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.