WHO MAY PRACTISE.
The law has nothing to do with the merits of particular systems or
schools of medicine. Their relative merits may become the subject of
inquiry when the skill or ability of a practitioner, in any given
case, is to be passed upon as a matter of fact. But the law does not
and cannot supply any positive rules for the interpretation of medical
science. It is not one of those certain or exact sciences in which
truths become established and fixed, but it is essentially progressive
in its nature. No one system of practice has been uniformly followed,
but physicians, from the days of Hippocrates, have been divided into
opposing sects and schools. The sects of the dogmatists and the
empirics divided the ancient world for centuries until the rise of the
methodics, who in their turn gave way to innumerable sects. Theories
of practice believed to be infallible in one age have been utterly
rejected in another. For thirteen centuries Europe yielded to the
authority of Galen. He was implicitly followed, his practice strictly
pursued. Everything that seemed to conflict with his precepts was
rejected; and yet, in the revolutions of medical opinion, the works of
this undoubtedly great man were publicly burned by Paracelsus and his
disciples; and for centuries following the medical world was divided
between the Galenists and the chemists, until a complete ascendancy
over both was obtained by the vitalists. This state of things has been
occasioned by the circumstance that medical practitioners have often
been more given to the formation of theories upon the nature of |43|
disease and the mode of its treatment, than to that careful observation
and patient accumulation of facts by which, in other sciences, the
phenomena of nature have been unravelled. * * * It is not to be
overlooked that as an art it has been characterised in a greater degree
by fluctuations of opinion as to its principles and the mode of its
practice than perhaps any other pursuit. That it has been distinguished
by the constant promulgation and explosion of theories. That it has
alternated between the advancement of new doctrines and the revival
of old ones; and that its professors in every age have been noted for
the tenacity with which they have clung to opinions, and the unanimity
with which they have resisted the introduction of valuable discoveries.
They still continue to disagree in respect to the treatment of diseases
as old as the human race; and at the present day * * * a radical and
fundamental difference divides the allopathists from the followers
of Hahnemann, to say nothing of those who believe in the sovereign
instrumentality. * * * The axiom that doctors differ is as true now as
ever it was [90]. Thus spake Daly, J.; the reporter observes in a note:
“It may, perhaps, be safely questioned whether the sister sciences of
law and theology present any such unity or certainty of opinion as
might enable them to arraign the medical profession.”
In Great Britain and Ireland, since the passing of the Medical Act
of 1858, every one registered under the provisions of that Act is
entitled, according to his qualification, to practise medicine or
surgery, or both (as the case may be), in any part of Her Majesty’s
Dominions, and to recover on any court of law (should any patient
neglect to pay) his reasonable charges for professional aid, advice and
visits, and the costs of any medicine, or other medical or surgical
appliances rendered or supplied by |44| him to his patient; but any
one not so registered cannot recover any such charges in any court of
law. Proof of registration is absolutely necessary for a recovery;
but it will suffice if the registration has taken place before the
trial [91].
And as to who may be registered; the Act says any one may be who is a
fellow, member, licentiate, or extra licentiate, of the Royal College
of Physicians of London, or of the Royal College of Physicians of
Edinburgh, or of the King and Queen’s College of Ireland; or fellow,
member, or licentiate in midwifery, of the Royal College of Surgeons
of England, or fellow or licentiate of the Royal College of Surgeons
of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow,
or of the Society of Apothecaries, London, or of the Apothecaries
Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any
university of the United Kingdom, or licentiate in surgery of any
university in Ireland; or doctor of medicine by doctorate granted prior
to August, 1858, by the Archbishop of Canterbury; or doctor of medicine
of any foreign or colonial college, after examination, or who satisfies
the Council of Education and Registration that there is sufficient
reason for admitting him to be registered [92].
In France, the medical profession is divided into two grades; in the
higher grade are all doctors of medicine of the universities; those
in the lower grade are _officiers de santé_. In Germany, the right
to practise is conferred by a state licence granted on passing the
_staats-examen_: the degree of doctor of medicine is almost always
taken at some university after obtaining the state license. In Austria,
the |45| right to practise is carried by the degree of doctor of
medicine obtained from a university [93].
The legislature of every colony of Great Britain has full power to
make laws for the purpose of enforcing the registration within its
jurisdiction of medical practitioners, including those registered under
the Imperial Act.
In Ontario, the medical profession is incorporated under the name and
style of “The College of Physicians and Surgeons of Ontario,” and
every person registered under the provisions of the Ontario Medical
Act [94] is a member of the college. There is a “Council,” in part
appointed by certain educational institutions, in part elected by
practitioners. This council fixes the curriculum of studies, appoints
examiners, and arranges the examinations of those desirous of admission
to practise; it also arranges for the registration of those who pass
the examinations, or had certain qualifications before July, 1870.
Every one who passes the examinations and has complied with the rules
and regulations of the council, and paid his fees, is entitled to
registration, and by virtue thereof to practise medicine, surgery and
midwifery in the Province. If registration is not granted to one he may
compel it by a writ of mandamus [95].
Registration is essential to entitle a practitioner to recover
any charges for medical or surgical advice, or for attendance, or
for performance of any operation, or for any medicine he may have
prescribed or supplied. (This last clause does not apply to any
licensed chemist or druggist.) And if any one unregistered, for hire,
gain or hope of reward, practises or professes to practise medicine,
surgery or midwifery, or advertises to give advice therein, he is
liable |46| to a fine of from $25 to $100. And any one not registered
who takes or uses any name, title, addition or description implying
or calculated to lead people to infer that he is registered, or that
he is recognized by law as a physician, surgeon, accoucheur, or a
licentiate in medicine, surgery or midwifery, is liable to the same
penalty. Any person who wilfully or falsely pretends to be a physician,
doctor of medicine, surgeon, or general practitioner, or assumes any
title, addition or description, other than he actually possesses and
is legally entitled to, is liable to a fine of from $10 to $50. But it
is not punishable to practise for love or charity, and any one who has
the degree of doctor of medicine may place the letters “M.D.” after his
name, even though he is not a registered practitioner, if he do not act
as such for hire or gain [96].
Where one partner was registered and the other was not, and there was
painted on the sign after the name of the first “M.D., M. C. P. &
S., Ont.,” and after the name of the other only “M.D.,” it was held
that the use of the simple letters “M.D.,” in contradistinction to
the full titles of the partner on the same sign was not the use of a
title “calculated to lead people to infer registration,” and that the
unregistered partner was not guilty of an offence under the act [97].
In Ontario, provision is made for the registration of Homœopathists
as well as of regular practitioners, and for the Eclectics who were
practising in the Province for six years before 1874.
A physician practising in another country, and performing medical
services for a patient then residing there, may recover his fees in
this Province notwithstanding he is not |47| registered [98]. A medical
practitioner duly registered in England, under the Imperial Act, is
entitled in Ontario to registration upon payment of fees without
examination [99].
In the United States, the common law doctrine, which favours the right
of every man to practise in any profession or business in which he is
competent, prevails to a great extent; and medicine being regarded by
it as an honorific profession, no apprenticeship was required, but
the practitioner always prescribed at his peril. This was also the
doctrine of the civil law, which drew no barriers around either law or
medicine. Any one who pleased might practise them without any previous
qualification; subject always to responsibility for injury inflicted
upon others.
In the absence of any statutes, therefore, limiting the common law
right to practise medicine inherent in every person, the term physician
may there be applied to any one who publicly announces himself to be
a practitioner of the art and undertakes to treat the sick, either
for or without reward. The common law knows nothing of systems or
schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical,
Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer
Doctor, Indianopathist, Clairvoyant Doctor and regular physician are
alike. The scales of justice are no more affected by the large doses of
the allopathist than by the infinitesimal supplies of the homœopathist.
But the law will sometimes interfere where one not pretending to be
a practising physician uses a peculiar system in his own family. A
father, during the sickness of his children and wife, refused to
provide any medical treatment, except that applied by himself, called
the Baunscheidt system, which consists in pricking the skin of the
patient in different parts of the body with an instrument armed with
|48| a number of needles and operated by a spring, and then rubbing
the parts affected with an irritating oil. The wife and three children
had died within a month. The man practised the exanthematic treatment
upon them, but did not even call in physicians who used that mode.
The Superior Court of Pennsylvania deprived this believer in the
Baunscheidt panacea of the custody of his surviving children [100].
Before the common law every one undertaking to treat the sick
professionally, and as the exercise of his vocation, is legally a
physician. He has the rights of one, and when he assumes those rights
the law lays upon him the heavy burdens and responsibilities of the
profession. It is, of course, far otherwise if any statute prescribes
particular qualifications for the practice of the profession and one
undertakes to discharge its duties without such qualifications. Then
he is doubly a wrong-doer; first, as against the statute; and, second,
as against the public, who have a right to demand in him the ordinary
proficiency of his profession [101].
In Arkansas, California, Connecticut, Kentucky, Maryland,
Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and
Vermont, there appear to be no statutory requirements regulating the
practice of physicians or surgeons. In Virginia, the practitioner
only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine,
Minnesota, Ohio and Wisconsin, a practitioner must either have a
license from a medical board or society, constituted according to
the law of the respective States, or else be a graduate of a medical
college. In South Carolina and the District of Columbia, he must be
licensed by the medical board; so, too, in Delaware. But this rule
in Delaware does not apply to those who practise exclusively the
|49| Thompsonian or botanic, or homœopathic systems; or practise
gratuitously or for what is willingly given them.
In New York State, early in the century, it was enacted that no one
practising physic or surgery, without a license, could collect any
debts incurred by such practice, and it was a penal offence so to
practise. In 1830, the unauthorized practice of physic or surgery
was made a misdemeanor punishable by fine or imprisonment, or both.
Shortly afterwards the offence was made penal instead of criminal,
and it was declared the provisions should not extend to any one using
or applying for the benefit of any sick person any roots, barks, or
herbs, the growth or produce of the United States. In 1844, all laws
limiting the right to practise medicine or surgery were repealed; free
trade in physic prevailed; all examinations, certificates and licenses
were declared unnecessary; the repealing Act expressly permitted any
person to practise physic subject to punishment, as for a misdemeanor,
if he should be convicted of gross ignorance, malpractice, or immoral
conduct. However, a change came, and, in 1874, the legislature declared
that it was “a misdemeanor for any person to practise medicine or
surgery in the State of New York, unless authorized so to do by a
license or diploma from some chartered school, State board of medical
examiners, or medical society,” or to practise under cover of a medical
diploma illegally obtained. The penalty for the first offence is a fine
of not more than $200; for a subsequent offence a fine of from $100 to
$500, or imprisonment for not less than thirty days, or both [102]. In
1880, it was further enacted that no person shall “practise physic
or surgery within the State unless he is twenty-one years of age, and
has been heretofore authorized so to do pursuant to the laws in force
at the time of his authorization, or is hereafter authorized so to do,
either by license from the regents of the University of the State |50|
of New York, a diploma of an incorporated medical college within the
State, or of one without the State approved of by some proper medical
faculty within the State.” Every physician or surgeon, except those who
had been practising ten years before 1880 (and a few others), had to
register with the clerk of the county, where he practised, his name,
residence, place of birth, together with his authority to practise.
After the repeal of the old Medical Acts, and before the enactment
of the law of 1874, the New York Court of Common Pleas had to define
who was a physician or doctor, and it said the words simply meant,
“a person who made it his business to practise physic; and it was
wholly immaterial to what school of medicine he belonged, or whether
he belonged to any. The legal signification of the term doctor means
simply a practitioner of physic. The system pursued is immaterial.
The law has nothing to do with the merits of particular systems.” The
point came up in considering a case where an agreement of employment
between an opera director and a vocalist provided for the forfeiture of
a month’s salary in case the latter should fail to attend at any stated
performance, except in the case of sickness, certified to by a doctor
to be appointed by the director. The director appointed Dr. Quin, an
homœopathist. Signor Corsi, the baritone, had a bad cold and a sore
throat, but would not consult Dr. Quin, and proffered a certificate of
an allopathist of his own choosing. This Max Maretzek would not take,
and he refused to pay Corsi his salary. The singer sued, but the Court
held that the provision was binding upon the artist, although the
director had appointed a person in the practice of what is known as the
homœopathic system of medicine. * * * The Court considered it was error
to attempt in the then present state of medical science to recognize as
a matter of law any one system of practice, or to declare that the |51|
practitioner who follows a particular system is a doctor, and that one
who pursues a different method is not [103].
It has been held, however, that where a “regular physician” is spoken
of, an allopathic is meant [104].
In Iowa, the Court said, “As yet there is no particular system of
medicine established or favoured by the laws of Iowa, and as no
system is upheld none is prohibited. The regular, the botanic, the
homœopathic, the hydropathic and other modes are alike unprohibited.
Though the regular system has been advancing as a science for
centuries, aided by research and experiment, by experience and skill,
still the law regards it with no partiality or distinguishing favour,
nor is it recognized as the exclusive standard or test by which the
other systems are to be adjudged” [105].
Notwithstanding the New York law of 1874, one can undertake to effect
cures by manipulation without possessing a diploma. He may even
maintain an action for the compensation agreed upon, although not a
graduate and having no license to practise. A man professed to cure
by rubbing, kneading and pressing the body. The court considered his
system was rather one of nursing than of either medicine or surgery,
and that it could not result in any injury to the person practised
upon than that of possible financial loss [106]. Yet, in Maine, where
a license is required, even a “medical clairvoyant” was held to come
within the statute, and it was decided that he could not render his
professional services without having the legal permission. In England,
an unregistered person sued to recover his charges for galvanic
operations, and for materials and electric fluid used therein. The jury
decided in favour of the galvanizer, and the court |52| would not
disturb the verdict, as the work was done before the Act of 1858 came
into operation, but expressed a strong opinion that if the work had not
been done when it was, it would have been impossible to hold that the
case did not fall within the statute [107].
A physician must practise according to the principles of his school.
There are distinct and different schools of practice; allopathic or old
school, homœopathic, Thompsonian, hydropathic or water cure; and if a
physician of one of those schools is called in, his treatment is to be
tested by the general doctrines of his school, not by those of other
schools. It is presumed that patient and physician both understand
this [108].
A person professing to follow one system of medical treatment cannot
be expected by his employer to practise another. While the regular
physician is expected to follow the rules of the old school in the art
of curing, the botanic physician must be equally expected to adhere to
his adopted method. While on the part of every medical practitioner the
law implies an undertaking that he will use an ordinary degree of care
and skill in medical operations, and he is unquestionably liable for
gross carelessness or unskilfulness in the management of his patients,
still the person who employs a botanic practitioner has no right to
expect the same kind of treatment or the same kind of medicine that
a regular physician would administer. The law does not require a man
to accomplish more than he undertakes, nor in a different manner from
what he professes. So, if one is employed as a botanic physician, and
performs his services with ordinary care and skill, in accordance
with the system he professes to follow, that will be regarded as a
legal defence to a suit for malpractice. It would show a full |53|
compliance with his profession and undertaking, and if injury resulted
to the plaintiff he could blame no one but himself [109].
If a patient has not been deluded by any but himself, and voluntarily
employs in one art a man who openly exercises another, his folly has no
claim to indulgence. The old Mahomedan case, cited by Puffendorf with
approbation, is very much to the point. A man who had a disorder in his
eyes called on a farrier for a remedy. This worthy gave him a remedy
commonly used by his quadrupedal patients. The man lost his sight, and
brought an action against the farrier for damages; but the Judge said
that no action would lie, for, if the complainant had not himself been
an ass, he would never have employed a horse doctor. But when a case,
the converse of this, came up, the Court remarked that, “stock and the
human family are animals with many similitudes and some variances;
so that, although it be admitted that one acquainted with the mode
of treating diseases of the human family should not be relied on to
select from the materia medica substances apt for the treatment of
stock, still we think it clear that one having a scientific knowledge
of the diseases of men must be presumed to have so much knowledge of
the diseases of a mule as to enable him to determine whether a disease
with which the animal is afflicted be of recent or long standing. An
expert in the diseases of man is necessarily an expert in the diseases
of animals, so as to make his opinion competent evidence upon a matter
in reference to which he will swear that his scientific knowledge has
enabled him to form an opinion.” And so a physician was allowed to give
his opinion as to whether the disease with which a mule was afflicted
was, or was not, of long standing, as he considered himself competent
so to do from his knowledge |54| of the diseases to which human flesh
is heir, although he knew nothing in particular about the diseases of
stock [110].
As one who employs a homœopathic or botanic physician knowingly cannot
object to his bill because he was not treated in the way usual among
orthodox practitioners; so, on the other hand, if a physician of one
school is employed by one who has a _penchant_ for that particular
system, and treats his patient according to a different system, he
cannot recover for his services if he fail to benefit the patient [111].
Proof that one practises physic is _prima facie_ evidence of his
professional character; and if one holds himself out as a physician and
surgeon, and acts as such, the law will hold him liable as such [112].
A physician who merely casually makes up a prescription for a friend
when meeting him upon the street, cannot be called his medical
attendant; that term means one to whose care a sick person has been
confided [113].
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