[115] “Criminal Jurisprudence in relation to Mental Organization,”

London, 1841.

[116] “Principles and Practice of Med. Jur.,” 1st ed., Lond., 1865; 3d

ed., Lond., and Phila., 1883. “On Poisons,” 1st ed., Lond., 1848; 3d

ed., Lond., 1875. “Lectures on Med. Jur.,” Lond. M. Gaz., 1846, n. s.,

ii., iii.; 1847, n. s., iv. Articles on arsenic, antimony, strychnine,

and other toxicological subjects, strangulation, blood-stains, etc., in

Guy’s Hosp. Repts.

[117] “Principles of Forensic Medicine,” Lond., 1844. The work is now

in its sixth edition. Prof. D. Ferrier, Dr. Guy’s successor in King’s

College, having been associated in the authorship of the 4th ed. in

1875 and subsequently.

[118] “Lectures on Med. Jur.,” edited by Fr. Ogston, Jr., Lond., 1878.

[119] Woodman and Tidy: “A Handy-book of Forensic Medicine and

Toxicology,” Lond. and Phila., 1877. Tidy, “Legal Medicine.” 2 vols.,

Lond., 1882-83; also, Phila., 3 vols., 1882-84; New York, 3 vols.,

1882-84.

[120] “Cirurgia Forense,” etc., 3 vols., 12mo, Madrid, 1796-97.

Wildberg mentions two earlier monographs: “De partu Septimestri,”

Antw., 1568, by F. Mena, physician in ordinary to Philip II.; and “Diez

privilegios para mugeres prennantes,” Complut., 1606, by J. A. de

Fontechia, professor at Alcala de Hénares.

[121] “Elementos de Medicina y Cirurgia legal,” etc., Madrid, 1834; 4th

ed., Zaragossa, 1844.

[122] “Tratado de Medicina y Cirurgia legal,” etc., Madrid, 1844; 5th

ed., 4 vols., 8vo, Madrid, 1874-75.

[123] “Instituições de Medicina forense,” Paris, 1832; 2d ed., Lisbon,

1840.

[124] “Vorlesungen über die gerichtliche Arzneiwissenschaft,” 3 vols.,

12mo, Bern, 1728-84.

[125] “Utkast til Medicinal-Lagfarenheten,” etc. (Project of medical

jurisprudence, etc.) Stockh., 1776.

[126] “Forelaesninger over den legale Medicin,” Christiania, 1838.

[127] “Haandbog i den legale Medicin,” Kjøbenhavn, 1843.

[128] “Versuch eines Umrisses der philosophisch.-medizinischen

Jurisprudenz.” u. s. w., Dorpat, 1803.

[129] See Wildberg: “Bibl. med. leg.,” Nos. 1,198, 1,142, 1,215.

[130] Lugd. Bat., 1610, etc.

[131] Amstel., 1615.

[132] Rotterd., 1767.

[133] Lugd. Bat., 1768.

[134] S. Gravenh., 1815.

[135] “Traité de Médecine légale et de Jurisprudence de la Médecine,”

2 vols. in 1, Gand., 1859-60; 2d ed., Paris, 1878; 3d ed., Bruxelles,

1885. (See Toxicology.)

[136] “Yei sei honron” (Lectures on medical jurisprudence, translated

by Gento Oye), 3d ed., 2 vols., Tokio, 1880.

[137] “Saiban igaku teiko” (Medical Juris.), 3 vols., Tokio, 1882-84.

[138] “Sixteen Introductory Lectures,” etc., Phila., 1811, pp. 363-395.

[139] Amer. Med. and Phil. Reg., N. Y., 1814, iv., 614. It is to be

regretted that instruction in medical jurisprudence is not now given at

this school (1893).

[140] Beck, “Med. Jur.,” 7th ed., xix. The Index Catalogue contains the

titles of forty-nine works by Caldwell, none of which are medico-legal.

[141] Beck, _loc. cit._

[142] “Tracts on Medical Jurisprudence,” etc., Phila., 1819.

[143] “Elements of Medical Jurisprudence,” 2 vols., 8vo, Albany, 1823;

12th ed., 2 vols., 8vo, Phila., 1863. A chapter on Infanticide by John

B. Beck was added to the third edition. This and later editions are “by

T. R. and J. B. Beck.”

[144] N. Y. Med. and Phys. Jour., 1823, ii., 9-30.

[145] “An Essay on Medical Jurisprudence,” Phila., 1824.

[146] Phila. J. M. and Phys. Sc., 1825, x., 36-46.

[147] “Syllabus of Lectures.” etc., Univ. of Va., 1827.

[148] “An Introductory Address,” etc., Phila., 1829, and “Syllabus of

a Course of Lectures on ... Medical Jurisprudence in the Philadelphia

Medical Institute” [n. p., n. d.].

[149] “A Catechism of Medical Jurisprudence.” etc., Northampton, 1835.

[150] Dean (A.): “Manual of Medical Jurisprudence,” Albany, 1840; Dean

(A.): “Principles of Medical Jurisprudence,” Albany, 1854: Elwell (J.

J.): “Medico-legal Treatise on Malpractice and Evidence,” New York,

1860; 4th ed., New York, 1881.

[151] “Medical Jurisprudence.” Phila., 1855. 4th ed., edited by R.

Amory and E. S. Wood, 3 vols., Phila., 1884.

[152] “A Medico-legal Treatise on Malpractice and Medical Evidence,” N.

Y., 1860; 4th ed., N. Y., 1881.

[153] “The Jurisprudence of Medicine,” etc., Phila., 1869.

[154] In that case (Bailey _v._ Mogg), the Court says of that

statute (Laws of 1844, p. 406): “The triumph was now complete, for

the legislature had made every man a doctor, and nostrums of every

description and admixture could now be safely prescribed, and payments

therefor exacted by authority of law.”

[155] Notwithstanding these statutory enactments, it has been held that

one who undertakes to cure disease by rubbing, kneading, pressing, and

otherwise manipulating the body (massage) is not liable for having

violated the provisions of the statute against practising medicine or

surgery without a license. Smith _v._ Lane, 24 Hun (New York Supreme

Court), 32.

[156] Analysis of this decision shows that the main ground, upon

which the court of last resort sustained the right of the applicant

for admission to be admitted as a member of the society, was, that

the provisions of the by-law in question were not specifically made

applicable to a person applying for membership. The Court observed,

pp. 192 _et seq._: “The regulations embodied in the so-called code are

admirably framed, and commend themselves to every reader, as tending

to raise to a still higher elevation the character of the learned

and honorable profession to which they were submitted for approval

and adoption. They are not limited in their scope to the range of

moral obligation, but embrace express rules of conduct, in personal,

professional, and public relations. They are regulations in the

various departments of morals and manners, of courtesy and etiquette,

of delicacy and honor. They bind those who pledge themselves to their

observance, but cannot be recognized in law, as conditions precedent to

the exercise of an honorable profession, by learned, able, and upright

men, who have not agreed to abide by them. The non-observance of such

regulations _may be made_ cause for exclusion or disfranchisement; but

it must be either by the agreement of parties or by the exercise of the

law-making power.

“The applicant was not a member either of the American Medical

Association or of the Erie County Medical Society, at the time of his

alleged deviation from the formulas prescribed by these conventional

rules. He was under no legal obligation to observe them, and had

neither actual nor constructive notice of their existence. Those

who were _members_ of the society could not lawfully be expelled

for _antecedent_ deviation from the code (Fawcett _v._ Charles, 13

Wend., 477). Much less could such deviation be alleged, as cause for

exclusion, against one who had never agreed to be bound by it, and as

to whom it was not merely an inoperative but an unknown law.

“As the relator demanded admission to the enjoyment of a franchise to

which he was presumptively entitled, his exclusion could be justified

only by facts repelling the presumption that he was duly qualified for

admission, or by extraneous facts, showing that, if his application was

granted, there were then subsisting causes, making ‘a clear case’ for

immediate expulsion (_Ex parte_ Paine, 1 Hill, 665).

“The burden was upon the appellant to establish affirmatively the

existence of such present cause for expulsion. The society waived the

right of making a return and taking a formal issue on the claim of

the relator, to be determined as matter of fact by a jury, under the

direction of the court; but submitted its objections in the form of

affidavits, which failed to establish cause either for exclusion or

expulsion.

“The only _specific fact_ alleged in the opposing affidavits, as ground

of objection, was the publication by the relator of a professional

advertisement, which was inserted in one or more of the Buffalo

journals in May, 1855, and discontinued in January, 1857, more than

two years before his application was presented. It is charged that the

printing of this notice was an empiricism, and in conflict with the

code of ethics adopted by the Erie County Medical Society.

“There is nothing in the terms of the advertisement from which

any inference can justly be drawn against the relator, in respect

either to his personal character or his professional skill. There

is no suggestion, in the affidavits, that any of the statements of

fact contained in the notice are untrue, and there is nothing in

its contents inconsistent with perfect good faith on the part of

the relator. It refers to the treatment of bronchitis, asthma, and

consumption, as a special department of the profession to which he

had directed his particular attention; and it alludes to his use of

the method recently introduced, of medicated inhalation, through

an instrument appropriate to that purpose, in aid of such general

treatment as experience had proved to be beneficial in that class of

diseases. It is not denied that the relator possessed peculiar skill

in this department of the profession; and the case discloses the fact

that the method of auxiliary treatment, introduced by him in the

county of Erie, was not only successful in his own practice, but was

adopted, with beneficial results, by members of the county society

of high professional standing, and that it was accepted by a large

proportion of the physicians of Western New York. If, at the time this

remedy was introduced, he had been a member of the County Society or

of the American Medical Association, he would not have been at liberty

to direct attention, through the medium of the public journals, to

the benefits resulting from its use. This would, perhaps, have been

unfortunate for those who were suffering, in that vicinity, from this

particular class of diseases; but it is undoubtedly true that the

suppression of such an advertisement would have been more considerate

toward his professional brethren, and more in accordance with the

rules of delicacy and good taste. But an error, in this respect, by

one who had no notice of the society regulation is not cause for

disfranchisement. The act of the relator was neither immoral nor

illegal. It was no violation of the by-laws; for, as to him, they were

wholly inoperative. It was no present cause for _exclusion_; for the

publication of the objectionable notice had been discontinued for more

than two years. When he applied for admission, he proposed to become

bound by the by-laws; and this the society refused to permit, for the

sole cause that he had not observed them before they became rules of

conduct for him. ‘Where there is no law, there is no transgression.’

The relator, therefore, had been guilty of no legal wrong which could

bar his claim to the franchise.”

[157] In Macpherson _v._ Cheadell (24 Wend., N. Y., 15) the Court said,

p. 24:

“In the first place I doubt much whether the defendant below, after

retaining the plaintiff as a physician and accepting his services as

such, could call upon him in the first instance to prove a regular

license. In other like cases, the presumption is against the defendant.

It is so as between attorney and client, in a suit for services

performed under a retainer. Pearce _v._ Whale, 7 Donl. & Ryl., 512,

515, per Bayley, Judge; 5 Barn. _v_. Cress., 38, S. C. There, if the

objection sound in the fact that the plaintiff was never admitted, or

that his admission has become inoperative, it lies with the defendant

to show it. _Id._, and see Berryman _v._ Wise, 44 T. R., 566. and other

cases; 1 Phil. Ev., 227, Cowen _v._ Hill’s ed. Besides, the contrary

would be doing great violence to the presumption that no man will

transgress the command of a positive law.” See also Thompson _v._ Sayre

(1 Denio, N. Y., 75), where this principle seems to have been assumed

as correct without question upon the strength of the decision quoted

above. A similar doctrine appears to have been enunciated in the State

of Illinois in Chicago _v._ Wood, 24 Ill. App., 42; and Williams _v._

People, 20 Ill. App., 92. It may be sound, and undoubtedly the English

cases cited in Macpherson _v._ Cheadell, _supra_, tend to support it.

But in a case in which the physician’s right to practise is denied,

the safe course will be for him to have a duly authenticated copy of

his license ready to be offered in evidence. The general rule is that

the burden is on the plaintiff to show all the facts which make up his

right of recovery. See Bliss _v._ Brainard, 41 N. H., 256; Salomon _v._

Dreschler, 4 Minn., 278; Kane _v._ Johnston, 9 Bosw., N. Y. Superior

Ct., 154.

[158] That is, the burden devolves upon the defendant, and this

notwithstanding the presumption of innocence, of showing what must be

peculiarly within his own knowledge, namely, that he has been duly

licensed. People _v._ Nyce, 34 Hun, N. Y., 298, and cases cited; 1

Greenleaf on Ev., § 79, and cases cited. See, contra, State _v._ Evans,

5 Jones. N. C., 250.

[159] In Finch _v._ Gridley’s Executors (25 Wend., N. Y., 469-471),

Nelson, Ch. J., said: “I am also inclined to think the evidence which

was given competent to prove the _diploma_ from Fairfield College.

The witness identified the corporate seal, _and had himself received

a diploma from that institution subscribed by the same president and

secretary_. Though he did not actually see them subscribe the paper,

he had every means of becoming acquainted with their signatures; _the

delivery_ of it to him was an acknowledgment they had signed it.

Besides, he was familiar with diplomas from the institution under their

signature,” etc.

And see, also, Raynor _v._ State, 62 Wis., 289; Wendel _v._ State,

_id._, 300.

[160] In some of the States, persons who simply administered roots and

herbs in treating disease, have been excepted from that portion of the

statute which forbids the practice of medicine and surgery without a

license. The proper construction of such an exception is, that it is a

question of fact for the jury, whether the person accused who claims

the benefit of the exception, simply administered a concoction of roots

and herbs within the meaning of the statute, or whether, under the

guise of so doing, he really held himself out as and acted as a regular

practitioner. All such penal statutes are to be construed, like all

other penal statutes, with due regard to the rights of the individual,

and at the same time with such degree of liberality as will tend to

preserve the public safety.

[161] It has been held that the act of a physician in reporting to

a health-board in good faith that his patient is suffering from

small-pox, is not actionable. Brown _v._ Purdy, 8 N. Y. St. Rep.,

143. The Court said (per Sedgwick, J.): “In order to give the public

the protection due to it, according to the intention of the statute,

any physician that possesses in fact an opinion that a patient has a

contagious disease, is bound to report the case, _whether he has_ or

_has not_ used ordinary professional skill and knowledge. A physician

of skill in everything but cases of small-pox, which happily are not

numerous, may, unexpectedly to himself, be called to a case which

presents to him the appearance of small-pox. It may be said that

he may call in counsel. It cannot, however, be said that private

counsel should be called in rather than such as the law has appointed.

Certainly, if he really thinks the case to be one of small-pox, it

is his duty to communicate his opinion to the public authorities,

who furnish skilled physicians peculiarly competent to pass upon the

case. They are the experts the law points out for the physician. The

attendance of these experts upon a patient can cause no injury, and

thereafter the responsibility rests solely upon the public officer.”

As to how far the decision of an inspector appointed by a board

of health is regarded by the law as quasi-judicial, and therefore

conclusive, see Underwood _v._ Green, 42 N. Y., 140; Raymond _v._ Fish,

51 Conn., 80. Health officers who were guilty of gross negligence in

removing infected persons from a city in stormy weather, and putting

them in an unprotected and unsafe structure, so that such persons died

from the exposure, have been held liable. Aaron _v._ Broiles, 64 Tex.,

316.

The latest and most complete statute laws creating or regulating health

boards are: England, 38 and 39 Victoria, chap. 55; United States

(National Board of Health), 20 Stat. L., 484, suppl. to U. S. Rev.

Stats., chap. 202, passed March 3d, 1889; Mass., chap. 79, Mass. Rev.

Stats.; Pa., Laws of 1885, chap. 56; New York (State Board of Health),

2 N. Y. Rev. Stats., 1195; Local Boards, _id._, 1191-1193, chap. 270,

Laws of 1885. The statutes of New Jersey are considered in Lozier _v._

Newark, 19 Vr., 453. In Missouri the power to license physicians is

conferred upon the State Board of Health, and the Supreme Court of that

State has held that the act of that board in granting or refusing a

license is discretionary and its action in such a matter will not be

enforced by a writ of _mandamus_ (State _v._ Gregory, 83 Mo., 123); and

a similar doctrine prevails in Minnesota, State _v._ State Med. Board,

32 Minn., 324. The latest and best work on the general subject of the

organization and powers of boards of health is Parker & Worthington’s

“Public Health and Safety,” M. Bender, publisher, Albany, N. Y., 1892.

[162] Consult, as to this, Parsons on “Contracts,” vol. ii., p. 56.

[163] Of course in those States or countries in which statutes of fraud

render void, contracts for personal services for a longer period than

one year (or any period named in the statute), unless such contracts

are in writing and duly signed, contracts should be drawn and entered

into with regard to those statutes.

[164] See also “Field’s Medico-Legal Guide,” 208-210, where the

following cases are cited as sustaining this doctrine: New York,

Carpenter _v._ Blake, 60 Barb., 488; same case on appeal, 75 N. Y.

Court of Appeals, 12. Connecticut, Landon _v._ Humphrey, 9 Conn., 209.

Iowa, Smothers _v._ Hawks, 34 Ia., 286. Indiana, Long _v._ Morrison,

14 Ind., 595. Maine, Leighton _v._ Sargeant, 27 Me. (7 Fost.), 468;

Howard _v._ Grover, 28 Me., 97. Illinois, MacNevins _v._ Lowe, 40 Ill.,

209. Kansas, Teft _v._ Wilcox, 6 Kan., 46. Massachusetts, Com. _v._

Thompson, 6 Mass., 134; Small _v._ Howard, 128 Mass., 131, 35 Am. Rep.,

363. Pennsylvania, Potter _v._ Warner, 91 Pa. St., 362, 36 Am. Rep.,

668. Wisconsin, Reynolds _v._ Graves, 3 Wis., 416. Vermont, Briggs _v._

Taylor, 28 Vt., 180.

[165] See Shear. & Redf. on Negligence, 440; Elwell on Malpractice, 55;

Carpenter _v._ Blake, _supra_; Rex _v._ Long, 4 C. & P., 422; Slater

_v._ Baker, 2 Willes (Eng.), 259; Ordronaux on Jurisp. of Med., pp. 29

_et pass._; 20 Am. Law Rev., 82.

[166] On the points here suggested _cf._ Edington _v._ Life Ins. Co.,

67 N. Y., 185, same case, 77 N. Y., 564; Grattan _v._ Life Ins. Co.,

80 N. Y., 281; Dilleber _v._ Life Ins. Co., 87 N. Y., 79; Westover

_v._ Life Ins. Co., 99 N. Y., 56; People _v._ Murphy, 23 N. Y. Weekly

Digest, 42; same case, 101 N. Y., 126; Hunn _v._ Hunn, 1 T. & C., 499;

Pierson _v._ The People, 79 N. Y., 432-435; People _v._ Carlyle Harris,

136 N. Y., 424.

[167] Patten _v._ Wiggin, 51 Me., 594.

[168] See on this question also Bigelow’s “Leading Cases,” on Torts,

295-303.

[169] Stevenson _v._ The New York, etc., Railroad Co., 2 Duer, 341;

same case, 1 Am. & Eng. R. R. Cases, 343; Cincinnati, etc., R. R. Co.

_v._ Davis, 43 Am. & Eng. R. R. Cases, 459.

[170] Bronson _v._ Hoffman, 7 Hun, 674; Williams _v._ Glenny, 16 N. Y.,

389, and see Ordronaux on “Juris. of Med.,” _supra_, p. 46; but see

also Danzinger _v._ Hoyt, 46 Hun, 270.

[171] And it has been held that a decedent’s estate is liable for

fees of expert, who by direction of probate court examined widow and

testified as to her pregnancy. This notice was put upon the ground

that his testimony was necessary for the information of the court in

a matter before it affecting the disposition of the estate. Rollwager

_v._ Powell, 8 Hun, 10.

[172] Crain _v._ Baudouin, _supra_; Shelton _v._ Johnson, 40 Iowa, 84;

Garry _v._ Stadlen, 67 Wis., 512.

[173] And a physician may recover the value of services rendered by

his students. People _v._ Monroe, 4 Wend. (N. Y.), 200; Jay Co. _v._

Brewington, 74 Ind., 7. And the physician in attendance is not liable

to the physician thus called. Guerard _v._ Jenkins, 1 Strobh., 171.

[174] Deway _v._ Roberts, 46 Michigan, 160.

[175] MacPherson _v._ Chedell, 24 Wend., 15; Adams _v._ Stevens, 26

Wend., 451; Story on Bailments, § 37.

[176] Duly licensed physicians are presumed to be experts as to the

value of other physicians’ services. Beekman _v._ Platner, 15 Barb.,

550.

[177] Bellinger _v._ Craigue, 31 Barb., 534; Gates _v._ Preston, 41 N.

Y., 113; Blair _v._ Bartlett, 75 N. Y., 15. The general rule is that

in an action arising on contract damages arising for a tort cannot be

set up as a counter-claim. It follows from this that in an action of a

physician for services, damages for malpractice could not be recouped

or counter-claimed ordinarily. The way in which that rule is avoided,

and the safer method, is for the defendant to plead that it was part

of the contract of the physician (which it undoubtedly is), to perform

his services in a faithful and skilful manner, and that he committed a

breach of it, thus charging the damages which flowed from his acts as

a breach of contract, not as a cause of action in tort for malpractice

or negligence. If that is done the counter-claim arising in malpractice

can probably be pleaded in an action for services, and possibly

a counter-claim in excess of the amount claimed by the physician

recovered as an affirmative judgment against him. On the other hand, in

an action for malpractice brought by the patient against a physician,

which is generally in form an action for a tortious act, or neglect,

the physician cannot plead the performance of services and the

non-payment of his bill as a counter-claim or recoupment, because that

arises on a contract. If there is any exception to this rule it will be

found to grow out of the language of sections 549 and 550 of the Code

of Civil Procedure of the State of New York, and of similar enactments

in other States, which permit counter-claims arising out of the same

subject-matter as the cause of action, to be pleaded in that action. In

New York State, however, any effect of that kind is negatived by the

general provision that the actions must not only arise out of the same

subject-matter but be of the same kind and class.

[178] The degree of care and skill required to be shown to entitle

the physician or surgeon to recover compensation for his services has

already been stated to be simply such care and skill as are possessed

by the majority of other professional men of the same school of

practice at the time, or what is known as ordinary care and skill.

[179] Foster _v._ Coleman, 1 E. D. Smith, 85; Larue _v._ Rowland, 7

Barb., 107; Clarke _v._ Smith, 46 Barb., 30; Knight _v._ Cunningham, 6

Hun, 100; Bay _v._ Cook, 22 N. J. L., 343.

[180] The writer is indebted for many valuable suggestions concerning

this subject to Ansley Wilcox, Esq., of the Buffalo, N. Y., Bar, and

his admirable lectures on Medical Jurisprudence before the Medical

Department of the University of Buffalo.

[181] The conservatism of lawyers is proverbial. It is hard to convince

them that forms that have been long in use and have been found to serve

a useful purpose in the past, are not applicable to new conditions as

they arise; for instance, that the methods of procuring the attendance

and of examining ordinary witnesses do not fit the necessities of

expert testimony. But the question as to the defects of the system as

it now exists has been brought to public attention in the journals of

the day, in papers read before medical societies and bar associations,

and in arguments in legislative bodies, and it is hoped and believed

that ere long a reform, something of the character indicated, may be

brought about in this very important matter.

[182] It has been a matter of great discussion whether an expert is

compellable to testify on matters of opinion, without compensation,

the weight of the decisions being that he is not bound to do so. 1

Greenleaf on Evidence, § 310; 1 Warwick Law Assizes, 158; Parkinson

_v._ Atkinson, 31 L. J. (n. s.) C. P., 199; Webb _v._ Page, 1 E. &

K., 25; People _v._ Montgomery, 13 Abb. Pr., n. s., 207; _Ex parte_

Roelker, 1 Sprague, 276; Buchanan _v._ The State, 59 Ind., 1; Dills

_v._ The State, Id., 15; U. S. _v._ Howe, 12 Cent. L. J., 193;

_contra_, 6 Central Law Journal, 11; _Ex parte_ Dement, 53 Ala., 389;

Sumner _v._ The State, 5 Tex., 21; 6 Southern Law Review, 706.; and

see generally Wharton on Evidence, sec. 380, note 66, sec. 456; Lawson

on Expert and Opinion Evidence; Rogers on Expert Testimony. As to the

compensation being paid before the testimony is given, see Wharton on

Evidence, secs. 456, 380; People _v._ Montgomery, 13 Abb. Pr., n. s.,

207.

It is proper, although not necessary, that upon cross-examination

the witness should be asked as to his fee; that is, as to whether he

expects to receive any additional fee besides that of an ordinary

witness, and it has been held that where the expert witness testified

that he was to receive a fee which was contingent upon the case, he was

disqualified from testifying. Pollock _v._ Gregory, 9 Bosworth, N. Y.

Superior Ct. Rep., 121-124.

[183] This latter case holds that a second expert may be called to

testify after the first has been thus challenged, to support his

capacity and skill. The contrary rule, however, obtains in Alabama

(Tellis _v._ Kidd., 12 Ala., 643; Pugh _v._ State, 44 Ala., 33).

Neither can an expert be contradicted by books of science; that is, by

books of science introduced in evidence as such (Wharton on Evidence,

666, 721). This is so because the rule is well established that books,

although of great authority in themselves, may not, even if proven

to be such, be placed in evidence. They may, however, be read to

the witness, and so be placed upon the record, passage by passage,

and the witness may be asked whether he agrees with that doctrine,

not, however, as part of his direct examination, but as part of his

cross-examination.

A medical expert is sometimes confronted upon the witness-stand by long

quotations from well known medical text-books, and he is asked whether

the doctrines, opinions, etc., there laid down are sound. Especially is

this done when such doctrines and opinions are in apparent discord with

his evidence as he gives it. In such cases as this, however honest,

however intelligent and non-partisan the witness may be (except as

any opinion on one side or the other of a disputed question may be

considered partisan), he is placed in a very difficult position. If

the citations and questions are from well-known authors, and he is

a modest man, as most men of learning are, it will be difficult for

him to deny that such authorities as these have great weight, even

more weight than his experience, skill, and knowledge entitle him to

claim. On the other hand, if he takes the bold course and sticks to his

opinion, he is cried down the winds by counsel in summing him up, as a

man of gall, boldness, audacity and egotism. His course is difficult

whichever way he turns, but modesty as well as honesty is usually the

best policy. Perhaps the best thing for such a witness to do under

such circumstances is to do as once did the great mental alienist Dr.

John P. Gray, when, having given an opinion on a question of insanity,

he was cross-examined as to the different theories from time to time

prevalent as to what insanity was, and having stated what theories

were then the accepted ones, he was confronted by counsel on his

cross-examination with the question: “What do you think of Dr. John P.

Gray as an authority on that question?” and then with his own writings,

quite extensive, of many years before, in which he had advocated

theories apparently different from those which he had professed

upon the witness-stand. Placed in this position, the distinguished

gentleman simply replied: “It is true I cherished those theories at

that time, but I lived to learn better,” thus substantially disarming

any criticism that could be made of him in his capacity as a witness in

that case.

[184] For general rules for the conduct of expert witnesses see _infra_.

[185] The principal classes of such subjects may, however, be briefly

stated as follows:

1. Causes of death; especially in cases of homicide, suicide, accident,

etc., including poisoning.

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