VI. MALPRACTICE

VI. MALPRACTICE

DEFINITION.—MALPRACTICE may be defined to be—

1st. Wilful acts on the part of a physician or surgeon toward a person under his care, by which such person suffers death or injury;

2d. Acts forbidden by express statute, on the part of a physician or surgeon, toward a person under his care, by which such person suffers death or injury;

3d. Negligent acts on the part of a physician or surgeon in treating a patient, by means of which such patient suffers death or unnecessary injury.

These various divisions will be considered in the order in which they are above set forth.

=Wilful Malpractice.=—The cases which fall within the first two divisions of this definition are such acts as render the medical man liable to punishment in a criminal prosecution, and may not necessarily, although in some instances they may, constitute grounds of liability in a civil suit against him.

As examples of the first class of cases may be cited those instances, happily not numerous in the annals of the profession, where a physician or surgeon when treating a female patient has had carnal connection with her, representing that he was using that method of treating her to cure her disease. Such a case was Reg. v. Case, 1 Eng. Law & Eq., 544 (s. c., 1 Den. C. C., 580).[186]

Honest Intent no Defence in Such Cases.—In Reg. v. Reed, 1 Den. C. C., 377 (s. c., 2 Car. & K., 967), it was contended as a defence that the defendant really believed that he was curing his patient by treating her in this extraordinary way. The Court, per Wildes, C. J., brushed aside this contention with scorn, saying: “The notion that a medical man may lawfully adopt such a method of treatment is not to be tolerated in a court of justice;” and in this case and in others, convictions have been sustained for the crime of rape or of attempting to commit rape.[187]

Another example of wilful malpractice would be wilful neglect of a patient by his medical attendant, who became intoxicated voluntarily, though this will generally come under the second subdivision, as most states and countries have enacted statutes making it a criminal offence to practise medicine or surgery when intoxicated.

=Acts Forbidden by Statute.=—Within the second subdivision of the definition, or acts declared unlawful by statute, fall the cases of committing or attempting to commit an abortion, and cases of prescribing for or treating a patient by one voluntarily intoxicated. If the abortion is attempted without the knowledge or consent of the woman, and under the pretence of performing a necessary operation upon her to cure disease, undoubtedly the physician would be liable to a criminal prosecution by the State for the offence of committing an abortion and to civil action by her to recover damages. If the abortion was committed with her consent, while she would have no right of action against him for damages, he would be liable to criminal prosecution under the statute.

Abortion Not a Crime by the Common Law.—At common law it was not a crime to commit an abortion with the mother’s consent if the child had not quickened. In Mitchell v. Com., 78 Ky., 204 (s. c., 39 Am. Reports, 227), the Court, per Hines, J., says: “After a patient investigation we are forced to the conclusion that it was never called a punishable offence at common law to produce, with the consent of the mother, an abortion prior to the time when the mother became quick with child. It was not even murder at common law to take the life of the child at any period of gestation, even in the very act of delivery.” See also Evans v. People, 49 N. Y., 86.

The inhumanity and danger to society of this rule became manifest at a very early period, and both in England and in this country statutes were adopted, varying somewhat in the degree and kind of punishment and in the nomenclature of the crime, but all of them making the offence of committing an abortion, no matter at what stage of gestation, a crime.[188]

The Common-Law Doctrine Criticised.—Professor Elwell in his valuable work on “Malpractice, Medical Evidence and Insanity,” pp. 250, 251, makes the following remarks upon this subject: “The idea once existed quite generally, and it still exists to some extent, that there is no offence in destroying the embryo or fœtus before there is a manifest knowledge of life by the mother, derived from motion of the child called ‘quickening.’ How absurd to suppose that there is no life until the mother can feel the muscular motions of the child! As well might we deny the vitality of the blood because it cannot be felt. The muscular tissues, and even the bones to which they are attached, must have some degree of substance before there can be motion, and of course this development depends upon life. Though this foolish notion is now fully exploded in medicine, it still lingers in the popular mind, and doubtless leads to much crime. The life of the fœtus or embryo immediately after conception is just as positive physiologically as at any subsequent period. Quickening being an incident or sign in the course of development of the fœtus, it indicates not the commencement of a new state of existence, but only a new manifestation of pre-existing life.... It is uncertain in its appearance, sometimes coming on at three months, sometimes at six months, and sometimes not at all.”

Legal Definitions of Terms, “Quick with Child,” etc.—In Evans v. People, 49 N. Y., 86, following R. v. Wycherly, 8 C. & P., 262, it was held that a woman is “quick with child” from the period of conception after the commencement of gestation, but is “pregnant with quick child” only when the child has become “quickened in the womb.” This distinction has been discussed in State v. Cooper, 2 Zab., N. J., 52, and since the Evans case, the same court in New York State has held that the expression, “woman with child,” means “pregnant woman.” Eckhardt v. People, 83 N. Y., 42 (s. c., 38 Am. Rep., 462).

Death of Child by Abortion.—If, in attempting to produce an abortion, the child is caused to be born alive but before the end of the period of gestation, and when it is not capable of sustaining life, and it dies, the person producing the abortion and bringing the child into the world at this time and in this manner is guilty of murder. Wharton’s Crim. Law, sec. 942; Rex. v. West, 2 Cox Crim. Cases, 500; Com. v. Brown, 14 Gray, Mass., 419.

Death of Mother by Abortion.—So also where in consequence of producing an abortion the death of the mother occurs, the person producing the abortion is guilty of murder at common law. 4 Blackstone’s Com., 201; 1 Bishop’s Crim. Law, 328. In some of the States, however, these offences are declared to be only manslaughter.

Further consideration of the subject of abortion will be had under that title in another part of this work.

Statutes Generally Except Abortions Necessary to Save Life.—It should be noted here, however, that nearly all the statutes which define and punish the crime of abortion, or the crime of manslaughter or murder committed in consequence of abortion, declare that when it is necessary to produce a miscarriage in order to save life, the act of doing so is excepted from the effect of the statute.

=Negligent Malpractice.=—Under the third subdivision of the definition, viz., when by reason of the negligent acts on the part of the physician or surgeon the patient suffers death or unnecessary injury, may be placed the most numerous cases of malpractice, according to the generally accepted meaning of the term.

Criminal Liability for Negligent Malpractice.—It is manifest that not every degree of negligence which causes death or injury ought to render the physician or surgeon liable to indictment and punishment for a crime. The general theory of the criminal law is based upon the doctrine that in order to constitute a crime there must be either an intent to do the wrong, or such a degree of negligence in the performance of a given act as to supply the place of the intent to do wrong, and require punishment for the protection of society, upon the ground that the carelessness of the defendant is so great as to make it necessary and proper to punish him, in order to deter others from following his example.

Doctrine of Leading Case of Com. v. Thompson.—In Com. v. Thompson (6 Mass., 134), Parsons, C. J., observes: “There was no evidence to induce the belief that the prisoner by his treatment intended to kill or injure the deceased and the ground of express malice must fall. It has been said that implied malice may be inferred from the rash and presumptuous conduct of the prisoner in administering such violent medicines. Before implied malice can be inferred, the judges must be satisfied that the prisoner by his treatment of his patient was wilfully regardless of his social duties, being determined on mischief.... To constitute manslaughter, the killing must have been the consequence of some unlawful act. Now there is no law which prohibits any man from prescribing for a sick person with his consent; and it is not a felony, if through his ignorance of the quality of the medicine prescribed, or of the nature of the disease, or of both, the patient, contrary to his expectations, should die. The death of a man killed by voluntarily following a medical prescription cannot be adjudged felony in the party prescribing unless he, however ignorant of medical science in general, had so much knowledge or probable information of the fatal tendency of the prescription that it may be reasonably presumed by the jury to be an act of wilful rashness at least, and not of honest intention and expectation to cure.”

The Doctrine of the Thompson Case Too Broad.—This lax statement of the law, made by the learned chief justice in this case, has been much doubted and criticised. It appears to be unsound in the length to which it goes in requiring, in order to constitute criminal liability, what may be termed excessive gross carelessness or wilful gross carelessness. It apparently runs counter to the prevailing opinions of the English judges, and to the later decisions of the courts in the United States, although it is followed and approved in Rice v. The State, 8 Mo., 561.

In Rex v. Long (4 Car. & P., 308-310), Park, J., said: “I call it acting wickedly when a man is grossly ignorant and yet affects to cure people, or when he is grossly inattentive to their safety.”

So in Rex v. Spiller (5 Car. & P., 353), the Court said: “If a person, whether a medical man or not, professes to deal with the life and health of another, he is bound to use competent skill and sufficient attention; and if he causes the death of another through gross want of either he will be guilty of manslaughter.”

Bishop, in his work on Criminal Law, lays down the rule that not every degree of carelessness renders a practitioner liable to criminal prosecution, and that it must be gross, or, as more strongly expressed, “the grossest ignorance or most criminal inattention.”[189]

Nevertheless he quotes with approval (2 Bishop Crim. Law, 264) the remark of Willes, J., that a medical man is taking a leap in the dark if he knew he was using medicines beyond his knowledge; and also the remarks of Bayley, J., in Rex v. Simpson (1 Lewin, 172), who said in that case: “I am clear that if a person not having a medical education, and in a place where a person of a medical education might be obtained, takes it upon himself to administer medicines which may have an injurious effect, and such medicines destroy the life of the person to whom they are administered, it is manslaughter. The party may not mean to cause death, or the medicine may produce beneficent effects, but he has no right to hazard medicine of a dangerous tendency when medical assistance can be obtained. If he does, he does it at his peril.”[190]

Gross Negligence Defined.—In general it may be stated that gross negligence is necessary to constitute criminal liability, but this may be predicated upon, or inferred from, such want of ordinary care and skill as shows gross ignorance, or such want of attention as indicates wilful disregard of the well-known laws of life and health.[191]

Gross Negligence Resulting in Injury a Misdemeanor.—It has also been held that although death does not but injury does ensue, as the result of gross negligence or inattention, that constitutes a misdemeanor punishable criminally.[192]

In Determining Degree of Negligence Circumstances and Conditions Govern.—It should be noted, however, that the circumstances and conditions attending the act of alleged criminal malpractice should be given much weight. So also should due weight be given to the advancement of knowledge and education in the world in general, and in the medical profession in particular. In an early English case, one of the judges remarked that not as much knowledge and skill could be expected of a surgeon or physician in a sparsely settled country district as in a city, and that he was at a loss to know what degree of knowledge and skill should be required of such a person. But in Gram v. Boener, 56 Ind., 447, Worden, J., said: “It seems to us that physicians or surgeons practising in small towns, or in poorly or sparsely settled country districts, are bound to possess and exercise at least the average degree of skill possessed and exercised by the profession in such localities generally. It is not true, as we think, to say that if a physician and surgeon has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practises, that would be sufficient. There might be but few practising in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them, and it would not do to say that because one possessed and exercised as much skill as the other, he could not be chargeable with the want of reasonable care and skill.”[193]

Unlicensed Practitioner Causing Death Guilty of Manslaughter.—Since the adoption by most civilized states and countries of the salutary practice of regulating by statute the practice of medicine and surgery, and forbidding persons not duly licensed from practising, and making it a misdemeanor to violate any of these statutes, it is clear that any person not having the requisite medical education and a license, who attempted to administer drugs and medicines or to perform operations, and through want of ordinary knowledge and skill caused the death of another, would be held guilty of manslaughter, because he brought about the death while he himself was engaged in a violation of the law. In some states where no discrimination in this respect is made between misdemeanors and felonies, the crime would be murder, punishable by death; and it has always been the law that an empiric or quack holding himself out as a regular physician is bound to have and exhibit the degree of skill and care which he professes, and will be strictly held to the standard of skill of educated and licensed medical men.[194]

As to the legal meaning of the term “ordinary care and skill,” and the rules of evidence applicable in cases of malpractice, a full discussion will be had below, when considering the subject of civil liability for malpractice.

CIVIL LIABILITY FOR MALPRACTICE.

Any person holding himself out to be a physician or surgeon, or any physician or surgeon, who is guilty of malpractice, is liable for damages, to be recovered in a civil action, instituted by the person injured, or by those having a legal right to such person’s services. This is so whether the injured person actually employed the defendant to prescribe or treat him, or not. The liability flows out of the relationship, without regard to the element of employment, and it may result from negligence in treatment, or in prescribing, or in giving information and instructions to the patient as to how to take care of himself when under treatment. The rules of law applicable to the duties of a physician to his patient are stated and the authorities supporting them cited in Chapter IV. of this work.[195]

=Ordinary Care and Skill Only Required.=—The leading cases in America on the subject of civil liability for malpractice are: Leighton v. Sargent, 7 N. H., 460, and Carpenter v. Blake, 60 Barb., 485 (s. c. on appeal, 75 N. Y., 12). In the former case the Court said: “In a science encumbered with so many sources of error and difficulties, it is obvious what cause we have for proceeding with the utmost caution, and for advancing from step to step with the greatest circumspection. It is in consideration of those peculiar difficulties that beset and encompass the physician and surgeon, that all enlightened courts have held that but ordinary care and skill shall be required of them, and that mere errors of judgment shall be overlooked, if the general character of treatment has been honest and intelligent, and that the result of the case shall not determine the amount of the responsibility to which he is held; and that when unskilfulness or negligent treatment of his patient is charged to a surgeon, it is not enough to show that he has not treated his patient in that mode or has not used measures which in the opinion of others, though medical men, the case required; because such evidence tends to prove errors of judgment, for which the defendant is not responsible, as much as it goes to prove a want of reasonable skill and care for which he may be responsible. Alone it is not evidence of the latter, and therefore a party must go further and prove, by other evidence, that the defendant assumed the character and undertook to act as a physician without the education, knowledge, and skill which entitled him to act in that capacity.”

In Carpenter v. Blake, upon the last appeal (75 N. Y., 12), it was said that the reasonable ordinary care and diligence which the law requires of physicians and surgeons is that which persons engaged in the same general line of practice have and exercise in like cases.[196]

Story’s Statement of the Rule.—Story in his work on Bailments, p. 433, with his usual felicitous method of statement says: “In all cases where skill is required it is to be understood that it means ordinary skill in the business or employment which the bailee undertakes; for he is not presumed to undertake for extraordinary skill, which belongs to a few men only in his business or employment, or for extraordinary endowments or acquirements. Reasonable skill constitutes the measure of the engagement in regard to the thing undertaken.”

Occult Influences Should be Considered by Lawyers and Judges.—In this connection it should be borne in mind by lawyers and judges, that in the case of a physician treating disease, or a surgeon repairing an injury, occult influences frequently play a most important part. Professor Elwell in his work on Malpractice, etc., p. 25, lays great stress on this element of uncertainty. He says: “In the case of physicians, surgeons, attorneys, etc., another and important element besides skill enters into the result, and for this reason the degree of responsibility is to a certain extent and in a manner indicated and influenced. This important element is the operation of causes and influences over which the practitioner has but little or no control. They are occult, and no human foresight is able to anticipate them before they have completely deranged and materially interfered with his plans by bringing about a different result than that confidently depended upon.”[197]

Change and Advancement in Medical Knowledge also to be Considered.—It should on the other hand be clearly understood that the constant change and improvement which are going on in medical and surgical education, in the discovery of new remedies and new methods of treatment, and in the invention of new instruments, tend constantly to elevate the average skill and intelligence of the profession, and with them the standard by which the courts will determine liability for negligence. What would have been, but a few years ago, fully recognized by the courts as ordinary skill in the treatment of disease and the performance of operations, would now be regarded as antiquated and less than ordinary skill, because of the advancement in the knowledge of means which can be devoted to the treatment of disease and injury.[198]

We have already seen that what is the degree of skill to be required of one practising in a small town or a country district sparsely inhabited, and what is required in the case of a city practitioner, may differ to some extent with the circumstances. Quacks and pretenders, however, must be judged by the standard of regular practitioners.[199]

=Degree of Care and Skill a Mixed Question of Law and Fact.=—What constitutes reasonable care and skill is a mixed question of law and fact, like any other question of negligence. Where the evidence is undisputed and no conflicting inferences can be drawn from the facts presented, it is the duty of the Court to determine whether or not there is sufficient proof of want of ordinary care and skill to be submitted to the jury. Where, however, the evidence is conflicting on that point, or the inferences to be drawn from the facts established might be differently drawn by different men having the same opportunity for observation, and the same circumstances before them, it is for the jury to say whether or not the defendant has exercised reasonable care and skill, guided by proper directions from the Court as to the measure of skill required. This involves the question as to how far the practitioner is bound to be familiar with the methods, appliances, drugs, and methods of treatment of his profession in general.[200]

Experimentation Not Permissible.—Experimentation, whether upon charity patients or pay patients, is equally prohibited by well-settled rules of law. In other words, a departure from known methods of treatment for the purpose of or by way of trying unknown remedies, or operations not usually adopted by the profession, if an unfortunate result occurs, renders the defendant liable (McNevins v. Lowe, 40 Ill., 209).

MEASURE OF DAMAGES.

The measure of damages in cases of malpractice may vary with the kind of malpractice. In the case of wilful malpractice, the element of gross negligence justifies punitive or retaliatory damages, in those States where any such damages are allowed. That is, damages which will not only compensate for the injuries inflicted, but which will, by punishing the wrong done, tend to repress similar acts in the future. The tendency of the courts and of legal authority of the present time is, however, to limit as often as possible the cases in which punitive damages are allowed, upon the theory that if a grossly negligent act is committed it will require criminal prosecution, and that the strong arm of the State should be invoked to punish the wrong, rather than to line the pocket of the injured person.

On the other hand, in cases of malpractice, damages for want of ordinary care and skill are recompensed as in any other cases of negligence. They may include loss of time of the patient, inability to earn his living, such sum as the jury thinks is reasonable to be given as a compensation for the extra pain and suffering, and, where the injury is permanent, such further sum as will indemnify the patient for the injury or deformity which he may suffer on account of the defendant’s neglect. Citation of authority upon this question of damages is almost unnecessary.[201]

Liabilities of Partners, etc.—It has been held that where two physicians were partners, and one of them committed an act of negligent malpractice, both were liable in a civil court for damages.[202]

But the declarations of the partner who is guilty of the negligent act, made as to the act committed, and in the absence of the other partner, are not admissible as against the other partner. And so also is the rule as to declarations of the partner who committed the act after its commission as to the propriety of the treatment, and opinions expressed by him in reference thereto.[203]

It has also been held that one surgeon who recommends the employment of another during his absence from town is not liable for acts committed during his absence.[204]

Suits for Injuries to Married Women and Minor Children.—When the person injured is a married woman, her husband may sue for loss of services on account of malpractice, and when the injured person is a minor child the parent may sue as in any case of negligence. A third person, such as the husband of a woman injured by malpractice, or the father of minor child so injured, can only recover the value of the services thereby lost, and in some cases the enhanced expense of medical attention and nursing thereby rendered necessary.

=Inspection of the Injured Person at the Trial—Before Trial Improper.=—In an action in which the injury is to a portion of the body which may be seen, such as the shortening of a limb on account of improper treatment of a fracture, the limb may be exhibited to the jury.

It has been much discussed whether the defendant in a malpractice or other negligence case can compel the plaintiff to permit his person to be examined by physicians before trial, to enable the defendant to know the full extent of the injury so far as it is perceptible. In the latest cases the examination of plaintiff before trial was not allowed.[205]

In 1877 the Supreme Court of Iowa in the case of Schroder v. C., R. I. & P. R. R. Co., 47 Iowa, 375, held that the court had inherent power and jurisdiction to compel the plaintiff to submit to such an examination.

This decision has been followed by the courts of several of the western and southern States, while in others the power has been denied. These cases will be found fully collected in Roberts v. O. & L. C. R. Co. and in U. P. R. R. Co. v. Botsford cited above.

The ground of the decision of the United States Supreme Court and of the New York Court of Appeals seems to be, that in the absence of legislative provision permitting a court to order such an examination, it has no inherent power to do so, and did not derive any such powers from the common-law courts of England, which never had exercised such powers.

In some of the cases which deny the right to compel such examination, it is claimed that if such a statute was passed as would confer upon the courts power to compel such an examination, the statute would be unconstitutional, and much is said in those decisions about the sacredness and immunity of the person. It seems difficult, however, to understand why such statutes should be considered as differing in any respect from statutes permitting orders for the examination of witnesses and parties before trial, or for the discovery and inspection of books and papers, and the like, which statutes have been enacted for many years and have never been held to be unconstitutional. Surely an honest suitor having a just claim for damages for personal injuries would not object to such an examination, because the result would often strengthen his case, while a dishonest suitor having a false and unmeritorious claim ought to be exposed and have his false claims defeated, in the interests of justice and truth. On the other hand, a suitor who was honestly mistaken in his belief that he had been disfigured or injured by an act of malpractice might often discover his mistake, and be saved the annoyance and expense of defeat after a trial in open court.

Some of the most frequent cases of alleged malpractice, brought before the courts, are those in which it is claimed that a fractured limb has been improperly set, with the result that it becomes crooked or shortened; when the fact is, as is conclusively shown by Prof. Frank H. Hamilton in a paper published by him many years ago, and quoted with approval by Professor Elwell, in his work on Malpractice, etc., that the percentage of cases, in certain kinds of fractures, in which perfect results are obtained by even the most eminent surgeons, is very small. In such cases as these the true state of affairs might often be disclosed by careful inspection prior to the trial. On the whole more good than harm would seem to be the probable outcome of permitting such examinations, in malpractice cases, if not in all cases of alleged personal injuries.

=Evidence in Malpractice Cases.=—The prevailing trial practice in malpractice cases is to prove the condition of the patient prior to the employment of defendant and at the time the treatment in question began, the methods of treatment adopted, and instructions given, and the condition of the patient during and after such treatment, and then to place other physicians on the witness-stand, and put to them hypothetical questions involving the facts as established by the evidence, and calling upon them to state whether the method of treatment adopted indicated proper skill and care, or even the usual and recognized methods of the profession.[206]

In some States evidence of the general reputation of the defendant for skilfulness or the contrary is held admissible. In other States such evidence is held inadmissible (see Vol. XIV., Am. and Eng. Encyclopædia of Law, p. 83, and cases collected in Note 6).

=Contributory Negligence.=—In conclusion it should be stated that the patient is bound to follow obediently all proper directions given him by his physician or surgeon, as to his diet, mode of life, time of taking and quantity of medicine to be taken, or the care of a diseased or injured member. Any disobedience of such directions which contributes to prevent a recovery will bar him from his right of action for malpractice, even though the medical man may have been somewhat negligent. In short, the same rule as to contributory negligence applies in this as in any other case of negligence. This principle has been so long and so well settled that citation of authority in support of it is unnecessary.

THE LAW OF EVIDENCE

CONCERNING

CONFIDENTIAL COMMUNICATIONS

BETWEEN

PHYSICIAN AND PATIENT.

BY

CHARLES A. BOSTON,

Counsellor-at-Law, of the New York City Bar.

CONFIDENTIAL COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT.

PRIVILEGED COMMUNICATIONS.

CONFIDENTIAL communications between physician and patient not infrequently may relate to matters that are the subjects of inquiry before judicial tribunals. When these communications are by law excluded from disclosure in evidence, they are termed privileged communications. When such a disclosure is forbidden it is upon grounds of public policy,[207] “because greater mischiefs would probably result from requiring or permitting its admission, than from wholly rejecting it.”

COMMON LAW.

The common law required an inviolable secrecy to be observed by attorneys with reference to the communications which they had received from their clients.[208] But writers upon the law of evidence state that under the English rule protection from disclosure in evidence in a court of justice was not extended to communications between a medical man and his patient.[209]

Reasons for the Rule.—It does not clearly appear, in any of the cases usually cited as authority, why the distinction is made between legal and medical advisers, but it is apparent that the privilege does not rest upon considerations of honor nor of confidence,[210] nor even upon the urgency of the situation under which the communication is made; for disclosures are made to a physician frequently to save life, or to a priest for reasons of eternal import, while those made to an attorney insure at most protection from temporal annoyance. The privilege of attorneys seems to be founded upon considerations of public policy in the administration of justice in the courts; attorneys are a part of the system, as are grand jurors, petit jurors, and judges,[211] and even arbitrators;[212] but physicians are no part of that system, and a disclosure of confidences made to them in no way tends to weaken the system or render it ineffectual, while the compulsory examination of lawyers would tend to the suppression of the truth in litigation by discouraging confidence between attorney and client. This, perhaps, can be assigned as the reason for the distinction; a distinction which does not differentiate lawyers from physicians, but agents in the administration of justice from all others.[213]

Criticism of the Rule.—Though the privilege of attorneys was adopted to enforce respect for the law as securing the rights of persons entitled to its protection, by establishing inviolable confidence between them and the officer who represents them in their dealings in the law, and though it was not the purpose of the law to enforce sentiment or to elevate one profession above another, the sentimental idea did not suffer neglect for the want of advocates. Justice Buller lamented the narrowness of the rule,[214] and Mr. Best has criticised it as harsh in itself, of questionable policy, and at variance with the practice in France and the statute law in some of the United States of America.[215]

THE RULE IN THE UNITED STATES.

It is to be assumed, in the absence of statutes varying the rule, and of decisions to the contrary, in the several States of the United States, that in those States which derived their law from England the same rule of evidence obtains as that above enunciated. But many of the legislatures have by statute extended the privilege to communications between physicians and their patients, as well as to other specified confidential communications which it does not fall within the scope of this work to discuss.[216]

States and Territories in which there are No Restrictive Statutes.—The following States and Territories have no statute restricting the nature of the disclosures which a physician may be compelled to make in a court of justice: Alabama, Arizona, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, and West Virginia.[217]

States and Territories in which there are Restrictive Statutes.—The following States and Territories have statutes restricting disclosures by physicians: Arkansas, California, Colorado, Idaho, Indiana, Indian Territory, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, Wisconsin, and Wyoming.[218]

The Rule in United States Courts.—In trials at common law in the courts of the United States, the laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, are regarded as rules of decision.[219] Section 858 of the Revised Statutes of the United States prescribes rules with reference to competency notwithstanding color and interest of witnesses, and in actions by or against executors, administrators, or guardians, and then provides that “in all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty.” Accordingly it has been held by the Supreme Court of the United States that in an action in the Circuit Court of the United States for the Southern District of New York, on a policy of life insurance, the evidence of a physician, inadmissible under Section 834 of the New York Code of Civil Procedure, was properly excluded.[220] But in criminal prosecutions in United States Courts, the privilege secured by State statutes does not avail.[221]

THE STATUTES.

As the effect of these statutes depends largely upon their language, the construction put upon the law in one State is chiefly serviceable in interpreting that of another State in those particulars where the two are similar.

Statutory Declarations of Policy.—A comparative view of the several laws shows that in the following States and Territory there are declarations of policy prefixed to the prohibition of disclosures, that show the reason of the enactment, namely: California, Colorado, Idaho, Minnesota, Montana, North Dakota, Oregon, South Dakota, and Utah.[222] The declaration is to the effect that there are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate, and that therefore the prohibition of the statute is laid.

ANALYSIS OF THE STATUTES.

The common purpose of the statutes is to restrict the rule compelling disclosures so as to protect communications with a physician in his professional capacity; but the limit to which the protection is extended differs in the various States. An analytic comparison of the statutes tends to show how far the interpretation of one is useful in construing another.

I. Nature of the Exclusion.—In California, Idaho, Minnesota, Montana, North Dakota, Oregon, South Dakota, Utah, and Washington the statutes apply only to testimony in civil actions.[223] The other statutes make no distinction between civil and criminal proceedings.

The active words are of course different in the several statutes, but they indicate a purpose to extend a privilege that the person entitled to it may insist upon maintaining, with the single exception of the law of North Carolina, which provides that the presiding judge of a superior court may compel a disclosure, if in his opinion the same is necessary to a proper administration of justice.

Some of the statutes show clearly that it is the patient’s privilege, and suffer the patient or his representatives to waive it, either expressly or by conduct which the law declares to amount to a waiver.[224] Others are silent on this subject.

In California, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, Nevada, New York, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, and Wyoming, it is expressly provided that the patient’s consent is necessary before a disclosure will be permitted.

In Colorado, Kansas, Oklahoma, and Oregon, if the patient offer himself or a physician or surgeon as a witness, that is to be deemed a consent.

In Nevada, in any suit or prosecution for malpractice, if the patient or party suing or prosecuting shall require or give consent, and any physician or surgeon shall give testimony, then the defendant may call any other physicians or surgeons as witnesses without the consent of the patient or party suing or prosecuting.

In Ohio and Wyoming, if the patient voluntarily testify the physician may be compelled to testify on the same subject.

II. The Witness.—In Indiana, Ohio, and Wyoming the privileged witness is termed a physician; in the other States and Territories, the privilege extends to a physician or surgeon.

In Arkansas and Indian Territory the privilege is secured to a person authorized to practise physic or surgery; in California, Montana, and Nevada, to a licensed physician or surgeon; in Colorado, to a physician or surgeon duly authorized to practise his profession under the laws of the State; in Michigan, New York, North Carolina, and Wisconsin, to a person duly authorized to practise physic or surgery; in Minnesota, Oregon, and Washington, to a regular physician or surgeon; in Iowa and Nebraska, to a practising physician or surgeon; in the remaining States and Territories, these statutes do not in terms distinguish between licensed and unlicensed practitioners.[225]

In New York, by the amendment of 1893 to Sec. 836 of the Code of Civil Procedure it is provided that in an action for the recovery of damages for a personal injury the testimony of a physician or surgeon attached to any hospital, dispensary, or other charitable institution, as to information which he acquired in attending a patient in a professional capacity in such institution, shall be taken before a referee. It does not appear whether this amendment is intended to take away the privilege, or merely to regulate the manner of taking such testimony when it is otherwise admissible.[226]

III. The Evidence.—The character of the communications which are privileged differs under the several statutes. In Arkansas, California, Colorado, Idaho, Indian Territory, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin, they are characterized as information; in Indiana, as matter committed; in Iowa and Nebraska, as confidential communications; in Kansas, Ohio, Oklahoma, and Wyoming, as communications; in Iowa and Nebraska, it is further provided that they be properly intrusted; and in Kansas and Oklahoma, that they be with reference to a physical or supposed physical disease.

In Kansas and Oklahoma, any knowledge obtained by a personal examination of a patient is also expressly privileged.

In Indiana, Ohio, and Wyoming, advice given by the physician is covered by the protection.

In Arkansas, Indian Territory, and Missouri, the privilege is limited to information acquired from the patient; and in Kansas and Oklahoma, to communications made by the patient.

The statutes of Arkansas, California, Colorado, Idaho, Indian Territory, Indiana, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin expressly limit the protection to matter acquired while attending in a professional capacity; and all of these, save Indiana, as well as Iowa and Nebraska, confine the privilege to information necessary to enable the witness to prescribe or act for the patient.

In New York it is provided that “a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the protection has been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow, or any heir at law, or any of the next of kin of such deceased, or any other party in interest.”[227]

The notable characteristics of the several statutes which thus far have been pointed out are discernible in the express language of the acts. In writing or using any treatise or compilation on privileged communications between physician and patient, it is to be constantly borne in mind that the privilege is of statutory origin; that the statutes are often dissimilar; and that the value of a judicial interpretation of one law in the construction of another varies with the dissimilarity.

JUDICIAL INTERPRETATION OF THE STATUTES.

The judicial decisions which are discussed here are those that deal with the privilege secured by the restrictive laws. The analogy between the privilege of a client with regard to his attorney’s disclosures, and that of a patient with regard to the testimony of his physician, is not so complete as to make it essential to present here, for the sake of their bearing upon the subject now under consideration, a study of the principles to be deduced from the numerous decisions with reference to attorneys as witnesses. The analogous cases of clergymen and priests are also beyond the scope of this treatment.

Rules of Construction.—The restrictions are in derogation of the common law[228] and in accordance with the rule of interpretation ordinarily adopted should be strictly construed,[229] but the courts have generally looked at the policy of the enactments, and have construed them so as to preserve inviolably the confidence existing between physician and patient, without narrowing their effect to a strict interpretation of their language.

In Indiana, under a former law which protected matters confided, it was said that the statute should be given a broader scope than the word confided in a strict sense imports, so as to cover matters learned by observation and examination.[230] But, though the statute in terms absolutely prohibits a disclosure, it has been said, in Indiana, that it gives no right to the physician to refuse to testify where the patient waives the privilege,[231] and that it creates no absolute incompetency, because to hold otherwise would result in obstructing justice without subserving the purpose of the statute.[232] In Missouri, there is a dictum that the privilege should be carefully limited to what the statute requires, not so much because it is in derogation of the common law as because it is in exclusion of the best evidence, on the ground of privilege;[233] but in this very case, the real question was whether the word oral should be construed into the statute so as to exclude from its protection information acquired by inspection and observation, and it was held that no such narrow interpretation was proper. In a later case the narrowing dicta of the foregoing opinion were disapproved,[234] and subsequently the disposition to make a liberal construction was shown by the highest court of the State, although a general rule of interpretation was not announced.[235] In New York, the rule that a statute in derogation of the common law is strictly construed does not apply to the Code of Civil Procedure.[236] But before the enactment of this statutory rule[237] there was a tendency to interpret liberally the law prohibiting disclosures.[238] In Arkansas the tendency seems to be to construe the law strictly.[239] The spirit of interpretation will be more fully illustrated in the discussion of particular cases which follows.

In New York it was claimed that the protection afforded by the statute is nullified by the provision for the examination of a party before trial,[240] but it was held that the statutes are consistent and the physician cannot be made to disclose, though his patient may be.[241]

CLASSES OF ACTIONS.

Criminal Actions and Evidence of Crime in Civil Actions.—The statutes confining the restriction to civil actions have been cited above.[242] In Iowa, in an action for breach of promise to marry, it was said that the privilege does not extend to the protection of advice for the commission of a crime.[243] In New York the rule was at first embodied in the Revised Statutes of the State,[244] but upon the adoption of the Code of Civil Procedure it was included therein,[245] and subsequently the provision of the Revised Statutes was repealed.[246] In that State by law the rules of evidence in civil cases are applicable also to criminal cases, except as otherwise expressly provided;[247] and the statutes provide no different rule in criminal actions as to this class of evidence. Notwithstanding this fact, however, it has been said by the Court of Appeals, in a case where there was an attempt to screen a murderer by insisting that his victim’s physician was not a competent witness as to information acquired by him while attending his patient,[248] that the design of the law was to enable the patient to make known his condition to his physician without the danger of disclosing what would annoy his feelings, damage his character, or impair his standing while living, or disgrace his memory when dead, but that it was not intended to protect a murderer rather than to shield his victim; and quoting from the opinion of Talcott, J., in the court below,[249] the Court said: “The purpose for which the aid of the statute is invoked is so utterly foreign to the purpose and object of the act and so diametrically opposed to any intent which the legislature can be supposed to have had in enacting it, so contrary to and inconsistent with its spirit, which most clearly intended to protect the patient and not to shield one who is charged with his murder; that in such a case the statute is not to be so construed as to be used as a weapon of defence to a party so charged instead of a protection to his victim.” Accordingly it was held that the evidence was not to be excluded under the statute. But the rule is still applicable to criminal actions. In a later case, where the accused was indicted for abortion, the same court held, that where the patient was living and the disclosure tended to convict her too of crime or to cast discredit and disgrace upon her, the evidence of her physician as to information acquired by him in attendance upon her was inadmissible in the trial of the man charged with the crime.[250] In a still later case,[251] the General Term of the Supreme Court held, where the accused was on trial for murder and he had confided to a physician what he had done, that the physician could not disclose the confidence. The rule deducible from these decisions seems to be that in New York the privilege extends to criminal actions, even though they be trials for murder, and even though the person accused be the patient, but that the statute will be applied only for the protection of the patient, and where it is apparent that no injury can possibly be done to the patient or his memory by the admission of the evidence, and the interests of justice demand the disclosure, for the punishment of a person for an injury done to the patient involving a violation of the criminal law, and the patient is not alive to waive the privilege, that the disclosure is not forbidden.

In New York efforts have been made to exclude from the operation of the statute other classes of actions, to which it has been urged that the reasons for the enactment do not apply, or in which the mischief alleged to be wrought by its enforcement has been suggested as ground for believing that the legislature could not have intended to include them. Of these, actions for divorce on the ground of adultery are one class; but it has been held that they constitute no exception.[252]

Testamentary Causes.—In New York it was long supposed that the policy of the law excepted probate proceedings; it was so held by the Surrogate of New York City;[253] and also by the General Term of the Supreme Court,[254] by which it was stated that the practice had prevailed for a half-century in will cases,[255] but the Court of Appeals,[256] has decided that testamentary cases constitute no exception to the rule, the judge who delivered the opinion stating that there is no more reason for allowing secret ailments of a patient to be brought to light in a contest over his will than in any other case, and that if mischief be wrought by the law the remedy lies with the legislature and not with the courts. The legislature has since afforded the remedy,[257] but not to the extent of adopting the rule of the earlier cases. In Indiana, in an action to set aside a will, the testimony of the testator’s physician has been excluded.[258] And in Michigan and Missouri it seems that testamentary cases are no exception to the general rule.[259]

Lunacy and Habitual Drunkenness.—It has been claimed in New York that inquisitions of lunacy are an exception, and recently it has been held that the alleged lunatic’s physician may testify as to his mental condition because no one is better qualified to testify,[260] but this decision seems to be at variance with the principle of the decisions of the Court of Appeals with reference to testamentary cases, and presents no satisfactory reason for a distinction. In a similar case in the Supreme Court, Chambers, it was held that a medical attendant at an asylum could not testify.[261] It has also been held that a physician cannot make an affidavit as to the appearance and condition of his patient to support a petition for the appointment of a committee for him as an habitual drunkard.[262]

Fraud.—Still another class of actions in which contending principles have been invoked to make an exception in the law of privilege, is actions on life-insurance contracts. The contract of insurance is uberrimæ fidei, and the defence of fraud in the application is frequently interposed to defeat a claim under a policy. Medical testimony would often be the most satisfactory evidence to establish the fraud, and efforts have been made to introduce it under that excuse, but without avail. In the case of Dilleber vs. Home Life Insurance Company, in the Supreme Court of New York at General Term,[263] the question seems to have been directly before the court, and Davis, P. J., dissenting, insisted that the suppression of a physician’s testimony ought not to be permitted so as to cover up a fraud, but the majority of the court held otherwise; the case was subsequently overruled, but not on the ground urged by Justice Davis.[264] The number of insurance cases in which the rule has been enforced seems to leave it beyond question that it will not be relaxed for the purpose of establishing fraud,[265] although that announcement has not been specifically made. There seems no reason that the rule should be relaxed in that regard when it is not relaxed to establish the crime of the patient; though the mischief that may be done in such cases is apparent.[266]

The Witness.—The statutory provisions as to the professional status of the witness whose testimony is excluded have already been shown.[267] The facts which establish the relation of physician and patient will be treated later.[268] The witness is a member of a profession, but there is very little discussion in the cases as to what constitutes a physician or surgeon.[269] The language of the statutes as well as their policy and intent has been said to plainly embrace a physician who casually or in any way attends and prescribes for a patient, whether he be a family physician or the usual medical attendant or not.[270] The spirit of the acts would protect communications made to any person attending the patient in the accepted capacity of physician or surgeon wherever that might have happened, though the letter would confine it in some instances to duly authorized or duly licensed persons. It does not seem to have been established whether such authority or license must have been granted under the laws of the State where the trial is conducted, nor how the several statutes apply to communications made elsewhere, especially in States or countries where authority or license to practise is not required by law.

It has been said with reference to the New York law that it is absolutely necessary that the witness should be a duly qualified physician;[271] and it has been held that the words “duly authorized” mean those persons who are not prohibited by the penal code from practising, so that an unlicensed physician may be compelled to disclose confidential communications.[272] Whether the same rule would be applied with reference to information obtained in another State by a physician duly authorized to practise there although prohibited from practising in New York, is a question that is suggested as a case within the reason of the law but outside of its letter, and one which does not seem to have been answered.

In New York, in an action by a physician for compensation for his services, it was held that a person who merely answered for a physician at his office in his absence, and was not himself a physician, is not a witness whose testimony is privileged.[273]

In Missouri it has been held that a drug and prescription clerk is not a privileged witness.[274] The question arose in the same State, whether a dental surgeon is forbidden to testify under the statute, but its determination was not essential to the judgment and it was left unanswered.[275]

To establish the privilege it is necessary that the person who insists upon it to exclude testimony should show by competent evidence that the witness belongs to the class privileged under the law.[276] But where the physician testified that he was a regular practising physician and attended in that capacity, and he was not examined further as to his due authority, it was held that a failure to produce his license could not be urged on appeal as reason for compelling him to testify.[277] The Court said that if the privilege were the physician’s he might, if the objection were taken, be required to prove by the best evidence that he was duly authorized, but as it is the patient’s privilege, in the absence of objection to the sufficiency of the proof, the patient is entitled to the benefit of the presumption that the physician had the license which the law requires to entitle him to practise.

WAIVER OF THE PRIVILEGE.

Who may Waive.—Those States in which the law provides for a waiver have been enumerated;[278] in others the courts have determined that the privilege of waiving is implied in the reason for the law. In Indiana it has been held that although the statute contains in terms an absolute prohibition, it creates no absolute incompetency and the privilege may be waived by the person for whose benefit it is made or his legal representative.[279] Under the Michigan law it was claimed that the physician is forbidden to reveal confidences even though he have his patient’s consent, but it has been held that the law only creates a privilege on the same footing with other privileged communications, which the public has no interest in suppressing when there is no desire for suppression on the part of the person concerned.[280] In Missouri too the patient may waive the privilege.[281]

The protection vouchsafed by the law is designed for the benefit of the patient, and therefore the physician himself cannot waive it.[282] The patient can disclose his own physical condition if he so desires.[283]

But the physician cannot refuse to testify if the patient waives the privilege.[284]

The patient can waive the privilege during his life.[285]

As it existed prior to 1891 the New York law provided that the prohibition should operate unless it was expressly waived upon the trial or examination by the patient.[286] This was interpreted to mean that the patient himself was the only person who could make a waiver; and that, therefore, the possibility of waiver ceased with the death of the patient, while the privilege of secrecy continued unabated, so that those claiming under the deceased patient could not waive the privilege, nor insist upon the testimony of the physician, even though their interests were in jeopardy on account of his silence.[287] It seems, however, that a patient can during his lifetime waive the privilege, the waiver to take effect after his death.[288] The express waiver required by the statute may be given by the patient’s attorney, because of the nature of the attorney’s agency in conducting an action for the patient.[289]

None of the other statutes are in the exact terms of the New York statute, but those of California, Colorado, Idaho, Minnesota, Montana, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, and Wyoming provide that the testimony shall not be given unless the patient consent; in Iowa, the waiver provided for is that of the person in whose favor the prohibition is made; and in Nebraska, of the party in whose favor the provision is enacted.

In Indiana, the privilege extends beyond the death of the patient, and it may be waived by the party who may be said to stand in the place of the deceased and whose interests may be affected by the disclosure.[290]

In Michigan, what the patient may do in his lifetime, those who represent him after his death may also do for the protection of the interests which they claim under him.[291] In Missouri the representatives of the patient may waive;[292] and where the dispute is between devisees and heirs at law all claiming under a deceased patient, either the devisees or heirs may call the attending physician of the testator as a witness regarding information acquired by him in his professional attendance.[293] In Nevada it has been said that the parents of a seven-year-old infant, may waive for the infant.[294]

Objections to the Admission of Privileged Communications; When and by Whom Made.—Having considered who can waive the privilege, it is material to discuss also the question who may insist upon the enforcement of the law. If the protection were only enforced on the claim of privilege by the patient, the very object of the statutes would be defeated in the large majority of instances because of the absence of the patient and every one interested in his behalf to assert his right. It rests, therefore, with any party to raise the objection and assert the prohibition. But it seems that the physician himself, unless a party, cannot make the objection.[295] It seems to have been thought in some of the cases that the right to insist upon the enforcement of the law is coupled with an interest derived from the patient. This idea started from the language used in the early cases enforcing the privilege at the instance of those claiming under deceased patients;[296] and it led to some confusion where the right of representatives to waive the privilege was denied; but it seems to be clear that the right to object differs from the right to waive in that the latter is necessarily and logically dependent upon the relation between the patient and his representative, while the former is obviously suggested as the best method of enforcing the law. In Indiana it has been said that the statute gives to the representative of a deceased patient the right to object;[297] but that this is not by reason of the relationship appears from another case in the same State, where on an application for a new trial the Court voluntarily refused to grant one for newly discovered evidence disclosed to it by a physician’s affidavit, on the ground that if the patient should object in the new trial the evidence would be excluded.[298] In this State it has been held that the widow of the patient cannot object to the disclosure, if his administrator with the will annexed waives the privilege.[299]

In Michigan it has been said that the physician cannot avail himself of the statute for his own benefit; but that was in a case where the communication was not really of the privileged class.[300] In New York, in proceedings to which a physician was a party an examination of his books of account before trial has been refused on the ground of privilege, and for the same reason a motion to direct a physician to turn his books of account over to a receiver has been denied.[301]

In Montana it has been said that when the patient consents no one else can object to the reception of the physician’s testimony.[302]

In New York it has been said that the benefits of the law are to be dispensed alike to those familiar with and those ignorant of its existence and applicability, and it is therefore no reason to refuse its enforcement, that the patient did not know that his communication was privileged.[303]

But, as in other cases of the receipt of improper evidence, it would seem that the objection should be made at the time it is offered, and if the objection is not then made, it will not avail to raise it later or on appeal.[304] It should not be prematurely made.[305] In New York where in pursuance of a special feature of practice in probate proceedings,[306] certain witnesses are regarded as the surrogate’s witnesses though produced at the instance of the contestant, and the contestant, after giving notice that the evidence of physicians as such witnesses was material, refused to examine them, and the surrogate required the proponent to suggest a line of examination, it was held that it did not lie with the contestant to object to the physicians’ testimony as privileged, because she had lost her right to object by giving notice that the evidence of those witnesses on these points was material.[307]

Objection cannot be raised in the progress of an examination after the forbidden testimony has been in part received without objection; for that would unjustly enable a party to open the door and get in all he desired and then to close it to the disadvantage of his adversary; when the door is once properly opened the examination may be continued until it is complete, despite the objection of the party at whose instance it was begun.[308]

In Indiana, where there was no objection, it was held that the evidence should not be withdrawn from the consideration of the jury or its weight diminished by comments on its value as matter of law.[309]

But when such evidence has already been admitted in the face of objection, it is not necessary for the party to object again, as nothing is waived by conforming with a rule already laid down.[310] Where it is apparent that no harm is done to the objecting party by an improper ruling on the receipt of privileged communications, no weight will be given to an exception to such ruling.[311]

What Constitutes a Waiver of the Privilege.—The statutory provisions as to what constitutes a waiver have been set forth above.[312] In California it has been held that cross-examination of the physician by the patient, calling for privileged matter, is a waiver of privilege.[313] In Indiana it has been held that consent to disclosure cannot be inferred from the patient’s simply giving the name of his family physician in applying for a policy of insurance on his life, and that a waiver in such an application should be evidenced by a stipulation too plain to be misunderstood.[314] And a physician’s statements of the cause of his patient’s death, furnished to an insurance company, in pursuance of a stipulation of a policy that satisfactory proof of death shall be submitted to the company, are not rendered admissible by that stipulation.[315]

It has also been held that consent to the evidence of one physician is no consent that another physician may divulge confidential communications;[316] and that the physician cannot testify that he found no evidence of injury on the examination of his patient, in order to contradict her;[317] the patient had already testified as to her condition and what the physician had done, but not as to anything said to her by her physician; she had expressly declined to testify concerning communications except as to his prescription for her injury, and without asking him to disprove her assertions the trial Court permitted him to say that he had found no evidence of injury; this was held to be error. It has also been held that the taking of a physician’s deposition and filing it, for the purpose of breaking the force of his testimony in a deposition taken by the opposite party, is no consent in itself to the reading of the other party’s deposition.[318] But when, in an action against a physician for malpractice, the patient testifies as to the manner of treatment, the physician is then at liberty to introduce the testimony of himself or another physician as to the facts thus put in issue by the patient.[319]

In Iowa it has been held that the testimony of a patient regarding the condition of his health is not a waiver of privilege, so as to allow his opponent to introduce the testimony of his physician to contradict him.[320]

In Michigan a physician has been allowed to contradict his patient as to the time when her trouble commenced, but on the ground that it had not been shown that the information was necessary to enable him to prescribe.[321] But it has been held that waiver as to one physician is not waiver as to another regarding a different time.[322]

In Missouri, the calling of a physician by the patient as a witness to testify as to information acquired while attending, is a waiver.[323] But offering one physician as a witness is not a waiver of the privilege with reference to another.[324] An applicant for insurance may, by an express waiver in his application, make an efficient waiver, binding upon any one claiming under the contract of insurance.[325]

In Nevada a waiver has been implied from the testimony of the patient and her mother, where the patient was an infant seven years of age.[326] And it was said that the parents of such an infant may make the waiver.

In New York it has been held that reference to a family physician when answering questions on an application for insurance, is not a waiver;[327] nor is the presence of a third person, in aid of the patient;[328] nor is the bringing of an action for damages for an injury;[329] nor is the examination of the physician in a former trial by the opposing party;[330] but where the ban of secrecy is once removed in an action and the information once lawfully made public, at the instance of the patient, it cannot be restored, and the disclosure may then be compelled in any subsequent action;[331] it would seem, too, that a physician who becomes a witness to his patient’s last will and testament at the patient’s request is then subject to a thorough examination on all points involving the patient’s testamentary capacity.[332]

Where the patient testified herself and called an attending physician to prove her physical condition, this was not a consent to the examination of another attending physician, and it was said that the opposite party by tactics on cross-examination could not compel the patient to abandon a privilege which she refused to waive.[333] Fish, J., in delivering the opinion of the Court in the last-mentioned case, said of the operation of the statute, that it allows the patient to use the testimony of the attending physician if he thinks his evidence will benefit his case, and to object and exclude it in case he thinks it will not benefit him; he may call to his aid the testimony of any one whose views he approves and exclude that of another whose testimony might tend to controvert that given with the consent of the patient; that in this case the excluded witness was the best witness and could tell nothing else than the patient had disclosed if she had told the truth and it would relate solely to what she and the other physician had described, but that the Court could not consider whether the statute tended to promote the cause of justice, and he distinguished McKinney v. Grand Street Railroad Company,[334] on the ground that there the consent had been that the same physician should disclose what he knew, while here the waiver of the excluded physician’s testimony had been constantly withheld.

A decision which seems to be at variance with Record v. Village of Saratoga Springs is Treanor v. Manhattan Railway Company,[335] where it was said that the patient cannot promulgate and uncover his maladies and infirmities in court and keep his physician under obligations to silence, and that he cannot, to mulct another in damages, inflame a jury with a false or exaggerated story of his injuries and sufferings and preclude the physician from making a truthful statement of the case.

But where the patient testifies as to what passed between him and his physician, the physician may testify on the same subject, as a waiver is inferred from the circumstances; for the reason, that the patient, having gone into the privileged domain to get evidence on his own behalf, cannot prevent the other party from assailing such evidence by the only testimony available, and the rule is no longer applicable when the patient himself pretends to give the circumstances of the privileged interview.[336] The requirement that a physician file with a board of health a certificate of the cause of death does not abrogate the privilege in a judicial proceeding.[337]

THE EVIDENCE EXCLUDED.

“Information.”—In Arkansas, California, Colorado, Idaho, Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin the privileged matter is characterized as information.[338]

In Arkansas it seems that the information must be a confidential communication;[339] but in the other States where it has been necessary to construe the word it has received a broader interpretation.

In Michigan information is not confined to confidential communications made by the patient, but includes whatever in order to enable a physician to prescribe was disclosed to any of his senses and which in any way was brought to his knowledge for that purpose;[340] it covers a letter written to a physician,[341] and matters observed by him;[342] but it does not include information acquired by a third person; for instance, the time when a physician saw his patient may be disclosed by her mother;[343] and the fact of treatment or non-treatment is not information;[344] nor are the facts that the physician was the patient’s family physician, and that he attended him professionally; nor are statements of the dates of such attendance and the number of such visits;[345] nor the facts that the physician has been called upon to examine and prescribe for a person and that his patient had told him that she would want him to testify for her in a lawsuit.[346]

In Missouri the statute protects information received from the patient; but this is not confined to oral communications, and includes knowledge gained by inspection of the patient’s person.[347] In Lunz v. Massachusetts Mutual Life Insurance Company protection was said not to extend to information of this sort apparent on casual inspection, which any one might make, nor to symptoms which are obvious before the patient submits himself to any examination, such as an inflamed face, a bloodshot eye, alcoholic fumes, or delirium; nor to facts so superficial that in regard to them no confidence could have been reposed. But this distinction between hidden and patent facts is disapproved in Kling v. City of Kansas,[348] and the statement is made that the law does not rest on the confidence imposed. Knowledge or communications concerning the cause of a patient’s condition and the extent of his injuries have also been held to be included in the term information, because the disclosure of these matters involved the indirect disclosure of the condition;[349] but it was said that the physician may testify as to knowledge acquired independent of communications from the patient and of examination or inspection made by the witness for the purpose of treatment.[350] As divulging privileged information, a physician has not been allowed to answer what his patient’s hurts were, why he left a hospital, or whether he required longer treatment;[351] and it has also been held that a physician cannot give his opinion as to the mental condition of his patient based upon privileged knowledge.[352]

In New York information comprehends all knowledge acquired by the physician by communication, observation, or inspection;[353] it has been said to extend to all facts which necessarily come to the knowledge of the physician in a given professional case;[354] and it includes as well the opinion of the physician based upon his knowledge as the knowledge itself.[355]

The physician cannot disclose the nature of his patient’s disease, whether he learned it by observation or examination or from what his patient told him;[356] nor can he testify as to what he told his patient.[357] In Edington v. Ætna Life insurance Company[358] it was said by Judge Earl that the statute was aimed at confidential communications and secret ailments, and that it did not extend to matters superficially apparent, such as a fever, a fractured leg or skull, or raving mania apparent to all;[359] but this view was disapproved expressly in the later case of Renihan v. Dennin.[360]

The privileged information has been said to include knowledge acquired through the statements of others surrounding the patient.[361] But it would seem that the fact that a third person was present during a physician’s visit may be shown by the physician, as well as what passed between the patient and the third person, if it was such information as a layman would have gathered.[362] The information from the third person regarding the patient is protected even though the patient be absent;[363] but not if the third person does not employ the physician, and the information thus acquired is not necessary to enable the physician to act in a professional capacity.[364] It is suggested in one case, but not determined, that it would be improper for a physician to state the value of the services of a nurse in attendance upon his patient, as that would involve a consideration of the condition of his patient;[365] but it has been held that a physician can testify to the fact of a nurse’s services.[366]

But it is information regarding the patient that is privileged, and therefore a physician may disclose what his patient told him about another, even though the subject of inquiry be the attitude of the patient toward the other;[367] and likewise the physician may disclose what he told his patient about a third person;[368] so also the physician may testify as to family events in no way connected with physical complaints.[369] It has been held, too, that admissions made by a patient to his physician, tending to show contributory negligence on the part of the patient, at a time when the communication could not well have been made to enable the physician to prescribe, namely, on the physician’s third and last visit, may be proven by the physician.[370]

The physician may properly testify that he did attend as physician,[371] and that the patient was sick, and he can state when and how often he attended him,[372] and whether his knowledge was acquired while in professional attendance,[373] but it is open to the Court to determine from the evidence whether it was so acquired.[374]

“Matter Committed.”—In Indiana the protection covers matter committed. It would seem that the use of the word committed implies confidence and that the protected matter is only confidential communications; but an earlier statute in that State applied to “matters confided,” and it was held to cover matters learned by observation or examination, or by communication from the patient, whether learned under an injunction of secrecy, express or implied, or not;[375] and it has been held that the present law forbids the disclosure of matters learned in a sick-room, no matter how the knowledge may have been acquired.[376]

“Confidential Communications.”—The laws of Iowa and Nebraska protect confidential communications properly intrusted. The construction put upon the word confided in Indiana has been shown. In Iowa it has been said that a confidential inquiry for advice to facilitate the commission of a crime or the infraction of law, is not properly intrusted and is not privileged;[377] but where the advice is sought for a purpose which may or may not be lawful, the presumption is that it is lawful, and the communication is privileged.[378] It has been said that whether or not a physician treated a person for a particular disease, is not a confidential communication.[379]

The word confidential is not narrowly construed, for a physician has been prevented from disclosing whether his patient said that a car was in motion when he was injured, because the injury would be more severe if in motion;[380] and the fact that the physician’s partner was present does not remove the seal of secrecy, or permit the partner to testify.[381]

“Communications.”—In Ohio and Wyoming communications are privileged; and in Kansas and Oklahoma communications with reference to a physical or supposed physical disease and any knowledge obtained by a personal examination of a patient. It does not appear whether a narrower construction would be given to the term communications than to the term information; but it would seem not, if a person deprived of speech is to be protected,[382] or if the term communications is not to be construed as meaning oral communications.

“From the Patient; by the Patient.”—The former qualifying terms are used in the statutes of Arkansas, Indian Territory, and Missouri; the latter in the statutes of Kansas and Oklahoma. The liberal interpretation put upon this term in the Missouri law has already been shown.[383] The law of the Indian Territory is adopted from Arkansas.[384] The statute is strictly construed in Arkansas,[385] but this term does not seem to have received interpretation.

“Advice.”—The laws of Indiana, Ohio, and Wyoming expressly cover the physician’s advice. In New York it is incompetent for the physician to disclose what he told his patient;[386] but advice to a patient concerning a third person is not privileged.[387]

The Relation of Physician and Patient.—Under each of the statutes, the relation of physician and patient must have existed at the time the information was acquired. In those cases where the relation is established by contract and is recognized by both physician and patient as existing, no difficulty arises in determining that it does exist. It is in those cases where some one of these elements is lacking that the difficulties are met. In California it has been held that the relation exists where a physician attends and prescribes for a person, notwithstanding he was employed by another, who seeks to disclose the evidence.[388] In Michigan, where the physician was employed by direction of the prosecuting attorney to examine the defendant in jail, and so notified the defendant at the outset of the examination, and he submitted voluntarily to a personal examination, and there was no intention to prescribe or to act as the defendant’s physician, it was held that the relation did not exist, and that the physician could testify as to the defendant’s physical condition.[389]

In one New York case it has been said that the relation is one of contract, and that the test is whether the physician would be chargeable with malpractice or negligence for failure to advise or prescribe in case the alleged patient were in urgent need of it at the time.[390] But the decisions of the Court of Appeals extend the privilege to cases where this test would lead to a different conclusion.[391]

Where the physician to a county jail was called in to attend a prisoner and examined him, though there was no prescription at the time, but it appeared that the doctor told the prisoner what he should prescribe, and subsequently two physicians came to see the prisoner at the instance of the coroner and examined him as they would have examined one of their patients, though they did not prescribe and had no conversation about a prescription, it was held that the prisoner had, under the circumstances, reason to suppose that the relation of physician and patient did exist between him and all three of the physicians, and that their testimony as to what they learned on such visits should have been excluded; and the rule is thus stated: whenever the patient has reason to suppose that the relation exists and does in fact and truth so suppose, in a case where the physician attends under circumstances calculated to induce the opinion that his visit is of a professional nature, and the visit is so regarded and acted upon by the person attended, the relation of physician and patient contemplated by the statute may fairly be said to exist.[392]

But the fact that it is the duty of a physician to prescribe for a person in case of need, does not constitute the relation, though the position of the physician gives him the opportunity to observe such person; so, therefore, a jail physician was not precluded from testifying as to what he had observed of a prisoner, where it did not appear that he had ever attended the latter in a professional capacity or had ever been called on to attend him.[393]

It would seem, however, that where it is the duty of a physician to attend a person in a professional capacity or to acquire knowledge concerning him in such capacity, he cannot disclose information actually acquired in the performance of his duty. It has been said that a medical attendant at an insane asylum cannot testify as to the mental condition of an inmate;[394] and that a physician employed in a hospital to notice and enter in its records the arrival and condition of the patients coming in, cannot testify as to information so acquired.[395]

It is immaterial that another person employs the physician to examine the patient, and to report to the employer, and that the person examined does not appear to desire any knowledge as to his condition; if the examination is made as a professional act, the relation of physician and patient is established between the physician and the person examined, even though it be the only interview.[396]

And in a case where the public prosecutor sent a physician to a person for the purpose of making a professional examination, so as to obtain evidence against another person charged with crime, and the person examined accepted the services of the physician in a professional character, it was held that he could not testify as to the results of his examination.[397]

But where the district attorney sent a physician to jail to make an examination of a prisoner’s mental and physical condition, and he made such examination, and it did not appear that he prescribed for or treated the prisoner or that the prisoner accepted his services, the opinion of the physician as to his mental condition was admitted.[398]

Where the defendant employed a physician to examine the plaintiff, and he went as coming from the defendant for that purpose, and examined the plaintiff in the presence of his attending physician, but not as the plaintiff’s physician and not for the purpose of prescribing, the relation of physician and patient was not established.[399] Where a physician examined the plaintiff at the instance of the plaintiff’s physician, but it was not shown that he was requested or expected to treat or prescribe or to advise in respect to either, or that he did either, it was held that the relation was not established;[400] but a physician consulted by the patient’s regular physician for the purpose of advice concerning his treatment is a physician contemplated by the statute;[401] as is also the partner of a physician who is present during a conference with the patient or who overhears such a conference.[402] Attendance at the patient’s house is not contemplated as essential by the law, and it makes no difference where the examination is conducted.[403] But where the physician was also a county clerk and the alleged patient was an attorney, and the consultation took place in the clerk’s office and consisted of an examination of an eruption on the skin, which was made gratuitously and without a prescription being made or asked for, the relation was held not to have been established, notwithstanding that the clerk made use of his knowledge and learning as a physician in forming his opinion, and that it was in confidence that he possessed medical skill that the person requested the examination.[404]

It does not follow that the relation once established continues always; the secrecy growing out of the relationship, as to knowledge then acquired, always continues unless properly waived; and the physician will not be allowed to testify in regard to matter which is partly the result of such information, though another part may have been acquired independent of the relation;[405] but where it is clear that the matter desired is independent of the relation of physician and patient, such evidence is admissible if otherwise competent.[406]

“Professional Capacity.”—The States in which the statutes limit the privilege to information acquired in a professional capacity have been enumerated.[407] As to what constitutes a professional capacity, the discussion of the facts that establish the relation of physician and patient, and of the information necessary to enable a physician to prescribe or a surgeon to act, makes it unnecessary to discuss at length the meaning of this phrase. The decision in Lunz v. Massachusetts Mutual Life Insurance Company[408] would make it appear that in Missouri information apparent on a casual inspection which any one might make is not received in a professional capacity, but this idea is disapproved in the later case of Kling v. City of Kansas.[409] Information acquired by the physician by observing the patient on the street anterior to his employment as a physician is not received by him in a professional capacity.[410]

In New York, where the physician had not seen the patient before or since his interview for the purpose of treatment, and he was asked what his opinion was, based on a general sight of the man before the examination, it was held that the physician could not properly answer, as all the information upon which the opinion would be based must have been acquired in a professional capacity;[411] but in another case a physician was permitted to express his opinion as to the mental condition of a patient whom he had seen at various times when not in attendance, excluding from his mind any knowledge or information obtained while acting as her medical attendant and confining his answer to such knowledge and information as he had obtained by seeing her when not his patient.[412] It has been said that where information is not such as is obtained on sight by any person, but by removing clothing and by percussion and listening to the action of the lungs, these are professional acts and the information may be considered as obtained professionally.[413] It has been said that information received in a professional capacity involves a decision, though it may be negative; and that signing as witness to a will is not a professional act.[414]

Matter Necessary to Enable a Physician to Prescribe or a Surgeon to Act.—A list of those States whose laws limit the privilege to matter necessary to enable the witness to prescribe or act for the patient is to be found in another place.[415]

In Arkansas, where six hours after delivery, the patient stated to her physician who attended at accouchement, that she had never been engaged to marry and never had promised to marry, the statements were held not to be necessary to enable the physician to act.[416]

In Iowa, a physician who had treated a patient for injuries was not allowed to testify whether his patient told him that the car on which he was injured was in motion at the time, because as the injury would be likely to be more severe if the car was in motion, that information was necessary to enable the physician to prescribe.[417]

In Michigan, a physician was allowed to contradict his patient as to when her trouble commenced, in the absence of evidence that such information was necessary to enable him to act.[418] Where a physician was asked whether he treated a person for typhoid fever, and he answered that she was not so diseased, it was held that this information was not necessary to enable him to act.[419] And the same was held to be true where a physician examined a prisoner at the jail and testified that he was diseased, the prisoner having been notified at the time of the examination that it was made by direction of the prosecuting attorney and there being no intention to prescribe or act for the prisoner.[420] But it has been stated that all disclosures by a patient to a physician respecting ailments are privileged whether necessary to enable the physician to prescribe or not.[421]

In Minnesota, a physician was allowed to disclose statements as to suffering made by his patient, but not for the purpose of enabling him to prescribe or act.[422]

In Missouri, it has been said that information as to the way in which an injury was inflicted is of the greatest necessity for successful treatment; and that it is information which physicians universally demand and receive.[423] In another case, with reference to the cause of a patient’s condition, it was said that while knowledge of the cause may not be necessary, the disclosure of the cause cannot be made without a disclosure of the condition, and that as a medical person cannot tell indirectly what he is forbidden to tell directly, the physician’s evidence of the cause is inadmissible.[424] In another case it was said that any information, necessarily coming to a physician in order to treat his patient, is to be regarded as necessary information though unimportant, and that the test is how it was acquired, not whether it could have been acquired in a different way, and therefore it was incompetent for a physician to testify that his patient was drunk when he treated him.[425]

In New York, in an early case,[426] where a man consulted a physician with reference to committing an abortion and told him that a certain woman was pregnant by him, this admission was said not to be essential to enable him to prescribe, even if the relation of physician and patient were considered established; but this seems to be at variance with the later case of People v. Brower,[427] where the accused consulted a physician with reference to the treatment of a woman on whom he had attempted to commit an abortion, and admitted that he had done so, and the physician was not permitted to disclose it. A broader view is now taken of the word necessary. It has been held by the Court of Appeals that a physician could not testify that his patient had a venereal disease while under his care as a physician, the presumption being that he learned it for the purpose of prescribing;[428] and again, that it is assumed from the relationship that the information would not have been imparted except for the purpose of aiding the physician to prescribe.[429] But this presumption does not attach to information regarding a patient, communicated by a third person.[430]

Where a person went to a physician to call for medicine, and it appeared that he was not consulting for himself and was not representing any one else who needed or desired medical assistance, the physician was allowed to testify as to a conversation which took place at that time.[431]

In the case of Edington v. Ætna Life Insurance Company,[432] it was said that before the exclusion, the facts on which it is justified must appear in some way, and the Court must know somewhat of the circumstances; from the opinion it is easy to infer that it is only confidential communications and information as to secret ailments which may be regarded as necessary within the statute; but this view was overruled in Grattan v. Metropolitan Life Insurance Company,[433] and there it was distinctly stated that it is enough that the witness acquired the information in his character as physician and in the due and proper exercise of his calling, and that it is not incumbent on the person objecting, to show by formal proof that the information was necessary to enable the witness to prescribe. In this case the examination of the witness was as to the cause of his patient’s death, and the argument urged upon the attention of the Court was that information regarding the cause of death could not be necessary to enable the physician to prescribe, as the utility of the prescription ceased with the death and before the cause was determined; but the Court held that the privilege attached, because, although the death was the result of the cause, the facts constituting the cause were learned while the physician was attending the living patient in a professional capacity and from the symptoms manifested at that time.

In consonance with the decision in Grattan v. Metropolitan Life Insurance Company,[434] it has been held that a physician who amputated a patient’s leg could not testify as to its condition at the time it was amputated.[435]

The fact that the physician does not prescribe does not defeat the privilege; if the information is acquired in the course of professional employment the statute operates, for the decision that neither advice nor medicine is needed is a professional act within the spirit of the law.[436] Medicus optimus, medicamentum minimum, is the maxim used in another case to illustrate this point.[437]

But it cannot be predicated as matter of law that a physician cannot exclude from his consideration facts learned or opinions formed while attending as physician; therefore he can testify as to his opinion on hypothetical facts which might be deemed to relate to another person as well as the patient; and where the physician testified that he could so form an opinion, his opinion of such assumptions was held to be admissible in evidence as expert testimony.[438]

But it is not all information which will be presumed to have been necessary to enable the physician to act; it seems that where the knowledge is such that it is evidently immaterial to the physician’s decision, it will be admitted. Such a case is that of Hoyt v. Hoyt,[439] where the testimony of physicians was admitted to show the attitude of their patient toward his daughter and their advice to him concerning her, the evidence being for the purpose of showing the testator’s opinion and not the physicians’. It has also been held that a statement made by a patient on the physician’s last visit as to what occurred at the time the patient was injured, tending to show contributory negligence, was not necessary information.[440] And a physician’s evidence of the declaration of his patient as to making a will and the doctor’s advice on that subject have been admitted.[441]

THE PROVINCE OF THE COURT IN DEALING WITH THE PRIVILEGE.

All questions of the competency of evidence are solved by the Court and not by the jury.[442] The facts establishing the privilege are presented to the Court for its consideration. In Iowa it has been held that a fair trial demands that it should not be made to appear to the jury in an action that the patient is reluctant to waive his privilege, and that therefore the subject-matter of waiver has no place in the taking of testimony except when introduced by the party permitted to make it, and the Court should not allow the patient to be asked to answer under oath whether he is willing to waive his privilege.[443]

Whether it is the duty of the Court to enforce the privilege where it is apparent and the patient is not present to object, is a question that seems to be variously regarded. In Indiana a court has refused a new trial for newly discovered evidence of the privileged sort, on the ground that if objection were madeon the new trial it would be rejected.[444] But where the evidence of a physician to contradict another physician, who was witness to a will, was received without objection, it was said that it should not be withdrawn by the Court from the consideration of the jury or its value commented on as matter of law.[445]

In Michigan, it has been said that a commissioner, whose ordinary duty is to take all evidence offered, should refuse to take this privileged evidence; and that it should be stricken out without motion by the judge when returned by the commissioner, and that the physician should not be allowed to violate the privilege.[446] It has also been held that an order for the compulsory physical examination of a person by a physician for the purpose of testifying should not be granted, and that evidence so obtained should be stricken out, but on the ground that it was a violation of personal liberty, rather than of statutory privilege.[447]

But in New York it has been held that where a person voluntarily in an action exhibits an injured part as evidence, the adverse party is entitled to follow it up by a personal or professional inspection of the injured part.[448]

In Missouri, it has been said that the physician should be told that he is not at liberty to testify as to privileged information.[449]

In New York, in an early case in chancery, the chancellor said that a master was wrong in supposing there was legal evidence before him, where a physician had given evidence privileged under the statute;[450] but this decision was reversed on appeal, the Court of Errors saying that as no objection was made before the master by a party, the evidence was competent and legal.[451] This question seems to have been settled in New York by the decision in Hoyt v. Hoyt,[452] that the law does not prohibit the examination of a physician but it prohibits the evidence being received in the face of objection, so that if no objection is made by a party it is not the province of the Court to reject the evidence.

Where it appears that privileged information was improperly admitted, it is not ground for reversal on appeal if it is apparent that the appellant was not injured by its reception.[453]

Where the Court is not empowered to reject the evidence of its own motion, the objection upon which it can reject is the objection of a party to the suit, and doubtless of the patient, but not of the physician.[454] But because of the privilege, it has been held that a physician will not be ordered to turn over his books of account to a receiver appointed in proceedings supplementary to an execution on a judgment against him.[455] Nor will examination of his books of account before trial be compelled.[456]

It is the province of the courts, however, to enforce the law and not to legislate by grafting exceptions upon it.[457] They have refused therefore to except, by judicial decision, from the operation of the law, criminal proceedings, testamentary causes, evidence of crime in civil actions, cases of lunacy and habitual drunkenness and fraud,[458] in all of which it was urged in argument without effect that the administration of justice was impeded by the privilege; but where the spirit of the law was violated by an enforcement of its letter and the privilege made a cloak to shield the murderer of the patient, it was held to be inapplicable.[459] The courts have also refused by mere judicial decision to limit the privilege to the life of the patient.[460]

THE EFFECT OF ENFORCING THE PRIVILEGE.

The courts are not warranted in admitting incompetent evidence in order to prevent the failure of justice by the exclusion of the privileged testimony. A letter written by a physician is inadmissible as evidence of the privileged facts which it states;[461] and a certificate of the cause of death, required by law to be signed by the physician and filed, is not admissible to prove the cause of death in an action in which the physician cannot testify.[462]

The making of the objection does not raise a presumption against the person making it.[463] In Iowa it has been held that the patient should not be interrogated under oath as to whether or not he will waive his privilege, for the jury ought not to be prejudiced against him by any show of reluctance.[464] In Michigan, however, it has been held that a patient’s failure to produce his physician as a witness is a legitimate fact for the jury to consider.[465]

THE CHARACTER AND WEIGHT OF THE EVIDENCE TO SUSTAIN THE OBJECTION.

Where the objection is made, the burden of proof to establish the grounds of privilege is upon the person objecting.[466] In Missouri it has been said that the statement of the physician, that he cannot separate his impressions received in his relation of physician from those received at other times, is not in itself sufficient to justify the exclusion of his evidence; that the facts themselves must appear to the Court, and it might be developed on proper cross-examination that discrimination could be made.[467]

But it would seem that because of the necessarily delicate nature of the inquiry, to avoid disclosing what the statute forbids, the burden is overcome with slight evidence, and inferences and presumptions are freely indulged in aid of the privilege; for instance, where the physician was not permitted to answer whether he did converse with his patient about an injury, or whether he made an examination with reference to it, it was urged that the objection was prematurely made, but it was held that the fact that the patient consulted a physician on the occasion to which the inquiry related, when considered with the nature of the questions, justified the exclusion in the absence of other proof.[468] But the physician may testify that he did attend his patient as physician;[469] and he may answer the question whether the information was necessary to enable him to act in his professional capacity;[470] for while his testimony on that point is not conclusive, and the Court uses its own judgment in reaching a determination, his testimony is competent evidence.[471] He may also testify that a person was ill and was his patient, that he attended as physician, and he can state when he attended and how many times.[472]

It has been said that where the evidence justifies the conclusion that information regarding the patient is acquired while attending in a professional capacity, it is not essential to show by formal proof that the information was necessary.[473]

THE RIGHTS AND DUTIES OF THE PHYSICIAN WITH REFERENCE TO THE PRIVILEGE.

The privilege established by law is a rule of evidence, and not a regulation of a physician’s general conduct outside of a proceeding in which rules of evidence are applicable.[474] The courts have, however, not hesitated to intimate that it is a physician’s duty to observe the same secrecy in his general walk and conversation.[475]

The physician may testify as an expert on hypothetical questions submitted to him regarding facts which might be equally true of any other person than his patient, and excluding from his consideration privileged knowledge.[476] And he may also testify as to matters which came to his knowledge before or after or independent of his employment as physician,[477] or which were immaterial to his acting in a professional capacity, and as to which his patient could have had no reasonable ground for believing that they were necessarily disclosed in order that the physician might so act.[478] It is the patient’s privilege and not the physician’s; and, therefore, the physician is not absolutely incompetent as a witness, and has no right to refuse to testify.[479] But where he is a party he may object and then he will not be forced to disclose his patient’s confidence.[480]

In Indiana it has been held that where the patient testifies in an action against his physician for malpractice the physician is then at liberty to testify or to introduce any other witness to testify concerning the matters in controversy.[481]

In Michigan, a physician who was plaintiff in a libel suit was not permitted to insist upon the privilege to prevent the disclosure of his maltreatment of his patient or what other physicians had discovered with regard to it by visits to his patients.[482]

The measure of the physician’s exemption and liability in testifying is the language of the statute, and not his idea of his duty to his patient or the patient’s injunctions of confidence or secrecy.[483]

In some of the States there are statutory provisions entitling physicians to sue for compensation for their professional services.[484] The statutes regarding privileged communications are to be construed together with these. There seems to be no reason why a physician’s right of action for his services and medicines should not survive the prohibition of his evidence; but it would seem that he cannot as a witness in such an action testify regarding privileged matter. But he can prove it by other witnesses.[485]

THE RESULT OF THE LEGISLATION.

It is doubtless due to considerations of public policy that the statutes changing the common-law rule have been enacted;[486] but they have not proved an unalloyed benefit, and some of their features have brought about conditions which in some cases have embarrassed the administration of justice. The law in New York may be taken for illustration; it formerly cut off the safest means of ascertaining the mental condition and competency of a testator;[487] it now precludes a physician from disclosing the condition of his patient who is a lunatic or habitual drunkard,[488] though it be the most satisfactory evidence; it shuts out much testimony tending to show fraud in insurance cases;[489] it precludes a physician from stating the cause of his patient’s death,[490] though there is no longer any secrecy connected with it, for the law makes it the duty of the physician to make, for filing with the local board of health, a certificate of the probable cause of the death of a patient.[491] It has been the subject of much adverse criticism,[492] but all such considerations are properly to be addressed to the legislature and not to the courts. It seems to be the most far-reaching in its exclusion, and though it has been the longest in existence, was modified at the legislative sessions of 1891, 1892, and 1893, a fact which tends to show that there was sound reason in the criticisms.

A SYNOPSIS OF THE LAWS

OF THE

SEVERAL STATES AND TERRITORIES OF THE UNITED STATES OF AMERICA, AND OF GREAT BRITAIN AND IRELAND, AND OF THE NORTH AMERICAN PROVINCES OF GREAT BRITAIN, REGULATING THE PRACTICE OF MEDICINE AND SURGERY,

PREPARED FROM THE LATEST STATUTES.

BY

WILLIAM A. POSTE,

Late First Deputy Attorney-General of the State of New York,

AND

CHARLES A. BOSTON, ESQ.,

of the New York City Bar.

SYNOPSIS OF THE EXISTING STATUTES

WHICH REGULATE

THE ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY IN THE UNITED STATES, GREAT BRITAIN AND IRELAND, AND THE CANADIAN PROVINCES.

[NOTE.—This synopsis is designed to contain especially those provisions of the statutes which regulate the right to practise medicine and surgery. It is not intended to include provisions regulating apothecaries, druggists, chemists, and dentists, or the sale of drugs, medicines, and poisons; nor provisions for the organization and procedure of boards of medical examiners, except so far as they regulate the requirements demanded from applicants for permission to practise; nor provisions with reference to the duties of clerks or registrars in the preparation and safe-keeping of records in their care; nor those defining the duties of members of boards, and punishing the misconduct of such members; nor those prescribing qualifications for appointment to the public medical service; nor former laws not now applicable to candidates; nor regulations of the form of certificates or licenses, where the issuing of them is committed to some public functionary or body; nor provisions with reference to the powers and disabilities of local institutions to confer diplomas or degrees, nor with reference to medical students except as candidates for admission to practise. In the synopsis words of the masculine gender are uniformly used except when the law by its terms makes a distinction between men and women, in which case the distinction is indicated.]

ALABAMA.

QUALIFICATION.—The board of censors of the Medical Association of the State of Alabama and the board of censors of the county medical societies in affiliation with the said association are boards of medical examiners (Code 1887, s. 1,301). In the absence of such board of medical examiners in any county, the county commissioners may establish a board of from three to seven physicians of good standing, resident in the county, whose authority shall terminate whenever a board is organized in accordance with the constitution of and in affiliation with said association (ib., s. 1,296). Where the board of examiners is constituted as provided in sec. 1,296, it must issue a license to practise medicine in any one or more of its branches in the county, if on examination the applicant is found duly qualified, and is of good moral character (ib., s. 1,297).

In a county having only the medical board provided for in sec. 1,296, a regular graduate of a medical college in the United States, having a diploma, is entitled to practise medicine without a license, upon recording his diploma in the office of the judge of probate of the county (ib., s. 1,298).

A license issued by the last-mentioned board must be recorded in the office of the judge of probate of the county (ib., s. 1,299). The license or diploma, after record, is evidence of authority; if the original be lost, a certified copy of the record is sufficient evidence (ib., s. 1,300). Without a certificate of qualification from the board provided for in sec. 1,301, except as above provided, no person can lawfully practise medicine in any of its branches or departments as a profession or means of livelihood (ib., s. 1,302). The standard of qualification, method or system, and subjects of examination are prescribed by the medical association of the State (ib., s. 1,303).

The board of medical examiners, on application, must examine an applicant for a certificate of qualification as a practitioner of medicine, and if he be found qualified, and of good moral character must issue a certificate (ib., s. 1,304).

Physicians having a license as above before the organization in a county of a board, are on application thereto entitled to a certificate without examination and to be registered as licensed practitioners of medicine (ib., s. 1,305).

The certificate is a license throughout the State. It must be recorded in the office of the judge of probate of the county in which the person resides at the time of issue. Upon recording it, the judge must indorse a certificate of record and sign it and affix the seal of the court (ib., s. 1,306). Such certificate, or, if lost, a certified copy of the record, is evidence (ib., s. 1,307).

PENALTY.—A contract for the services of a physician or surgeon is void unless he has authority to practise; proof of authority is not required at trial except on two days’ notice (ib., s. 1,318).

Practising medicine or surgery without a certificate is a misdemeanor under a penalty of a fine of from $25 to $100. This provision is not applicable to physicians practising medicine in Alabama in 1890, who are graduates of a respectable medical college and have complied with the law by having their diplomas recorded by the judge of probate in the county where they practise; nor to a physician who has practised in the State for the past five years (Act 1890-91, c. 376); nor to women practising midwifery (Code 1887, s. 1,308).

FEES.—The statutory fees are as follows:

To judge of probate, for record of diploma, or license or certificate, $1 (ib., s. 1,298, 1,299, 1,306).

To board of medical examiners, for examination, actual expenses (ib., s. 1,304).

ARIZONA.

QUALIFICATION.—It is unlawful for any person to practise medicine, surgery, or other obstetrics unless he have a diploma regularly issued by a medical college lawfully organized under the laws of the State wherein it is located, or a license issued and authorized by a board of medical examiners under and by virtue of the laws of any State or Territory. The diploma must state that the person named is qualified to practise medicine and surgery in all of its departments (Penal Code, 1887, s. 617, as amended Act of April 11th, 1893).

A diploma granted for moneyed consideration or other article of value alone, or revoked or cancelled by the college by which it was issued or by act of the legislature, is not a sufficient qualification (ib., s. 618).

Every practitioner of medicine, surgery, or obstetrics must register in the county recorder’s office his name, residence, and place of birth, and present his diploma or license, and the county recorder must make a copy of it under the record of his name, residence, and place of birth. The person registering must subscribe and verify an affidavit in writing, annexed to the copy as transcribed, that he is the identical person named in the diploma (ib., s. 619, as amended by Act of April 11th, 1893).

DEFINITION, EXCEPTION.—Any person is regarded as practising medicine who professes publicly to be a physician or habitually prescribes for the sick, or appends to his name “M. D.,” but the act does not prohibit gratuitous services in cases of emergency; nor apply to lawfully commissioned surgeons and assistant surgeons of the United States army and those who were commissioned and mustered into the United States service in the great rebellion, or physicians or surgeons who have been in active practice for ten years and at least three years in the Territory, nor prevent practice and receiving pay in localities fifteen miles or more from the residence or office of a regular physician (ib., s. 620).

OFFENCE.—Violation of the act is a misdemeanor (ib., s. 621).

FEES.—To the county recorder, for registration, $5 (ib., s. 619).

ARKANSAS.

QUALIFICATION.—It is unlawful for any one to engage in the practice of medicine and surgery, or either, as a calling except as provided in the statute (Act April 14th, 1893, s. 1).

A person engaging in the practice of medicine or surgery must be of good moral character, twenty-one years of age, and a graduate of some reputable college of medicine and surgery that requires for graduation not less than two courses of lectures, each in a different year (ib., s. 2).

Before engaging in practice, such person must exhibit his diploma to some county clerk of the State and have it recorded. The clerk must give him a certificate of record, which may be attached to the diploma (ib., s. 3).

In all cases of doubt as to the reputability of a college, it is the duty of the clerk of the county court, when a diploma is offered for record, to make inquiry of the Secretary of the State where the said college exists as to its reputability and requirements for graduation, and if the said clerk shall find that the said college does not conform to the requirements of this article, he shall not receive the diploma and the holder shall not be allowed to practise in the State. The aggrieved applicant may apply to the State board of medical examiners, whose decision shall govern the clerk in his action (ib., s. 4).

If after recording any diploma it shall come to the knowledge of the clerk making the record, or any other judicial or executive officer of the State, that the record was obtained by fraud or misrepresentation, it shall be his duty to institute before the said court of record proceedings to have such record reversed, and the holder of the diploma shall be judged guilty of a misdemeanor (ib., s. 5).

EXCEPTIONS.—The act does not affect the standing of any one practising at the time of its passage by virtue of a license under the then existing law, nor any one then legally engaged in the practice of medicine and surgery, nor does it prevent midwives from practising their calling or any one else from giving such simple domestic remedies as they are in the habit of using (ib., s. 6).

EXAMINATIONS.—The constituted State board of medical examiners is authorized to examine persons having no diploma from a medical college, and if found qualified to practise medicine and surgery issue a certificate entitling the holder to practise in this State (ib., s. 7).

SYSTEMS, DEFINITION.—No discrimination of schools of medicine is allowed. Any person who prescribes or administers medicine except as provided in sec. 6 is deemed a physician (ib., s. 8).

PENALTY.—The violation of this act is a misdemeanor punishable with a fine of from $25 to $100. Each day of practice is a separate offence (ib., s. 9).

DATE.—The act took effect ninety days after its passage (ib., s. 10).

FEES.—To the county clerk, for recording, $1.50.

For certificate of record the county clerk is not allowed to charge a fee (ib., s. 3).

CALIFORNIA.

QUALIFICATION.—Every person practising medicine or surgery in any of its departments must present his diploma to the board of examiners with affidavits. If the board finds all facts required to be stated in the affidavit to be true, it issues a certificate conclusive in any part of the State (Act 1877-78, c. 576; amending Act 1875-76, c. 518).

The secretary of the board receives applications. The board issues certificates to all who furnish satisfactory proof of having received diplomas or licenses from legally chartered medical institutions in good standing (Act 1875-76, c. 518, s. 3).

The medical society of the State, the eclectic medical society of the State, and the State homœopathic medical society each appoint annually a board of seven examiners who must be regular graduates (Act 1877-78, c. 576; amending Act 1875-76, c. 518).

The board examines diplomas as to genuineness. The affidavit accompanying the diploma must state that the applicant is its lawful possessor, and the person therein named; that the diploma was procured in the regular course of medical instruction and without fraud or misrepresentation of any kind, and that the medical institution granting it had, at the time of granting the same, a full corps of medical instructors, and was at said time a legally incorporated institution, actually and in good faith engaged in the business of medical education, and in good standing as a medical institution, and that the applicant had complied with all the requirements of said institution. The affidavit may be taken before any person authorized to administer oaths, and must be attested under the hand and official seal of the officer, if he have a seal. The board may hear such further testimony as they deem proper to hear as to the verification of the diploma or the identity of the person, or the manner in which the diploma was procured, and if it appears that any fact stated in the affidavit is untrue, the application is rejected. No board entertains an application rejected by another; a rejected application cannot be renewed for at least one year (ib., s. 4, as amended by Act 1877-78, c. 918); no certificates are granted except to persons presenting diplomas or licenses from legally chartered medical institutions in good standing (ib., s. 5).

Certificates must be recorded in the county of residence and the record indorsed thereon. A person removing to another county to practise must procure an indorsement to that effect on his certificate from the county clerk, and must record the certificate in the county to which he removes (ib., s. 6).

The board refuses certificates to individuals guilty of unprofessional conduct. The applicant is given an opportunity to be heard, by citation; the attendance of witnesses may be compelled by subpœna; witnesses may be examined at the hearing by either side, and either side may examine medical experts as to whether such conduct is unprofessional; if it appears to the satisfaction of the board that the applicant is guilty of the unprofessional conduct set out in the citation, no certificate can be granted. No application is refused for unprofessional conduct more than one year before the application. If the holder of a certificate is guilty of unprofessional conduct, the certificate must be revoked by board granting it; no revocation is valid without similar proceedings to the foregoing (ib., s. 10).

DEFINITION.—Any person is regarded as practising medicine who professes publicly to be a physician, or habitually prescribes for the sick, or appends to his name “M.D.”

EXCEPTIONS.—The act does not prohibit gratuitous services in cases of emergency; nor apply to lawfully commissioned surgeons of the United States army or navy practising their profession (ib., s. 11, as amended 1877-78, c. 576).

ITINERANT VENDERS.—A license of $100 a month is exacted from itinerant venders of drugs, nostrums, ointments, or appliances for treatment of disease, and from persons publicly professing to cure or treat disease, injury, or deformity by any medicine, drug, or drugs, nostrum, manipulation, or other expedient (Act 1877-78, c. 576, amending Act 1875-76, c. 518, s. 12).

PENALTY.—The penalty for violation of the act is a fine of from $50 to $500, or imprisonment in the county jail from 30 to 365 days, or both, for each and every offence. Filing or attempting to file the diploma or certificate of another, or a forged affidavit of identification, is a felony, punishable the same as forgery (ib., s. 13; Act 1877-78, c. 918, s. 7).

FORMER PRACTITIONERS.—Holders of certificates theretofore granted by the board of examiners existing by the appointment of the California State Medical Society of Homœopathic Practitioners are excused by the Act 1877-78, c. 918, s. 7, from obtaining new certificates.

REJECTED APPLICANT.—A certificate issued by one board to an applicant rejected by another within a year is null and void (ib., s. 9).

FEES.—To secretary of board, for examining genuine diploma, $5.

If diploma fraudulent or property of another, $20 (Act 1877-78, c. 576, s. 3; amending Act 1875-76, c. 518, s. 4).

To county clerk, for recording certificate, usual recording fees (Act 1875-76, c. 518, s. 6).

COLORADO.

BOARD OF EXAMINERS.—The State board of medical examiners is composed of nine practising physicians of known ability and integrity, graduates of medical schools of undoubted respectability, six of the regular school, two of the homœopathic, and one of the eclectic school or system, appointed by the governor (Mills’ “Annotated Statutes” 1891, s. 3,547).

QUALIFICATION.—Every person practising medicine must possess the required qualifications. If a graduate in medicine, he must present his diploma to the State board of medical examiners for verification, or furnish other evidence conclusive of his being a graduate of a legally chartered medical school in good standing. The board issues its certificate, and such diploma or evidence and certificate are conclusive. If not a graduate of a legally chartered medical school in good standing, the person must present himself before the board for examination. All persons who have made the practice of medicine and surgery their profession or business continuously for ten years, and can furnish satisfactory evidence thereof to the State medical examiners, shall receive a license to continue (ib., s. 3,550).

Examinations of persons not graduates are made by the State board, wholly or partly in writing, in anatomy, physiology, chemistry, pathology, surgery, obstetrics, and practice of medicine (exclusive of materia medica and therapeutics) (ib., s. 3,553).

The holder of a certificate should have it recorded in the office of the clerk of the county in which he resides, and the record indorsed thereon, and on removing to another county to practise should procure an indorsement to that effect on the certificate from the county clerk, and record this certificate in the county to which he removes (ib., s. 3,554).

The board may refuse certificates to persons convicted of conduct of criminal nature; and may revoke certificates for like cause (ib., s. 3,356).

DEFINITION.—Professing publicly to be a physician and prescribe for the sick, or attaching to name “M.D.,” or “surgeon” or “doctor” in a medical sense, is regarded as practising medicine. Gratuitous services in case of emergency are not prohibited (ib., s. 3,557).

PENALTY.—The penalty for violation of the act is a fine of from $50 to $300, or imprisonment in the county jail from ten days to thirty days, or fine and imprisonment for each offence; filing or attempting to file the diploma or certificate of another, or false or forged evidence, is a felony punishable the same as forgery (ib., s. 3,558).

SYSTEM OF MEDICINE.—Certificates are issued without prejudice, partiality, or discrimination as to schools or systems of practice or medicine, including the electropathic school (ib., s. 3,561).

FEES.—To treasurer of board by graduates and practitioners of ten years’ standing, $5. By candidates for examination, $10 (ib., s. 3,552).

To county clerk, for recording certificate, $1 (ib., s. 3,554).

CONNECTICUT.

QUALIFICATION, EXCEPTIONS.—After October 1st, 1893, no person shall for compensation, gain, or reward, received or expected, treat, operate, or prescribe for any injury, deformity, ailment, or disease, actual or imaginary, of another person, nor practise surgery or midwifery unless or until he has obtained a certificate of registration, and then only in the kind or branch of practice stated in the certificate, but the act does not apply to dentists practising dentistry only, nor to any person in the employ of the United States Government while acting in the scope of his employment, nor to medical or surgical assistance in cases of sudden emergency, nor to any person residing out of the State who shall be employed to come into the State to assist or consult with any physician or surgeon who has been registered in conformity with the act, nor to any physician or surgeon then actually residing out of the State who shall be employed to come into the State to treat, operate, or prescribe for any injury, deformity, ailment, or disease from which any person is suffering at the time when such non-resident physician or surgeon is so employed, nor to any actual resident of this State recommending by advertisement or otherwise the use of proper remedies sold under trade-marks issued by the United States Government, nor to any chiropodist or clairvoyant not using in his practice any drugs, medicines, or poisons, nor to any person practising the massage method or Swedish movement cure, sun cure, mind cure, magnetic healing, or Christian science, nor to any other person who does not use or prescribe in his treatment of mankind drugs, poisons, medicine, chemicals, or nostrums (Act 1893, c. 148, s. 1).

Any resident of the State who, at the time of the passage of the act, was or previously had been actually engaged in the State in the practice of medicine, surgery, midwifery, or any alleged practice of healing, may, before October 1st, 1893, file with the State board of health duplicate statements subscribed and sworn to by him upon blanks furnished by said board, giving his name, age, and place of birth and present residence, stating whether he is a graduate of any medical college or not, and of what college, and the date of graduation, and if practising under a license from any of the medical societies of the State, which society and the date of such license and the length of time he has been engaged in practice in the State, and also elsewhere, and whether in general practice or in a special branch of medicine or surgery, and what branch. On receipt of such statements, the board shall issue a certificate of registration which shall state the kind or branch of practice in which he is engaged (ib., s. 2).

Any person who shall, subsequent to October 1st, 1893, file with said board such duplicated statements, showing that he is a graduate of a medical college recognized as reputable by any chartered medical society of the State, shall receive a certificate of registration which shall state the kind or branch of practice in which the person named therein is engaged or is to be engaged (ib., s. 3).

Any person residing in any town in another State which town adjoins the boundary line of Connecticut, who was actually engaged in such town, at the time of the passage of the act, in the practice of medicine, surgery, or midwifery, or any branch of practice, may before October 1st, 1893, obtain from the said board a like certificate on filing such duplicated statements also showing that he is entitled to such certificate under this section (ib., s. 4).

Except as above provided, no person shall after October 1st, 1893, obtain a certificate of registration until he has passed a satisfactory examination before a committee appointed by said board, nor until he has filed with the said board duplicate certificates as aforesaid, signed by a majority of one of said examining commissioners, stating that they have found him qualified to practise either medicine, surgery, or midwifery, and any person filing said certificates shall receive from said board a certificate of registration (ib., s. 5).

The State board of health, in January, 1894, is to appoint three examining commissions, each of five physicians nominated respectively by the Connecticut Medical Society, the Connecticut Homœopathic Medical Society, and the Connecticut Eclectic Medical Association, and recommended by the said societies respectively as persons competent to serve upon the said examining commissions. Appointments are to be made thereafter from time to time by similar nominations (ib., s. 6 and 7).

The State board of health shall designate when and where the commissions shall hold examinations, but shall call a meeting of a commission within thirty days after the receipt of an application for examination. Applicants shall be examined in anatomy, physiology, medical chemistry, obstetrics, hygiene, surgery, pathology, diagnosis, and therapeutics, including practice and materia medica. Each commission shall frame its own questions and conduct its examinations in writing, and both questions and answers shall be placed on file with the board. Each applicant may choose by which of the commissions he will be examined.

After rejection by any examining commission, the applicant shall not be eligible to examination by another commission until after the expiration of twelve months (ib., s. 8).

On the receipt of duplicate statements, the board shall transmit one of them with a duplicate certificate of registration to the town clerk of the town where the person filing the statement resides, and if he does not reside in the State to the town clerk of the town in the State nearest to his place of residence, and said clerk shall record the same and return them to the person who filed them with the board (ib., s. 9).

The secretary of each medical society shall file with the secretary of the State board of health a list of medical colleges or institutions recognized as legal and reputable by his society or all of such secretaries may agree upon a single list, and such list may be corrected from time to time (ib., s. 10).

PENALTY.—The violation of sec. 10 shall be a misdemeanor, punishable with a fine of from $100 to $300 for the first offence, and for each subsequent offence by a fine of from $200 to $500 or imprisonment in the county jail for from thirty to ninety days, or both (ib., s. 11); swearing falsely to a statement is perjury (ib., s. 12).

FEES.—To the State board of health, on filing statements or certificates, $2 (ib., s. 2, 3, 4, 5).

To examining commission, before examination, their expenses not exceeding $10 (ib., s. 8).

To the town clerk, by State board of health out of the amount paid to it, for recording, 25 cents (ib., s. 9).

DELAWARE.

QUALIFICATION.—It is unlawful to practise medicine or surgery without a license (Laws 1887, vol. 18, c. 35, s. 1, as amended by Laws 1889, vol. 18, c. 518).

The medical board of examiners for the State must grant a license to any person applying therefor who shall produce a diploma from a respectable medical college, or shall, upon full and impartial examination, be found qualified for such practice (Rev. Stats., c. 47, s. 3). The board consists of as many fellows of the Medical Society of Delaware as the society deems proper (ib., s. 3).

The clerk of the peace of a county, on presentation of a license issued by the board of examiners of the Homœopathic Medical Society of Delaware State and Peninsula, under its corporate seal, signed by its president and countersigned by its secretary, or of the license provided by sec. 3, c. 47, of the Revised Statutes, or on the affidavit of a person that he or she has practised medicine or surgery for eight years continuously in the State, and upon such person registering his name, the date of his graduation and college (if a graduate), and his place of intended residence, must issue a license (ib., s. 2).

A person opening a transient office or assigning a transient office by printed or written advertisement, must comply with the foregoing provisions and pay special license fee for a license good only for one year (Laws 1887, vol. 18, c. 35, s. 5).

PENALTY.—The violation of this law is a misdemeanor punishable by a fine of from $100 to $300 (ib., s. 7).

EXCEPTIONS.—The present law exempts those who complied with the Act of April 19th, 1883, and also regular practitioners of another State in consultation with a lawful practitioner of medicine and surgery of this State (ib., s. 4, 6).

FEES.—To clerk of the peace, for issuing license to practise, $10.50 (Laws 1887, vol. 18, c. 35, s. 4). For issuing annual license for revenue of the State, $10.50 (Laws, vol. 13, c. 117, as amended, vol. 14, c. 16).

To secretary of board, for license, $10 (Rev. Stats., c. 47, s. 5).

A license fee to practise medicine, for the revenue of the State, is also required (ib., s. 8; vol. 13, c. 117, as amended, vol. 14, Laws, c. 16).

DISTRICT OF COLUMBIA.

REGISTRATION.—It is the duty of every physician, accoucheur, and midwife practising medicine, or doing business, to register at the office of the board of health, giving full name, residence, and place of business, and in case of removal from one place to another in the District to make a change in the register (Regulation of Board of Health, August 28th, 1874, s. 8, legalized by resolution of Congress, No. 25, s. 2, April 24th, 1880).

VIOLATION.—The violation of the foregoing provision is punishable by a fine of from $25 to $200 for every offence (ib., s. 9).

QUALIFICATION.—All physicians required to register must do so upon a license from some chartered medical society or upon a diploma from some medical school or institution (ib., s. 11 [First]).

FLORIDA.

BOARDS OF EXAMINERS.—The governor appoints a board of medical examiners for each judicial circuit, and a board of homœopathic examiners for the State (Rev. Stats., 1892, s. 801).

The circuit board is composed of three practising physicians of known ability, graduates in good standing of a medical college, recognized by the American Medical Association, residents of the circuit; the homœopathic board is composed of three practising homœopathic physicians of known ability, graduates in good standing of a medical college recognized by the American Institute of Homœopathy (ib., s. 802).

QUALIFICATION.—It is the duty of the board of examiners to examine thoroughly every applicant, upon the production of a medical diploma from a recognized college, upon anatomy, physiology, surgery, gynæcology, therapeutics, obstetrics, and chemistry, but no preference is given to any school of medicine; and it is the duty of the board of homœopathic medical examiners to examine thoroughly every applicant, upon the production of his diploma from a college recognized by the American Institute of Homœopathy, on anatomy, physiology, surgery, gynæcology, materia medica, therapeutics, obstetrics, and chemistry, but no preference is given to any school of medicine (Rev. Stats., 1892, s. 806).

When the board is satisfied as to the qualifications of the applicant, they grant a certificate which entitles him to practise medicine in any county, when recorded (ib., s. 807). Any two members of the board may grant a certificate. Any member may grant a temporary certificate, upon examination, until the next regular meeting, at which time the temporary certificate ceases to be of effect (ib., s. 808). Before he shall be entitled to practise, the certificate must be recorded in the office of the clerk of the circuit court of the county in which he may reside or sojourn; and the clerk must certify thereon, under official seal, the fact and date of the record, and return the certificate (ib., s. 809).

A practitioner engaged in the practice of medicine in any department prior to May 31st, 1889, upon the production of a diploma from a medical college recognized by the American Medical Association, is granted a certificate, without further examination and without charge (ib., s. 811).

EXCEPTIONS.—This act is not applicable to persons who have complied with prior laws, nor to females practising midwifery, strictly as such. No other person shall practise medicine in any of its branches or departments, without having obtained and recorded a certificate (ib., s. 812).

PENALTY.—Practising as a physician without a certificate is punishable by imprisonment not exceeding six months, or a fine not exceeding $200 (ib., s. 2,669).

FEES.—To clerk, legal fee for recording (ib., s. 809).

To board, $10 from each applicant whether certificate granted or not (ib., s. 810).

GEORGIA.

The Code of 1882, s. 1,409 (a) as amended by chap. 413, Laws 1882-83, provides that—

QUALIFICATION.—No person is to practise medicine, unless he was theretofore legally authorized, or is hereafter authorized by a diploma from an incorporated medical college, medical school or university, or has after attending one or more full terms at a regularly chartered medical college, been in active practice of medicine since the year 1866, or was by law authorized to practise medicine in 1866, and by compliance with the statute.

DEFINITION.—To “practise medicine” means to suggest, recommend, prescribe, or direct, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of mind or body, or for the cure or relief of any wound, fracture, or other bodily injury, or any deformity, after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation (ib., s. 1,409 [b]).

REGISTRATION.—Every person now lawfully engaged in practice must register on or before December 1st, 1881; every person hereafter duly qualified shall, before commencing to practise, register in the office of the clerk of the superior court of the county wherein he resides and is practising, or intends to practise, his name, residence, and place of birth, together with his authority; he shall subscribe or verify, by oath or affirmation, before a person duly qualified to administer oaths under the laws of this State, an affidavit containing such facts, and whether such authority is by diploma or license, and the date of the same, and by whom granted, which shall be exhibited to the county clerk, before the applicant is allowed to register, and which, if wilfully false, is punishable as false swearing (ib., s. 1,409 [c]).

REMOVAL.—A registered physician changing his residence from county to county must register in the clerk’s office of the county to which he removes and wherein he intends to reside and to practise medicine (ib., s. 1,409 [d]).

PENALTY.—The violation of this law or practising, or offering to practise, without lawful authority, or under cover of a diploma or license illegally obtained, is a misdemeanor, punishable by a fine of from $100 to $500, or imprisonment from thirty to ninety days, or both (ib., s. 1,409 [e]).

EXCEPTIONS.—Commissioned medical officers of the United States army or navy, or United States marine hospital service, and women practising only midwifery, are not affected (ib., s. 1,409 [f]).

MEDICAL BOARDS.—All medical boards are abolished, and only the qualifications of practitioners of medicine set forth above are required (ib., s. 1,409 [g]).

FEES.—To county clerk, fifty cents for each registration (ib., s. 1,409 [c]).

TAX.—On practitioners of physic, $5 per annum (ib., s. 809).

IDAHO.

QUALIFICATION.—No person can lawfully practise medicine or surgery who has not received a medical education, and a diploma from a regularly chartered medical school, having a bona fide existence when the diploma was granted (Rev. Stats., 1887, s. 1,298).

A physician or surgeon must file for record with the county recorder of the county in which he is about to practise, or where he practises, a copy of his diploma, at the same time exhibiting the original, or a certificate from the dean of a medical school certifying to his graduation (ib., s. 1,298 [a]).

When filing the copy required, he must be identified as the person named in the papers, by the affidavit of two citizens of the county, or by his affidavit taken before a notary public or commissioner of deeds for this State; and the affidavit is filed in the office of the county recorder (ib., s. 1,298 [b]).

PENALTY.—Practising without complying with the act is a misdemeanor, punishable by a fine of from $50 to $500, or imprisonment in a county jail from thirty days to six months, or both fine and imprisonment for each offence.

Filing or attempting to file as his own the diploma or certificate of graduation of another, or a forged affidavit of identification, is a felony; subject to fine and imprisonment (ib., s. 1,298 [c]; ib., s. 6,312).

EXCEPTIONS.—The act is not applicable to a person in an emergency prescribing or giving advice in medicine or surgery, in a township where no physician resides within convenient distance, nor to those who have practised medicine or surgery in this State for ten years preceding the passage of this act, nor to persons prescribing in their own families, nor to midwifery in places where no physician resides within convenient distance (ib., s. 1,298 [e]; as amended by Act of February 7th, 1889).

FEES.—No special fees are enumerated in the statute. The county recorder’s fees for services are prescribed in Rev. Stats., 1887, s. 2,128.

ILLINOIS.

QUALIFICATION.—No person can lawfully practise medicine in any of its departments unless he possesses the qualifications required. If a graduate in medicine, he must present his diploma to the State Board of Health for verification as to its genuineness. If the diploma is found genuine, and from a legally chartered medical institution in good standing, and if the person named therein be the person claiming and presenting the same, the board must issue a certificate conclusive as to his right to practise medicine. If not a graduate, the person must present himself before the said board and submit to examination, and if the examination is satisfactory the board must issue certificate (Laws 1887, p. 225, s. 1).

The verification of a diploma consists in the affidavit of the holder and applicant that he is the person therein named. The affidavit may be taken before any person authorized to administer oaths, and attested under the hand and official seal of such officer (if he have a seal). Swearing falsely is perjury. Graduates may present their diplomas and affidavits by letter or proxy (ib., s. 3).

All examinations of persons not graduates or licentiates are made by the board; and certificates authorize their possessor to practise medicine and,surgery (ib., s. 4).

The certificate must be recorded in the office of the clerk of the county in which the holder resides within three months from its date, and the date of recording indorsed. Until recorded, the holder cannot lawfully exercise the rights and privileges conferred. A person removing to another county to practise must record his certificate in the county to which he removes (ib., s. 5).

Examinations may be wholly or partly in writing and shall be of elementary and practical character, but sufficiently strict to test the qualifications of the candidate as a practitioner (ib., s. 8).

The board may refuse to issue a certificate to a person guilty of unprofessional or dishonorable conduct, and may revoke for like causes. The applicant in case of a refusal or revocation may appeal to the governor and his decision will be final (ib., s. 9).

DEFINITION.—“Practising medicine” is defined as treating, operating on, or prescribing for any physical ailment of another. The act does not prohibit services in case of emergency, nor the domestic administration of family remedies, and does not apply to commissioned surgeons of the United States army, navy, or marine hospital service in the discharge of official duty (ib., s. 10).

ITINERANT VENDER.—An itinerant vender of drug, nostrum, ointment, or appliance intended for treatment of disease or injury, or professing by writing, printing, or other method to cure or treat disease or deformity by drug, nostrum, manipulation, or other expedient, must pay a license fee of $100 per month into the treasury of the board. The board may issue such license. Selling without a license is punishable by fine of from $100 to $200 for each offence. The board may for cause refuse a license (ib., s. 11).

PENALTY.—Practising medicine or surgery without a certificate is punishable by a forfeiture of $100 for the first offence, and $200 for each subsequent offence; filing or attempting to file as his own the certificate of another, or a forged affidavit of identification, is a felony, punishable as forgery.

EXCEPTIONS.—The act saves for six months after its passage the right of persons who have practised continuously for ten years in the State prior to its passage, to receive a certificate under former act. But all persons holding a certificate on account of ten years’ practice are subject to all requirements and discipline of this act in regard to their future conduct; all persons not having applied for or received certificates within said six months, and all persons whose applications have for the causes named been rejected, or their certificates revoked, shall, if they practise medicine, be deemed guilty of practising in violation of law (ib., s. 12).

PENALTY.—On conviction of the offence mentioned in the act, the court must, as a part of the judgment, order the defendant to be committed to the county jail until the fine and costs are paid (ib., s. 13).

FEES.—To the secretary of the board, for each certificate to a graduate or licentiate, $5 (ib., s. 2).

For graduates or licentiates in midwifery, $2 (ib., s. 2).

To county clerk, usual fees for making record.

To treasury of board, for examination of non-graduates: $20, in medicine and surgery; $10, in midwifery only.

If the applicant fails to pass, the fees are returned. If he passes, a certificate issues without further charge (ib., s. 7).

INDIANA.

QUALIFICATION.—It is unlawful to practise medicine, surgery, or obstetrics without a license (Act April 11th, 1885, s. 1).

The license is procured from the clerk of the circuit court of the county where the person resides or desires to locate to practise; it authorizes him to practise anywhere within the State; the applicant must file with the clerk his affidavit stating that he has regularly graduated in some reputable medical college, and must exhibit to the clerk the diploma held by him, his affidavit, and the affidavit of two reputable freeholders or householders of the county stating that the applicant has resided and practised medicine, surgery, and obstetrics in the State continuously for ten years immediately preceding the date of taking effect of this act, stating particularly the locality or localities in which he has practised during the said period, and the date and length of time in each locality; or his affidavit and the affidavit of two reputable freeholders or householders of the county, stating that he has resided and practised medicine, surgery, and obstetrics in the State continuously for three years immediately preceding the taking effect of this act, and stating particularly the localities in which he practised during the said period, and the date and length of time in each locality, and that he, prior to said date, attended one full course of lectures in some reputable medical college. The clerk must record the license and the name of the college in which the applicant graduated, and the date of his diploma (ib., s. 2, as amended by Act March 9th, 1891).

A license issued to a person who has not complied with the requirements of sec. 2, or one procured by any false affidavit, is void (Act April 11, 1885, s. 3).

PENALTY.—Practising medicine, surgery, or obstetrics without a license is a misdemeanor punishable with a fine of from $10 to $200 (ib., s. 4).

No cause of action lies in favor of any person as a physician, surgeon, or obstetrician who has not prior to the service procured a license; and money paid or property paid for such services to a person not so licensed, or the value thereof, may be recovered back (ib., s. 5).

EXEMPTIONS.—Women practising obstetrics are exempted from the provisions of the act (ib., s. 4).

FEES.—To clerk, for license, $1.50 (Act April 11th, 1885, as amended Act March 9th, 1891).

REGISTRATION.—It is the duty of all physicians and accoucheurs to register their name and post-office address with the clerk of the circuit court of the county in which they reside (Act 1881, p. 37, s. 10).

FEES.—To the clerk, for registration, 10 cents (ib., s. 11).

IOWA.

QUALIFICATION.—Every person practising medicine, surgery, or obstetrics, in any of their departments, if a graduate in medicine, must present his diploma to the State board of examiners for verification as to its genuineness. If the diploma is found genuine, and is by a medical school legally organized and of good standing, which the board determines, and if the person presenting be the person to whom it was originally granted, then the board must issue a certificate signed by not less than five physicians thereof, representing one or more physicians of the schools on the board (sic), and such certificate is conclusive. If not a graduate, a person practising medicine or surgery, unless in continuous practice in this State for not less than five years, of which he must present to the board satisfactory evidence in the form of affidavits, must appear before the board for examination. All examinations are in writing; all examination papers with the reports and action of examiners are preserved as records of the board for five years. The subjects of examination are anatomy, physiology, general chemistry, pathology, therapeutics, and the principles and practice of medicine, surgery, and obstetrics. Each applicant, upon receiving from the secretary of the board an order for examination, receives also a confidential number, which he must place upon his examination papers so that, when the papers are passed upon, the examiners may not know by what applicant they were prepared. Upon each day of examination all candidates are given the same set or sets of questions. The examination papers are marked on a scale of 100. The applicant must attain an average determined by the board; if such examination is satisfactory to at least five physicians of the board, representing the different schools of medicine on the board, the board must issue a certificate, which entitles the lawful holder to all the rights and privileges in the act provided (Laws 1886, c. 104, s. 1).

The board receives applications through its secretary. Five physicians of the board may act as an examining board in the absence of the full board; provided that one or more members of the different schools of medicine represented in the State board of health shall also be represented in the board of examiners (ib., s. 2).

The affidavit of the applicant and holder of a diploma that he is the person therein named, and is the lawful possessor thereof, is necessary to verify the same, with such other testimony as the board may require. Diplomas and accompanying affidavits may be presented in person or by proxy. If a diploma is found genuine and in possession of the person to whom it was issued, the board, on payment of the fee to its secretary, must issue a certificate. If a diploma is found fraudulent or not lawfully in possession of the holder or owner, the person presenting it, or holding or claiming possession, is guilty of a misdemeanor, punishable with a fine of from $20 to $100 (ib., s. 3).

The certificate must be recorded in the office of the county recorder in the county wherein the holder resides, within sixty days after its date. Should he remove from one county to another to practise medicine, surgery, or obstetrics, his certificate must be recorded in the county to which he removes. The recorder must indorse upon the certificate the date of record (ib., s. 4).

Any one failing to pass is entitled to a second examination within twelve months without a fee; any applicant for examination, by notice in writing to the secretary of the board, is entitled to examination within three months from the time of notice, and the failure to give such opportunity entitles such applicant to practise without a certificate until the next regular meeting of the board. The board may issue certificates to persons who, upon application, present a certificate of having passed a satisfactory examination before any other State board of medical examiners, upon the payment of the fee provided in sec. 3 (ib., s. 6, as amended c. 66, Laws 1888, 22 Gen. Assembly).

The board may refuse a certificate to a person who has been convicted of felony committed in the practice of his profession, or in connection therewith; or may revoke for like cause, or for palpable evidence of incompetency, and such refusal or revocation prohibits such person from practising medicine, surgery, or obstetrics, and can only be made with the affirmative vote of at least five physicians of the State board, in which must be included one or more members of the different schools of medicine represented in the said board; the standing of a legally chartered medical college from which a diploma may be presented must not be questioned except by a like vote (ib., s. 7).

DEFINITION, EXCEPTIONS.—Any person is deemed practising medicine, surgery, or obstetrics, or to be a physician, who publicly professes to be a physician, surgeon, or obstetrician, and assumes the duties, or who makes a practice of prescribing, or prescribing and furnishing medicine for the sick, or who publicly professes to cure or heal by any means whatsoever; but the act does not prohibit students of medicine, surgery, or obstetrics from prescribing under the supervision of preceptors or gratuitous services in case of emergency; nor does it apply to women at the time of its passage engaged in the practice of midwifery, nor does it prevent advertising, selling, or prescribing natural mineral waters flowing from wells or springs, nor does it apply to surgeons of the United States army, navy, or marine hospital service, nor to physicians defined therein who have been in practice in this State for five consecutive years, three years of which must have been in one locality, provided such physician shall furnish the State board with satisfactory evidence of such practice and shall procure a proper certificate, nor to registered pharmacists filling prescriptions, nor does it interfere with the sale of patent or proprietary medicines in the regular course of trade (ib., s. 8).

PENALTY.—A person practising medicine or surgery without complying with the act, and not embraced in the exceptions, or after being prohibited as provided in sec. 7, is guilty of a misdemeanor punishable with a fine of from $50 to $100, or imprisonment in the county jail from ten to thirty days (ib., s. 9).

Filing or attempting to file as one’s own the diploma of another, or the certificate of another, or a diploma or certificate with the true name erased and the claimant’s name inserted, or a forged affidavit of identification, is forgery (ib., s. 10).

FEES.—To county recorder, 50 cents (ib., s. 4).

To State board, for certificate to holder of diploma, $2 (ib., s. 3).

To secretary of State board, in advance, by candidate for examination, $10 (ib., s. 6).

By practitioner for five years, $2 (ib., s. 8).

KANSAS.

QUALIFICATION.—It is unlawful for a person who has not attended two full courses of instruction and graduated in some respectable school of medicine, either of the United States or of some foreign country, or who cannot produce a certificate of qualification from some State or county medical society, and is not a person of good moral character, to practise medicine in any of its departments for reward or compensation, for any sick person; provided in all cases when any person has been continuously engaged in practice of medicine for ten years or more, he shall be considered to have complied with the provisions of the act (Gen. Stats., 1889, s. 2,450).

PENALTY.—Practising or attempting to practise medicine in any of its departments or performing or attempting to perform any surgical operation in violation of the foregoing is punishable with a fine of from $50 to $100; and a second violation, in addition to a fine, is punishable with imprisonment in the county jail for thirty days; and in no case wherein the act is violated shall the violator receive a compensation for services rendered (ib., s. 2,451).

KENTUCKY.

QUALIFICATION.—It is unlawful for any person to practise medicine in any of its branches who has not exhibited and registered in the county clerk’s office, in the county in which he resides, his authority to practise, with his age, address, place of birth, and the school or system of medicine to which he proposes to belong. The person registering must subscribe and verify by oath before such clerk an affidavit containing such facts, which, if wilfully false, subjects the affiant to punishment for perjury (Act 1893, April 10th, s. 2).

Authority to practise shall be a certificate from the State board of health issued to any reputable physician who is practising, or who desires to begin to practise, who possesses a diploma from a reputable medical college legally chartered under the laws of this State, or a diploma from a reputable and legally chartered medical college of some other State or country, indorsed as such by said board, or satisfactory evidence from the applicant that he was reputably and honorably engaged in the practice of medicine in the State prior to February 23d, 1864. Applicants may present their credentials by mail or proxy (ib., s. 3).

Nothing in the law authorizes any itinerant doctor to register or practise medicine (ib., s. 4).

The board may refuse a certificate to any individual guilty of grossly unprofessional conduct of a character likely to deceive or defraud the public, and may, after due notice and hearing, revoke such certificates for like cause. In cases of refusal or revocation the applicant may appeal to the governor, whose decision affirming or overruling the decision of the board shall be final (ib., s. 5).

SYSTEMS, EXCEPTIONS.—The law does not discriminate against any peculiar school or system of medicine, nor prohibit women from practising midwifery, nor prohibit gratuitous services in case of emergency, nor apply to commissioned surgeons in the United States army, navy, or marine hospital service, nor to a legally qualified physician of another State called to see a particular case or family, but who does not open an office or appoint a place in the State to meet patients or receive calls (ib., s. 6).

PENALTY.—Any person living in this State or coming into this State who shall practise medicine or attempt to practise medicine in any of its branches, or perform or attempt to perform any surgical operation for or upon any person for reward or compensation in violation of this law, shall be punished with a fine of $50, and on each subsequent conviction by a fine of $100 and imprisonment for thirty days, or either, or both; and in no case where any provision of this law has been violated shall the violator be entitled to receive compensation for services rendered. To open an office for such purpose or to announce to the public in any other way a readiness to practise medicine in any county shall be to engage in the practice of medicine (ib., s. 8).

FEES.—To the county clerk, for all services required, 50 cents (ib., s. 1).

LOUISIANA.

CONSTITUTIONAL PROVISION.—The general assembly must provide for the interest of State medicine in all its departments, and for the protection of the people from unqualified practitioners of medicine (Const. 1879, Art. 178).

QUALIFICATION.—No person is allowed to practise medicine or surgery as a means of livelihood in any of its departments without first making affidavit before a judge, justice of the peace, clerk of district court, or notary public in the parish wherein he resides, of his having received the degree of doctor of medicine from a regularly incorporated medical institution of respectable standing, in America or in Europe, and designating its name and locality, and the date of his diploma; the degree is manifested by the diploma, and the respectable standing of the institution is evidenced by the indorsement or certificate of the State board of health, written on the face of the diploma, and signed by its secretary; the affidavit must contain the full name of the person making the same, the date and place of his birth, and the names of the places where he may have previously practised medicine or surgery; a record of the diplomas certified must be presented by the State board of health, and copies thereof, certified by the secretary, are received in evidence. The State board of health is required to certify the diploma of any medical institution of credit and respectability without regard to its system of therapeutics and whether the same be regular, homœopathic, or eclectic (Act 1882, No. 31, s. 1).

The affidavit required by sec. 1 must be recorded in the office of the clerk of the district court of the parish; the clerk must certify the recordation by indorsement on the original affidavit, which the affiant must transmit to the State board of health; a copy of the original affidavit, duly certified by the clerk of the court, is admissible in evidence (ib., s. 2).

EXCEPTIONS.—The provisions of the act do not apply to female practitioners of midwifery as such, nor to persons who had been practising medicine or surgery in the State without diplomas for five years prior to the passage of the act, nor to persons who had been practising medicine or surgery from a regularly incorporated medical institution of reputable standing in America or in Europe, for ten years prior to the passage of the act, provided such a practitioner make affidavit before a judge, justice of the peace, notary public, or the clerk of the court of the parish wherein he resides, setting forth the full name of the affiant, the date and place of his birth, the date of his diploma, if he have any, the name and locality of the institution by which it was made, the date and place where he began the practice of medicine in Louisiana, and the names of the places where he may have previously practised medicine or surgery such affidavit must be transmitted or delivered to the State board of health, and entitles the affiant to be placed on the list of registered physicians or surgeons. The State board of health must preserve said affidavits, and a copy signed by the secretary is received in evidence by the courts. To make a false affidavit is perjury (ib., s. 3).

EVIDENCE.—A copy of the affidavit recorded by the clerk of the district court, certified by him, is prima facie evidence that the person making the affidavit is a duly registered physician or surgeon, and a certified copy of the original affidavit filed with the State board of health, or a certificate emanating from the said board, that the name of the person mentioned in the certificate is on the list of registered physicians and surgeons, is conclusive evidence (ib., s. 4).

It is the duty of the State board of health to publish annually in the official journal of the State, and if there is none, in one of the daily newspapers published in New Orleans, a list of the registered physicians and surgeons, and their places of residence, and such published list is evidence in the courts that the person is duly registered. The board is required to strike from said list the names of persons convicted of any infamous crimes by any court of this State or of the United States, or of any State of the United States, whether prior or posterior to registration; and is empowered to strike from the list persons who die after registration (ib., s. 5).

CIVIL PENALTY.—A practitioner of medicine or surgery failing to comply with this act shall not be exempt from military or jury duty, nor be permitted to collect fees for services rendered, nor be allowed to testify as a medical or surgical expert in legal or State medicine, in any court, nor to execute any certificate as surgeon or physician, nor to hold any medical office, nor to be recognized by the State, or any parish, or municipal corporation, as a physician or surgeon, nor entitled to enjoy any of the privileges, rights, or exemptions granted to physicians and surgeons by the laws of this State; and shall forfeit $100 for each violation, to be recovered in a civil action in the name of and for the benefit of the Charity Hospital at New Orleans, and in addition shall be subject to criminal prosecution (ib., s. 6).

EXCEPTIONS.—The act is not applicable to practitioners of medicine or surgery residing and practising in other States, who may be summoned in special instances to attend patients in the State of Louisiana by any registered physician (ib., s. 7).

PENALTY.—Whoever shall practise or offer to practise medicine or surgery, for pay, without complying with the foregoing act, is guilty of a misdemeanor, punishable by a fine of not less than $50 or imprisonment for not more than three months, or both, at the discretion of the court (Act 1886, No. 55, s. 1).

No criminal prosecution shall bar the imposition of a fine by civil process, nor shall the imposition of such fine bar criminal prosecution (ib., s. 2).

EXCEPTIONS.—This act is not applicable to practitioners of medicine or surgery residing and practising in other States, who may be summoned in special instances to attend patients in the State by any registered physician (ib., s. 3).

FEES.—To board of health, for every diploma certified, 50 cents (ib., s. 1).

To officer before whom affidavit is made, 50 cents (ib., s. 2, 3).

Recording same, $1 (ib., s. 2).

To clerk of court, for copy of original affidavit, 50 cents (ib., s. 2).

To State board of health, for copy of original affidavit, 50 cents (ib., s. 3).

MAINE.

QUALIFICATION, PENALTY.—No person who has not received a medical degree at a public medical institution in the United States, or a license from the Maine Medical Association, shall recover compensation for medical or surgical services, unless previous to such service he had obtained a certificate of good moral character from the municipal officers of the town where he then resided (Rev. Stats., 1883, c. 13, s. 9).

MARYLAND.

QUALIFICATION.—By the Act of 1892, c. 296, s. 1, 39, it is provided that every person not now practising medicine and surgery, who shall hereafter begin to practise medicine and surgery in any of its departments, shall possess the qualifications required by the act.

There are two boards of examiners, representing the medical and chirurgical faculty of the State and the State Homœopathic Medical Society respectively; each consists of seven members, appointed respectively by those societies, physicians actually engaged in the practice of medicine, and of recognized ability and honor; but no physician having a pecuniary interest in the trade of pharmacy can be appointed (ib., s. 2).

Suitable provisions must be made by each examining board to prepare a schedule of written examination upon anatomy, physiology, chemistry, surgery, practice of medicine, materia medica and therapeutics, obstetrics, gynæcology, pathology, medical jurisprudence and hygiene; the same standard of excellence is required from all candidates; in therapeutics and practice, the questions must be in harmony with the tenets of the school selected by the candidate; and the standard of acquirements therein is established by each board itself. The examination must be fundamental in character and such as can be answered in common by all schools of practice (ib., s. 1, 42).

Application for license is made in writing to the president of either board of medical examiners which the applicant may elect, with satisfactory proof that the applicant is more than twenty-one years of age, is of good moral character, has obtained a competent common-school education, and has either received a diploma conferring the degree of Doctor of Medicine from some legally incorporated medical college in the United States, or a diploma or license conferring the full right to practise all the branches of medicine and surgery in some foreign country, and has also both studied medicine three years and attended three courses of lectures in different years in some legally incorporated medical college or colleges prior to the granting of the diploma or foreign license; two courses of medical lectures both begun or completed within the same calendar year do not satisfy the requirement; this condition is not applicable to students who shall be in their second year in a medical college, nor to physicians practising at the time of the passage of the act. Such proof is made, if required, upon affidavit, upon making the application and proof and payment of the fee. The president of the board, if satisfied, must direct the secretary to issue an order for examination, and when the applicant shall have passed an examination as to proficiency satisfactory to the board, the president must grant a license to practise medicine and surgery (ib., s. 1, 43).

All of the examinations are conducted so that the name, school of graduation, and preparatory training of the applicant shall not be made known to the board till his examination papers have been graded. An applicant receiving a majority of the votes of the board is considered to have passed a satisfactory examination and is entitled to a license (ib., s. 1, 44).

The board must refuse a license to an applicant radically deficient in any essential branch. In case of a failure, the candidate must have the privilege, after the expiration of one year from his rejection, of another examination by the board to which his application was first made (ib., s. 1, 46).

A license, or a certified copy, must be filed with the clerk of the circuit court of the county or city in which the licensee may practise; the number of the book and page containing the recorded copy must be noted in the body of license.

EVIDENCE.—The records have the same weight as evidence that is given to the record of conveyances of land (ib., s. 1, 48).

EXCEPTIONS.—The act does not apply to commissioned surgeons of the United States army, navy, or marine hospital service, to physicians or surgeons in actual consultation from other States, nor to persons temporarily practising under the supervision of an actual medical preceptor, nor to a midwife or person who may render gratuitous services in case of emergency (ib., s. 1, 49, 51).

PENALTY.—Practising, or attempting to practise, without a license is a misdemeanor punishable with a fine of from $50 to $200 for each offence, with confinement in jail, in default of payment, till fine and costs are paid; a person so practising is debarred from recovering compensation (ib., s. 1, 50).

FEES.—To secretary of board, before examination, $10 (ib., s. 1, 45).

To clerk of court, for registration, $1 (ib., s. 1, 48).

MASSACHUSETTS.

In Massachusetts there is no statute upon this subject.

MICHIGAN.

QUALIFICATION.—It is unlawful to practise medicine or surgery or any branch except dentistry, without the prescribed qualifications and registration in the office of the county clerk (Laws 1883, c. 167, s. 1).

A person who was practising when the law took effect, and had been practising continuously for at least five years prior thereto in the State, is deemed qualified to practise medicine after registration (ib., s. 2, as amended 1887, c. 268).

A graduate of a legally authorized medical college in the State, or any of the United States, or any other country, is deemed qualified to practise medicine and surgery in all departments after registration. A student or undergraduate is not prohibited from practising with and under the immediate supervision of a person legally qualified to practise medicine and surgery (ib.).

A person qualified registers by filing with the county clerk of the county where he practises, or intends to practise, a sworn statement setting forth, if actually engaged in practice, the length of time he has been engaged in such continuous practice; if a graduate of a medical college, the name and location of the same, when he graduated and how long he attended the same, and the school of medicine to which he belongs; if a student or undergraduate, how long he has been engaged in the study of medicine and where, and if he has attended a medical college, its name and location and the length of his attendance, and when, and the name and residence of the physician under whose instruction he is practising, or intends to practise. The statement is to be recorded by the clerk (ib.).

PENALTY.—No person practising medicine, surgery, or midwifery can collect pay for professional services unless at the time of rendering such services he was duly qualified and registered (ib., s. 4).

Advertising, or holding out to the public, as authorized to practise medicine or surgery, when not authorized, is a misdemeanor punishable with a fine of from $5 to $50 for each offence (ib., s. 7).

FEES.—To county clerk, for recording statement, 50 cents (ib., s. 2).

MINNESOTA.

BOARD OF EXAMINERS.—The governor appoints a board of medical examiners of nine members, no one of whom can be a member of a college or university having a medical department, and two of whom must be homœopathic physicians (Act 1887, c. 9, s. 1).

QUALIFICATION.—Persons commencing the practice of medicine and surgery in any of its branches must apply to the board for a license, and at the time and place designated by the board, or at a regular meeting, submit to an examination in anatomy, physiology, chemistry, histology, materia medica, therapeutics, preventive medicines, practice of medicine, surgery, obstetrics, diseases of women and children, of the nervous system, of the eye and ear, medical jurisprudence, and such other branches as the board deems advisable, and present evidence of having attended three courses of lectures of at least six months each; the examination must be scientific and practical, but of sufficient severity to test the candidate’s fitness to practise medicine and surgery. When desired, the examination may be conducted in the presence of the dean of any medical school or the president of any medical society of this State. After examination, the board must grant, with the consent of at least seven members, a license to practise medicine and surgery, which may be refused or revoked for unprofessional, dishonorable, or immoral conduct; and in case of refusal or revocation, the applicant may appeal to the governor (ib., s. 3).

The license must be recorded with the clerk of the district court in the county in which the licensee resides; if he moves into another county he must procure a certified copy of his license from the said clerk and file it with the clerk of the district court in the latter county (ib., s. 4).

PENALTY.—To practise without a license is a misdemeanor, punishable by a fine of from $50 to $100, or imprisonment in county jail from ten to ninety days, or both. Appending “M.D.” or “M.B.” to name, or prescribing, directing, or recommending for use any drug or medicine or other agency for the treatment, care, or relief of any wound, fracture, or bodily injury, infirmity, or disease, is regarded as practising medicine.

EXCEPTIONS.—The act is not applicable to dentists (ib., s. 6), nor to commissioned surgeons of the United States army or navy, nor to physicians or surgeons in actual consultation from other States or Territories, nor to actual medical students practising medicine under the direct supervision of a preceptor (ib., s. 5).

All persons licensed under the Act of 1883, c. 125, are regarded as licensed under this act (ib., s. 7).

FEES.—To treasurer of board, for examination, $10.

MISSISSIPPI.

QUALIFICATION.—A practitioner of medicine must obtain a license from the State board of health (Code 1892, s. 3,243).

Application is made in writing; and an examination is made in anatomy, chemistry, obstetrics, materia medica, physiology, pathology, surgery, and hygiene, and if the applicant is found by the board to possess sufficient learning in those branches, and of good moral character, the board issues a license to practise medicine, signed by each member who approves (ib., s. 3,244).

The application must state the applicant’s full name, place of residence, and post-office address, nativity and age, time spent in medical studies, name and post-office address of the preceptor under whom his medical studies were pursued, the courses of medical lectures attended, the name of medical schools attended; if a graduate of a medical college, the name thereof; the time spent in a hospital, the time spent in the practice of medicine, if any, the school or system of practice chosen, and references as to his personal character (ib., s. 3,245).

Examinations are to be conducted at the capital on the first Tuesday in April and October annually, and continue until all applicants are examined and the examinations are approved or disapproved; they are upon written questions and answers, and no distinction can be made between applicants because of different systems or schools of practice.

The license must be filed in the office of the clerk of the circuit court of the county in which the licensee resides, within sixty days from the date of its issue; otherwise it becomes void. The clerk must record the same with his certificate of filing and deliver the original to the licensee. When the licensee changes the county of his residence and usual practice, he must file the original or a certified copy of license, or record, in the office of said clerk in the county into which he shall move and practise within sixty days of the time of his removal, to be there recorded (ib., s. 3,249).

The board may issue a duplicate in place of a lost license (ib., s. 3,250).

The secretary of the board may issue a temporary license which shall be valid until the next succeeding meeting of board, such license to show its date of issue, otherwise to be void; it must be recorded as a permanent license is required to be; only one temporary license shall ever be issued to the same person, and it shall always be made to an individual and not to a partnership (ib., s. 3,251).

Physicians practising by virtue of a license under prior laws are not required to obtain a license under this law and may continue in practice under their licenses, but they must comply with the requirements of this law with reference to recording (ib., s. 3,252).

PENALTY.—To practise without an examination and a license is punishable with a fine of from $20 to $200, or to imprisonment in the county jail not to exceed thirty days (ib., s. 1,258).

EXCEPTIONS.—Females engaged in the practice of midwifery need no license for that employment (ib., s. 3,253).

NON-RESIDENTS.—Licensed physicians residing without the State, and whose practice extends into it, may obtain a license without examination by presenting an application in the form prescribed; whereupon the secretary of the board must issue a license in the name of the board and the license must be recorded as hereinbefore provided, in each county in which the licensee shall practise (ib., s. 3,254).

FEES.—To board, before examination, $10.

To secretary, before examination, 25 cents (ib., s. 3,247).

To secretary, for temporary license, 25 cents (ib., s. 3,251).

To secretary, for license to non-resident, 25 cents (ib., s. 3,245).

To the clerk of the court, for recording, his legal fees (ib., s. 3,249).

MISSOURI.

QUALIFICATION.—Every person practising medicine and surgery, in any of their departments, must possess the qualifications required. If a graduate of medicine, he must present his diploma to the State board of health for verification as to its genuineness. If the diploma is found to be genuine, and the person named therein to be the person claiming and presenting the same, the board must issue a certificate which is conclusive of the right to practise. If not a graduate, he must submit to such examination as the board shall require, and if the examination is satisfactory to the examiners the board must issue its certificate in accordance with the facts, and the holder shall be entitled to all the rights and privileges herein mentioned (Rev. Stats., 1889, s. 6,871).

The board must issue certificates to all who furnish satisfactory proof of having received a diploma or license from a legally chartered medical institution in good standing, of whatever school or system of medicine, and shall not make any discrimination against the holders of genuine licenses or diplomas under any school or system of medicine (ib., s. 6,872).

The verification of a diploma consists in the affidavit of the holder and applicant that he is the lawful possessor of the same, and the person therein named; the affidavit may be taken before any person authorized to administer oaths, and shall be attested under the hand and official seal of such officer, if he have a seal. Graduates may present their diplomas and affidavits by letter or proxy (ib., s. 6,873).

All examinations are made directly by the board, and the certificates authorize the possessor to practise medicine and surgery in the State (ib., s. 6,874).

The certificate must be recorded in the office of the county clerk of the county in which the holder resides and the record must be indorsed thereon; a person moving to another county to practise must procure an indorsement to that effect on the certificate from the said clerk, and have the certificate recorded in the office of the clerk of the county to which he removes (Ib., s. 6,875).

Examinations may be made wholly or partly in writing and must be of an elementary and practical character, but sufficiently strict to test the qualifications of the candidate as a practitioner (Ib., s. 6,877).

The board may refuse a certificate to an individual guilty of unprofessional or dishonorable conduct, and may revoke a certificate for like causes after giving the accused an opportunity to be heard (Ib., s. 6,878).

DEFINITION, EXCEPTION.—A person is regarded as practising medicine who professes publicly to be a physician and to prescribe for the sick, or who appends to his name “M.D.,” but students are not prohibited from prescribing under the supervision of a preceptor, and gratuitous services may be rendered in case of emergency, and the act does not apply to commissioned surgeons of the United States army or navy or marine hospital service (ib., s. 6,879).

ITINERANT VENDERS.—Every itinerant vender of any drug, nostrum, ointment, or appliance intended for the treatment of disease or injury, or who publicly professes to cure or treat disease, injury, or deformity by any drug, nostrum, manipulation, or other expedient, must pay a license fee of $100 per month; the violation of this section is a misdemeanor, punishable with a fine not exceeding $500 or imprisonment in the county jail not to exceed six months, or both (ib., s. 6,880).

PENALTY.—The violation of the provisions of this act is a misdemeanor punishable with a fine of from $50 to $500, or imprisonment in the county jail for from thirty to three hundred and sixty-five days, or both, for each offence; filing or attempting to file the certificate of another, or a forged affidavit or identification, is a felony punishable as forgery in the second degree, but the provisions of this article do not apply to persons who had been practising five years in the State prior to 1883 (ib., s. 6,881).

FEES.—To the secretary of the board, for examining a genuine diploma, $1.

If fraudulent or not owned by the possessor, $20 (ib., s. 6,873).

To the clerk, for recording, the usual fees (ib., s. 6,875).

MONTANA.

BOARD OF EXAMINERS.—The governor, with the advice and consent of the council, appoints seven learned, skilled, and capable physicians who have been residents for not less than two years, no more than two from the same county, to constitute the board of examiners (Act of February 28th, 1889, s. 1).

Meetings of the board for examination are required to be held at the capital and such other central points as the board may select, on the first Tuesday of April and October in each year, and at other times as the board may determine. The board must keep a record of all applicants for a certificate, with their age, time spent in the study of medicine, name, and the location of all institutions granting to applicants degrees or certificates of lectures in medicine or surgery, and whether the applicant was rejected or received a certificate, and the register is prima facie evidence of matters therein recorded (ib., s. 2).

QUALIFICATION.—Every person wishing to practise medicine or surgery in any of their departments shall do so only upon complying with the requisites of this act. If a graduate in medicine, he must present his diploma to the board for verification as to its genuineness. If it be found genuine and issued by a medical school legally organized and in good standing, whose teachers are graduates of a legally organized school, which fact the board determines, and if the person presenting and claiming the diploma be the person to whom it was originally granted, the board must issue its certificate, which shall be conclusive of the holder’s right to practise. Any person coming to the State may present his diploma to any member of the board, who may issue a certificate good till the board’s next regular meeting. If not a graduate, the person must present himself to the board for such examination as may be required, unless he shall have been in continuous practice in the State for not less than ten years, of which fact he must present satisfactory evidence in the form of affidavits to the board (ib., s. 3).

All persons entitled to practise under the ten-year provision and all persons commencing the practice of medicine and surgery in any of its branches shall apply to the board for a certificate, and at the time and place designated by the board, or at the regular meeting, be examined in anatomy, physiology, chemistry, histology, materia medica, therapeutics, preventive medicines, practice of medicine, surgery, obstetrics, diseases of women and children, diseases of the nervous system, diseases of the eye and ear, medical jurisprudence, and such other branches as the board may deem advisable, and present evidence of having practised the required term of ten years, or of having attended three courses of lectures of at least four months each; the examination must be both scientific and practical, and of sufficient thoroughness and severity to test the candidate’s fitness to practise medicine and surgery. The examination may be held in the presence of the dean of any medical school or of the president of any medical society of the State. After the examination, the board must grant to a candidate who is found qualified, a certificate to practise medicine and surgery. The board may refuse or revoke a certificate for unprofessional, dishonorable, or immoral conduct, or may refuse a certificate to any one who may publicly profess to cure or treat diseases, injuries, or deformities in such manner as to deceive the public. In cases of refusal or revocation, the aggrieved applicant may appeal to the district court of the county of his application (ib., s. 4).

Certificates must be recorded within sixty days after their date in the office of the county recorder in the county where the holder resides; or in case of removal certificates must be recorded in the county to which the holder removes. The county recorder must indorse on the certificate the date of its record (ib., s. 5).

EXCEPTIONS.—The act does not apply to midwives of skill and experience attending cases of confinement, nor to commissioned surgeons of the United States army or navy in the discharge of their official duties, nor to physicians or surgeons in actual consultation from other States and Territories, nor to students practising medicine under the direct supervision of a preceptor, nor to gratuitous services in cases of emergency (ib., s. 6).

PENALTY.—Violation of the act is a misdemeanor, punishable with a fine of from $100 to $500, or imprisonment in the county jail from thirty to ninety days, or both.

DEFINITION.—Any person is regarded as practising within the meaning of the act who appends “M.D.” or “M.B.” to his name, for a fee prescribes medicine, operates in surgery, attends in obstetrics, or recommends for the use of any sick person the use of any drug or medicine or other agency of treatment, cure, or relief of any wound, fracture, or bodily injury or disease, as a physician or surgeon (ib., s. 7).

RE-EXAMINATION.—Any one failing to pass the examination is entitled to a second examination within six months without fee (ib., s. 8).

FEES.—To the treasurer of the board, for examination, $15 (ib., s. 4).

To the secretary of the board, for examination, in advance, $15 (ib., s. 8).

To the county recorder, for recording, the usual fee (ib., s. 5).

To the county attorney, for prosecuting a violation, to be charged as costs, $5 (ib., s. 7).

NEBRASKA.

QUALIFICATION.—It is unlawful for any person to practise medicine, surgery, or obstetrics, or any of their branches, without having obtained and registered a certificate. No person is entitled to a certificate unless he be a graduate of a legally chartered medical school or college in good standing. The qualifications are determined by the State board of health. The act does not prevent physicians residing in other States from visiting patients in consultation with resident physicians who have complied. (Act of 1891, c. 35, s. 7).

A medical school is defined as a medical school or college which requires a previous examination for admission to its courses of study, and which requires for granting the degree of “M.D.” attendance on at least three courses of lectures of six months each, no two of said courses to be held within one year, and having a full faculty of professors in anatomy, physiology, chemistry, toxicology, pathology, hygiene, materia medica, therapeutics, obstetrics, gynæcology, principle (sic) and practice of medicine and surgery, and clinical instruction in the last two named. But the three-year clause does not apply to degrees granted prior to July, 1891 (ib., s. 8).

A person intending to practise medicine, surgery, or obstetrics must present his diploma to the said board, with his affidavit that he is the lawful possessor of the same and has attended the full course of study required for the degree of “M.D.,” and that he is the person therein named. Such affidavit may be taken before any person authorized to administer oaths, and it shall be attested under the hand and official seal of the official, if he have a seal. False swearing is perjury (ib., s. 9).

If investigation of the diploma and affidavit proves the applicant entitled to practise, the board issues its certificate, which must be filed in the office of the county clerk of the county where he resides, or intends to practise (ib., s. 10).

The act gave physicians entitled to practise at the time of its enactment six months in which to comply with its provisions with reference to them (ib., s. 11).

The secretaries of the board may issue certificates, without a vote of the board, when the proof upon which certificates are granted may have been on file in its office for ten days without a vote of the board, when no protest has been filed, and if, in their opinion, the proof complies with the act (ib., s. 12).

When the holder of a certificate removes to another county, he must file and record it in the office of the county clerk in the county to which he removes (ib., s. 13).

The board may refuse certificates to persons guilty of unprofessional or dishonorable conduct, and may revoke for like causes provided they give the person an opportunity to be heard (ib., s. 14).

PENALTY.—No person is entitled to receive any sum of money for medical, surgical, or obstetrical service unless he shall have complied with the act (ib., s. 15).

Violation of the act is a misdemeanor, punishable with a fine of from $50 to $300 and costs of prosecution, and a person convicted shall stand committed till the fine and costs are paid (ib., s. 16).

DEFINITION, EXCEPTIONS.—To operate on, profess to heal, prescribe for, or otherwise treat any physical or mental ailment of another, is to practise medicine under this act. But it does not prohibit gratuitous services in cases of emergency, nor apply to commissioned surgeons in the United States army or navy, nor to nurses in their legal occupation, nor to the administration of ordinary household remedies (ib., s. 17).

ITINERANT VENDER.—To be an itinerant vender of any drug, nostrum, ointment, or appliance for the treatment of disease or injury, or for such an one to publicly profess to cure or to treat disease or injury or deformity by any drug, nostrum, manipulation, or other expedient, is a misdemeanor punishable with a fine of from $50 to $100, or imprisonment in the county jail from thirty days to three months, or both, for each offence (ib., s. 18).

FEES.—To the secretaries of the board of health, for certificate at time of application, $5.

To the secretaries of the board of health, for taking testimony, same fees as a notary public is allowed for same service (ib., s. 19).

To county clerk, for recording, usual register’s fees for recording (ib., s. 10).

NEVADA.

QUALIFICATION.—No person can lawfully practise medicine or surgery who has not received a medical education and a diploma from some regularly chartered medical school having a bona fide existence when the diploma was granted (Act of 1875, c. 46, s. 1).

A copy of the diploma must be filed for record with the county recorder of the county in which the person practises, and at the same time the original, or a certificate from the dean of the medical school of which he is a graduate, certifying to his graduation, must be exhibited (ib., s. 2).

The person filing a copy of a diploma or a certificate of graduation must be identified as the person named therein, by the affidavit of two citizens of the county, or his affidavit taken before a notary public or commissioner of deeds for this State, which affidavit must be filed in the office of the county recorder (ib., s. 3).

PENALTY.—Practising without complying with this act is a misdemeanor punishable with a fine of from $50 to $500, or imprisonment in the county jail from thirty days to six months, or both, for each offence. Filing a diploma or a certificate of another or a forged affidavit of identification is a felony (ib., s. 4).

EXCEPTIONS.—The act does not apply to a person who in an emergency may prescribe or give advice in medicine or surgery in a township where no physician resides, or when no physician or surgeon resides within convenient distance, nor to those who had practised medicine or surgery in the State for ten years next preceding the passage of the act, nor to persons prescribing in their own family (ib., s. 6).

NEW JERSEY.

BOARD OF EXAMINERS.—The State board of medical examiners, appointed by the governor, consists of nine members, persons of recognized professional ability and honor, five of the old school, three of the homœopathic, and one of the eclectic, among whom can be no member of any college or university having a medical department (Act 1890, c. 190, s. 1).

The board must hold meetings for examination at the capital on the second Thursday of January, April, July, and October of each year and at such other times as they deem expedient; they shall keep a register of all applicants for examination, showing the name, age, and last place of residence of each candidate, the time he has spent in medical study in or out of a medical school, the names and locations of all medical schools which have granted the said applicant any degree or certificate of attendance upon lectures in medicine, and whether the applicant has been rejected or licensed, and it shall be prima facie evidence of all matters contained therein (ib., s. 2).

QUALIFICATION.—All persons commencing the practice of medicine or surgery in any of its branches must apply to the board for a license. Applicants are divided into three classes:

1. Persons graduated from a legally chartered medical school not less than five years before the application.

2. All other persons graduated from legally chartered medical schools.

3. Medical students taking a regular course of medical instruction.

Applicants of the first class are examined in materia medica, therapeutics, obstetrics, gynæcology, practice of medicine, surgery, and surgical anatomy; those of the second and third classes are examined in anatomy, physiology, chemistry, materia medica, therapeutics, histology, pathology, hygiene, practice of medicine, surgery, obstetrics, gynæcology, diseases of the eye and ear, medical jurisprudence, and such other branches as the board may deem advisable; questions for applicants of the first and second classes are the same in the branches common to both. The board after January 1st, 1892, cannot license applicants of the second or third classes without satisfactory proof that the applicant has studied medicine and surgery three years, is of good moral character, and over twenty-one years of age; applicants of the third class, after they shall have studied medicine and surgery at least two years, can be examined in anatomy, physiology, chemistry, histology, pathology, materia medica, and therapeutics; if the examination is satisfactory to all the members of the board, it may issue a certificate that the applicant has passed a final examination in these branches, and such certificate, if presented by the applicant when he shall make application for a license to practise, shall be accepted by the said board in lieu of examination in those branches. All examinations shall be both scientific and practical, but of sufficient severity to test the candidate’s fitness to practise medicine and surgery (ib., s. 3).

All examinations shall be in writing; the questions and answers, except in materia medica and therapeutics, must be such as can be answered in common by all schools of practice, and if the applicant intends to practise homœopathy or eclecticism, the member or members of the said board of those schools shall examine the said applicant in materia medica and therapeutics; if the examination is satisfactory, the board shall issue a license entitling the applicant to practise medicine. A license shall not be issued unless the applicant passes an examination satisfactory to all members of the board; the examination papers kept on file by the secretary of the board are prima facie evidence of all matters therein contained; on refusal of the board to issue a license for failure on examination, the applicant may appeal to the governor, who may appoint a medical commission of review of three members, one from each school of medicine, who shall examine the examination papers of the applicant and from them determine whether a license should be issued, and their decision shall be final; if the said committee by unanimous vote reverse the determination of the board, the board shall issue a license; the expenses of the appeal are borne by the applicant (ib., s. 4).

The board may, by unanimous vote, refuse or revoke a license for chronic and permanent inebriety, the practice of criminal abortion, conviction of a crime involving moral turpitude, or for publicly advertising special ability to treat or cure disease which, in the opinion of the said board, it is impossible to cure.

In complaints for violating this section, the accused shall be furnished with a copy of the complaint and given a hearing before the said board in person or by attorney (ib., s. 5).

A person receiving a license must file it, or a certified copy thereof, with the clerk of the county in which he resides; and in case of removal into another county he must procure from the said clerk a certified copy of the said license, and file it with the clerk in the county to which he shall remove (ib., s. 6).

EXCEPTIONS.—The act does not apply to commissioned surgeons of the United States army, navy, or marine hospital service, or to regularly licensed physicians or surgeons in actual consultation from other States or Territories, or to regularly licensed physicians or surgeons actually called from other States or Territories to attend cases in this State, or to any one while actually serving as a member of the resident medical staff of any legally incorporated hospital or asylum in this State, or to any person claiming the right to practise in this State who has been practising therein since before July 4th, 1890, provided the said right or title was obtained upon a diploma of which the holder and applicant was lawfully possessed and it was issued by a legally chartered medical institution in good standing (ib., s. 7, as amended Act 1892, c. 212).

DEFINITION.—Any person is regarded as practising medicine or surgery who appends “M.D.” or “M.B.” to his name, or prescribes for the use of any person any drug or medicine or other agency for the treatment, cure, or relief of any bodily injury, infirmity, or disease (ib., s. 8).

PENALTY.—Commencing the practice of medicine or surgery without a license or contrary to the act is a misdemeanor punishable by a fine of from $50 to $100, or imprisonment in the county jail from ten to ninety days, or both (ib., s. 9).

FEES.—To the treasurer of the board, for examination, for applicant of first and second class, $15.

To the treasurer of the board, for examination, for applicant of third class, $20 (ib., s. 4).

To the county clerk, for registering license, 50 cents (ib., s. 6).

NEW HAMPSHIRE.

In New Hampshire there is no statute on this subject.

NEW MEXICO.

BOARD OF EXAMINERS.—The board of medical examiners is composed of seven practising physicians of known ability and integrity, graduates of some medical school, college, or university duly established under and by virtue of the laws of the country in which it is situated, four allopathic members, three homœopathic members, and one eclectic member (Compiled Laws 1884, s. 2,553).

QUALIFICATION.—Applications for certificates and examinations are made to the board through their secretary (ib., s. 2,555).

The board must examine diplomas as to their genuineness; the verification consists in an affidavit of the holder and applicant that he is the lawful possessor of the diploma and the person therein named; the affidavit may be taken before any person authorized to administer oaths, and shall be attested under his hand and official seal if he have a seal. Graduates may present their diplomas and affidavits by letter or by proxy (ib., s. 2,556).

Examinations of persons not graduates or licentiates must be made by the board, and certificates by a majority of the board authorize the possessor to practise medicine and surgery (ib., s. 2,557).

The certificate must be recorded in the county clerk’s office in every county in which the holder practises or attempts to practise medicine or surgery (ib., s. 2,558).

When a certificate is filed, the clerk must record it and attach his certificate thereto, showing the date of filing and recording and the number of the book and the page of the record (ib., s. 2,559).

Examinations of persons not graduates must be made by the board and may be wholly or partly in writing, in anatomy, physiology, chemistry, pathology, surgery, obstetrics, and the practice of medicine (exclusive of materia medica and therapeutics) (ib., s. 2,561).

The board may refuse or revoke a certificate to an individual guilty of unprofessional or dishonorable conduct (ib., s. 2,562).

DEFINITION, EXCEPTIONS.—Practising medicine is defined as professing publicly to be a physician and prescribing for the sick or appending to a name the letters “M.D.” The act does not prohibit students from prescribing under the supervision of a preceptor, nor prevent women from practising midwifery, nor prohibit gratuitous services in cases of emergency, nor apply to commissioned surgeons or acting surgeons of the United States army or navy (ib., s. 2,563).

PENALTY.—Practising medicine or surgery without complying with the act is punishable with a fine of from $50 to $500 for each offence; and filing a diploma or a certificate of another, or a forged affidavit of identification, is a felony punishable the same as forgery.

EXCEPTION.—The provisions of the act do not apply to those who have been practising medicine ten years in the Territory (ib., s. 2,564, Act passed 1882).

PROFESSIONAL CONDUCT.—The code of ethics of the United States Medical Association is the standard, and the rule of decision, concerning professional conduct (ib., s. 2,565).

PENALTY.—Persons unlawfully collecting or receiving fees or compensation for services as physicians or surgeons in violation of this act, are liable to the party paying it for double the amount thereof (ib., s. 2,568).

FEES.—To the secretary of the board, from each graduate or licentiate if the diploma is genuine, $5.

To the secretary of the board, from each graduate or licentiate if the diploma is fraudulent or not owned by the possessor, $20 (ib., s. 2,556).

To clerk of the county, for filing and recording certificate, the usual fees (ib., s. 2,559).

To the secretary of the board, for examination, in advance, $10 (ib., s. 2,561).

NEW YORK.

PROHIBITION.—No person can lawfully practise medicine unless registered and legally authorized prior to September 1st, 1891, or unless licensed by the regents of the University of the State of New York and registered as required by the present law; nor can any person lawfully practise medicine who has ever been convicted of a felony by any court, or whose authority to practise is suspended or revoked by the regents on the recommendation of a State board (Laws of 1893, c. 661, s. 140).

BOARDS OF EXAMINERS.—There are three separate State boards of medical examiners of seven members each, representing respectively the Medical Society of the State, the Homœopathic Medical Society of the State, and the Eclectic Medical Society of the State.

The regents appoint examiners from lists of nominees furnished by the said societies. Each nominee before his appointment is required to furnish to the regents proof that he has received the degree of doctor of medicine from some registered medical school, and has legally practised medicine in this State for at least five years. If no nominees are legally before them, the regents may appoint from the members in good standing of such societies without restriction (ib., s. 141).

At any meeting of the boards of examiners a majority constitute a quorum, but questions prepared by the boards may be grouped and edited, or answer papers of candidates may be examined and marked, by committees duly authorized by the boards and by the regents (ib., s. 144).

QUALIFICATION.—The regents are required to admit to examination any candidate who pays a fee of $25, and submits satisfactory evidence, verified by oath, if required, that he—

(1) Is more than twenty-one years of age; (2) is of good moral character; (3) has the general education required in all cases after August 1st, 1895, preliminary to receiving the degree of bachelor or doctor of medicine in this State; (4) has studied medicine not less than three full years, including three satisfactory courses in three different academic years in a medical school registered as maintaining at the time a satisfactory standard; (5) has either received the degree of bachelor or doctor of medicine from some registered medical school or a diploma or license conferring the full right to practise medicine in some foreign country.

The degree of bachelor or doctor of medicine shall not be conferred in the State before the candidate has filed with the institution conferring it the certificates of the regents that three years before the date of his degree, or before or during his first year of medical studies in the State, he had either graduated from a registered college or satisfactorily completed not less than a three years’ academic course in a registered academy or high school; or had a preliminary education considered and accepted by the regents as fully equivalent; or had passed a regents’ examination in arithmetic, elementary English, geography, spelling, United States history, English composition, and physics. Students who had matriculated in a New York medical school before June 5th, 1890, are exempt from this preliminary education requirement provided that the degree be conferred before August 1st, 1895.

The regents may in their discretion accept as equivalent for any part of the third and fourth requirements evidence of five or more years’ reputable practice of medicine, provided such substitution be specified in the license (ib., s. 145).

Each board is required to submit to the regents as required lists of suitable questions for a thorough examination in anatomy, physiology, and hygiene, chemistry, surgery, obstetrics, pathology and diagnosis and therapeutics, including practice and materia medica. From these lists the regents are required to prepare question papers for all these subjects, which at any examination are required to be the same for all candidates, except that in therapeutics, practice, and materia medica all questions submitted to any candidate shall be chosen from those prepared by the board selected by that candidate, and shall be in harmony with the tenets of that school as determined by its State board of medical examiners (ib., s. 146).

Examinations for a license are required to be given in at least four convenient places in this State at least four times annually in accordance with the regents’ rules, and exclusively in writing and in English. Each examination is conducted by a regents’ examiner who shall not be one of the medical examiners. At the close of each examination the regents’ examiner in charge is required to deliver the question and answer papers to the board selected by each candidate, or its duly authorized committee, and such board, without unnecessary delay, is required to examine and mark the answers and transmit to the regents an official report stating the standing of each candidate in each branch, his general average, and whether the board recommends that a license be granted. Such report must include the questions and answers and is filed in the public records of the university. If the candidate fails on a first examination, he may, after not less than six months’ further study, have a second examination without fee. If the failure is from illness or other cause satisfactory to the regents they may waive the requirement of six months’ study (ib., s. 147).

On receiving from a State board an official report that the applicant has successfully passed the examinations and is recommended for license, the regents are required to issue to him, if in their judgment he is duly qualified therefor, a license to practise medicine. The contents and execution of the license are regulated in detail by the act.

Applicants examined and licensed by other State examining boards registered by the regents as maintaining standards not lower than those provided by this article, and applicants who matriculated in a New York State medical school before June 5th, 1890, and who shall have received the degree of “M.D.” from a registered medical school before August 1st, 1895, may, without further examination, on the payment of ten dollars to the regents, and on submitting such evidence as they may require, receive from them an indorsement of their license or diploma conferring all the rights and privileges of a regents’ license issued after an examination.

If any person whose registration is not legal because of some error, misunderstanding, or unintentional omission shall submit satisfactory proof that he had all the requirements provided by law at the time of his imperfect registration, and was entitled to be legally registered, he may, on the unanimous recommendation of a State board of medical examiners, receive from the regents under seal a certificate of the facts, which may be registered by any county clerk and shall make valid the previous imperfect registration.

Before any license is issued, it must be numbered and recorded in a book in the regents’ office, and its number noted in the license. This record in all legal proceedings has the same weight as evidence that is given to a record of conveyances of land (ib., s. 148).

Every license to practise medicine is required, before the licensee begins to practise, to be registered in the county clerk’s office, where such practice is to be carried on, with his name, residence, place and date of birth, and the source, number, and date of his license. Before registering, each licensee is required to file an affidavit of the above facts, and that he is the person named in the license, and had, before receiving the same, complied with all the requisites as to attendance, terms, and amount of study and examinations required by law and the rules of the university as preliminary to the conferment thereof; that no money was paid for such license except the regular fees paid by all applicants therefor; that no fraud, misrepresentation, or mistake in any material regard was employed by any one or occurred in order that such license should be conferred.

Every license, or if lost a copy, legally certified so as to be admitted as evidence, or a duly attested transcript of the record of its conferment, shall before registration be exhibited to the county clerk, who, only in case it was issued or indorsed as a license under seal by the regents, shall indorse or stamp on it the date and his name preceded by the words, “Registered as authority to practise medicine in the clerk’s office,—— County.” The clerk is required thereupon to give to every physician so registered a transcript of the entries in the register with a certificate under seal that he has filed the prescribed affidavit (ib., s. 149).

A practising physician having registered a lawful authority to practise medicine in one county and removing such practice, or a part thereof, to another county, or regularly engaged in practice or opening an office in another county, must show or send by registered mail to the clerk of such other county his certificate of registration. If such certificate clearly shows that the original registration was of an authority issued under seal by the regents, or if the certificate itself is indorsed by the regents as entitled to registration, the clerk is required thereupon to register the applicant in the latter county, and to stamp or indorse on such certificate the date, and his name preceded by the words, “Registered also in—— County,” and return the certificate to the applicant (ib., s. 150).

Every unrevoked certificate and indorsement of registration is presumptive evidence that the person named is legally registered. No person can register any authority to practise medicine unless issued or indorsed as a license by the regents. No such registration is valid unless the authority registered constituted at the time of registration a license under the laws of the State then in force. No diploma or license conferred on a person not actually in attendance at the lectures, institution, and examinations of the school conferring the same, or not possessed, at the time of its conferment, of the requirements then demanded of medical students in this State as a condition of their being licensed, and no registration not in accordance with this article, shall be lawful authority to practise, nor shall the degree of doctor of medicine be conferred causa honoris or ad eundum, nor if previously conferred shall it be a qualification for practice (ib., s. 151).

EXCEPTIONS.—The law does not affect commissioned medical officers serving in the United States army, navy, or marine hospital service while so commissioned; or any one while actually serving on the resident medical staff of any legally incorporated hospital; or any legally registered dentist exclusively engaged in the practice of dentistry; or any manufacturer of artificial eyes, limbs, or orthopædic instruments or trusses in fitting such instruments on persons in need thereof; or any lawfully qualified physician in other States or countries meeting legally registered physicians in this State in consultation; or any physician residing on a border of a neighboring State and duly authorized under the laws thereof to practise medicine therein whose practice extends into this State, and who does not open an office or appoint a place to meet patients or receive calls within this State; or any physician duly registered in one county called to attend isolated cases in another county, but not residing or habitually practising therein (ib., s. 152).

PENALTY.—A person practising without lawful registration or in violation of this article forfeits to the county $50, for each violation and for every day of unlawful practice. To practise under a false or assumed name or falsely personate another practitioner of like or different name is a felony. The violation of the other provisions of the act, or buying, selling, or fraudulently obtaining a medical diploma, license, record, or registration, or aiding or abetting such buying, selling, or fraudulently obtaining, or practising medicine under cover of a diploma or license illegally obtained, or signed and issued unlawfully or under fraudulent representation or misstatement of fact in a material regard, or after conviction of a felony attempting to practise medicine, or appending “M.D.” to the name or assuming to advertise the title of doctor in such manner as to convey the impression that one is a legal practitioner of medicine or any of its branches without having legally received the medical degree, is a misdemeanor punishable with a fine of not less than $250, or imprisonment for six months for the first offence, and for subsequent offences with a fine of not less than $500 or imprisonment for not less than one year, or both fine and imprisonment (ib., s. 159).

DEFINITIONS.—As used in the article, university means the University of the State of New York. Medical school means any medical school, college, or department of a university registered by the regents as maintaining a proper medical standard and as legally incorporated. Medicine means medicine and surgery; physician means physician and surgeon (ib., definitions).

FEES.—To regents, for examination, $25 (ib., s. 145).

To regents, for license without examination under sec. 148, $10 (ib., s. 148).

To county clerk, for registering affidavit and certificate, $1 (ib., s. 149).

To county clerk, for registration in an additional county, 25 cents (ib., s. 150).

NORTH CAROLINA.

QUALIFICATION.—No person can lawfully practise medicine or surgery, or any of the branches thereof, nor in any case prescribe for the cure of disease for a fee or reward unless he shall have been first licensed (Code 1883, s. 3,122, as amended Act of 1885, c. 117, s. 1).

The board of medical examiners of the State consists of regularly graduated physicians appointed by the medical society of the State (ib., s. 3,123, 3,126).

The board must examine all applicants for a license to practise medicine or surgery, or any of the branches thereof, on anatomy, physiology, surgery, pathology, medical hygiene, chemistry, pharmacy, materia medica, therapeutics, obstetrics, and the practice of medicine, and grant to a competent applicant a license or diploma authorizing him to practise medicine and surgery or any of the branches thereof (ib., s. 3,124).

Where he has not been refused a license by the board, two members of the board may grant a temporary license to any applicant to continue in force no longer than the next regular meeting of the board (ib., s. 3,125, as amended Act of 1889, c. 181, s. 3).

The board of examiners must assemble when and where the medical society assembles, which society must assemble at least once a year; the board must remain in session from day to day till all applicants during the first five days after its meeting have been examined and disposed of (ib., s. 3,127).

PENALTY, EXCEPTIONS.—A person practising without obtaining a license from the board shall not be entitled to sue for or recover any medical bill for services; and a person who has begun the practice of medicine or surgery in the State for a fee or reward since February 23d, 1885, without first obtaining such a license, shall in addition be guilty of a misdemeanor and punishable with a fine of from $25 to $100, or imprisonment at the discretion of the court for each offence; but the act does not apply to women pursuing the avocation of midwife, nor to any reputable physician or surgeon residing in a neighboring State, coming into this State for consultation with a registered physician resident therein, except a physician residing in a neighboring State regularly practising in this State, nor does it apply to physicians who have a diploma from a regular medical college prior to January 1st, 1880 (ib., s. 3,132, as amended Act of 1885, c. 117, s. 2; Act of 1885, c. 261, s. 1; Act of 1889, c. 181, s. 1).

The board may rescind a license upon satisfactory proof that a licensee has been guilty of grossly immoral conduct (ib., s. 3,133).

QUALIFICATION.—Every person practising medicine or surgery in the State was required before January 1st, 1892, to appear personally before the clerk of the superior court of the county where he resided or practised, for registration, and all persons beginning to practise are likewise to appear and register within thirty days after obtaining a license (Act of 1889, c. 181, s. 3, as amended Act of 1891, c. 90).

Any person applying for registration must produce and exhibit before the clerk a license from the board of medical examiners, or make oath that he was practising medicine or surgery in this State prior to March 7th, 1885, and thereupon the clerk shall register the date, with the name and residence of the applicant, and shall issue a certificate of registration. The certificate entitles the recipient to practise in any county in the State, but if he removes his residence to another county he must exhibit his certificate to the clerk of such county and be registered. Persons having a temporary license are not entitled to register but may practise so long as the license is in force (Act of 1889, c. 181, s. 4, as amended Act of 1891, c. 420).

PENALTY, EXCEPTIONS.—To practise without registration and a certificate is a misdemeanor punishable with a fine of from $25 to $100 or imprisonment for each offence, but this act does not apply to women pursuing the avocation of midwife nor to reputable physicians or surgeons residing in a neighboring State coming into the State for consultation with a registered physician of this State (Act of 1889, c. 181, s. 5).

LICENSE FEE.—A license of $10 for each county in which he carries on business is exacted from every (itinerant?) medical practitioner, one-half for the use of the county and one-half for the use of the State; but a State license may be obtained from the State treasurer for $30 good for twelve months, and he is then exempt from the portion of above tax due the State (Act 1891, c. 323).

FEES.—To the secretary of the board, before issuing a license or diploma, $10.

To the secretary of the board, for temporary license, $5 (Code, 3,130).

To clerk of the court, for registration and certificate, 25 cents.

To clerk of the county, for registration on removal, no fee (Act 1889, c. 181, s. 4).

NORTH DAKOTA.

BOARD OF EXAMINERS.—The governor appoints a State board of examiners of nine members, eight of whom are practising physicians in good standing; no member of any college or university having a medical department shall be appointed. Two members shall be homœopathic physicians and one a lawyer (Act 1890, c. 93, s. 1).

The board must hold meetings for examination at such place or places as it may designate on the first Tuesday of January, April, July, and October of each year, and such other meetings as it may appoint and must keep a record of its proceedings with a register of every applicant for a license with his or her age, the time spent in the study of medicine, and the name and location of all institutions granting to such applicant a degree or a certificate of lectures in medicine or surgery, and whether the applicant was rejected or licensed; and said books and register shall be prima facie evidence of all matters therein recorded (ib., s. 2).

QUALIFICATION.—All persons hereafter commencing the practice of medicine, surgery, and obstetrics in any of its branches shall apply to the board for a license, and at the time and place designated by the board, or at its regular meeting, be examined in anatomy, physiology, chemistry, histology, materia medica, therapeutics, preventive medicines, practice of medicine, surgery, obstetrics, diseases of women and children, of the nervous system, of the eye and ear, medical jurisprudence, and such other branches as the board shall deem advisable, and produce evidence of having attended three courses of lectures of at least six months each; the examination must be both practical and scientific, but of sufficient severity to test the candidate’s fitness to practise medicine, surgery, and obstetrics. When desired, the said examination may be conducted in the presence of the dean of any medical school or the president of any medical society of the State. After examination the board must grant a license to practise medicine, surgery, and obstetrics; seven members must consent. The board may revoke or refuse a license for unprofessional, dishonorable, or immoral conduct, chronic or persistent inebriety, the practice of criminal abortion, or for publicly advertising special ability to treat or cure diseases which, in the opinion of the board, it is impossible to cure. In complaints for violating the provisions of this section, the accused shall be furnished with a copy of the complaint, and given a hearing before the board in person or by attorney. Appeal lies from refusal or revocation to the appointing power (ib., s. 3).

The person receiving a license must file it, or a certified copy, with the register of deeds where he resides. On removal into another county he must procure from said register a certified copy of his license and file it with the register of deeds in the county to which he shall remove (ib., s. 4).

EXCEPTIONS.—The act does not apply to commissioned surgeons of the United States army or navy, to physicians or surgeons in actual consultation from other States or Territories, or to actual medical students practising medicine under the direct supervision of a preceptor (ib., s. 5).

PENALTY.—Practising without a license or contrary to the act is a misdemeanor punishable with a fine of from $50 to $200, or imprisonment in a county jail from ten to sixty days, or both.

DEFINITION.—Any person is regarded as practising who appends the letters “M.D.” or “M.B.” to his name, or who for a fee prescribes, directs, or recommends for the use of any person any drug or medicine or other agency for the treatment, cure, or relief of any wound, fracture or bodily injury, infirmity, or disease (ib., s. 6).

FORMER LAW.—The former law is repealed only so far as it is inconsistent with the foregoing act (ib., s. 7).

The former law prohibited persons from practising medicine in any of its branches unless graduates of a medical college or unless they were shown by examination to be qualified and had been actually engaged in practising for at least ten years (Compiled Laws of Dakota, s. 205).

FEE.—To the treasurer of the board, for examination, $20 (Act 1890, c. 93, s. 3).

OHIO.

QUALIFICATION.—No person who is not a graduate of a reputable school of medicine in the United States or a foreign country, or who cannot produce a certificate of qualification from a State or county medical society and is not a person of good moral character, can lawfully practise or attempt to practise medicine in any of its departments or prescribe medicine for reward or compensation; except a person who has been continuously engaged in the practice of medicine for ten years or more. The law allowed persons in continuous practice for five years or more, two years to comply with its provisions. In case a person is a graduate of a school of medicine in any State or foreign country in which any condition or restriction is imposed by law upon the practice of medicine by graduates of medical schools in Ohio, he is subject to the same restrictions or conditions. A person violating this section is not entitled to any compensation for services (Smith & Benedict’s Revised Statutes of 1890, s. 4,403).

PENALTY.—Whoever prescribes or practises or attempts to practise medicine in any of its departments, or performs or attempts to perform a surgical operation without having attended two full courses of instruction and graduated at a school of medicine either in this or a foreign country, or who cannot produce a certificate of qualification from a State or county medical society, except a person who has been continuously engaged in the practice of medicine for ten years or more, is punishable with a fine of from $50 to $100 and for a subsequent offence with imprisonment for thirty days. Persons in continuous practice for five years or more were allowed two years to comply with this act (ib., s. 6,992).

OKLAHOMA.

QUALIFICATION.—No person can lawfully practise medicine in any department unless he be a graduate of a medical college, or unless upon examination before a board composed of the superintendent of public health and two other physicians to be selected by the territorial board of health, he be found proficient in the practice of medicine and surgery, and shall be found upon proof to have been actually engaged in the practice of medicine not less than five years. No person shall practise medicine unless he be of good moral character, and is not an habitual drunkard.

A person possessing these qualifications shall, on presentation of his diploma, or proof thereof by affidavit if it be lost or destroyed, and the affidavit of two reputable citizens from the county where he resides that the applicant possesses the qualifications of a physician, as prescribed herein, to the superintendent of public health, receive from him a license, which shall be recorded in the office of the register of deeds in the county where such physician resides.

OFFENCE.—To practise without complying with this law, or to violate any of its provisions, is a misdemeanor.

DEFINITION.—A person is regarded as practising medicine who professes publicly to be a physician and to prescribe for the sick, or who appends to his name M.D.

EXCEPTIONS.—The law does not prohibit students from prescribing under the supervision of preceptors, nor prohibit gratuitous services in case of emergency, nor apply to commissioned surgeons in the United States army and navy.

CANCELLATION OF LICENSE.—The district court has power on complaint of a member of the territorial board of health, or the county board of health where he resides, to cancel any license issued to a person to practise medicine, where such license was fraudulently obtained, or where the person to whom it was issued has been guilty of violating any provision of this act.

FEE.—To superintendent of board of health, for license, $2 (Comp. Stats., 1893, s. 352).

OREGON.

QUALIFICATION.—Every person practising medicine and surgery in any of their departments must possess the qualifications required by the act. If a graduate of medicine he must present his diploma to the board of examiners for verification as to its genuineness. If found genuine and the person named therein be the person claiming and presenting the same, the board issues its certificate, which is conclusive. If not a graduate, he must submit to an examination as the board shall require, and if the examination be satisfactory the board issues its certificate, and the lawful holder is entitled to all the rights and privileges mentioned in the act (Act February 28th, 1889, s. 1).

The governor appoints three persons from among the most competent physicians of the State, residents of the State for seven years and of at least five years’ practical experience in their profession, to be the board of examiners (ib., s. 2).

The board must issue certificates to all who furnish satisfactory proof of having received a diploma or license from a legally chartered medical institution in good standing of whatever school of medicine, and they are not permitted to make discrimination against holders of a general license or diploma under any school or system of medicine in good standing (ib., s. 3, as amended February 21st, 1891).

The verification of a diploma consists in an affidavit of the holder and applicant that he is the person therein named, taken before any person authorized to administer oaths, attested under the hand and official seal of the official, if he have a seal; graduates may present their diplomas and affidavits by letter or proxy. The act allows persons taking advantage of section 13 ninety days after its passage in which to procure a certificate (ib., s. 4, as amended February 21st, 1891).

All examinations of persons not graduates or licentiates must be made directly by the board, and certificates authorize the person named to practise medicine and surgery (ib., s. 5).

The holder of a certificate must have it recorded in the office of the county clerk of the county in which he resides, and the record must be indorsed thereon. On removal to another county to practise he must procure an indorsement to that effect on the certificate from the clerk, and have the certificate recorded in the office of the clerk of the county to which he removes (ib., s. 6).

The examinations may be wholly or partly in writing and must be of an elementary and practical character, but sufficiently strict to test the qualifications of the candidate as a practitioner (ib., s. 8).

The board may refuse a certificate to an individual guilty of unprofessional or dishonorable conduct, and may revoke for like causes, after giving the accused an opportunity to be heard in his defence before the board (ib., s. 9).

DEFINITION, EXCEPTIONS.—Any person is regarded as practising medicine who professes publicly to be a physician and to prescribe for the sick, or appends to his name the letters “M.D.;” but the act does not prohibit students from prescribing under the supervision of a preceptor, nor gratuitous services in cases of emergency, nor does it apply to commissioned surgeons of the United States army, navy, and marine hospital service (ib., s. 10).

ITINERANT VENDER.—Any itinerant vender of any drug, nostrum, medicine, ointment, or appliance of any kind intended for the treatment of disease or injury, who shall publicly profess to cure or treat diseases, injuries, deformities, or ailments by any drug, nostrum, medicine, or other appliance, shall pay a license to the Secretary of the State of $100 per month.

Violation of this section is a misdemeanor punishable by a fine of not more than $500 or imprisonment in a county jail for not more than six months, or both. Such licenses to any firm or company do not permit the transaction of business in different places at the same time (ib., s. 11, as amended February 21st, 1891).

PENALTY.—Practising medicine or surgery without complying with the act is a misdemeanor punishable with a fine of from $50 to $500 or imprisonment in a county jail from thirty days to three hundred and sixty-five days, or both, for each offence. Filing or attempting to file as his own the certificate of another, or a forged affidavit or identification, is a felony punishable the same as forgery in the second degree (ib., s. 12).

FORMER PRACTITIONERS.—Persons practising in the State at the time of the passage of the act were allowed sixty days afterward to register (ib., s. 13).

FEES.—To the secretary of the board, for examining a genuine diploma, $1.

To the secretary of the board, for examining a fraudulent diploma, or a diploma not owned by the possessor, $20 (ib., s. 4).

To the county clerk, for recording certificate, usual fee (ib., s. 6).

To board of examiners, for examination, $10 (ib., s. 8).

To the Secretary of the State, from itinerant vender, for license, $100 per month (ib., s. 11, as amended February 21st, 1891).

PENNSYLVANIA.

[PRESENT LAW.—The following is the law at present in effect; for the new law which goes into effect hereafter, see below.]

QUALIFICATION.—The standard of a practitioner of medicine, surgery, or obstetrics consists of a good moral character, a thorough elementary education, a comprehensive knowledge of human anatomy, human physiology, pathology, chemistry, materia medica, obstetrics, and practice of medicine and surgery and public hygiene (Act March 24th, 1877, s. 1).

It is unlawful for any person to announce himself as a practitioner of medicine, surgery, or obstetrics, or to practise as such, who has not received in a regular manner a diploma from a chartered medical school, duly authorized to confer upon its alumni the degree of doctor of medicine. The act does not apply to a resident practitioner who has been in continuous practice in the commonwealth for not less than five years prior to its passage (ib., s. 2).

Before any person can lawfully engage in the practice of medicine, surgery, or obstetrics, or who has not a diploma as provided in sec. 2, he must make an affidavit under oath, or affirm before the prothonotary of the county in which he intends to practise, setting forth the time of continuous practice and the place or places where such practice was pursued in the commonwealth, and it shall be entered of record (ib., s. 3).

TRANSIENT PRACTITIONER.—Any person attempting to practise medicine or surgery for a valuable consideration by opening a transient office within the commonwealth, or by handbill or other form of written or printed advertisement, assigning such transient office or other place to persons seeking medical or surgical advice, or prescribing or itinerating from place to place or from house to house and proposing to cure any person sick or afflicted, by the use of any medicine, means, or agency whatsoever, for a valuable consideration, shall before being allowed to practise in this manner appear before the clerk of the court of quarter sessions of the county where he desires to practise and furnish satisfactory evidence to such clerk that this act has been complied with, and shall take out a license for one year and pay $50 therefor (ib., s. 4).

PENALTY.—To violate this act is a misdemeanor punishable with a fine of from $200 to $400 for each offence (ib., s. 5).

QUALIFICATION.—Every person who shall practise medicine or surgery, or any of their branches, for gain, or shall receive or accept for his services any fee or reward directly or indirectly, shall be a graduate of a legally chartered medical college or university having authority to confer the degree of doctor of medicine (except as provided in sec. 5), and shall present to the prothonotary of the county in which he resides or sojourns his medical diploma as well as a true copy of the same, including any indorsements thereon, and make affidavit before him that the diploma and indorsements are genuine; thereupon the prothonotary shall enter in the register the name in full of the practitioner, his place of nativity, place of residence, the name of the college or university that has conferred the degree of doctor of medicine, the year when it was conferred, and in like manner any other degree or degrees that the practitioner may desire to place on record; to all of which the practitioner shall make affidavit before the prothonotary and the prothonotary shall place the copy of the diploma and indorsements on file (Act June 8th, 1881, s. 2).

Any person whose medical diploma has been destroyed or lost shall present to the prothonotary of the county in which he resides or sojourns a duly certified copy of his diploma, but if the same is not obtainable a statement of this fact, with the names of the professors whose lectures he attended and the branches of study upon which each professor lectured, to all of which the practitioner shall make affidavit before the prothonotary; after which the practitioner shall be allowed to register and the prothonotary shall place such certificate or statement on file (ib., s. 3).

Any person desiring to commence the practice of medicine or surgery, having a medical diploma issued by any college, university, society, or association in another State or foreign country, shall lay the same before the faculty of one of the medical colleges or universities of this commonwealth for inspection, and the faculty being satisfied as to the qualifications of the applicant and the genuineness of the diploma shall direct the dean of the faculty to indorse the same, after which such person shall be allowed to register as required by sec. 2 (ib., s. 4).

The act extends the privilege of continuing to practise to those who have been in the continuous practice of medicine or surgery in the commonwealth since 1871, but such a person must make affidavit to a written statement of the facts before the prothonotary of the county in which he resides; and the prothonotary shall enter in the register the name in full of the practitioner, his place of nativity, place of residence, the time of continuous practice in the commonwealth, and the place or places where such practice was pursued, to all of which the practitioner shall make affidavit, and the prothonotary shall place the certificate or statement on file in his office (ib., s. 5).

PENALTY.—Presenting to the faculty of an institution for indorsement or to the prothonotary a diploma which has been obtained by fraud, or in whole or in part a forgery, or making an affidavit to a false statement, or practising without conforming with the act, or otherwise violating or neglecting to comply with the act, is a misdemeanor punishable with a fine of $100 or imprisonment in the county jail for not more than one year, or both, for each offence (ib., s. 7).

EXCEPTION.—The act does not prevent any physician or surgeon, legally qualified to practise medicine or surgery in the State where he resides, from practising in the commonwealth, but a person opening an office or appointing a place to meet patients or receive calls is a sojourner and must conform to its requirements (ib., s. 8).

FEES.—To the prothonotary, for affidavit of continuous practice, $2 (Act March 24th, 1877, s. 3).

To county treasurer, for transient license, $50.

To clerk of the court of quarter sessions, for issuing transient license, $5 (ib., s. 4).

To the prothonotary, for registration, $1 (Act June 8th, 1881, s. 6).

[NEW LAW.—The following law has been enacted whose practical application does not begin until March 1st, 1894:]

MEDICAL COUNCIL.—The law provides for a medical council of the State (Act of May 18th, 1893, s. 1).

The council is to supervise the examinations conducted by the State boards of medical examiners for licenses to practise medicine and surgery, and issue licenses to applicants who shall have presented satisfactory and properly certified copies of licenses from the State boards of medical examiners or State boards of health of other States, or who shall have successfully passed the examination of one of the State boards established by this act (ib., s. 5).

MEDICAL BOARDS.—From and after March 1st, 1894, there are to be three separate boards of medical examiners, one representing the medical society of the State, one representing the homœopathic medical society of the State, and one representing the eclectic medical society of the State. Each board is to consist of seven members appointed by the governor from the full lists of the members of the said medical societies, and is to be composed exclusively of members of the same medical society. Each appointee must be a registered physician in good standing, and shall have practised medicine or surgery under the laws of the State for not less than ten years prior to his appointment.

The governor is to fill vacancies and may remove a member for continual neglect of duties or on the recommendation of the medical society with which he may be in affiliation, for unprofessional or dishonorable conduct (ib., s. 6).

EXAMINATIONS.—For the purpose of examining applicants each board is to hold two or more stated or special meetings in each year after due public notice. A majority constitutes a quorum, but the examination may be conducted by a committee of one or more members authorized by the board (ib., s. 9).

The boards not less than one week prior to each examination must submit to the council questions for thorough examination in anatomy, physiology, hygiene, chemistry, surgery, obstetrics, pathology, diagnosis, therapeutics, practice of medicine, and materia medica; and the council must select therefrom the questions for each examination, and such questions for each examination shall be the same for all candidates, except that in the departments of therapeutics, practice of medicine, and materia medica the questions shall be in harmony with the teachings of the school selected by the candidate (ib., s. 10).

The examinations are to be in writing under rules prescribed by the council. After an examination the board must act on it without unnecessary delay and transmit to the council an official report of its action stating the examination average of each candidate in each branch, the general average, and the result, and whether successful or unsuccessful. The report must embrace all the examination papers, questions, and answers, which shall be kept for reference and inspection for not less than five years (ib., s. 11).

QUALIFICATION.—The council must forthwith issue to each applicant returned as having successfully passed said examination, and adjudged by the council to be duly qualified, a license to practise medicine and surgery. The council must require the same standard of qualifications from all candidates except in therapeutics, practice of medicine, and materia medica, in which the standard shall be determined by the boards respectively. Before the license is issued, it must be recorded in a book in the office of the council, and the number of the book and page containing the record noted on the face of the license; the records shall have the same weight as evidence as that given to conveyance of land (ib., s. 12).

On and after July 1st, 1894, any person not theretofore authorized to practise medicine and surgery in the State may deliver to the secretary of the council a written application for a license with satisfactory proof that the applicant is more than twenty-one years of age, is of good moral character, has obtained a competent common-school education, and has received a diploma conferring the degree of medicine from some legally incorporated medical college of the United States, or a diploma or license conferring the full right to practise all the branches of medicine and surgery in some foreign country. Applicants who have received their degree in medicine after July 1st, 1894, must have pursued the study of medicine for at least three years, including three regular courses of lectures in different years in some legally incorporated medical college or colleges prior to the granting of said diploma or foreign license. Such proof shall be made, if required, upon affidavit, and if the council is satisfied with the same it shall issue to the applicant an order for examination before such one of the boards of examiners as the applicant may select. In case of failure at the examination the candidate, after the expiration of six months and within two years, shall have the privilege of a second examination by the same board without additional fee. Applicants examined and licensed by State boards of medical examiners or State boards of health of other States, on filing in the office of the medical council a copy of said license certified by the affidavit of the president and secretary of such board, showing also that the standard of acquirements adopted by said board is substantially the same as is provided by secs. 11, 12, and 13 of this act, shall without further examination receive a license conferring on the holder all the rights and privileges provided by secs. 14 and 15 (ib., s. 13).

From and after March 1st, 1894, no person shall enter upon the practice of medicine or surgery unless he has complied with this act and shall have exhibited to the prothonotary of the court of common pleas of the county in which he desires to practise a license duly granted, which shall entitle him to be duly registered in the office of such prothonotary.

PENALTY.—Violating the provisions of this act shall be a misdemeanor punishable with a fine of not more than $500 for each offence (ib., s. 14).

EXCEPTIONS.—The act does not interfere with or punish commissioned medical officers serving in the army or navy of the United States, or its marine hospital service, while so commissioned, or medical examiners of relief departments of railroad companies, while so employed, or any one while actually serving as a member of the resident medical staff of any legally incorporated hospital, or any legally qualified and registered dentist exclusively engaged in the practice of dentistry, nor interfere with or prevent the dispensing and sale of medicine or medical appliances by apothecaries [or] pharmacists, nor interfere with the manufacture of artificial eyes, limbs, or orthopædical instruments or trusses of any kind for (sic) fitting such instruments on persons in need thereof, or any lawfully qualified physicians and surgeons residing in other States or countries meeting registered physicians of this State in consultation, or any physician or surgeon residing on the border of a neighboring State and duly authorized under the laws thereof to practise medicine and surgery therein, whose practice extends into the limits of this State, provided such practitioner shall not open an office or appoint a place to meet patients or receive calls within the limits of Pennsylvania, or physicians duly registered in one county of this State called to attend cases in another, but not residing or opening an office therein.

The act does not prohibit the practice of medicine and surgery by any practitioner who shall have been duly registered before March 1st, 1894, according to the Act of June 8th, 1881, and one such registration shall be sufficient warrant to practise medicine and surgery in any county (ib., s. 15).

FORMER LAWS.—All acts or parts of acts inconsistent with this are repealed (ib., s. 17).

FEES.—To the secretary of the council, upon application for a license, $25.

To the secretary of the county, upon application for a license by licensees in other States, $15 (ib., s. 13).

To the prothonotary, upon exhibition of a license, for registry, $1 (ib., s. 14).

RHODE ISLAND.

REGISTRATION.—Every physician must cause his name and residence to be recorded in the town clerk’s office of the town where he resides (Public Statutes, 1882, c. 85, s. 12).

PENALTY.—Wilful neglect or refusal to perform this duty is punishable with a fine not exceeding $20 (ib., s. 11).

SOUTH CAROLINA.

QUALIFICATION.—All physicians engaging in the practice of medicine or surgery, before doing so, must submit their diplomas to a board consisting of three reputable physicians in each county. The board is appointed by the governor on the recommendation of the medical societies of the counties, and where no medical society exists, upon the recommendation of the senator and members of the House of Representatives for such counties (Act of 1890, c. 454, s. 1).

The said board must examine said diploma, when submitted, and if the holder is a bona fide holder, and if the college issuing said diploma is a reputable medical college, and if he also submits a certificate of good moral character, the board must certify to the fact, and upon such certificate the diploma shall be registered by the clerk of the court of the county in which the applicant resides (ib., s. 2).

EXCEPTION.—The act does not apply to physicians and surgeons already registered under former laws (ib., s. 4).

SOUTH DAKOTA.

PROHIBITION.—It is unlawful for any person to practise medicine, surgery, or obstetrics in any of their departments without having received a license to practise medicine from the board of health, and having it recorded in the office of the register of deeds in the county where such person resides (Act February 16th, 1893, s. 1).

EXCEPTIONS.—The act does not affect those in the lawful practice of medicine, surgery, or obstetrics in this State at the time of its passage (ib., s. 2).

Nor does it prohibit students from prescribing under the supervision of a preceptor, nor prohibit gratuitous services in case of emergency, nor apply to commissioned surgeons in the United States army and navy (ib., s. 3).

PENALTY.—Violation of the act or practising without the license is a misdemeanor punishable with a fine of from $25 to $100 or imprisonment in the county jail not more than thirty days or both (ib., s. 4).

QUALIFICATION.—The State board of health is constituted a board of public examiners ex-officio to examine and license physicians to practise medicine. Any person who is a graduate of a lawful medical college, who has attended three full courses of medical lectures of six months each, no two full courses within the same year, and who is of good moral character, and is not an habitual drunkard, shall, upon proof of such facts to the superintendent of the State board of health, as the board shall require, receive from said superintendent a license; which shall be recorded as above. The requirement of three courses of lectures does not apply to those who had graduated prior to the passage of the act (ib., s. 5).

CANCELLATION OF LICENSE.—The State board of health, upon complaint made to it on oath by one responsible person, has power to cancel any license that may have been fraudulently obtained or when the person to whom such license was issued is an habitual drunkard, or is guilty of immoral practices or gross unprofessional conduct. Such license shall not be cancelled except after a hearing before such board of health, at which a majority of such board shall be present, and of which the person holding the license to be cancelled shall have had at least ten days’ notice, and only upon due proof of the facts stated in the complaint. An appeal may be taken to the circuit court of the county in which the person whose license is cancelled lives by any person aggrieved, in the same manner as now provided by law in case of appeal from the decisions of the county commissioners (ib., s. 6).

FEE.—To the superintendent of the State board of health, for a license, $5 (ib., s. 5).

TENNESSEE.

QUALIFICATION.—No person can lawfully practise medicine in any of its departments, except dentistry, unless he possesses the qualifications required by the act. If a graduate in medicine, he must present his diploma to the State board of medical examiners for verification as to its genuineness. If found genuine and from a legally chartered allopathic, homœopathic, or eclectic medical college in good standing with the school of medicine in which said college is classed, of which the State board of medical examiners shall be the judge, and the person named therein be the person claiming and presenting it, the board must issue a certificate to that effect, conclusive as to the rights of the lawful holder to practise medicine (Act of 1889, c. 178, s. 1).

Persons in actual practice at the time of the passage of the act were allowed till July 1st, 1891, to comply with the provisions of the act respecting them (ib., s. 2, as amended Act 1891, c. 109, s. 1).

A person wishing to enter upon the practice of medicine must present to the board of medical examiners a diploma from some medical college in good standing as provided by sec. 1, or shall present himself to the said board for examination upon anatomy, physiology, chemistry, pathology, surgery, obstetrics, and therapeutics. If the diploma be found genuine, or if the applicant for examination be found worthy and competent, the board shall issue a certificate which shall entitle the lawful holder to all the privileges of this act (ib., s. 3, as amended Act 1891, c. 109, s. 2).

The governor appoints six graduate physicians as a State board of medical examiners; the three schools allopathic, homœopathic, and eclectic must be represented on the board; five constitute a quorum and a majority of those present are necessary to reject an applicant, but such rejection shall not bar a re-examination after the lapse of three months; provided the members representing each school shall have the right to examine all applicants of that school, and the board shall issue the certificate to applicants who are recommended by the member or members of the board who belong to said school after such examination (ib., s. 4).

To prevent delay and inconvenience two members of the board may grant a temporary license to any applicant if the applicant has not been refused a license by the board within six months, which shall be in force till the next regular meeting of the board (ib., s. 5).

The members of the board shall not be members of the State board of health, nor any medical faculty (ib., s. 6).

The regular meeting of the board shall be once in each year at such time and place as the board may decide, but the president of the board may call a special meeting when demanded by public necessity (ib., s. 7).

Every person holding a certificate must have it recorded in the office of the county court clerk where he resides, and the date of record must be indorsed thereon. Until such record is made the holder shall not exercise any of the rights and privileges conferred. A person removing to another county to practise shall record his certificate in like manner in the county to which he removes. Practitioners may go from one county to another on professional business, without being required to register, if they have done so in the county in which they reside (ib., s. 9).

ITINERANT PHYSICIAN OR VENDER.—It is unlawful for an itinerant physician or vender of any drug, nostrum, ointment, or appliance of any kind intended for the treatment of disease or injury to sell or apply the same, or by writing, printing, or other method to profess to cure or treat disease or deformity by any drug, nostrum, manipulation, or other expedient.

A violation of this section is punishable with a fine of $100 to $400, but this section does not apply to merchants and druggists, and this act does not apply to veterinary surgeons and stock doctors (ib., s. 13, as amended Act 1891, c. 109, s. 3).

PENALTY, EXCEPTION.—To practise medicine or surgery without a certificate is a misdemeanor punishable with a fine of from $10 to $25.

To file or attempt to file as his own the diploma or certificate of another or a forged affidavit of identification is a felony punishable same as forgery. The act does not apply to women who pursue the avocation of midwife (ib., s. 14, as amended Act 1891, c. 109, s. 4).

FEES.—To the county court clerk, for recording certificate, the usual fee (ib., s. 9).

To the board of examiners, for issuing a certificate, $1.

To the board of examiners, for examination of non-graduate, $10.

If applicant fails to pass a satisfactory examination, and no certificate or license is issued to him, $5 only is retained.

For a certificate of temporary license, $1, which is to be credited to the applicant when he applies for a permanent license (ib., s. 12, as amended Act 1891, c. 109, s. 2).

TEXAS.

CONSTITUTIONAL PROVISION.—The legislature may pass laws prescribing the qualifications of practitioners of medicine, but no preference shall ever be given by law to any schools of medicine (Const. 1876, art. xiv., s. 31 in part).

BOARDS OF EXAMINERS.—A board of medical examiners for each judicial district is appointed by the judge of the district court (R. S., art. 3,625).

Each board is composed of not less than three practising physicians of known ability, graduates of some medical college recognized by the American Medical Association, residents of the district from which they are appointed (ib., art. 3,626).

The boards are required to meet regularly semi-annually at some central point in their districts to conduct examinations and grant certificates, and after at least one month’s public notice of the time and place of meeting by publication in at least one newspaper published in the district (ib., art. 3,629).

QUALIFICATION.—The board is required to examine thoroughly all applicants for a certificate of qualification to practise medicine in any of its branches or departments, whether furnished with medical diplomas or not, upon anatomy, physiology, pathological anatomy and pathology, surgery, obstetrics, and chemistry; but no preference shall be given to any school of medicine (ib., art. 3,632).

When the board is satisfied as to the qualifications of an applicant, they are required to grant a certificate, which entitles him to practise medicine in any county when it has been recorded (ib., art. 3,633).

Any two members of the board may grant a certificate, and any member may grant a temporary certificate upon examination, which shall be in force until the next regular meeting of the board (ib., art. 3,634).

The certificate must, before the person to whom it was granted is entitled to practise, be recorded in the office of the clerk of the district court of the county in which such practitioner resides or sojourns, and when recorded the clerk shall certify thereon under his official seal the fact and date of record, and shall return the certificate to its owner (ib., art. 3,635).

EXCEPTIONS.—This title does not apply to those who have already qualified under the act of May 16th, 1873, nor to those regularly engaged in the general practice of medicine in the State in any branch or department for five consecutive years prior to January 1st, 1875, nor to females who follow the practice of midwifery strictly as such (ib., art. 3,637).

PENALTY.—No person except those named in art. 3,637 can lawfully practise medicine in any of its branches or departments without having first obtained and recorded a certificate of qualification as above provided. A person so offending shall be punished as provided in the Penal Code (ib., art. 3,638).

If any person shall practise for pay or as a regular practitioner medicine in any of its branches or departments, or offer or attempt to practise medicine without first having obtained a certificate of professional qualification from some authorized board of medical examiners, or without having a diploma from some actual medical college chartered by the legislature of the State, or its authority, in which the same is situated, he shall be punished by a fine of not less than $50, nor more than $500 (Penal Code, art. 396).

Each patient visited or prescribed for, or each day’s offer to practise constitutes a separate offence (ib., art. 397).

If any person shall engage in the practice of medicine in any of its branches or departments for pay or as a registered practitioner, without having first filed for record, with the clerk of the district court of the county in which he resides or sojourns, a certificate from some authorized board of medical examiners or a diploma from some actual medical college, he shall be punished as prescribed in art. 396 (ib., art. 398).

FEES.—To the clerk of the district court, for recording certificate, $1 (R. S., art. 3,635).

To the board of examiners, for examination, $15, whether certificate is granted or not (R. S., art. 3,636).

UTAH.

BOARD OF EXAMINERS.—The governor appoints by and with the advice and consent of the council a board of seven medical examiners from the various recognized schools of medicine; appointees are required to be graduates of a legally chartered medical college in good standing (Act 1892, c. 72, s. 1).

QUALIFICATION.—The board has power to issue certificates to all who furnish satisfactory proof of having received degrees or licenses from a chartered medical college in good and legal standing, and pass examinations before said board (ib., s. 2).

Graduates of respectable medical colleges at the time of the passage of the act engaged in actual practice in the Territory shall be licensed on presenting their degree to the board, and producing satisfactory evidence of identity (ib., s. 4).

Every person holding a certificate from said board must have it recorded in the office of the recorder of the county in which he resides within three months from its date, and the date of record must be indorsed thereon. Until the certificate is recorded, the holder shall not exercise any of the privileges conferred. A person removing to another county to practise must record his certificate in like manner in the county to which he removes (ib., s. 5).

Examinations shall be wholly or partly in writing (ib., s. 7).

The board may refuse to issue certificates to individuals guilty of unprofessional or dishonorable conduct, the nature of which shall be stated in writing, and it may revoke certificates for like causes to be stated in writing (ib., s. 8).

DEFINITION.—Any person is regarded as practising medicine who treats, operates upon, or prescribes for any physical ailment of another for a fee, or who holds himself out by means of signs, cards, advertisements, or otherwise as a physician or surgeon.

EXCEPTIONS.—The act does not prohibit service in case of emergency or the administration of family remedies, and does not apply to commissioned surgeons of the United States army in discharge of their official duties, or to visiting physicians in actual consultation (ib., s. 9).

OFFENCE.—Practising medicine or surgery without a certificate or contrary to this act is a misdemeanor (ib., s. 10).

Persons not graduates who had practised continuously for ten years in the Territory prior to the taking effect of the act were allowed six months in which to comply with its provisions concerning them. Practising without complying with these provisions, and practising after rejection of an application or the revocation of certificate, is a violation of the law (ib., s. 11).

OBSTETRICIANS.—Persons practising obstetrics were required within three months after the passage of the act to apply to the board for a certificate, and after passing a proper examination were entitled to one.

Practising obstetrics without first obtaining a license or contrary to this act is a misdemeanor; provided all persons who furnish to said board satisfactory evidence by affidavit or otherwise of having practised obstetrics previous to the passage of the act, shall receive a license without an examination. This section does not apply to physicians holding certificates nor prohibit services in cases of emergency, nor apply to persons practising obstetrics in communities where there are no licensed practitioners (ib., s. 12).

BOARD MEETINGS.—The board is required to meet at the territorial capital on the first Monday of January, March, June, and September of each year at 10 A.M., and such other times as the president of the board shall deem necessary (ib., s. 13).

COLLEGES.—“Respectable medical colleges” include colleges in legal standing of any recognized school of medicine (ib., s. 15).

FEES.—To the treasurer of the board of examiners, for examination and certificate, $25 (ib., s. 3).

To the treasurer of the board of examiners, for license to a graduate, $5 (ib., s. 4).

The secretary of the board is required to enter without fee, on the register to be kept by him, the names of all persons to whom licenses are issued as physicians and surgeons (ib., s. 4).

To the county recorder, for recording, his usual fees (ib., s. 5).

To the treasurer of the board of examiners, upon examination for license to practise obstetrics, $10.

To the treasurer of the board of examiners, upon license to practise obstetrics without examination, $1 (ib., s. 12).

VERMONT.

QUALIFICATION.—The medical societies organized under a charter from the General Assembly at each annual session elect a board of censors of three members, who may examine and license practitioners of medicine, surgery, and midwifery (Revised Laws, 1880, s. 3,908).

A practitioner of medicine, surgery, or midwifery who by sign or advertisement offers his services to the public as a practitioner of medicine, surgery, or midwifery, or who by such sign or advertisement assumes the title of doctor, shall obtain a certificate from one of such medical societies, either from a county, district, or State society (ib., s. 3,909).

A person not a resident of the State who has not received a diploma from a chartered medical college must obtain a certificate from a board of censors before he shall be permitted to practise the medical art in the State (ib., s. 3,910).

Each board of censors must issue certificates without fee to physicians and surgeons who furnish evidence by diploma from a medical college or university, or by a certificate of examination by an authorized board, which satisfies said censors that the person presenting such credentials has been, after due examination, deemed qualified to practise the branch mentioned in such diploma or certificate (ib., s. 3,911).

The censors in their discretion shall notify the practitioner of medicine, surgery, or midwifery of this chapter, and require such persons to comply therewith within thirty days after notification or such further time as is allowed by the censors not exceeding ninety days (ib., s. 3,912).

The certificate must set forth the branches of the medical art in which the person is qualified to practise (ib., s. 3,913).

The certificate must be recorded in the clerk’s office of the county in which the holder resides, or, if not a resident of the State, in the county in which he obtained his certificate (ib., s. 3,914).

A certificate issued by a board of censors is valid throughout the State after being duly recorded. The censors may revoke or annul a certificate if in their judgment the holder has obtained it fraudulently or has forfeited his right to public confidence by the conviction of crime (ib., s. 3,915).

PENALTY.—To practise medicine, surgery, or midwifery in the State, or sign a certificate of death for burial or removal unless authorized by a certificate issued and recorded, is punishable with a fine of from $50 to $200 for the first offence, and for subsequent offences with a fine of from $200 to $500, recoverable by an action of debt for the use of any person who sues or by indictment (ib., s. 3,916).

No person practising either of the branches of medicine, surgery, or midwifery is permitted to enforce in the courts the collection of a fee or compensation for services rendered or medicine or material furnished in the practice of any of the branches for which he has not a certificate (ib., s. 3,917).

EXCEPTIONS.—The law does not apply to the practice of dentistry, nor to the practice of midwifery by women in the town or locality in which they reside, nor to practitioners of medicine who resided and practised medicine in the State for five years previous to November 28th, 1876 (ib., s. 3,918).

VIRGINIA.

BOARD OF EXAMINERS.—There is a State board of medical examiners consisting of three members from each congressional district and two from the State at large, and five homœopathic physicians from the State at large (Code 1887, s. 1,744).

The board is composed of men learned in medicine and surgery appointed by the governor from a list of names recommended by the Medical Society of Virginia, together with five homœopathic physicians nominated to him by the Hahnemann Medical Society of the Old Dominion. The recommendations are required to be by votes of a majority present at some meeting of such society; but if the governor considers any person so recommended unsuitable he may decline to appoint him, in which case such society shall within ninety days after notification make another recommendation, and if the society fail to make a recommendation the governor is required to appoint such board in whole or in part without regard to such recommendation. If any examiner cease to reside in the district for which he was appointed his office is deemed vacant (ib., s. 1,745).

The regular meetings of the board are required to be held at least once a year, and at such times and places as the board may prescribe, and special meetings may be held on the call of the president and any five members (ib., s. 1,746).

QUALIFICATION.—The board at any of its meetings must examine all persons making application to them who desire to practise medicine or surgery; when an applicant shall have passed an examination satisfactory as to proficiency before the board in session the president must grant a certificate to that effect. If any applicant fail to pass a satisfactory examination before the board he shall not be permitted to stand a further examination within the next three months, nor shall he be required again to pay the fees prescribed, but no applicant shall be rejected on his examination on account of his adherence to any particular school of medicine or system of practice, nor on account of his views as to the method of treatment and the cure of disease.

When, in the opinion of the president of the board, the applicant has been prevented by good cause from appearing before the board, he shall appoint a committee of three members who shall examine the applicant and may grant a certificate having the same effect as though granted by a full board, until the applicant have an opportunity to appear before the board, when, if he fail to appear for examination, the president shall have the authority to revoke said certificate; or in any case the president shall have authority, at his discretion, to grant a special permit to any applicant to practise medicine until he shall have an opportunity to appear before the board in session for examination, revokable at the discretion of the president. The board has in its discretion authority to accept in lieu of examination a certificate from a medical board of any other State, showing that the applicant has passed a satisfactory examination as to his proficiency, and obtained a license from said board to practise medicine and surgery in said State (ib., s. 1,747, as amended Act 1892, c. 70).

A person obtaining a certificate from the president of the board must cause it to be recorded in the clerk’s office of the county or the corporation court, of the county or corporation in which he resides, or, if he resides in the city of Richmond, in the clerk’s office of the chancery court of the said city (ib., s. 1,749).

No person who shall have commenced the practice of medicine or surgery since January 1st, 1885, or who shall hereafter commence the practice of the same, shall practise as a physician or surgeon for compensation without having obtained a certificate and caused it to be recorded.

PENALTY.—The violation of this act is punishable with a fine of from $50 to $500 for each offence, and the violator is debarred from receiving compensation for services rendered as a physician or surgeon; a person assessed with a license tax as a physician or surgeon by any commissioner of revenue prior to July 1st, 1892, shall be taken as having commenced the practice of medicine or surgery prior to that date; but any person who shall not have been so assessed shall be taken as not having commenced such practice prior to that date (ib., s. 1,750, as amended Act 1892, c. 70).

NON-RESIDENTS.—A physician or surgeon residing in an adjoining State within ten miles of the boundary line of this State, is entitled to stand the examination and receive a certificate, and the certificate must be recorded in that county in the State nearest to his place of residence, and such certificate and recordation shall make it lawful for him to practise medicine and surgery in this State (ib., s. 1,751).

EXCEPTIONS.—This chapter does not affect practitioners of dentistry, nor include physicians or surgeons residing in other States called into consultation in a special case with a physician or surgeon residing in this State, nor does it affect in any way the laws in reference to the license tax (ib., s. 1,752) nor does it apply to midwives (ib., s. 1,753).

FEES.—To the board of examiners, before examination, $5 (ib., s. 1,747, as amended Act 1892, c. 70).

To the clerk of the court, for recording, same fee as for recording a deed (ib., s. 1,749).

WASHINGTON.

EXAMINING BOARD.—The governor is required to appoint a State medical examining board of nine members, learned and skilled in the practice and theory of medicine and surgery (Act March 28th, 1890, s. 1).

The said board is required to hold meetings for examination on the first Tuesday of January and July in each year, alternately in western and eastern Washington at such places as the board may designate. The board may call special meetings when, in the opinion of a majority of the board, they are necessary. The board is required to keep a record of all applicants for a license, with their ages, the time spent in the study and practice of medicine and surgery, and the name and location of all institutions granting to such applicants degrees or certificates of lectures in medicine or surgery, and whether such applicant was rejected or licensed; and said register is prima facie evidence of all matters therein recorded (ib., s. 2).

QUALIFICATION.—Every person desiring to commence the practice of medicine or surgery, or either of them, in any of their or its branches, must make a written application to the board for a license, supported by an affidavit of the applicant, setting forth the actual time spent in the study of medicine and surgery, and when; whether such study was in an institution of learning and, if so, its name and location; if not in such institution, where and under whose tutorship such study was prosecuted, the time engaged in the actual practice, if at all, of medicine and surgery or either, and where, and the age of the applicant at the time of the application, such application and affidavit to be filed and preserved of record in the office of the secretary of the board. At the time and place designated by the board or at a regular meeting of the board, applicants must be examined in anatomy, physiology, chemistry, histology, materia medica, therapeutics, preventive medicines, the practice of medicine, surgery, obstetrics, diseases of women and children, of the nervous system, of the eye and ear, medical jurisprudence, and such other branches as the board deem advisable. The examination must be both scientific and practical, and of sufficient severity to test the candidate’s fitness to practise medicine and surgery, by written or printed, or partly written and partly printed, questions and answers, and the same are required to be filed and preserved of record in the said secretary’s office. After the examination, if it be satisfactory, the board shall grant a license, by the consent of not less than five members, except as hereinafter provided.

REFUSAL OR REVOCATION.—The board may refuse or revoke a license for unprofessional or dishonorable conduct, subject to the right of appeal (ib., s. 3).

“Unprofessional or dishonorable conduct” means: procuring or aiding or abetting in procuring a criminal abortion; or employing what are popularly known as cappers or steerers; or obtaining any fee on the assurance that a manifestly incurable disease can be permanently cured; or wilfully betraying a professional secret; or advertisements of medical business in which untruthful and improbable statements are made; or advertising any medicine or means whereby the monthly periods of women can be regulated, or the menses re-established if suppressed; or the conviction of any offence involving moral turpitude; or habitual intemperance (ib., s. 4).

In case of a refusal or a revocation of a license, the board is required to file a brief and concise statement of the grounds and reasons thereof in the office of its secretary, which, with the decision of the board in writing, shall remain of record in said office. Before a license can be revoked for unprofessional or dishonorable conduct, a complaint of some person under oath must be filed in the office of the secretary of the board, charging the acts of unprofessional or dishonorable conduct and the facts complained against the accused in ordinary and concise language, and at least ten days prior to the hearing the board shall cause to be served upon the accused a written notice and a copy of such complaint containing a statement of the time and place of the hearing. The accused may appear at the hearing and defend in person or by counsel, and may have the sworn testimony of witnesses taken and present other evidence in his behalf, and the board may receive arguments of counsel (ib., s. 5).

In case of refusal or revocation of a license by the board, there is a right of appeal within thirty days after the filing of the decree in the office of the secretary, to the superior court in and for the county in which was held the last general meeting of the board prior to the refusal of the license, in case of refusal; and to the superior court in and for the county in which the hearing was had upon which such license was revoked, in case of revocation. The person desiring to appeal must serve or cause to be served on the said secretary a written notice of appeal containing a statement of its grounds, and must file in the said secretary’s office an appeal bond with a good and sufficient surety to be approved by the Secretary of the State of Washington, conditioned for the speedy prosecution of such appeal and the payment of such costs as may be adjudicated against him upon such appeal. Said secretary must within ten days after service of said notice and filing, and the approval of the said appeal bond, transmit to the clerk of the court to which the appeal is taken a certified copy, under the seal of the board, of the decision and the grounds, in case of refusal, and in addition a certified copy under said seal of the complaint, in the case of revocation, with the bond and notice of appeal. The clerk must thereupon docket such appeal causes and they stand for trial in all respects as ordinary civil actions, and like proceedings are had thereon. On appeal the cause is tried de novo. Either party may appeal from a judgment of the superior court to the supreme court in like manner as in civil actions within sixty days after the rendition and entry of such judgment. If the judgment be in favor of the party appealing from the decision of the board, and the examining board does not appeal within sixty days, in that case at the end of sixty days the board shall immediately issue to the successful party the usual license, and in addition reinstate upon its records the name of such successful applicant, in case of revocation. In case of appeal to the supreme court by the board, no such license shall be issued nor re-instatement required until the final determination of the cause. In case the final decision of the supreme court be against the board, then the said court shall make such order as may be necessary and the board shall act accordingly. No appeal bond can be required of the board, nor any costs adjudged or taxed against the same (ib., s. 6).

FILING AUTHORITY.—The person receiving a license must file it, or a copy, with the county clerk of the county where he resides, and the county clerk is required to file said certificate or copy and enter a memorandum thereof, giving its date and the name of the person to whom it was issued, and the date of filing, and on notice to him of a change of location or the death of a person licensed or of revocation, the county clerk is required to enter a memorandum of said fact at the appropriate place in the record. In case of removal into another county, the person licensed must procure from the county clerk a certified copy of the said license, and file it with the county clerk of the county to which he shall remove, with like effect as an original license (ib., s. 7).

PENALTY, DEFINITION.—To practise medicine or surgery without a license or contrary to this chapter is a misdemeanor punishable with a fine of from $50 to $100, or imprisonment in a county jail from ten to ninety days, or both. Any person is regarded as practising who appends the letters “M.D.” or “M.B.” to his name, or for a fee prescribes, directs, or recommends for the use of any person any drug or medicine or agency for the treatment, care, or relief of any wound, fracture, or bodily injury, infirmity, or disease; but the chapter does not apply to dentists.

REGULATIONS.—The board has authority to prescribe and establish all needful rules and regulations to carry this chapter into effect (ib., s. 9).

FORMER PRACTITIONER.—All persons licensed under sec. 2,289 of the laws of Washington Territory, 1881, or having complied with its provisions, are to be taken and considered as licensed under this act, and the secretary of the board is required to enter the names of such persons upon the register kept by him, as licensed physicians and surgeons on their written application (ib., s. 10).

FEE.—To the treasurer of the board, for examination, $10 (ib., s. 3).

WEST VIRGINIA.

QUALIFICATION.—The following persons and no others are permitted to practise medicine:

1. Graduates of a reputable medical college in the school of medicine to which the person desiring to practise belongs. Such person must present his diploma to the State board of health, or the two members thereof in his congressional district, and if it be found to be genuine and was issued by such medical college as hereinafter mentioned, and the person presenting it be the graduate therein named, the board or said two members, as the case may be, must issue and deliver to him a certificate to that effect, and such diploma and certificate shall entitle the person named in the diploma to practise medicine in all its departments.

2. Persons not graduates in medicine who had practised medicine in this State under a certificate issued by the State board of health prior to the passage of the act are authorized to practise medicine in all its departments.

3. A person not a graduate of medicine and who has not practised medicine in this State under a certificate must be examined by the State board of health, or the two members thereof in the congressional district where he resides, or if he resides out of the State by the two members in the congressional district nearest to his place of residence, who, together with a member of the local board of health who is a physician, if there be such a member of the local board of health of the county in which the examination is held, shall examine him and if upon a full examination they find him qualified to practise medicine in all its departments, they, or a majority of them, shall grant him a certificate to that effect, and thereafter he shall have the right to practise medicine in the State to the same extent as if he had the diploma and certificate above mentioned. The members of the State board of health in each congressional district must, by publication in some newspaper printed in the county in which their meeting is to be held, or if no such paper is printed therein, in some newspaper of general circulation in such district, give at least twenty-one days’ notice of the time and place of their meeting for the examination of applicants for permission to practise medicine, published at least once a week for three consecutive weeks before the day of such meeting.

This section does not apply to a physician or surgeon called from another State to treat a particular case or to perform a particular surgical operation in the State, or who does not otherwise practise in the State (Code of W. Va., 1891, c. 150, s. 9).

Every person holding a certificate must have it recorded in the office of the secretary of the State board of health, and the secretary is required to indorse on said certificate the fact of such recordation and deliver the same to the person named therein or his order.

The State board of health may refuse certificates to individuals guilty of malpractice or dishonorable conduct, and may revoke certificates for like causes; such revocation being after due notice and trial by the said board, with right of appeal to the circuit court of the county in which such individual resides; but no such refusal or revocation shall be made by reason of his belonging to or practising in any particular school or system of medicine (ib., s. 10).

The examination fee is not retained if a certificate is refused, but the applicant may again, at any time within a year after refusal, be examined without an additional fee, and if a certificate be again refused he may, as often as he sees fit, on payment of the fee, be examined until he obtains a certificate (ib., s. 11).

Examinations may be wholly or partly in writing, and shall be of an elementary and practical character, embracing the general subjects of anatomy, physiology, chemistry, materia medica, pathology, pathological anatomy, surgery, and obstetrics, but sufficiently strict to test the qualifications of the candidate as a practitioner of medicine, surgery, and obstetrics. The chapter does not apply to females practising midwifery (ib., s. 12).

DEFINITION, EXCEPTIONS.—Any person is regarded as practising medicine who professes publicly to be a physician, and to prescribe for the sick, or who appends to his name “M.D.” This act also applies to apothecaries and pharmacists who prescribe for the sick. It does not apply to commissioned officers of the United States army and navy and marine hospital service (ib., s. 13).

ITINERANT PHYSICIAN OR VENDER.—Any itinerant physician or itinerant vender of any drug, nostrum, ointment, or appliance of any kind intended for the treatment of disease or injury, or who shall by writing or printing or in any other method publicly profess to cure or treat diseases, injuries, or deformities by any drug, nostrum, manipulation, or other expedient, shall before doing so pay to the sheriff of every county in which he desires to practise a special tax of $50 for each month or fraction of a month he shall so practise in such county, and take his receipt in duplicate therefor. He shall present said receipts to the clerk of the county court of such county, who shall file and preserve one of them in his office and indorse on the other, “A duplicate of this receipt has been filed in my office,” and sign the same. For such a person to practise or attempt to practise in any county without having paid such tax and filed such receipt and obtained such indorsement, or to practise or attempt to practise for a longer time than that for which he has paid a tax, is a misdemeanor punishable with a fine of from $100 to $500. Any person who shall travel from place to place and by writing, printing, or otherwise publicly profess to cure or treat diseases, injuries, or deformities is deemed an itinerant physician subject to the taxes, fines, and penalties of this section (ib., s. 14).

PENALTY.—To practise or attempt to practise medicine, surgery, or obstetrics without complying with sec. 9 is a misdemeanor punishable, for every offence, with a fine of from $50 to $500 or imprisonment in a county jail from one month to twelve months, or both. To file or attempt to file as his own a diploma or certificate of another, or a false or forged affidavit of identity, or wilfully swear falsely to any question propounded to him on examination or to any affidavit required to be made and filed, is punishable with confinement in the penitentiary from one to three years or imprisonment in a county jail from six to twelve months, and a fine of from $100 to $500 (ib., s. 15).

FEE.—To the State board of health, or its examining members, for examination, $10 (ib., s. 11).

WISCONSIN.

PROHIBITION.—No person practising physic or surgery, or both, shall have the right to collect in any action in any court fees or compensation for the performance of any medical or surgical service, or to testify in a professional capacity as a physician or surgeon, unless he shall have received a diploma from some incorporated medical society or college or shall be a member of the State or some county medical society legally organized in this State; provided that in all criminal actions the court may in its discretion and in the furtherance of justice receive the testimony of any physician or surgeon without requiring proof of the incorporation of the medical society or college from which he graduated (R. S., 1878, s. 1,436, as amended c. 131, 1887).

No person practising physic or surgery, or both, prohibited by the above section from testifying in a professional capacity as a physician or surgeon, shall assume the title of doctor, physician, or surgeon by means of any abbreviation or by the use of any other word or words, letters of the alphabet of the English or any other language, or any device of whatsoever kind, printed, written, or painted, or exhibited in any advertisement, circular, handbill, letter, or other instrument, nor on any card, sign, door, or place whatsoever.

PENALTY, EXCEPTIONS.—A violation of this act is a misdemeanor punishable with a fine of from $25 to $100, or imprisonment in a county jail from ten days to sixty days for each offence (s. 1, c. 256, 1881, as amended c. 40, 1882).

On complaint in writing under oath before any magistrate or justice of the peace charging the commission of an offence against the provisions of this act in his county, it is the duty of the district attorney to prosecute the offender, and in all such prosecutions the burden of proof shall be upon the defendant to establish his right to use such title under the provisions of this act (ib., s. 2).

Any person prohibited by sec. 1 from assuming the title of doctor, physician, or surgeon who shall practise or pretend to practise physic or surgery, or both, is not exempted from any, but is liable to all, of the legal penalties and liabilities of malpractice, and ignorance shall be no excuse for a failure to perform or for neglect or unskilfully performing or attempting to perform any of the duties required by law of practising physicians or surgeons. The act does not prevent students from practising under the direction of a qualified preceptor, nor women from practising midwifery, nor veterinarians from practising in their special department (ib., s. 3).

WYOMING.

QUALIFICATION.—No person can lawfully practise medicine, surgery, or obstetrics who has not received a medical education and diploma from some regularly chartered medical school having a bona fide existence when the diploma was granted (R. S., 1887, s. 1,925).

Every physician, surgeon, or obstetrician must file for record with the register of deeds of the county in which he is about to practise or where he practises, a copy of his diploma, exhibiting the original, or a certificate from the dean of the medical school of which he is a graduate certifying to his graduation (ib., s. 1,926).

When filing a copy of his diploma or certificate of graduation, he must be identified as the person named in the paper about to be filed by the affidavit of two citizens of the county, or his affidavit taken before a notary public or commissioner of deeds for the State, which affidavit must be filed in the office of the register of deeds (ib., s. 1,927).

PENALTY.—To practise without complying with this chapter is a misdemeanor punishable with a fine of from $50 to $500 or imprisonment in a county jail from thirty days to six months, or both, for each offence. To file or attempt to file as his own a diploma or certificate of another, or a forged affidavit of identification, is a felony subject to a fine and imprisonment in the penitentiary (ib., s. 1,928).

It is the duty of the police, sheriff, or constable to arrest all persons practising medicine, surgery, or obstetrics without complying with these provisions (ib., s. 1,929).

EXCEPTIONS.—This chapter does not apply to persons in emergency prescribing or giving advice in medicine, surgery, or obstetrics in a section of country where no physician, surgeon, or obstetrician resides, or where no physician, surgeon, or obstetrician resides within a convenient distance, nor to persons prescribing in their own families, nor to persons claiming to practise medicine, surgery, or obstetrics in any section of the State where no physician or surgeon having a diploma or a certificate resides (ib., s. 1,930).

EVIDENCE.—On the trial of persons charged with the violation of this chapter it shall be sufficient for the prosecution to show that defendant has practised medicine, surgery, or obstetrics within the county where the indictment is found at any time since the passage of the act (1876), and the defendant shall not after proof be entitled to acquittal until he shows by the testimony of some competent witness upon oath that the defendant has received a medical education, and a genuine diploma from some regularly chartered medical school; provided that the defendant may show such facts by depositions taken in the same manner as depositions in civil cases (ib., s. 1,931).

THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND.

MEDICAL ACTS.—The Act 21 and 22 Victoria, c. 90, and the amendments thereof and additions thereto, are generally spoken of as the Medical Acts.

MEDICAL COUNCILS.—There is a general council of medical education and registration of the United Kingdom, with branch councils for England, Scotland, and Ireland (21 and 22 Vict., 1858, c. 90, s. 3, 6).

Members of the general council are chosen as provided in 49 and 50 Vict., c. 48, s. 7; those representing the medical corporations must be qualified to register under this act (21 and 22 Vict., c. 90, s. 7).

The general council appoints a registrar for England, and the branch councils for Scotland and Ireland appoint respectively a registrar for Scotland and Ireland (ib., s. 10, 11).

REGISTRAR.—It is the duty of the registrars to keep their registers correct, and to erase the names of all registered persons who shall have died, and from time to time to make the necessary alterations in the addresses or qualifications of persons registered. It is lawful for the registrar to write a letter to any registered person, addressed to him according to his address on the register, to inquire whether he has ceased to practise or has changed his residence, and if no answer be returned within six months from the time of sending the letter, it is lawful to erase the name of such person from the register, but it may be restored by direction of the general council (ib., s. 14).

QUALIFICATION.—Persons possessed of one or more of the qualifications described in Schedule A, on the payment of a fee not exceeding £5, are entitled to register on the production to the registrar of the branch council for England, Scotland, or Ireland the document conferring or evidencing the qualification in respect whereof he seeks to be registered, or upon transmitting by post to such registrar information of his name and address, and evidence of his qualifications and of the time or times at which they were obtained. The several colleges and bodies mentioned in Schedule A may transmit from time to time to the registrar, under their respective seals, lists of the persons who by grant of such colleges and bodies respectively, are for the time being entitled to register, stating the qualifications and residences of such persons, and it shall be lawful for the registrar on the payment of the said fee to enter in the register the persons mentioned in such lists with their qualifications and places of residences as therein stated without other application (ib., s. 15).

The general council is required to make orders for regulating the registers from time to time (ib., s. 16).

Persons actually practising medicine in England before August 1st, 1815, were entitled to register under the act (ib., s. 17).

Any two or more of the colleges and bodies in the United Kingdom mentioned in Schedule A may, with the sanction and under the direction of the general council, unite or co-operate in conducting the examinations required for qualifications to be registered (ib., s. 19, 37 and 38 Vict., c. 34).

The privy council may suspend the right of registration in respect of qualifications granted by any college or body (ib., s. 21).

After such revocation, no person shall be entitled to register in respect to any qualification granted by such college before revocation (ib., s. 22).

The privy council may issue an injunction directing any body entitled to grant qualifications to desist from imposing upon any candidate for examination an obligation to adopt or refrain from adopting the practice of any particular theory of medicine or surgery as a test or condition of admitting him to examination or granting him a certificate; and in the event of their not complying, may order that such body cease to have the power of conferring a right to be registered so long as they shall continue such practice (ib., s. 23).

Where any person entitled to be registered applies to the registrar of any branch council for that purpose, such registrar is required forthwith to enter in a local register the name and place of residence, and the qualifications in respect of which the person is so entitled and the date of registration; and in case of the branch council for Scotland or Ireland, to send to the registrar of the general council a copy of the entry, and the registrar of the general council is required to cause the same to be entered in the general register; and such registrar is required to cause all entries made in the local register for England to be entered in the general register (ib., s. 25).

No qualification is entered on the register, on the first registration or by way of addition to a regular name, unless the registrar be satisfied by proper evidence that the person claiming it is entitled to it. Any appeal from the decision of the registrar may be decided by the general council or by the council for England, Scotland, or Ireland, as the case may be. Any entry proved to the satisfaction of such general council or branch council to have been fraudulently or incorrectly made may be erased from the register by an order in writing of such general council or branch council (ib., s. 26).

MEDICAL REGISTER.—The registrar of the general council is required to cause to be printed, published, and sold under the direction of such council, every year, a correct register of the names with the respective residences and medical titles, diplomas, and qualifications conferred by any corporation or university or by a doctorate of the Archbishop of Canterbury, with the dates thereof, of all persons appearing on the general register as existing on January 1st in every year. Such register is called the Medical Register, and a copy of the Medical Register for the time being is evidence that the persons therein specified are registered according to the act, and the absence of the name of any person from such copy is evidence, until the contrary be made to appear, that such person is not so registered; provided, that in the case of any person whose name does not appear in such copy, a certified copy under the hand of the registrar of the general council or a branch council of the entry of the name of such person on the general or local register shall be evidence that such person is so registered (ib., s. 27).

If any college or body exercise any power it possess of striking off from its list the name of any one of its members, it shall signify his name to the general council and the said council may, if they see fit, direct the registrar to erase from the register the qualification derived from such college or body in respect of which such member was registered, and the registrar shall note the same therein, but the name of no person shall be erased from the register on the ground of his having adopted any theory of medicine or surgery (ib., s. 28).

If any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanor, or in Scotland of any crime or offence, or shall be after due inquiry judged by the general council to have been guilty of infamous conduct in any professional respect, the general council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register (ib., s. 29).

Every person registered who may have obtained any higher degree or other qualification is entitled to have it inserted in the register in substitution for or in addition to his qualification previously registered, on the payment of such fee as the council may appoint (ib., s. 30).

COMPENSATION.—No person is entitled to receive for any medical or surgical advice, or attendance, or for the performance of any operation or for any medicine which he shall have both prescribed and supplied, unless he prove upon the trial that he is registered under this act (ib., s. 32, as amended 23 and 24 Vict., c. 7, s. 3).

DEFINITION.—The words “legally qualified medical practitioner” or “duly qualified medical practitioner,” or any words implying a person recognized by law as a medical practitioner or member of the medical profession in any act of Parliament, mean a person registered under this act (ib., s. 34, as amended 23 and 24 Vict., c. 7, s. 3).

EXEMPTIONS.—If they so desire, registered persons are exempt from serving on juries, and in all corporation, parish, ward, hundred, and town offices, and in the militia (ib., s. 35).

DISQUALIFICATIONS.—No unregistered person is permitted to hold any appointment as a physician, surgeon, or other medical officer in the military or naval service, or in emigrant or other vessels, or in any hospital, infirmary, dispensary, or lying-in hospital, not supported wholly by voluntary contributions, or in any lunatic asylum, jail, penitentiary, house of correction or of industry, parochial or union workhouse or poor-house, parish union, or other public established body or institution, or to any friendly or other society for affording mutual relief in sickness, infirmity, or old age, or as a medical officer of health (ib., s. 36, as amended 23 and 24 Vict., c. 7, s. 3).

No certificate required by any act from any physician or surgeon licentiate in medicine and surgery, or other medical practitioner, is valid unless the signer be registered under this act (ib., s. 37, as amended 23 and 24 Vict., c. 7, s. 3).

PENALTY.—Wilfully procuring or attempting to procure one’s self to be registered by making or producing or causing to be made or produced any false or fraudulent representation or declaration, or aiding or abetting therein, is a misdemeanor in England and Ireland, and in Scotland a crime or offence, punishable by fine or imprisonment. The imprisonment cannot exceed twelve months (ib., s. 39).

Wilfully and falsely pretending to be or taking or using the name or title of physician, doctor of medicine, licentiate in medicine and surgery, bachelor of medicine, surgeon, general practitioner, or apothecary, or any name, title, addition, or description implying registration under this act, or recognition by law as a physician or surgeon or licentiate in medicine and surgery, or practitioner in medicine, or apothecary, is punishable on summary conviction by a penalty not exceeding £20 (ib., s. 40, 41).

DECEASED PHYSICIANS.—Every registrar of deaths in the United Kingdom, on receiving notice of the death of any medical practitioner, is required to transmit to the registrar of the general council and the registrar of the branch council a certificate of such death with the time and place, and on the receipt of such certificate the medical registrar is required to erase the name of the deceased from the register (ib., s. 45).

EXCEPTIONS.—The general council was by the act empowered by special order to dispense with such provisions of this act or such part of any regulations made by its authority as to them should seem fit, in favor of persons at the time of its passage practising medicine or surgery in any part of Her Majesty’s dominions other than Great Britain and Ireland by virtue of any of the qualifications in Schedule A, and in favor of persons practising medicine or surgery within the United Kingdom on foreign or colonial diplomas or degrees before the passage of this act, and in favor of any persons who had held appointments as surgeons or assistant surgeons in the army, navy, or militia, or in the service of the East India Company, or who were acting as surgeons in the public service, or in the service of any charitable institution, and in favor of medical students who commenced their professional studies before its passage (ib., s. 46).

The qualifications specified in Schedule A are as follows:

1. Fellow, member (inserted 22 Vict., c. 21, s. 4), licentiate, or extra licentiate of the Royal College of Physicians of London (this is declared by 23 and 24 Vict., c. 66, s. 1, to denote the corporation of “The President and College or Commonalty of the Faculty of Physics in London”). (The act makes provision for a new charter with change of name to “The Royal College of Physicians of England,” or retention of old name: ib., s. 47, as amended 23 and 24 Vict., c. 66, s. 2.)

2. Fellow, member (inserted 22 Vict., c. 21, s. 4), or licentiate of the Royal College of Physicians of Edinburgh. (The act makes provision for the granting of a new charter to the Royal College of Physicians of Edinburgh, whereby its name is to be changed to “The Royal College of Physicians of Scotland,” or its old name may be retained: ib., s. 49, as amended 23 and 24 Vict., c. 66, s. 2.)

3. Fellow or licentiate of the King’s and Queen’s College of Physicians of Ireland. (The act makes provision for the granting of a new charter to this college, whereby its name is to be changed to “The Royal College of Physicians of Ireland,” or its old name may be retained: ib., s. 51, as amended 23 and 24 Vict., c. 66, s. 2.)

4. Fellow or member or licentiate in midwifery of the Royal College of Surgeons of England.

5. Fellow or licentiate of the Royal College of Surgeons of Edinburgh (see 6, below).

6. Fellow or licentiate of the Faculty of Physicians and Surgeons of Glasgow. (The act makes provision for the possible amalgamation of the Royal College of Surgeons of Edinburgh with the Faculty of Physicians and Surgeons of Glasgow, in which case the united corporation is to be named “The Royal College of Surgeons of Scotland:” ib., s. 50.)

7. Fellow or licentiate of the Royal College of Surgeons in Ireland.

8. Licentiate of the Society of Apothecaries, London.

9. Licentiate of the Apothecaries’ Hall, Dublin.

10. Doctor or bachelor or licentiate of medicine, or master in surgery of any university of the United Kingdom; or doctor of medicine, by doctorate granted prior to the passage of the act by the Archbishop of Canterbury.

11. Doctor of medicine of any foreign or colonial university or college, practising as a physician in the United Kingdom before October 1st, 1858, who shall produce certificates to the satisfaction of the council, of his having taken his degree of doctor of medicine after a regular examination, or who shall satisfy the council under sec. 46 (amended 22 Vict., c. 21, s. 5) of this act, that there is sufficient reason for admitting him to be registered.

Nothing in the above act shall prevent any person, not a British subject, who shall have obtained from any foreign university a degree or diploma of doctor in medicine, and who shall have passed the regular examinations entitling him to practise medicine in his own country, from being and acting as the resident physician or medical officer of any hospital established exclusively for the relief of foreigners in sickness; provided always such person is engaged in no medical practice except as such resident physician or medical officer (22 Vict., c. 21, s. 6).

The following qualification was added by 23 and 24 Vict., c. 7, s. 1:

A diploma or license in surgery granted by any university in Ireland legally authorized to grant the same.

The act 39 and 40 Vict., c. 40, in sec. 3, provides that all persons who have obtained from any university of the United Kingdom legally authorized to confer the same, the degree of bachelor in surgery, shall be permitted to register the same as a qualification under 21 and 22 Vict., c. 90.

The diploma of a member of the King’s and Queen’s College of Physicians in Ireland, and the degree of Master in Obstetrics of any university in the United Kingdom are added to the qualifications in Schedule A of the Medical Act of 1858 (49 and 50 Vict., c. 48, s. 20).

The change of name of any of the corporations named in 21 and 22 Vict., c. 90, is not to alter or affect the qualifications constituted by the act (23 and 24 Vict., c. 66, s. 3).

REVOCATION OF LICENSE.—The Society of Apothecaries may strike off from the list of licentiates of said society the name of any person who shall be convicted in England or Ireland of any felony or misdemeanor, or in Scotland of any crime or offence, or who shall, after due inquiry, be judged by the general council to have been guilty of infamous conduct in any professional respect, and the said society shall forthwith signify to the general council the name of the licentiate so stricken off (37 and 38 Vict., c. 34, s. 4).

WOMEN.—The Society of Apothecaries is not relieved from any existing obligation, nor deprived of any right, to admit women to the examinations required for certificates to practise as apothecaries, or to enter the lists of licentiates of said society, any women who shall have satisfactorily passed such examinations, and fulfilled the other general conditions imposed upon persons seeking to obtain from the said society a qualification to be registered under 21 and 22 Vict., c. 90 (ib., s. 5).

The act 39 and 40 Vict., c. 41, extends the powers of every body entitled under 21 and 22 Vict., c. 90, to grant qualifications for registration so that it may grant any qualification for registration granted by such body without distinction of sex—but nothing in this act is compulsory.

The Medical Act of 1886 (49 and 50 Vict., c. 48) modified the foregoing acts as follows:

EXAMINATION.—A person cannot lawfully be registered under the medical acts in respect of any qualification referred to in any of those acts unless he has passed such qualifying examination in medicine, surgery, and midwifery as is in this act mentioned (49 and 50 Vict., c. 48, s. 2).

A qualifying examination shall be an examination in medicine, surgery, and midwifery held for the purpose of granting a diploma or diplomas conferring the right of registration under the medical acts, by any of the following bodies:

(a) Any university in the United Kingdom, or any medical corporation legally qualified at the time of the passage of this act to grant such diploma or diplomas in respect of medicine or surgery; or

(b) Any combination of two or more medical corporations in the same part of the United Kingdom, who may agree to hold a joint examination in medicine, surgery, and midwifery, and of whom one at least is capable of granting such diploma as aforesaid in respect of medicine, and one at least is capable of granting such diploma in respect of surgery; or

(c) Any combination of any such university as aforesaid with any other such university or universities, or of any such university or universities with a medical corporation or corporations; the bodies forming such combination being in the same part of the United Kingdom (ib., s. 3 [1]).

The standard of proficiency at said examinations shall be such as suffices to guarantee the possession of knowledge and skill requisite for the efficient practice of medicine, surgery, and midwifery. It is the duty of the general council to secure the maintenance of such standard of proficiency, and it may appoint such number of inspectors as it may determine who shall attend at all or any of the said examinations (ib., s. 3 [2]).

The inspectors are not to interfere with the conduct of any examination, but to report to the general council their opinion as to the sufficiency or insufficiency of every examination which they attend, and such other matters in relation thereto as the general council may require (ib., s. 3 [3]).

If it appears to the general council that the standard of proficiency in medicine, surgery, and midwifery, or in any of those subjects or any branch thereof required at such examinations by any such body, is insufficient, the privy council, on a report from the general council after considering such report, and any objection thereto by any body to which it relates, may by order declare that the examination of such body or bodies shall not be deemed a qualifying examination for registration, and Her Majesty, with the advice of the privy council, may revoke such order if upon further report from the general council, or any body to which it relates, it seems to her expedient (ib., s. 4 [1]).

During the continuance of such order, the examinations held by the body or bodies to which it relates shall not be deemed qualifying examinations, and a diploma granted to a person passing such examinations shall not entitle such person to registration (ib., s. 4 [2]).

If a medical corporation represent to the general council that it is unable to enter into a combination for holding a qualifying examination, and the general council is satisfied that the said corporation has used its best endeavor to do so on reasonable terms, the general council may on the application of such corporation appoint any number of examiners to assist at the examinations for granting a diploma conferring on the holder the right of registration (ib., s. 5 [1]).

It is the duty of the said assistant examiners to secure at the said examinations the maintenance of such standard of proficiency in medicine, surgery, and midwifery as is required from candidates at qualifying examinations, and any examination held subject to this section shall be deemed a qualifying examination (ib., s. 5 [2]).

PRACTITIONER’S RIGHTS.—A registered medical practitioner shall be entitled to practise medicine, surgery, and midwifery in the United Kingdom, and subject to any local law, in any other part of Her Majesty’s dominions, and to recover in due course of law in respect of such practice, any expenses or charges in respect of medicaments or other appliances, or any fees to which he may be entitled, unless he is a fellow of a college of physicians, the fellows of which are prohibited by by-law from recovering at law their expenses, charges or fees, in which case such prohibitory by-law, so long as it is in force, may be pleaded in bar of any legal proceeding instituted by such fellow for recovery of expenses, charges, or fees (ib., s. 6).

MEMBERS OF GENERAL COUNCIL.—The constituent members of the general council are designated by this act in sec. 7.

Members of the general council representing the registered medical profession must themselves be registered medical practitioners, and members of the branch council for the part of the United Kingdom in which they are elected (ib., s. 8).

COLONIAL AND FOREIGN PRACTITIONERS.—When a person shows to the satisfaction of the registrar of the general council that he holds some recognized colonial medical diploma or diplomas granted to him in a British possession to which this act applies, and that he is of good character, and is by law entitled to practise medicine, surgery, and midwifery in such British possession, he shall on application to the said registrar, and on the payment of such fee not exceeding £5, as the general council may determine, be entitled without examination in the United Kingdom to be registered as a colonial practitioner in the medical register; provided he proves to the satisfaction of the registrar:

(1) That the said diploma or diplomas was or were granted to him at a time when he was not domiciled in the United Kingdom, or in the course of a period of not less than five years during the whole of which he resided outside of the United Kingdom; or

(2) That he was practising medicine or surgery or a branch of medicine or surgery in the United Kingdom on the prescribed day, and that he has continued practising the same either in the United Kingdom or elsewhere for not less than ten years immediately preceding the prescribed day (ib., s. 11).

When a person shows to the satisfaction of the registrar of the general council that he holds some recognized foreign medical diploma or diplomas granted in a foreign country, to which this act applies, and that he is of good character, and is by law entitled to practise medicine, surgery, and midwifery in such foreign country, he shall on application to said registrar, and on payment of such fee, not exceeding £5, as the general council may determine, be entitled without examination in the United Kingdom to be registered as a foreign practitioner in the medical register; provided he proves to the satisfaction of the registrar:

(1) That he is not a British subject; or

(2) That, being a British subject, the said diploma or diplomas was or were granted to him at a time when he was not domiciled in the United Kingdom or in the course of a period of not less than five years, during the whole of which he resided out of the United Kingdom; or

(3) That, being a British subject, he was practising medicine or surgery, or a branch of medicine or surgery in the United Kingdom on the prescribed day, and that he has continued practising the same in the United Kingdom or elsewhere, for not less than ten years immediately preceding the said prescribed day (ib., s. 12).

The medical diploma granted in a British possession or foreign country to which this act applies, which is to be deemed requisite, shall be such a diploma as may be recognized by the general council as furnishing a sufficient guarantee of the possession of the requisite knowledge and skill for the efficient practice of medicine, surgery, and midwifery.

When the general council have refused to recognize any such diploma, the privy council may, on appeal, after communicating with the general council, order the general council to recognize such diploma.

If the refusal of the registration of a colonial or foreign practitioner be on any other ground, the registrar of the general council shall, if required, state in writing the reason for the refusal, and the person refused may appeal to the privy council, which, after communicating with the general council, may dismiss the appeal or order the general council to enter the name of the applicant on the register.

A person may be registered both as a colonial and foreign practitioner (ib., s. 13).

The medical register shall contain separate lists of the names and addresses of colonial and foreign practitioners, and the provisions of 21 and 22 Vict., c. 90, relating to persons registered and to the medical register, and to offences, shall apply in the case of colonial and foreign practitioners registered under this act so far as may be (ib., s. 14).

Any registered practitioner on the list of colonial or foreign practitioners who is in possession of or obtains any recognized colonial or foreign medical diploma granted in a British possession or foreign country to which this act applies may cause a description of such diploma to be added to his name in the medical register (ib., s. 15).

Any registered medical practitioner on the medical register by virtue of English, Scotch, or Irish qualifications, and in possession of a foreign degree in medicine, may cause a description of such foreign degree to be added to his name as an additional title in the medical register, provided he satisfy the general council that he obtained such degree after a proper examination and prior to the passage of this act (ib., s. 16).

Her Majesty may from time to time, by order in the council, declare that this act be deemed to apply to any British possession or foreign country which in the opinion of Her Majesty affords the registered medical practitioners of the United Kingdom such privileges of practice in the said British possessions or foreign countries as to Her Majesty may seem just; and on and after the day named in such order such British possession or foreign country shall be deemed to be a British possession or foreign country to which this act applies. Her Majesty may also renew or revoke any such order, and upon such revocation such possession or foreign country shall cease to be a possession or country to which this act applies without prejudice to the right of any person whose name has already been entered on the register (ib., s. 17).

Nothing in the Medical Act of 1858 shall prevent a person holding a medical diploma, entitling him to practise medicine or surgery in a British possession to which this act applies, from holding an appointment as a medical officer in any vessel registered in that possession (ib., s. 18).

DEFAULT OF GENERAL COUNCIL.—In default of the general council to perform any duty, the privy council may notify their opinion to the general council, and on the failure of the general council to comply with any direction of the privy council, the privy council may themselves give effect to such direction, and for that purpose exercise any power vested in the general council, and of their own motion do anything which they are authorized to do in pursuance of a report or suggestion from the general council (ib., s. 19).

SANITARY SCIENCE.—Every registered medical practitioner to whom a diploma for proficiency in sanitary science, public health or state medicine has after special examination been granted, by any college or faculty of physicians or surgeons or university in the United Kingdom, or by any such bodies acting in combination, shall, if such diploma appear to the privy council or general council to deserve recognition in the medical register, be entitled on the payment of such fee as the general council may appoint, to have such diploma entered in the said register in addition to any other diploma or diplomas in respect of which he is registered (ib., s. 21).

EVIDENCE.—Any act of the privy council shall be sufficiently signified by an instrument signed by the clerk of the council, and every order and act signified by an instrument purporting to be signed by the clerk of the council shall be deemed to have been duly made and done by the privy council, and every instrument so signed shall be received in evidence without proof of the authority or signature of the clerk of the council or other proof (ib., s. 22).

The following copies of any orders made in pursuance of medical acts or this act shall be evidence:

(1) Any copy purporting to be printed by the Queen’s printer, or by any other printer in pursuance of an authority given by the general council.

(2) Any copy of an order certified to be a true copy by the registrar of the general council, or by any other person appointed by the general council, either in addition to or in exclusion of the registrar, to certify such orders (ib., s. 23).

RIGHTS UNAFFECTED.—This act does not vary the rights of persons practising as registered medical practitioners on the day preceding the day when it goes into effect (ib., s. 24).

In consequence of the repeal of any enactment repealed by this act, no person legally entitled to practise as a medical practitioner in any colony or part of Her Majesty’s dominions other than the United Kingdom shall cease to be so entitled if he would have been entitled if no such repeal had taken place (ib., s. 25).

DEFINITIONS.—In the act the word diploma means any diploma, degree, fellowship, membership, license, authority to practise, letters, testimonial, certificate or other status or document granted by any university, corporation, college, or other body or by any departments of or person acting under the authority of the government of any country or place within or without Her Majesty’s dominion (ib., s. 27).

FEES.—The fees are to be determined by the general council within the limits set by the various sections authorizing fees.

BRITISH COLUMBIA.

MEDICAL COUNCIL.—There is a body styled “The Medical Council of British Columbia,” composed of seven members who are registered medical practitioners elected by the votes of registered medical practitioners (Cons. Acts 1888, c. 81, s. 2, 3, 4, 5).

No person can lawfully vote at such election unless his fees to the council have been paid; and no person is eligible to election unless qualified to vote at such election (ib., s. 14).

A register of such qualified voters is required to be prepared by the registrar of the council and no person is entitled to vote whose name is not on the register; it is the duty of the registrar to examine into the written complaint of any medical practitioner as to the improper omission or insertion of any name in the list; and appeal from his decision lies to a judge of the supreme court in a summary way, whose decision shall be final, and no unregistered person may vote (ib., s. 16, 17).

REGISTER.—The council is required to appoint a registrar and to cause a register to be kept by him of the names of all persons who have complied with this act and with the rules and regulations made by the council respecting the qualifications of practitioners of medicine or surgery, and those persons only whose names are inscribed in the said register, are deemed qualified and licensed to practise medicine or surgery except as hereinafter provided (ib., s. 26).

The registrar is required to keep his register correct, and to make the necessary alterations in the addresses and qualifications of registered persons (ib., s. 27).

QUALIFICATION.—Every person at the passage of the act (1886) registered under the medical ordinance of 1867 is entitled to be registered under this act (ib., s. 28).

The council is required to admit upon the register any person who shall procure from any college or school of medicine and surgery requiring a three-years’ course of study, a diploma of qualification, provided he furnish to the council satisfactory evidence of identity and pass before the members thereof a satisfactory examination touching his fitness and capability to practise as a physician and surgeon (ib., s. 29).

The council is required to admit upon the register every person mentioned in 49 and 50 Vict., c. 48, of the Acts of Parliament of the United Kingdom, duly registered under the imperial Medical Act, prior to and inclusive of June 30th, 1887, upon complying with the orders, regulations or by-laws of the council and giving due proof of such registration, and that the person applying for registration has not lost the benefit of same by reason of misconduct or otherwise, and upon payment of the fees fixed by the council, not to exceed one hundred dollars (Act 1893, c. 27, s. 2).

DUTIES OF COUNCIL.—The council is required to make orders, regulations, or by-laws for regulating the register and the fees to be paid for registration, and to make rules and regulations for the guidance of examiners, and may prescribe the subjects and modes of examination, and make all such rules and regulations in respect of examinations not contrary to this act as they deem expedient and necessary (Cons. Acts 1888, c. 81, s. 31).

FORFEITURE OF RIGHT.—Any registered practitioner convicted of any felony thereby forfeits his right to registration and by direction of the council his name is required to be erased from the register, or in case a person known to have been convicted of felony presents himself for registration, the registrar has power to refuse such registration (ib., s. 32).

RIGHTS OF REGISTERED PRACTITIONER.—Every person registered under the act is entitled to practise medicine and surgery, including midwifery, or any of them as the case may be, in British Columbia, and to demand and receive in any court of the province, with full costs of the suit, reasonable charges for professional aid, advice, and visits, and the costs of any medical or surgical appliances rendered or supplied by him to his patient (ib., s. 33).

EVIDENCE.—The registrar of the council, under the direction of the council, is required to publish a correct register of the names and residences with the medical titles, diplomas, and qualifications conferred by any college or body, of all persons appearing on the register at the date of publication. Said register is called “The British Columbia Medical Register.” A copy of such register for the time being, purporting to be so printed and published, shall be prima facie evidence that the persons therein specified are registered according to the provisions of this act; and, subject to sub. sec. 2 of this section, the absence of the name of any person from such copy shall be prima facie evidence that such person is not registered according to this act (ib., s. 34).

In the case of a person whose name does not appear in such copy, a certified copy under the hand of the registrar of the entry of the name of such person on the register shall be evidence that such person is registered under this act (ib., s. 34, sub. s. 2).

HOMŒOPATHIC PHYSICIANS.—Any homœopathic physician holding a diploma of qualification from any authorized school or college requiring a three-years’ course of study may be registered, and shall not be bound to pass the examination required by sec. 29, but in lieu thereof, shall pass before the council, or such of them as may be appointed for that purpose, a satisfactory examination in anatomy, physiology, pathology, chemistry, obstetrics, and surgery (ib., s. 35, as amended, Act 1890, c. 30, s. 2).

NEGLECT TO REGISTER.—Those entitled to register and neglecting to do so are not entitled to any of the rights and privileges conferred by registration and are liable to all penalties against unqualified or unregistered practitioners (ib., s. 37).

FRAUDULENT REGISTRATION.—If a person procures or causes to be procured his registration by means of any false or fraudulent representation or declaration, the registrar may, on receipt of sufficient evidence to that effect, report the matter to the council and, on the written order of the president, attested by the seal of the council, erase the name of such person from the register and make known the fact and the cause thereof in the British Columbia Gazette, and after such notice has appeared such person shall cease to be a registered practitioner, and to enjoy any of the privileges conferred by registration, without the express sanction of the council (ib., s. 39).

To wilfully procure or attempt to procure registration by false representations or declarations is punishable by a penalty not exceeding $100. To knowingly aid or assist therein is punishable with a penalty of from $20 to $50 for each offence (ib., s. 40).

UNLAWFUL PRACTICES.—It is not lawful for any person not registered to practise medicine or surgery for hire, gain, or hope of reward. To so practise or profess to practise, or advertise to give advice in medicine or surgery, is punishable with a penalty of from $25 to $100 (ib., s. 41).

For a person to wilfully or falsely pretend to be a physician, doctor, or medical, surgical, or general practitioner, or assume any title, address, or description other than he actually possesses and is legally entitled to, is punishable by a penalty of from $10 to $50 (ib., s. 42).

A person 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 recognized by law as a physician, surgeon, or licentiate in medicine or surgery is punishable with a penalty of from $25 to $100 (ib., s. 43).

Costs may be awarded in addition to the penalty against an offender, and on default of payment he may be committed to the common jail for one month unless the costs are sooner paid (ib., s. 47).

UNREGISTERED PERSONS.—No one but a person registered under this act is entitled to receive any charge for any medical or surgical advice or attendance or the performance of any operation or for any medicine that he may have prescribed (ib., s. 44).

Appointments as medical officers, physicians, or surgeons in any branch of the public service, or in a hospital or a charitable institution not supported wholly by voluntary contribution, are conferred on registered persons only (ib., s. 45).

No certificate required from any physician or surgeon or medical practitioner is valid unless the signer is registered (ib., s. 46).

EVIDENCE.—In a prosecution, the burden of proving registration is upon the person charged (ib., s. 48).

Registration may be proved by the production of a printed or other copy of the register certified under the hand of the registrar of the council for the time being, and any certificate on such copy purporting to be signed by any person as registrar is prima facie evidence that he is registrar without further proof (ib., s. 49).

LIMITATIONS.—Prosecutions under the act must be commenced within six months from the date of the offence (ib., s. 50).

STAY.—The council may stay proceedings in prosecutions (ib., s. 51).

PROSECUTOR.—Any person may be prosecutor or complainant under the act (ib., s. 52).

FEES.—To the registrar, for registration under this act, such sum as may from time to time be fixed by the council by resolutions or by-law, but not exceeding $100 (ib., s. 36, as amended, Act 1893, c. 27, s. 1).

To the medical council, on or before March 1st, annually, $10, or such other sum as may from time to time be fixed by the council (ib., s. 53, as amended, Act 1890, c. 30, s. 3).

For registration, by persons registered under Act 1893, c. 27, s. 2, a fee fixed by the council not to exceed $100 (Act 1893, c. 27, s. 2).

MANITOBA.

COLLEGE OF PHYSICIANS AND SURGEONS.—The medical profession is incorporated as “The College of Physicians and Surgeons of Manitoba” (Rev. Stat. of Man., 1891, c. 98, s. 2).

All persons lawfully registered under previous acts or the present act are members of the said college (ib., s. 3, 4).

COUNCIL.—There is constituted by law a council of the said college composed of representatives selected as provided in the act, each of whom must be a practitioner licensed under this act (ib., s. 5 to 8).

No member of the college who is in arrears for his annual fees or any part thereof is entitled to vote at the election for members of the council or be eligible for election as a member thereof (ib., s. 15).

REGISTER.—The council is required to appoint a registrar and to cause a register to be kept in which shall be entered the name of every person registered under this act or under the Consolidated Statutes of Manitoba, chap. 9, and the acts amending the same, and of all persons who comply with this act, and the rules and regulations made by the council respecting the qualifications of practitioners of medicine, surgery, and midwifery. Only those whose names are inscribed in the book are deemed qualified and licensed to practise medicine, surgery, or midwifery (ib., s. 17, 24, 25).

QUALIFICATION.—All persons duly registered under existing laws when the revised statutes took effect are deemed registered under the present law (ib., s. 27).

The registrar was required immediately upon his appointment to register the name of every person registered under previous acts (ib., s. 28).

Every person who possesses one or more of the following qualifications shall, upon the payment of the fee, to be fixed for each particular class by by-law of the council, be entitled to be registered on the production to the registrar of the document proving such qualification:

1. Persons entitled to be registered at the time of the coming into force of the revised statutes.

2. Any member of any incorporated college of physicians and surgeons of any province of the Dominion of Canada, or any member of any other incorporated body of medical men in Canada, exercising powers similar to those conferred by this act on the College of Physicians and Surgeons of Manitoba, where, by the laws of the province under which the said incorporated body exists, similar rights to register and to practise medicine are granted to the persons incorporated under this act.

3. Every person mentioned in chap. 48 of Act 49 and 50 Vict. of the Parliament of the United Kingdom.

4. Every graduate in medicine upon examination of the University of Manitoba.

5. Every person who produces to the registrar the certificate under the corporate seal of the University of Manitoba hereinafter provided for (ib., s. 29).

The registrar is required to keep his register correct, and to make from time to time the necessary alterations in the addresses or qualifications of the persons registered (ib., s. 30).

Every person registered who obtains a higher degree or other qualification is entitled to have it inserted in the register in substitution of or in addition to the qualification previously registered, on the payment of such fees as the council may appoint (ib., s. 34).

No qualification is entitled to be entered on the register unless the registrar be satisfied by proper evidence that the person claiming it is entitled thereto. Appeal lies from the registrar’s decision to the council (ib., s. 35).

The registrar, if dissatisfied with the evidence adduced, may, subject to appeal to the council, refuse registration until proper evidence is furnished, duly attested by oath or affirmation before a judge of any county court (ib., s. 36).

FRAUDULENT REGISTRATION.—Any entry proved to the satisfaction of the council to have been fraudulently or incorrectly made may be erased from the register by order in writing of the council (ib., s. 38).

If a person procures or causes to be procured his registration by false or fraudulent representations or declarations, the registrar may, on the receipt of sufficient evidence of the falsity or fraudulent character, represent the matter to the council, and may on the written order of the president, attested by the seal of the college, erase his name from the register, and cause notice of the fact and cause to be published in the Manitoba Gazette, and after such notice has appeared such person shall cease to be a member of the College of Physicians and Surgeons, and to enjoy any privilege enjoyed or conferred by registration at any further time without the express sanction of the council (ib., s. 39).

FORFEITURE OF RIGHTS.—Any registered medical practitioner convicted of felony or misdemeanor before or after the passage of the act or his registration forfeits his right to registration, and by direction of the council his name shall be erased. If a person known to have been convicted of felony or misdemeanor presents himself for registration, the registrar may refuse registration. If any person registered be judged, after due inquiry by the council, to have been guilty of infamous or unprofessional conduct in any respect, the council may direct the registrar to erase his name (ib., s. 40).

The council may, and upon the application of any three registered medical practitioners shall, cause inquiry to be made into the case of a person liable to have his name erased from the register, and on proof of such conviction or such infamous or unprofessional conduct shall cause his name to be erased; but no erasure shall be made on account of his adopting or refraining from adopting the practice of any particular theory of medicine or surgery, nor on account of conviction for a political offence out of Her Majesty’s dominions, nor on account of the conviction which ought not in the opinion of the council or committee disqualify him from the practice of medicine or surgery (ib., s. 41).

The council may order to be paid, out of funds at their disposal, such costs as to them may seem just, to any person against whom any complaint has been made which, when fully determined, is found to have been frivolous and vexatious (ib., s. 42).

An entry erased by order of the council shall not be again entered except by order of the council or a judge or court of competent jurisdiction (ib., s. 43).

If the council think fit, they may direct the registrar to restore any entry erased, without a fee, or on payment of a fee not exceeding the registration fee, as the council may fix (ib., s. 44).

The council is authorized to ascertain the facts of any case for the exercise of its powers of erasing and restoring by committee (ib., s. 45).

The act provides in detail for proceedings before such committee (ib., s. 46 to 50).

No action shall be brought against the council or committee for anything done bona fide under the act. Appeal from the decision to erase lies to any judge of the court of Queen’s Bench for Manitoba, and such judge may make such order as to restoration or confirmation of erasure or for further inquiry, and as to costs, as to him may seem right (ib., s. 51).

EVIDENCE.—In a trial under this act the burden of proof as to registration is on the person charged (ib., s. 53).

The production of a certificate that the person named is duly registered, certified under the hand of the registrar, is sufficient evidence of registration, and his signature in the capacity of registrar is prima facie evidence that he is registrar without proof of signature or that he is registrar (ib., s. 54).

The registrar is required to print and publish from time to time under the direction of the council a correct register of the names and residences, with medical titles, diplomas, and qualifications conferred by any college or body, with the date thereof, of all persons appearing on the register as existing on the day of publication (ib., s. 55). The register is called “The Manitoba Medical Register;” a copy thereof for the time being purporting to be so printed and published is prima facie evidence that the persons specified are registered (ib., s. 56).

In the case of any person whose name does not appear in such copy, a certified copy under the hand of the registrar of the council of the entry of the name of such person on the register is evidence that such person is registered (ib., s. 57). The absence of the name of any person from such copy is prima facie evidence that he is not registered (ib., s. 58).

PRACTITIONER’S RIGHTS.—Every person registered is entitled according to his qualifications to practise medicine, surgery, or midwifery, or any of them as the case may be, and to demand and recover full costs of suit, reasonable charges for professional aid, advice, and visits, and the cost of any medicine or other medical appliances rendered or supplied by him to his patient (ib., s. 59).

NEGLECT TO REGISTER.—A person neglecting to register is not entitled to the rights and privileges conferred, and is liable to all penalties against unqualified or unregistered practitioners (ib., s. 60).

UNREGISTERED PERSONS.—It is not lawful for any person not registered to practise medicine, surgery, or midwifery for hire, gain, or hope of reward (ib., s. 61).

No person is entitled to receive any charge for medical or surgical advice or attendance, or the performance of any operation, or for any medicine which he may have prescribed or supplied, unless he be registered, but this provision does not extend to the sale of any drug or medicine by a licensed chemist or druggist (ib., s. 62).

No person can be appointed as a medical officer, physician, or surgeon in the public service, or in any hospital or other charitable institution not supported wholly by voluntary contribution, unless he be registered (ib., s. 63).

No certificate required from any physician or surgeon or medical practitioner is valid unless the signer be registered (ib., s. 64).

DEFINITION.—The expression “legally qualified medical practitioner,” or any other words importing legal recognition as a medical practitioner or member of the medical profession, in any law, is construed to mean a person registered under this act (ib., s. 65).

IMMUNITIES.—A person registered under this act is exempt from jury and inquest duty if he desire it (ib., s. 66).

LIMITATIONS.—No duly registered member of the College of Physicians and Surgeons is liable in an action for negligence or malpractice by reason of professional services requested or rendered, unless it be commenced within one year from the termination of such service (ib., s. 67).

EXAMINATIONS.—The University of Manitoba is the sole examining body in medicine, and the council of the university may grant to any person a certificate under the seal of the university that the council of the university have been satisfied that the person mentioned in the certificate is, by way of medical education and otherwise, a proper person to be registered under this act; but such certificate shall not be granted until the person making such application shall have given evidence of qualification by undergoing an examination or otherwise, as the statutes of the university require, and the applicant shall in all other respects first comply with the rules and regulations of the university in that behalf (ib., s. 68).

HOMŒOPATHISTS.—Until a homœopathic medical college for teaching purposes is established in Manitoba, in the case of candidates wishing to be registered as homœopathists, the full time of attendance upon lectures and hospitals required by the university statutes may be spent in such homœopathic medical colleges in the United States or Europe as may be recognized by the University of Manitoba (ib., s. 69).

Every candidate who at the time of his examination signifies his wish to be registered as a homœopathic practitioner shall not be required to pass an examination in materia medica or therapeutics, or theory or practice of physic, or in surgery or midwifery, except the operative practical parts thereof, before any examiners other than those homœopathic examiners who shall be appointed by the University of Manitoba (ib., s. 70).

UNLAWFUL PRACTICES.—To wilfully procure or attempt to procure registration by false or fraudulent representation or declaration, is punishable by a penalty not exceeding $100. To knowingly aid or assist therein, is punishable by a penalty of from $20 to $50 for each offence (ib., s. 73).

Persons not registered, for hire, gain, or the hope of reward, practising or professing to practise medicine, surgery, or midwifery, or advertising to give advice in medicine, surgery, or midwifery, are liable to a penalty of from $25 to $100 (ib., s. 74).

A person wilfully or falsely pretending to be a physician, doctor of medicine, surgeon, or general practitioner, or assuming a title, addition, or description other than he actually possesses and is legally entitled to, is liable to a penalty of from $10 to $50 (ib., s. 75).

For a person to assume a title calculated to lead people to infer that he is registered, or is recognized by law as a physician, surgeon, or accoucheur or a licentiate in medicine, surgery, or midwifery, is punishable with a penalty of from $25 to $100 (ib., s. 76).

On prosecution, costs may be awarded in addition to the penalty, and the offender may be committed to the common jail for one month, unless the penalty and costs are sooner paid (ib., s. 78).

PROSECUTOR.—Any person may be prosecutor or complainant under the act (ib., s. 80).

LIMITATIONS.—Prosecutions are limited to commence within six months after the date of the offence (ib., s. 81).

APPEAL.—A person convicted under this act, giving notice of appeal, must before being released give satisfactory security for the penalty and costs of conviction and appeal (ib., s. 82).

STAY.—The council may stay proceedings in prosecutions (ib., s. 84).

FEES.—The council is authorized to determine by by-law an annual fee, which is required to be paid by each member of the college—the fee can be not less than $2, nor more than $5, is payable on January 1st, and may be recovered as a debt by the college (ib., s. 32).

The fee for registration is subject to regulation by the council (ib., s. 33).

NEW BRUNSWICK.

MEDICAL SOCIETY.—All persons registered under the act constitute the New Brunswick Medical Society (Act 1881, c. 19, s. 2).

COUNCIL.—There is a medical council called the Council of Physicians and Surgeons of New Brunswick, of nine legally qualified medical practitioners, of not less than seven years’ standing; four are nominated and appointed by the governor in council, and five by the New Brunswick Medical Society (ib., s. 3, 5).

The secretary of the council is the registrar (ib., s. 7).

REGISTER, EVIDENCE.—The registrar is required before May 1st annually to print and publish in the Royal Gazette of the province, and such other manner as the council shall appoint, a correct register of the names and residences and medical titles, diplomas, and qualifications conferred by any college or body, with the dates thereof, of all persons appearing on the register on the 1st of January. The register is called the Medical Register; a copy for the time being purporting to be so printed and published, or a certificate signed by the president of the council, and attested by the registrar with the corporate seal of the council, is prima facie evidence that the persons therein specified are registered and qualified; the absence of a name from such copy or the want of such certificate is prima facie evidence that such person is not registered. If a name does not appear on the copy, a certified copy, under the hand of the registrar of the council, of the entry of a name on the register is evidence of registration (ib., s. 8).

ENTRANCE UPON STUDY.—A person beginning or entering on the study of physic, surgery, or midwifery, for the purpose of qualifying to practise in the province, must have obtained from the council a certificate that he has satisfactorily passed a matriculation or preliminary examination in the subjects enumerated in the act, unless he has passed a matriculation examination for the medical course in arts and science at some college in Great Britain, Ireland, Canada, the United States of America, or the Continent of Europe (ib., s. 10).

The act prescribes formalities for admission to such preliminary examination (ib., s. 10).

QUALIFICATION.—Subject to the exceptions hereinafter, no person can lawfully practise physic, surgery, or midwifery unless he be registered, or unless he shall have received from the council a license to practise (ib., s. 11).

No person is entitled to registration or license unless he shall satisfy the council that he has passed a matriculation or preliminary examination; that after passing such examination he has followed his studies for not less than four years, one of which may be under the direction of one or more general practitioners duly licensed; that during such four years he has attended at some university, college, or incorporated school of medicine in good standing, courses of lectures amounting together to not less than twelve months on general anatomy, on practical anatomy, on surgery, on practice of medicine, on midwifery, on chemistry, on materia medica and pharmacy, and on the institutes of medicine or physic, and one three-months’ course of medical jurisprudence; that he has attended the general practice of an hospital in which are not less than fifty beds under the charge of not less than two physicians or surgeons, for not less than one year or two periods of not less than six months each; that he has also attended two three-months’ courses or one six-months’ course of clinical medicine, the same of clinical surgery; that he has, after an examination in the subjects of the course, obtained a degree or diploma from such university, college, or incorporated medical school if such institution require a four-years’ course for its diploma, or for the want of such degree or diploma that he has satisfactorily passed an examination in the various branches hereinbefore specified before the examiners appointed by the council; that he is not less than twenty-one years of age; that he has paid to the registrar of the council a fee of ten dollars. The council has power, subject to the approval of the governor in council, to make alterations as may be required in the foregoing curriculum. If any person apply for registration as a practitioner of any system of medicine, the registered practitioners of that system have the right to appoint an examiner or examiners on the subjects peculiar to that system, viz., materia medica, pharmacy, and therapeutics, and if they neglect so to do the council has the power to appoint such examiner or examiners (ib., s. 12).

The last preceding section does not apply to persons in actual practice entitled to register under sec. 38. Any person producing to the council conclusive evidence that he has passed a matriculation or a preliminary examination, as required by this act for persons beginning medical studies in New Brunswick, that he has before graduating or taking a diploma studied at least four years as provided in sec. 12, or pursued what the council deem an equivalent course of study and has passed a final examination in the subjects of such course, or, for the want of such requirement, shall have fulfilled such conditions as the council may determine, and shall pay a fee of ten dollars, shall be entitled to registration and to receive a license to practise (ib., s. 13).

The act makes special provision for residents of the province who began study before January 1st, 1881 (ib., s. 14, as amended 1882, c. 30, s. 1).

DUTIES OF COUNCIL.—The council is empowered and required to regulate the study of medicine, surgery, and midwifery, with regard to preliminary qualifications, course of study, final examination, and the evidence to be produced before the council; to appoint a registration committee; to examine all degrees, diplomas, licenses, and other credentials presented or given in evidence under the act to enable the owner to practise in New Brunswick, and to oblige the owner to attest on oath or affirmation that he is the person whose name is mentioned therein, and that he became possessed thereof properly and honestly; to cause every member of the profession practising in New Brunswick to register his name, age, place of residence, place of nativity, date of license or diploma, and the place where he obtained it; to appoint medical examiners, who may be members of the council, to hold final examinations, who shall be regularly qualified practitioners of not less than five years’ professional standing and three years’ residence in the province (ib., s. 15, as amended 1882, c. 30, s. 2, 3).

CORRECTION OF REGISTER.—The registrar is required to erase the names of all registered persons who shall have died, left the province without the intention of returning, or ceased to practise for five years; and from time to time to make the necessary alterations in the addresses or qualifications of registered persons. Any name erased shall be restored by the order of the council on sufficient cause duly shown (ib., s. 18).

NEGLECT TO REGISTER.—Persons entitled to registration, neglecting or omitting to register, are not entitled to any rights or privileges conferred by the act (ib., s. 19).

SYSTEM OF PRACTICE.—No person otherwise qualified shall be refused registration or license on account of the adoption or the refusal to adopt the practice of any particular theory of medicine or surgery. In case of refusal the aggrieved party may appeal to the governor in council, who is required, on due cause shown, to issue an order to the council to register his name and grant him a license to practise, and thereupon the council shall forthwith register his name and grant him a license to practise (ib., s. 20).

EVIDENCE OF QUALIFICATION, FRAUDULENT REGISTRATION.—No qualification can be entered unless the registrar be satisfied by proper evidence that the person claiming it is entitled to it. An appeal may be made from the registrar’s decision to the council. Any entry proved to the satisfaction of the council to have been fraudulently or incorrectly made may be erased by the order in writing of the council, and the name of such person fraudulently registering, or attempting to register, may, at the discretion of the council, be published in the next issue of the Royal Gazette (ib., s. 21).

FORFEITURE OF RIGHT.—A registered medical practitioner convicted of felony, or after due inquiry judged by the council to have been guilty of infamous conduct in any professional respect thereby, subject to appeal to the governor in council, forfeits his right to registration, and by the direction of the council his name shall be erased from the register (ib., s. 22).

The time and place of inquiry under the preceding section must be fixed by the council, and at least fourteen days’ notice given to the party against whom inquiry is ordered (Act 1886, c. 82, s. 6).

The Act of 1886, c. 82, regulates the procedure on such inquiry.

ADDITIONAL QUALIFICATIONS.—Every person registered who may obtain a higher degree or other qualification is entitled to have it registered in substitution for, or in addition to, the qualifications previously registered, on the payment of such fee as the council may demand (Act 1881, c. 19, s. 23).

PRACTITIONER’S RIGHTS.—Every person registered under the act is entitled according to his qualifications to practise medicine, surgery, midwifery, or dentistry, or either or any of them as the case may be, and to demand and recover reasonable and customary charges for professional aid, advice, and visits, and the cost of any medicine or other medical or surgical appliances rendered or supplied by him to his patients (ib., s. 24).

No person is entitled to recover any such charge unless he shall prove upon the trial that he is registered under this act (ib., s. 25).

DEFINITION.—The words “legally qualified medical practitioner,” or “duly qualified medical practitioner,” or other words implying that a person is recognized by law as a medical practitioner or member of the medical profession, when used in a legislative act or a legal or public document mean a person registered under this act (ib., s. 26).

UNREGISTERED PERSONS.—No person shall be appointed a medical officer, physician, or surgeon in the public service or in any hospital or other charitable institution unless registered (ib., s. 27).

No certificate required from any physician or surgeon or medical practitioner is valid unless the signer be duly registered (ib., s. 28).

A person not registered or licensed, and not actually employed as a physician or surgeon in Her Majesty’s naval or military service, practising physic, surgery, or midwifery for hire, gain, or hope of reward, forfeits twenty dollars for each day of such practice (ib., s. 29).

The sum forfeited is recoverable with costs. The procedure in reference to all penalties is regulated by Act of 1886, c. 82.

Persons liable as provided in secs. 29 and 30 are not entitled to or subject to the provisions of any act for the relief of debtors (Act 1882, c. 30, s. 4).

On the trial of such cause, the burden of proof as to license or right to practise is upon the defendant (Act 1881, c. 19, s. 31; Act 1886, c. 82, s. 3).

FRAUDULENT REGISTRATION.—Wilfully procuring or attempting to procure registration by making or producing, or causing to be made or produced, a false or fraudulent representation or declaration, or aiding or assisting therein, is punishable with a forfeiture of not less than $100 (Act 1881, c. 19, s. 33).

Wilfully or falsely pretending to be or using any name or description implying registration is punishable with a forfeiture of from $50 to $100 (ib., s. 34).

LIMITATIONS.—No prosecution can be commenced under the act after one year from the date of the offence (Act 1886, c. 82, s. 4).

EXCEPTIONS.—The act does not prevent persons from giving the necessary medical or surgical aid or attendance to any one in urgent need of it, provided it be without gain, and the giving of it be not made a business or way of gaining a livelihood; nor does it prevent any woman from giving the necessary aid in cases of confinement as heretofore accustomed (Act 1881, c. 19, s. 36).

EXAMINATION.—All persons who subsequent to the passage of the act pass the examination prescribed by the council of physicians and surgeons, or presenting approved credentials, certificates, or diplomas equivalent to such examination, are entitled to register and receive a license to practise (ib., s. 38).

PHYSICIANS IN ARMY OR NAVY.—A person while employed in actual service in Her Majesty’s naval or military service as a physician or surgeon, may practise physic, surgery, or midwifery with registry or license (ib., s. 39).

NON-RESIDENTS.—Non-resident registered practitioners of medicine residing in the State of Maine or in the Province of Quebec or Nova Scotia near the boundary line of this province whose regular practice extends into any town, parish, or county in New Brunswick may register under the act (ib., s. 44).

No other non-resident practitioner of medicine is entitled to register (Act 1884, c. 17, s. 1).

EXCEPTIONS.—The act does not extend to clairvoyant physicians practising at the time of its passage in the province, nor to midwives (Act 1881, c. 19, s. 45).

STUDENTS.—The act establishes a uniform standard of matriculation or preliminary examinations (ib., Sched. B).

OATHS.—Any oath or affidavit required by the medical act may be taken before any justice of the peace or person by law authorized to take any oath or affidavit (Act 1882, c. 30, s. 6).

FEES.—To the registrar, for registration under secs. 12 and 13, $10 (Act 1881, c. 19, s. 12 and 13).

To the registrar, for the registration of an additional qualification, such fee as the council may demand (Act 1881, c. 19, s. 23).

To the registrar, or his deputy, annual fee from each practitioner, to be fixed by the council, not more than $2 nor less than $1 (Act 1882, c. 30, s. 5).

Each registered medical practitioner must, if required by the council, pay to the registrar, or a person deputed by him, an annual fee determined by the council, not less than $1 nor more than $2, payable January 1st each year, and recoverable as a debt with costs in the name of the council (Act 1882, c. 30, s. 5).

If any practitioner omit to pay the registration fee before the registrar causes the register to be printed in the Royal Gazette, the registrar shall not cause the name of such practitioner to be printed, and he shall thereupon cease to be deemed a registered practitioner; but afterward, on paying such fee, he shall be entitled to all his rights and privileges as a registered practitioner from the time of payment (Act 1884, c. 17, s. 2).

NEWFOUNDLAND.

MEDICAL BOARD.—There is a board composed of seven regularly qualified medical practitioners of not less than five years’ standing, appointed as provided in the act, and known as the “Newfoundland Medical Board,” whose duties relate, among other things, to the making and enforcing of measures necessary for the regulation and the practice of medicine (Act 1893, c. 12, s. 2, 3, 19).

The board is authorized to appoint examiners and fix times of examinations (ib., s. 5).

The secretary of the board is the registrar (ib., s. 7).

REGISTER, EVIDENCE.—It is the duty of the registrar on or before January 1st in each year to cause to be published in the Royal Gazette of Newfoundland a list of the names of all persons appearing on the register at that date, with their places of residence, titles, diplomas, and qualifications as conferred by any college or body, with the date (ib., s. 8).

Such register is called the Medical Register, and a copy thereof is prima facie evidence that the persons therein specified are registered according to the act; and the absence of a name therefrom is prima facie evidence that such person is not so registered (ib., s. 9).

QUALIFICATION.—The members of the board form a body of medical examiners of diplomas and degrees, whose certificate shall be the only license permitting the practice of medicine, surgery, or midwifery, except as hereinafter provided, provided the applicant for such license shall previously have obtained a medical diploma from a recognized college or university, or as hereinafter provided (ib., s. 10.)

Every person is entitled to have his name entered on the register on satisfying the board that he holds a degree or diploma from some regular university or school of medicine in good standing, and he shall then receive from the board a license bearing its seal, on the payment to the registrar of $5, and shall have his name entered on the register (ib., s. 11).

No such licensed practitioner shall be entitled to practise in any year without taking out from the board, before the 1st of January in every year, a certificate of practice for which he shall pay $1 (ib., s. 12).

STUDENTS.—The act provides the requirements for entering on the study of medicine, surgery, or midwifery in the colony (ib., s. 13, 14, 17).

DUTIES OF BOARD.—The board is required to examine all degrees and other credentials produced or given in evidence under the act for the purpose of enabling the owners to practise, and, if it be deemed necessary, to oblige the owner to attest on oath or affidavit that he is the person whose name is mentioned therein, and that he has become possessed of the same by lawful means (ib., s. 16).

The board is required to cause every member of the profession practising in Newfoundland to enter his name, age, place of residence, date of license or diploma and where it was obtained, on the register (ib., s. 18).

NEGLECT TO REGISTER.—A person entitled to be registered, who neglects or omits to apply, is not entitled to any of the rights or privileges conferred by the act so long as the neglect or omission continues (ib., s. 25).

ADDITIONAL QUALIFICATION.—A person registered who obtains a higher degree or diploma is entitled to have it inserted in the register in addition to or in substitution for those previously registered (ib., s. 26).

RIGHTS OF REGISTERED PERSONS.—A person properly registered under the act is entitled to practise medicine, surgery, and midwifery in any part of the colony, and to demand and recover reasonable charges for professional aid or advice with the cost of medicine or other medical and surgical appliance supplied by him (ib., s. 27).

UNREGISTERED PERSONS.—No person whose name is not registered under the act is entitled to recover any fees for any medical or surgical advice, or for any services whatsoever rendered in the capacity of a medical man, nor to recover the payment of charges for any medicine or medical or surgical appliance which may have been both prescribed and supplied by him. This clause is not intended to interfere with the practice of midwifery by competent females as hereinafter provided (ib., s. 28).

OFFENCES AND PENALTIES.—Except as hereinafter provided, if a person not registered or licensed under the act practises medicine, surgery, or midwifery for hire, gain, help [sic] or reward, or wilfully and falsely pretends to be a physician, doctor of medicine, surgeon, or general practitioner, or takes or uses any name, title, addition [or] description, implying or calculating [sic] to deceive or lead the public to infer that he is registered under this act, or who proposes by public advertisement, card, circular, or otherwise, to practise medicine, surgery, or midwifery, or give advice therein, or in anywise lead people to infer that he is qualified to practise medicine, surgery, or midwifery, he shall forfeit $20 for each day that he so practises or leads people to infer that he is a practitioner, or shall suffer imprisonment not exceeding twelve months (ib., s. 29).

Persons violating the above regulations are subject to the penalties of the act, and in all cases the burden of proof as to qualification is upon the defendant or practitioner (ib., s. 30).

EXPULSION OF MEMBER.—The Newfoundland Medical Board may try and expel any member of the profession for acts of malpractice, misconduct, or immoral habits, provided five-sevenths of the whole number record their signatures to such a measure (ib., s. 32).

EXCEPTIONS.—The act does not prevent private persons from giving the necessary medical or surgical aid in times of urgent need, provided such aid or attention is not given for gain or hire, nor the giving of it made a business or a way of gaining a livelihood (ib., s. 34).

Every person residing in the colony and who shall have practised medicine, surgery, and midwifery for five years consecutively in one locality previous to the passage of the act, on the proof of the same, shall have his name registered and receive a license to practise under the act; provided, the board may grant a license to any person who may have practised for a shorter period, on being satisfied by examination, or inquiry, that such person is reasonably competent and fit; and further provided, that the board may, after examination and inquiry, license persons with a reasonable amount of competence to practise in specified localities, in which no qualified practitioners reside (ib., s. 37).

Any person while employed in actual service in any naval or military service as physician or surgeon may practise medicine, surgery, and midwifery after having been registered (ib., s. 38).

DEFINITION.—The words “legally qualified medical practitioner” or “duly qualified medical practitioner,” or any other words importing a person recognized by law as a medical practitioner or a member of the medical profession, when used in any act of the legislature or legal or public document, mean a person registered under this chapter, unless as otherwise provided (ib., s. 39).

MEDICAL APPOINTMENTS.—No person shall be appointed as a medical officer, physician, or surgeon in any branch of the public service or any hospital or other charitable institution unless he be registered under the provisions of this chapter (ib., s. 40).

THEORIES OF MEDICINE OR SURGERY.—No person otherwise fully qualified shall be refused registration, or a license to practise, on account of his adopting or refusing to adopt the practice of any particular theory of medicine or surgery. In case of such refusal by the board, the party aggrieved may appeal to the governor in council, who, on due cause shown, shall issue an order to the board to register the name of such person and grant him a license (ib., s. 41).

MIDWIVES.—The act does not prevent competent females from practising midwifery (ib., s. 42).

FEES.—To the registrar, for license, $5 (ib., s. 11).

To the board, each year, for a certificate of practice, $1 (ib., s. 12).

NORTHWEST TERRITORIES.

COLLEGE OF PHYSICIANS AND SURGEONS.—The members of the medical profession are a body corporate under the name of “The College of Physicians and Surgeons of the Northwest Territories” (Ord. 5 of 1888, s. 2).

Every person registered according to Ordinance 11 of 1885 is a member of the said college and shall be held to be registered under this ordinance from the date of its passage (ib., s. 3, as amended Ord. 9 of 1891-92).

Every person registered under this law is a member of the college (ib., s. 4).

COUNCIL.—There is a council of said college elected by the members from the members registered in pursuance of this ordinance (ib., s. 5, 6, 7).

The council appoints among other officers a registrar (ib., s. 26).

REGISTER, QUALIFICATION.—Persons registered under Ordinance 11 of 1885 are entitled to register under this ordinance (ib., s. 31).

The council is required to cause the registrar to keep a register of the names of all persons who have complied with this ordinance, and the rules and regulations of the council respecting the qualifications required from practitioners of medicine or surgery. Only those persons whose names are inscribed in the register are deemed qualified and licensed to practise medicine or surgery, except as hereinafter provided (ib., s. 32).

The registrar is required to keep his register correct and to make the necessary alterations in the addresses or qualifications of persons registered (ib., s. 33).

The council is required to admit on the register:

(a) Any person possessing a diploma from any college in Great Britain and Ireland (having power to grant such diploma) entitling him to practise medicine and surgery, and who shall produce such diploma and furnish satisfactory evidence of identification;

(b) any member of the College of Physicians and Surgeons of the Provinces of Manitoba, Ontario and Quebec upon producing satisfactory evidence of the same and of identification;

(c) any person who shall produce from any college or school of medicine and surgery in the Dominion of Canada requiring a four-years’ course of study and (sic) a diploma of qualification; provided he furnish to the council satisfactory evidence of identification, and pass if deemed necessary, before the members thereof, or such examiners as may be appointed for the purpose, a satisfactory examination touching his fitness and capacity to practise as a physician and surgeon, upon payment to the registrar of fifty dollars (ib., s. 34, as substituted by Ord. 14, 1890, amended by Ord. 9, 1891-92).

POWERS OF COUNCIL.—The members of the council are required to make orders, regulations, or by-laws for the regulation of the register and the guidance of examiners, and may prescribe subjects and modes of examination, and may make all regulations in respect of examinations, not contrary to the ordinance, that they may deem expedient and necessary (ib., s. 36).

The council may by by-law delegate to the registrar power to admit to practice and to register any person having the necessary qualifications entitling him to be registered by the council (Ord. 24, 1892, s. 4).

The council may direct the name of any person improperly registered to be erased from the register and such name shall be erased by the registrar (Ord. 24, 1892, s. 5).

FORFEITURE OF RIGHTS.—If a medical practitioner be convicted of any felony or misdemeanor or after due inquiry be judged by the council to have been guilty of infamous conduct in any professional respect, the council may, if it sees fit, direct the registrar to erase the name of such practitioner from the register, and the name shall be erased (Ord. 5, 1888, s. 37, as substituted by Ord. 24, 1892, s. 1).

RIGHTS OF REGISTERED PERSONS.—Every person registered under the ordinance is entitled to practise medicine and surgery, including midwifery, or any one of them, as the case may be, and to demand and recover with costs his reasonable charges for professional aid, advice, and visits, and the cost of medical or surgical appliances rendered or supplied by him to his patients (ib., s. 38).

LIMITATION.—A period of one year after the term of professional service is established as a limitation to actions for negligence or malpractice against members of the college (ib., s. 39).

REGISTER, EVIDENCE.—The registrar, under the direction of the council, is required to publish a register of the names and residences and the medical titles, diplomas, and qualifications conferred by any college or body, of all persons appearing on the register on the day of publication. The register is called “Northwest Territories’ Medical Register,” and a copy for the time being, purporting to be so printed and published, is prima facie evidence that the persons therein specified are registered according to the act. The absence of a name from such copy is prima facie evidence that such person is not so registered.

In case a person’s name does not appear on such copy, a certified copy under the hand of the registrar of the entry of the name of such person on the register is evidence that such person is registered (ib., s. 40).

NEGLECT TO REGISTER.—A person neglecting to register is not entitled to the rights or privileges conferred and is liable to all penalties against unqualified or unregistered practitioners (ib., s. 4).

OFFENCES AND PENALTIES.—To practise or profess to practise without registration, for hire or reward, is punishable with a penalty of $100 (ib., s. 42).

To wilfully or falsely pretend to be a physician, doctor of medicine, surgeon, or general practitioner, or assume any title or description not actually possessed and to which the person is not legally entitled under this ordinance, is punishable with a penalty of from $10 to $50 (ib., s. 43, as amended by Ord. 24, 1892, s. 2).

To take or use a name or description implying or calculated to lead people to infer registration or recognition by law as a physician, surgeon, or licentiate in medicine or surgery is punishable with a penalty of from $25 to $100 (ib., s. 44).

UNREGISTERED PERSONS.—No person is entitled to recover for any medical or surgical advice or attendance or the performance of any operation or medicine which he may have prescribed (ib., s. 45); nor to be appointed as medical officer, physician, or surgeon in any branch of the public service or in any hospital or other charitable institution not supported wholly by voluntary contributions, unless registered (ib., s. 46).

No certificate required from a physician or surgeon or medical practitioner is valid unless the signer is registered (ib., s. 47).

COSTS.—In prosecutions, payment of costs may be awarded in addition to the penalty, and in default of payment the offender may be committed to the common jail for not more than one month (ib., s. 48).

BURDEN OF PROOF.—In prosecutions, the burden of proof as to registration is upon the person charged (ib., s. 49).

PROOF.—The production of a printed or other copy of the register, certified under the hand of the registrar, for the time being is sufficient evidence of all persons [registered]; a certificate on such copy purporting to be signed by any person in the capacity of registrar of the council under this ordinance is prima facie evidence that he is registered without proof of his signature or of his being in fact registrar (ib., s. 50).

LIMITATION OF PROSECUTIONS.—Prosecutions must be commenced within six months from the date of the offence (ib., s. 51).

STAY.—The council may stay proceedings in prosecutions where deemed expedient (ib., s. 52).

PROSECUTOR.—Any person may be prosecutor or complainant (ib., s. 53).

DEFINITION.—“Legally qualified medical practitioner” or “duly qualified medical practitioner,” or any other words implying legal recognition as a medical practitioner or member of the medical profession, when used in any law or ordinance, mean a person registered under this ordinance (ib., s. 55).

HOMŒOPATHISTS.—Homœopathic physicians may be registered under this ordinance on complying with the terms of sec. 34 (ib., s. 58).

FEES.—To the council from each member annually as the council may determine, not more than $2 and not less than $1 (ib., s. 35).

To the registrar, for registration, $50 (ib., s. 56, as substituted by Ord. 24, 1892, s. 3).

NOVA SCOTIA.

MEDICAL BOARD.—There is a provincial medical board consisting of thirteen regular qualified medical practitioners of not less than seven years’ standing, seven nominated and appointed by the governor in council, and six by the Nova Scotia Medical Society (R. S., 5th ser., c. 24, s. 1).

The board appoints a secretary who is the registrar of the board (ib., s. 3, 4).

REGISTER, EVIDENCE.—The registrar is required before the 1st of August each year to cause to be printed and published in the Royal Gazette of the province, and in such other manner as the board shall appoint, a correct register of the names and residences and medical titles, diplomas, and qualifications conferred by any college or body, with the dates thereof of all persons appearing on the register as existing on June 30th. Such register is called “The Medical Register,” and a copy thereof for the time being, purporting to be so printed and published, is prima facie evidence that the persons specified are registered according to this chapter. The absence of a name from such copy is prima facie evidence that such person is not so registered. In the case of a person whose name does not appear in such copy, a certified copy, under the hand of the registrar, of the entry of his name on the register is evidence that such person is registered under the provisions of this chapter (ib., s. 5).

STUDENTS.—No person can begin or enter on the study of physic, surgery, or midwifery, for the purpose of qualifying himself to practise in the province, unless he shall have obtained from the provincial medical board a certificate that he has satisfactorily passed a matriculation examination in the subjects specified in the chapter (ib., s. 6).

The chapter prescribes the prerequisites to admission to preliminary examinations (ib., s. 7, 12).

QUALIFICATION.—Subject to the exceptions hereinafter, no person can lawfully practise physic, surgery, or midwifery unless his name be registered and unless he shall have received from the provincial medical board a license to practise (ib., s. 8).

No person is entitled to be registered or to receive a license to practise unless he satisfy the board that he has passed the matriculation or preliminary examination; that after passing such examination he has followed his studies during a period not less than four years (one of which may be under the direction of one or more general practitioners duly licensed); that during such four years he has attended at some university, college, or incorporated school of medicine in good standing, courses of lectures amounting together to not less than twelve months on general anatomy, on practical anatomy, on surgery, on the practice of medicine, on midwifery, on chemistry, on materia medica and pharmacy, and on the institutes of medicine or physiology, and one three-months’ course of medical jurisprudence; that he has attended the general practice of a hospital in which are not less than fifty beds under the charge of not less than two physicians or surgeons, for a period of not less than one year or two periods of not less than six months each; that he has also attended two three-months’ courses or one six-months’ course of clinical medicine, and the same of clinical surgery; that he has, after an examination in the subjects of the course, obtained a degree or diploma from such university, college, or incorporated medical school, or, for want of such degree or diploma, that he has satisfactorily passed an examination in the various branches hereinbefore specified before examiners to be appointed by the provincial medical board; that he is not less than twenty-one years of age; and that he has paid the registrar twenty dollars.

The provincial medical board has power, subject to the approval of the governor in council, to make such alterations in the foregoing curriculum as may from time to time be required (ib., s. 9).

The last preceding section does not apply to any person in actual practice duly registered under chap. 56 of Revised Statutes, 3d series; such persons are entitled to be registered and receive a license to practise under this chapter without fee. Notwithstanding such section, any person on producing to the said board conclusive evidence that he has passed a matriculation or preliminary examination such as is required for persons beginning their medical studies in Nova Scotia; that he has, before graduating or taking a diploma, studied for at least four years in the manner provided in sec. 9 or pursued what the board deem an equivalent course of study, and has passed a final examination in the subjects of such course; or, for the want of any of such requirements, shall have fulfilled such conditions as the board may determine and shall pay a fee of twenty dollars, shall be entitled to be registered and to receive a license to practise (ib., s. 10).

POWERS OF BOARD.—The said board among other powers has the power to examine all degrees, diplomas, licenses, and other credentials presented or given in evidence for the purpose of entitling the owner to practise in Nova Scotia; and to oblige the owner to attest on oath, or by affidavit, that he is the person whose name is mentioned therein, and that he became possessed thereof honestly; to cause every member of the profession practising in Nova Scotia to enregister his name, age, place of residence, place of nativity, date of license or diploma, and the place where he obtained it, in the register of the board; to appoint medical examiners to hold final examinations, such examiners to be regular qualified practitioners of not less than five years’ professional standing, and three years’ residence in the province (ib., s. 12).

REGISTER.—The registrar is required to keep his register correct, and to erase the names of all registered persons who shall have died, left the province without any intention of returning, or ceased to practise for five years, and to make from time to time the necessary alterations in the addresses or qualifications of persons registered. A name erased is required to be restored by the order of the board upon sufficient cause duly shown (ib., s. 15).

NEGLECT TO REGISTER.—Persons entitled to register and neglecting or omitting to register are not entitled to any of the rights or privileges conferred so long as the neglect or omission shall continue (ib., s. 16).

THEORIES OF MEDICINE OR SURGERY.—No person shall be refused registration or a license on account of the adoption or the refusal to adopt the practice of any particular theory of medicine or surgery. In case of such refusal the party aggrieved has the right to appeal to the governor in council, who, on due cause shown, is required to issue an order to the board to register the name of such person and to grant him a license (ib., s. 17).

POWERS OF REGISTRAR.—No qualification is entered unless the registrar is satisfied by proper evidence that the person claiming is entitled to it, and any appeal from the decision of the registrar may be decided by the board, and any entry proving to the satisfaction of the board to have been fraudulently or incorrectly made may be erased from the register by order in writing of the board (ib., s. 18).

FORFEITURE OF RIGHTS.—A medical practitioner convicted of felony or, after due inquiry, judged by the board to have been guilty of infamous conduct in any professional respect, thereby forfeits his right to registration, and if registered his name shall, by the direction of the board, be erased from the register (ib., s. 19).

ADDITIONAL QUALIFICATIONS.—A registered person may have a higher degree or an additional qualification obtained by him, inserted in the register in substitution for or in addition to a qualification previously registered, on the payment of such fee as the board may appoint (ib., s. 20).

RIGHTS OF REGISTERED PERSONS.—Every registered person is entitled according to his qualifications to practise medicine, surgery, or midwifery, or either or any of them as the case may be, and to demand and receive reasonable charges for professional aid, advice, and visits and the cost of any medicine or any medical or surgical appliances rendered or supplied by him to his patients (ib., s. 21).

No person is entitled to recover such charge unless he shall prove on the trial that he is registered under this chapter. This does not interfere with the sale by qualified druggists or chemists of articles properly belonging to their business (ib., s. 22).

DEFINITION.—The words “legally qualified medical practitioner” or “duly qualified medical practitioner,” or any other words importing a person recognized by law as a medical practitioner or a member of the medical profession, when used in any act of the legislature or legal or public document mean a person registered under this chapter (ib., s. 23).

UNREGISTERED PERSONS.—No person shall be appointed as a medical officer, physician, or surgeon, in any branch of the public service, or in any hospital or other charitable institution, unless he be registered under the provisions of this chapter (ib., s. 24).

No certificate required from any physician or surgeon or medical practitioner is valid unless the signer be registered (ib., s. 25).

OFFENCES AND PENALTIES.—For a person without registration or license to practise physic, surgery, or midwifery for hire, gain, or hope of reward, or wilfully or falsely pretend to be a physician, doctor of medicine, surgeon, or general practitioner, or to take or use any name or description implying or calculated to lead people to infer that he is registered, or to profess by public advertisement, card, circular, sign, or otherwise to practise physic, surgery, or midwifery, or to give advice therein or in anywise to lead people to infer that he is qualified to practise physic, surgery, or midwifery, is punishable with a forfeiture of $20 for each day that he so practises or leads people to infer that he is practising (ib., s. 26).

On trial of such cause the burden of proof as to the license or right of the defendant to practise physic, surgery, or midwifery is on the defendant (ib., s. 28).

If a person wilfully procures or attempts to procure registration by making or producing, or causing to be made or produced, a false or fraudulent representation or declaration, he, and all persons knowingly aiding or assisting therein, are each punishable with a forfeiture of not less than $100 (ib., s. 30).

To wilfully and falsely pretend to be or take or use any name or description implying registration, is punishable with a forfeiture not exceeding $100 (ib., s. 31).

Suits under this chapter are not to be begun after one year from the date of the offence or cause of action (ib., s. 32).

EXCEPTIONS.—This chapter does not prevent a competent female from practising midwifery in Nova Scotia, except that she must satisfy the board of her competency, and obtain a certificate from the registrar before she can lawfully practise in the city of Halifax (ib., s. 33).

Nothing in the chapter prevents any person from giving necessary medical or surgical aid or attendance to any one in urgent need of it, provided such aid or attendance is not given for hire or gain, nor the giving of it made a business or way of gaining a livelihood (ib., s. 34).

Every person residing in the province and who shall have practised therein prior to January 1st, 1850, is entitled on proof thereof to have his name registered and receive a license to practise under this chapter (ib., s. 36).

A person while employed in active service in Her Majesty’s naval or military service as a physician or surgeon may practise physic, surgery, or midwifery with (sic) registration or license (ib., s. 37).

Schedule B of the chapter prescribes the subjects for a matriculation or preliminary examination of those commencing the study of medicine.

FEES.—To the registrar, for registration under secs. 9 and 10, $20.

To the registrar, for a preliminary examination under sec. 7, $10.

For registering additional qualifications, such fee as the board may appoint (ib., s. 20).

ONTARIO.

COLLEGE OF PHYSICIANS, ETC.—There is a corporation styled “The College of Physicians and Surgeons of Ontario” (Rev, St., 1887, c. 148, s. 2).

All persons registered according to the provincial acts 29 Victoria, c. 34, and 37 Victoria, c. 45, and amendatory acts, are members of said corporation (ib., s. 3); as well as all persons registered under this act (ib., s. 4).

COUNCIL.—There is a council of said college composed of representatives chosen from every university, college, or body in the province authorized to grant degrees in medicine and surgery, and which establish and maintain to the satisfaction of the College of Physicians and Surgeons of Ontario a medical faculty in connection therewith, with five members elected by the registered licensed practitioners in homœopathy, and twelve members elected from among and by the other registered members of the profession (ib., s. 6).

No teacher, professor, or lecturer of any such college or body shall hold a seat in said council except as a representative of the college or body to which he belongs (ib., s. 6, subd. 2, as amended Act 1893, c. 27, s. 2).

All members of the council representing the colleges of bodies aforesaid must be practitioners duly registered (ib., s. 6, subd. 3, as amended Act 1893, c. 27, s. 2).

All duly registered practitioners are entitled to vote at any election for members of the council (ib., s. 8).

Any member of the college may have his name transferred from one class of voters to any other on presenting to the registrar a certificate duly signed by the member or members of the board of examiners to examine candidates on subjects specified as peculiar to each school of medicine, testifying that the member so applying has shown a sufficient knowledge of the system of medicine he desires to connect himself with, to entitle him to be admitted to the class he desires, and being so admitted he is entitled to vote in that class only (ib., s. 9 [1]).

No member is entitled to return to the class from which he has been transferred without the sanction of the council (ib., s. 9 [2]).

The council appoints officers including a registrar (ib., s. 13).

The council must appoint an executive committee to take cognizance of and action upon all matters delegated to it by the council or which may require immediate attention or interference between the adjournment of the council and its next meeting, and all such acts shall be valid only till the next ensuing meeting of the council (ib., s. 4).

DIVISION ASSOCIATION.—In each territorial division established by the act there may be established a Division Association, of which every member of the said college residing within the said territorial division shall be a member (ib., s. 15).

PROFESSIONAL FEES.—The division association may submit to the council a tariff of professional fees suitable to their division, and on the said tariff receiving the approval of the council, signed by the seal of the college and the signature of the president, such tariff shall be held to be a scale of reasonable charges for the division or section of a division where the members of the association making it reside (ib., s. 16).

REGISTRATION.—In a register kept by the registrar the council is required to cause to be entered the name of every person duly registered and all persons who have complied with the act and the rules and regulations made by the council respecting the qualifications of practitioners of medicine, surgery, and midwifery; and those persons only whose names are inscribed in the register shall be deemed to be qualified and licensed to practise medicine, surgery, or midwifery, except as hereinafter provided (ib., s. 21).

The registrar is required to keep his register correct and to make the necessary alterations in the addresses or qualifications of persons registered. And he may write to any registered person at his address on the register, to inquire whether he has ceased to practise or has changed his residence, and if no answer be returned within six months, may erase the name of such person; the name shall be restored on compliance with the other provisions of the act (ib., s. 22, as amended Act 1891, c. 26, s. 9).

It is optional for the council to admit to registration all such persons as are duly registered in the medical register of Great Britain, or otherwise authorized to practise medicine, surgery, and midwifery in the United Kingdom of Great Britain and Ireland, upon such terms as the council may deem expedient (ib., s. 23 [1]).

Any person actually practising medicine, surgery, or midwifery, or any of them, in Ontario prior to January 1st, 1850, and who has attended one course of lectures at any recognized medical school, on such proof as the council may require, is entitled to register (ib., s. 23 [2]).

Any person actually practising medicine, surgery, or midwifery according to the principles of homœopathy before January 1st, 1850, and for the six years preceding March 24th, 1874, in Ontario, may in the discretion of the representatives of the homœopathic system of medicine be registered (ib., s. 23 [3]).

Any person who possesses any of the qualifications described in Schedule B, dated prior to July 23d, 1870, on the payment of the fee, is entitled to register on producing to the registrar the document conferring or evidencing his qualification or qualifications, or on transmitting by post to the registrar information of his name and address and evidence of the qualification or qualifications in respect whereof he wishes to be registered and of the time or times at which the same was or were attained. No one registered under the acts mentioned in sec. 3 is liable to pay for registration (ib., s. 24).

Every person wishing to be registered, and not possessed before July 23d, 1870, of one of the qualifications in Schedule B, must present himself for examination as to his knowledge and skill for the efficient practice of his profession before the board of examiners mentioned in sec. 28, and upon passing the examination required and proving to the satisfaction of the board of examiners that he has complied with the rules and regulations of the council, and on payment of such fees as the council may establish, he shall be entitled to register and in virtue of his registration to practise medicine, surgery, and midwifery (ib., s. 25).

When it appears that there has been established a central examining board similar to that constituted by this act, or an institution duly recognized by the legislature of any of the provinces of the Dominion of Canada as the sole examining body for the purpose of granting certificates of qualification, and wherein the curriculum is equal to that established in Ontario, the holder of such certificate shall, upon due proof, be entitled to registration by the council of Ontario if the same privilege is accorded by such examining board or institution to those holding certificates of Ontario (ib., s. 26).

BOARD OF EXAMINERS.—The council is required at its annual meeting to elect a board of examiners whose duty it is to examine at least once in each year all candidates for registration in accordance with the by-laws, rules, and regulations of the council; such examinations are to be held at Toronto or Kingston at such times and in such manner as the council may by by-laws direct (ib., s. 28).

The board of examiners is composed of one member from each existing teaching body enumerated in sec. 6 and one from every other school of medicine organized in connection with any university or college empowered by law to grant medical or surgical diplomas and not less than six members chosen from the members of the College of Physicians and Surgeons of Ontario unconnected with any such teaching body (ib., s. 29, as amended Act 1893, c. 27, s. 5).

HOMŒPATHISTS.—Every candidate who, at the time of the examination, signifies his wish to be registered as a homœopathic practitioner shall not be required to pass an examination in materia medica or therapeutics, or the theory or practice of physic or surgery or midwifery except the operative parts thereof, before any examiners other than those approved of by the representatives in the council of the homœopathic system (ib., s. 30).

DUTIES OF COUNCIL.—The council is required to make orders, regulations, or by-laws for regulating the register and fees for registration and for the guidance of the board of examiners, and may prescribe the subjects and modes of examination and the time and place of holding the same, and may make all such rules and regulations for examination not contrary to the act as they deem expedient and necessary (ib., s. 31).

ADDITIONAL QUALIFICATION.—Every person registered who obtains a higher degree or other qualification is, on the payment of the fee, entitled to have it inscribed in the register in substitution for or in addition to the qualifications previously registered (ib., s. 32).

POWERS OF REGISTRAR.—No qualification is to be entered on the register unless the registrar be satisfied by proper evidence that the person claiming it is entitled to it. Appeal from the decision of the registrar may be decided by the council; any entry proved to the satisfaction of the council to have been fraudulently or incorrectly made may be erased from the register by order of the council in writing (ib., s. 33 [1]).

If the registrar be dissatisfied with the evidence adduced by a person claiming to be registered, he has power, subject to appeal to the council, to refuse registration until such evidence is furnished, duly attested by oath or affidavit before a judge of the county court of any county (ib., s. 33 [2]).

ERASURE AND RESTORATION OF NAME.—A practitioner is liable to have his name erased from the register where he has been convicted before or after registration of an offence which, if committed in Canada, would be a felony or misdemeanor, or where he has been guilty of any infamous or disgraceful conduct in a professional respect (ib., s. 34 [1]).

The council may, and on the application of any four registered medical practitioners must, cause inquiry to be made into the case of a person alleged to be liable to have his name erased under this section, and on proof of such conviction or conduct shall cause his name to be erased from the register. The name of a person shall not be erased on account of his adopting or refraining from the practice of any particular theory of medicine or surgery; nor on account of a conviction for a political offence out of Her Majesty’s dominions, nor of conviction for an offence which ought not either from its trivial nature or its circumstances to disqualify a person from practising medicine or surgery (ib., s. 34 [2]).

The council may order to be paid out of any funds at their disposal such costs as they may deem just to any person against whom any complaint has been made, which, when finally determined, is found to have been frivolous and vexatious (ib., s. 34 [3]).

When the council direct the erasure of any name or entry, it shall not be again entered except by direction of the council or any of the divisions of the high court of justice (ib., s. 35 [1], as amended Act 1891, c. 26, s. 3).

If the council think fit, they may direct the registrar to restore any name or entry erased, without fee, or on payment of such fee not exceeding the regular fee as the council may fix (ib., s. 35 [2]).

The council is required to ascertain facts, in the exercise of its powers of erasing and restoring, by a committee of their own body of not more than five, and a written report of the committee may be acted on by the council (ib., s. 36 [1], as amended Act 1891, c. 26, s. 4).

At least two weeks’ notice of the first meeting of the committee for ascertaining the facts of any case must be served on a person whose conduct is subject to inquiry, and such notice must embody a copy of the charges or a statement of the subject-matter of the inquiry, and specify the time and place of meeting. The testimony is under oath, and subject to cross-examination and the full right to call evidence in defence and reply. In the event of the non-attendance of such person the committee, on the proof of personal service of the notice, may proceed with the inquiry in his absence and without further notice (ib., s. 36 [5]).

No action can be brought against the council or committee for anything done bona fide under this act notwithstanding want of form in the proceedings. Any person whose name has been ordered erased may appeal from the decision of the council to any division of the high court at any time within six months from the date of the order of erasure, and the judge may make such order as to restoration, confirmation, or further inquiries by the committee or council and as to costs, as to him shall seem right (ib., s. 37, as amended Act 1891, c. 26, s. 5).

The appeal may be by a summons served on the registrar to show cause, and is founded upon a copy of the proceedings before the committee, the evidence taken, the committee’s report, and the order of the council certified by the registrar. The registrar is required to furnish to any person desiring to appeal a certified copy of all proceedings, reports, orders, and papers on which the committee acted, on payment of five cents a folio (ib., s. 38, as amended Act 1891, c. 26, s. 6).

The Act of 1891, c. 26, s. 7, provides for procuring the attendance of witnesses before the committee, and for payment of costs by the person whose name has been directed to be erased.

RIGHTS OF REGISTERED PERSONS.—Every person registered is entitled according to his qualifications to practise medicine, surgery, or midwifery, or any of them, as the case may be, and to demand and recover with full costs reasonable charges for professional aid, advice, and visits and the cost of any medicine or other medical or surgical appliances rendered or supplied by him to his patient (ib., s. 39).

LIMITATIONS.—One year after the termination of professional services is established as a period of limitations to an action for negligence or malpractice by reason thereof against duly registered members of said college (ib., s. 40).

EVIDENCE.—The register is required to be printed and published, and a copy thereof purporting to be so printed and published is prima facie evidence that the persons specified are registered; and, subject to the provisions of subsection 2 of this section, the absence of the name of any person from such copy shall be prima facie evidence that such person is not registered (ib., s. 41 [1]).

In case of the name of a person not appearing in such copy, a certified copy, under the hand of the registrar, of the entry of the name on the register is evidence that such person is registered (ib., s. 41 [2]).

ANNUAL CERTIFICATE OF REGISTRATION.—Every registered medical practitioner is required to obtain from the registrar annually, before December 31st, a certificate under seal of the college that he is a duly registered medical practitioner (Act 1891, c. 26, s. 8).

On payment of all fees and dues payable by such practitioner to the college, the registrar is required to write his name and the date on the margin of the certificate, and the certificate is deemed to be issued only from such date; any fees properly charged during the time in which a name was erased from the register are legally recoverable on production of the certificate of registration at time of suit (ib.).

No certificate is issued to any practitioner indebted to the college, nor until the annual fee for the certificate prescribed by the statute and the by-laws of the college is paid (ib.).

If a practitioner omits to take out such certificate, he shall not be entitled thereto until he pays the certificate fee, and any other fees or dues which he owes the college (ib.).

After twelve months’ default in taking out such certificate, and two months’ notice of default by registered letter to the registered address of the defaulter, if payment is not made, the registrar is required to erase his name and the provisions as to unregistered practitioners forthwith apply (ib.).

Such practitioner may, unless otherwise disqualified, obtain re-registration and re-instatement to full privileges by applying to the registrar and paying up the fees and dues and taking out his certificate (ib.).

NEGLECT TO REGISTER.—Those entitled to register and neglecting so to do are not entitled to any rights or privileges conferred by registration, and are liable to all the penalties against unqualified or unregistered practitioners (Rev. St., 1887, c. 148, s. 42).

FRAUDULENT REGISTRATION.—If a person procures registration by means of false or fraudulent representations it is lawful for the registrar, on a receipt of sufficient evidence of such falsity or fraud, to represent the matter to the council, and on the written order of the president, attested by the seal of the college, to erase his name from the register and publish the fact and cause of erasure in the Ontario Gazette; and after such notice such person ceases to be a member of said college and to enjoy the privileges conferred by registration without the express sanction of the council (ib., s. 44 [1]).

OFFENCES AND PENALTIES.—Wilfully procuring or attempting to procure registration by false or fraudulent representations is punishable with a penalty not exceeding $100. Knowingly aiding and assisting therein is punishable with a penalty of from $20 to $50 for each offence (ib., s. 44 [2]).

Practising without registration for hire, gain, or hope of reward is punishable with a penalty of from $25 to $100 (ib., s. 45).

A person wilfully or falsely pretending to be a physician, doctor of medicine, surgeon or general practitioner, or assuming any title, addition, or description other than that he actually possesses and is legally entitled to, is punishable with a penalty of from $10 to $50 (ib., s. 46).

A person taking or using a name, title, addition, or description implying or calculated to lead people to infer that he is recognized by law as a physician, surgeon, accoucheur, or licentiate in medicine, surgery, or midwifery is punishable by a penalty of from $25 to $100 (ib., s. 47).

UNREGISTERED PERSONS.—No person is entitled to recover a charge for medical or surgical advice or attendance or the performance of any operation or any medicine prescribed or supplied unless he produces to the court a certificate that he is registered; but this section does not extend to the sale of drugs or medicines by a licensed chemist or druggist (ib., s. 48, as amended Act 1891, c. 26, s. 2).

No person shall be appointed as a medical officer, physician, or surgeon in any branch of the public service, or in any hospital or other charitable institution not supported wholly by voluntary contribution, unless he be registered (ib., s. 49).

No certificate required from any physician, surgeon, or medical practitioner is valid unless the signer be registered (ib., s. 50).

COSTS.—The justice of the peace having jurisdiction of a prosecution may award payment of costs in addition to the penalty, and in default of payment may commit to the common jail for a period not exceeding one month unless the penalty and costs are sooner paid (ib., s. 51).

APPEAL.—Any person convicted who gives notice of appeal must give satisfactory security for the amount of the penalty and the costs of conviction and appeal (ib., s. 52).

PROOF.—In any trial under the act, the burden of proof as to registration is on the person charged (ib., s. 53).

Where proof of registration is required, the production of a printed or other copy of the register certified under the hand of the registrar for the time being is sufficient evidence of all persons who are registered practitioners, and any certificate upon such copy purporting to be signed by any person in his capacity of registrar is prima facie evidence that such person is registrar without proof of his signature or of his being registrar (ib., s. 54).

LIMITATIONS OF PROSECUTIONS.—Prosecutions are limited to commence within one year from the date of the offence (ib., s. 55)

STAY.—The council may, by order signed by its president having the seal of the college appended, stay proceedings in any prosecution when deemed expedient (ib., s. 56).

PROSECUTOR.—Any person may be prosecutor or complainant (ib., s. 57 [2]).

QUALIFICATION.—Schedule B referred to in the act is as follows:

1. A license to practise physic, surgery, and midwifery, or either, within Upper Canada under the acts of Upper Canada, 59 G., III., c. 13, and 8 G., IV., c. 3, respectively.

2. A license or diploma granted under 2 Vict., c. 38, or under the Consolidated Statutes for Upper Canada, c. 40, or any act amending the same.

3. A license or authorization to practise physic, surgery, and midwifery, or either, within Lower Canada, whether granted under ordinance 28 G., III., c. 8, or act 10 and 11 Vict., c. 26, and acts amending the same, or under c. 71 of the Consolidated Statutes for Upper Canada, or any act amending the same.

4. A certificate of qualification to practise medicine, surgery, and midwifery, or either, hereafter granted by any colleges or bodies named or referred to in sec. 6.

5. A medical or surgical degree or diploma of any university or college in Her Majesty’s dominions or of such other universities or colleges as the council may determine.

6. A certificate of registration under the Imperial Act 21 and 22 Vict., c. 90, known as “The Medical Act,” or any act amending the same.

7. A commission or warrant as physician or surgeon in Her Majesty’s military service.

8. Certificates of qualification to practise medicine under any of the acts relating to homœopathy or the eclectic system of medicine.

FEES.—To registrar, for transfer under sec. 9 (2), $2.

To registrar, for registration under sec. 24, not more than $10, to be fixed by the by-laws of council.

To registrar, for registration under sec. 25, such fees as the council may by general by-law establish.

To registrar, for copies under sec. 38, 5 cents a folio.

Members are required to pay an annual fee to the college; the amount and means of enforcing which are in the discretion of the elected members of the council (Act 1893, c. 27, s. 6).

PRINCE EDWARD ISLAND.

MEDICAL SOCIETY.—The members of the medical profession constitute a body corporate under the name of the “Medical Society of Prince Edward Island” (Act 1892, c. 42, s. 1).

Persons registered under the act 34 Vict., c. 25, or 37 Vict., or the Prince Edward Island Medical Act of 1890, are members of the society and entitled to register under this act without a fee (ib., s. 2).

All persons registered under this act are members of the said society (ib., s. 3).

REGISTRATION.—There is a council of said society, composed of seven members of the society elected by the society (ib., s. 4), which is required to appoint a registrar among other officers (ib., s. 6); and to cause him to keep a register of the name of every person registered under this act, or the acts mentioned in sec. 2, and from time to time of the names of all persons who have complied with this act and the rules and regulations made by the council respecting the qualifications of practitioners of medicine, surgery, or midwifery, which is called the Prince Edward Island Medical Register; and only those persons whose names are inscribed therein are qualified and licensed to practise medicine, surgery, or midwifery, except as hereinafter provided (ib., s. 8).

The registrar is required to keep his register correct, and to make the necessary alterations in the addresses and qualifications of persons registered (ib., s. 9).

The council is required to admit to registration, on the payment of the registration fee, all persons duly registered by the medical council of Great Britain or otherwise authorized to practise medicine, surgery, or midwifery in the United Kingdom of Great Britain and Ireland (ib., s. 10).

Every person who holds a medical or surgical degree or diploma dated prior to January 1st, 1880, from any university, college, or school of medicine in Great Britain, Ireland, or Canada, or any of the universities or colleges in the United States mentioned in Schedule A, is entitled to register on producing to the registrar such diploma or satisfactory evidence of the qualification in respect whereof he seeks to be registered (ib., s. 11).

Every person desirous of being registered, not registered under the acts mentioned in sec. 2, and who had not become possessed of a diploma as provided in sec. 11, must, before being entitled to register, be examined as to his knowledge and skill for the efficient practice of his profession before the medical council, and on passing the examination required and producing proof of study in medicine, surgery, and midwifery four years, one of which may be with a registered medical practitioner, shall, subject to the next section, be entitled to register and by virtue of such registration to practise medicine, surgery, and midwifery; provided, the council may, if it see fit, dispense with the examination in any case (ib., s. 12).

No person commencing the study of medicine on or after September 1st, 1892, shall be entitled to register unless he has passed a matriculation examination equivalent to that of the College of Surgeons of London, or shall hold a license as a first-class teacher in this province, or shall have obtained from the council a certificate that he has satisfactorily passed a matriculation examination in the subjects specified in Schedule B.

Any graduate or student matriculated in the arts in any university in Her Majesty’s dominions shall not be required to pass the matriculation examination (ib., s. 13).

The council may grant a license to practise medicine, surgery, or midwifery to an applicant at the time of the passage of this act practising medicine, surgery, or midwifery, or any of them, in Prince Edward Island, on a preliminary examination as the council may think necessary for the public safety, provided such person shall have practised five years in the province, but such person is not thereby entitled to registration (ib., s. 15).

When there has been established an authorized examining body or an institution recognized by the legislature of any other province of the Dominion of Canada as the sole examining body for granting certificates of qualification, and where the curriculum is equal to that appointed by the medical council of Prince Edward Island, the holder of such certificate shall, upon due proof, be entitled to registration by the council of Prince Edward Island, if the same privilege is accorded in such other province to those registered in Prince Edward Island (ib., s. 16).

The council is required to hold examinations at least every three months, if required, for candidates for registration, at such places and times and in the same manner as the council may direct (ib., s. 18).

Every person registered who obtains a higher degree or other qualification shall, on the payment of such fees as the council shall appoint, be entitled to have it registered in substitution for or in addition to the qualification previously registered (ib., s. 19).

No qualification is entered unless the registrar be satisfied, by proper evidence, that the person claiming is entitled to register it. There is an appeal to the council; any name proved to the council to have been fraudulently or incorrectly entered may be erased by an order in writing of the council (ib., s. 20).

If the registrar is dissatisfied with the evidence he may, subject to appeal to the council, refuse registration until the person claiming it has furnished evidence to the satisfaction of the registrar, duly attested by oath or affidavit before a notary public or justice of the peace (ib., s. 21).

A medical practitioner guilty of infamous or disgraceful conduct in a professional respect is liable to have his name erased, and if he apply for registration the council may refuse it (ib., s. 22).

The registrar may publish in a newspaper or newspapers of Prince Edward Island the fact that the name of such person has been erased, and the cause of the erasure, but not until the appeal, if any has been taken within the time allowed, has been disposed of (ib., s. 23).

Where the council refuse to register, or direct an erasure, the entry shall not be again made except by direction of the council or the order of the supreme court or a judge thereof (ib., s. 24).

Five days’ notice of the meeting of the council for the hearing of an appeal under sec. 2 must be served on the person charged, embodying a copy of the charges or a statement of the inquiry and the time and place of meeting (ib., s. 25).

RIGHTS OF REGISTERED PERSONS.—Every person licensed or registered under the act is entitled according to his qualifications to practise medicine, surgery, and midwifery, or any of them, as the case may be, and recover with costs his reasonable charges for professional aid, advice, and visits, and the cost of medicines or medical and surgical appliances rendered or supplied by him to his patient (ib., s. 26).

LIMITATIONS.—Twelve months is established as the period of limitations for an action from negligence or malpractice against a person registered (ib., s. 27).

EVIDENCE.—The registrar is required, under the direction of the council, to print and publish once in two years a register of the names of all persons registered, with the residence and medical title, diploma, and qualification conferred by any college or body, with the dates thereof, as existing on the day of the publication. A copy of such register, for the time being, purporting to be so printed and published, is prima facie evidence that the persons specified are registered. The absence of a name from such copy is prima facie evidence that such person is not registered.

In case a name does not appear in the copy, a certified copy, under the hand of the registrar of the council, of the entry of a name is evidence that such person is registered (ib., s. 28).

FRAUDULENT REGISTRATION.—If a person be registered by false or fraudulent representations the registrar may, on the receipt of sufficient evidence thereof, report the matter to the council, and on the order of the council erase his name from the register and make known the fact and cause by a notice in the newspaper or newspapers on Prince Edward Island (ib., s. 29 [1]).

OFFENCES AND PENALTIES.—Wilfully procuring or attempting to procure registration by false or fraudulent representation is punishable with a penalty not exceeding $50. Knowingly aiding and assisting therein is punishable with a penalty of from $10 to $25 for each offence (ib., s. 29 [2]).

Without registration or license, practising for hire or hope of reward or advertising to give advice in medicine, surgery, or midwifery is punishable with a penalty not exceeding $25 (ib., s. 30).

Wilfully or falsely pretending to be a physician, doctor of medicine, surgeon, or general practitioner, or assuming a title, addition, or description not actually possessed, or pretending to be recognized by law as a physician, accoucheur, or a licentiate in medicine, surgery, or midwifery, is punishable with a penalty not exceeding $25 (ib., s. 31).

UNREGISTERED PERSONS.—No person is entitled to recover a charge for medical or surgical advice or attendance or for the performance of a surgical operation unless registered, licensed, or otherwise authorized under this act (ib., s. 32).

No person is to be appointed as a medical officer, physician, or surgeon in any branch of the public service, or any hospital or other charitable institution unless registered (ib., s. 33).

COSTS.—On prosecution, costs may be awarded and the offender may be committed to a common jail in default of paying the penalty and costs, for not exceeding one month (ib., s. 34).

APPEAL FROM CONVICTION.—A person appealing from conviction is required to give satisfactory security for the penalty, costs of conviction, and appeal before released from custody (ib., s. 35).

LIMITATION OF PROSECUTIONS.—Prosecutions are required to be commenced within six months from the date of the offence (ib., s. 36).

PROSECUTOR.—Any person may be prosecutor or complainant (ib., s. 37).

APPEAL FROM REGISTRAR’S DECISION.—A person aggrieved by the decision of the registrar may appeal to the council, and persons aggrieved by the decision of the council may appeal to the supreme court of the province, which decision shall be final. The act prescribes the procedure on appeal (ib., s. 38, 39).

POWERS OF COUNCIL.—The council may make by-laws for carrying out the act, to be approved by the lieutenant-governor in council, but nothing shall prevent any registered medical practitioner from giving medical treatment or advice to any person by reason of such person having previously engaged the services of any other physician (ib., s. 40).

The council is authorized to make regulations regarding the holding of examinations and the subjects of examinations (ib., s. 41)

EXCEPTIONS.—The act does not prevent any person from giving necessary medical or surgical aid or attendance to any one in urgent need of it provided it be not for hire or gain, nor the giving of it be made a business or means of livelihood; nor does it prevent women from practising midwifery, or any person from practising dentistry or treating cases of cancer by external application, and charging for such service and suing for and recovering reasonable charges; nor does it prevent a druggist, apothecary, or storekeeper from suing for and recovering the price of drugs or chemicals supplied or sold by him (ib., s. 42).

The act does not prevent a person not holding a medical degree, license, or diploma from a university or college from practising medicine, surgery, or midwifery provided he was engaged in such practice in the province for five years immediately before the passage of the act, nor from recovering with costs his reasonable charges for professional aid, advice, and visits and the cost of medicine or other medical or surgical appliances rendered or supplied by him to his patients (ib., s. 43).

APPEAL ON PROSECUTION.—Appeal from the decision on prosecution may be taken to the supreme court (ib., s. 44).

Schedule A:

University of Pennsylvania, Philadelphia, Pa.

Jefferson Medical College, Philadelphia, Pa.

Bellevue Medical College, New York, N. Y.

University of New York, New York, N. Y.

College of Physicians and Surgeons, New York, N. Y.

Harvard University.

University of Michigan.

Schedule B specifies at length the requirements for the examination mentioned in sec. 13.

FEES.—Persons registered under sec. 2 are not required to pay a fee.

For registration under secs. 11 and 12, not exceeding $20, to be fixed by the society.

To the council, for a license under sec. 15, $5.

An annual fee is required to be paid by members of the society, not more than $5 annually, as levied by the council (ib., s. 17).

For registration under sec. 19, such fees as the council may appoint.

QUEBEC.

COLLEGE OF PHYSICIANS, ETC.—All persons residing in the province authorized to practise medicine, surgery, or midwifery therein, and registered under this law, are constituted a corporation by the name of “The College of Physicians and Surgeons of the Province of Quebec” (R. S., 1888, art. 3,969).

The affairs of the college are conducted by a board of governors, forty in number, chosen as provided in the act and known as the “Provincial Medical Board” (ib., art. 3,972 to 3,975).

QUALIFICATION.—No person can lawfully practise medicine, surgery, or midwifery unless he has obtained a license from the said board and unless he be registered (ib., art. 3,976).

Every person who obtains a medical degree or diploma in any university or college mentioned in art. 3,972 is entitled to such license without examination as to his medical knowledge or skill, provided such diploma has only been given after four years of medical study from the date of admission to study and according to the requirements of the act; provided, the said board has power to grant the same privileges to holders of degrees or diplomas of medicine and surgery from other British colonial or French universities or colleges (ib., art. 3,977).

The colleges referred to in art. 3,792 are: Laval University at Quebec, Laval University at Montreal, University of McGill College, University of Bishops College, The Incorporated School of Medicine and Surgery of Montreal affiliated with the University of Victoria College or with any other British university. The privilege above conferred on holders of degrees or diplomas from British colleges and universities is extended to every person whose name is entered upon the medical register under the Imperial Medical Act of 1886 (49-50 Vict., c. 48) or of any act amending the same (ib., art. 3,977 a, as added by Act 1889, c. 39).

The law prescribes the preliminary qualifications for admission to study medicine, surgery, or midwifery to be ascertained by examination. No one is entitled to the license of the college on presentation of a diploma unless previously admitted to study in accordance with these conditions, or unless he has passed an equivalent preliminary examination before a college, school or board authorized by law to require and cause such preliminary examinations to be passed in Her British Majesty’s other possessions (ib., arts. 3,978, 3,979).

A candidate for a license to practise desiring to be registered, and who has not obtained a degree or diploma in medicine from any institution mentioned in art. 3,972 (supra) must, before being entitled to such license and to register, pass an examination before the board as to his knowledge and skill for the efficient practice of medicine, surgery, and midwifery. Upon passing the examination and proving to the satisfaction of the examiners that he has, in an institution for the teaching of medicine in Her Majesty’s possessions, complied with the rules and regulations made by the provincial board, and on payment of such fees as the board may by general by-law establish, such person shall be entitled to a license (ib., art. 3,980).

All persons coming from any recognized college outside of Her Majesty’s possessions desirous of obtaining a license from the College of Physicians and Surgeons of the province must previously pass a preliminary examination before the examiners appointed by the board or establish to the satisfaction of the board that they have already passed equivalent examinations, and they must moreover follow in one of the schools of medicine in the province a complete course (for six months) of lectures, and such other course or courses as shall be necessary to complete the curriculum required by the board. They may pass their professional examination immediately after their preliminary examination (ib., art. 3,981).

POWERS OF MEDICAL BOARD.—The board of governors of the College of Physicians and Surgeons has among other powers the power to examine all credentials and documents purporting to entitle the bearer to a license to practise and all diplomas, degrees, or other qualifications sought to be registered, and to require the bearer to attest on oath, to be administered by the chairman, that he is the person whose name is mentioned therein, and that he became legally possessed thereof; and to register in the books of the college the name, age, place of residence and birth of every member of the profession practising in the province, the date of his license and the place where he obtained it (ib., art. 3,982).

The provincial medical board, among other powers, has the power to make regulations respecting the tariffs or rates to be charged in towns and counties for medical, obstetrical, or surgical advice, or for attendance or for the performance of any operation or for any medicines prescribed or supplied. The tariff must be approved by the lieutenant-governor in council, and can only come into force six months after its publication once in the Quebec Official Gazette, and that of the order in council approving the same. The tariff does not, in case of suit, obviate the necessity of proof of giving the advice, care, prescriptions, medicines, and other things therein mentioned (ib., art. 3,983).

The said board has power to fix the fees for license and registration (ib., art. 3,984).

QUALIFICATIONS OF CANDIDATE.—The qualifications of a candidate for a license are:

1. That he holds a certificate of study from a licensed physician for the period intervening between the courses of lectures which he has followed.

2. That he has reached the age of twenty-one years.

3. That he has followed his studies during a period of not less than four years, commencing from the date of his admission by the board to study medicine.

4. That during said four years he attended at some university, college, or incorporated school of medicine within Her Majesty’s possessions not less than two six-months’ courses of general or descriptive anatomy, of practical anatomy, of surgery, of the practice of medicine, of midwifery, of chemistry, of materia medica and general therapeutics, of the institutions of medicine or physiology and general pathology, of clinical medicine, and of clinical surgery; one six-months’ course or two three-months’ courses of medical jurisprudence, one three-months’ course of botany, one three-months’ course of hygiene, and a course of not less than twenty-five demonstrations upon microscopic anatomy, physiology, and pathology.

5. That he attended the general practice of a hospital in which are contained not less than fifty beds under the charge of not less than two physicians or surgeons, for not less than one and one-half years or three periods of not less than six months each.

6. That he has attended six cases of labor and compounded medicines for six months.

Each six-months’ course shall have consisted of one hundred and twenty lectures except in the case of clinical medicine, clinical surgery, and medical jurisprudence.

Of four years’ study required by this section, three six-months’ sessions, at least, must be passed in attending upon lectures at a university, college, or incorporated school of medicine recognized by the board.

The first of such courses must have been attended during the session immediately succeeding the preliminary examination, and the last during the fourth year of study, and the candidates must undergo an examination on the final subjects of the curriculum at the end of the session in the fourth year of study (ib., art. 3,985).

MEMBERS OF COLLEGE.—All persons obtaining a license to practise from the College of Physicians and Surgeons of the province are members of the college, but are not eligible for governors within four years from the date of their admission as members (ib., art. 3,986).

WOMEN.—The provincial medical board has power to make regulations respecting the admission of women to the study and practice of midwifery. Women who were legally qualified on the 31st of October, 1879, to practise as midwives in the province, while required to conform to the rules of said college, retain their right. Nothing in the act or the regulations shall prevent women in the country from practising midwifery or assisting at accouchements without being admitted to the study or practice of midwifery; but they must obtain a certificate from a duly licensed physician certifying that they have the necessary knowledge (ib., art. 3,987).

REGISTER.—The medical board is required to cause to be kept by the registrar a register of persons duly licensed and registered, and who have complied with the law and the regulations of the board, and those persons only whose names are inscribed therein are deemed to be qualified and licensed (ib., art. 3,988).

The registrar is required from time to time to make the necessary alterations in the register (ib., art. 3,989).

EVIDENCE.—The registrar, under the direction of the board of governors, causes to be printed, published, and distributed to the members, from time to time, a copy, called The Quebec Medical Register, of the register, containing names, surnames, residences, medical titles, diplomas, and qualifications conferred by a college or other medical body, with the dates of the same. A printed copy, certified under the hand of the registrar as such, is prima facie evidence that the persons named and entered have been registered in accordance with this law. The absence of the name of any person from such copy is prima facie proof that such person has not been lawfully registered; provided always in case a person’s name does not appear on such printed copy, a copy or extract from the register certified by the registrar of the college of the entry of such person’s name on the register is proof that such person is duly registered (ib., art. 3,990).

A certificate under the hand of the registrar of the payment of the annual contribution of members of the college is prima facie evidence that such payments have been made (ib., art. 3,991).

NEGLECT TO REGISTER.—A person entitled to register who neglects to register is not entitled to practise medicine, surgery, or midwifery, or to claim any of the rights and privileges conferred, and is liable for all penalties imposed for practising without registration, saving the right of certain members holding a license from the College of Physicians and Surgeons of Lower Canada (ib., art. 3,992).

ESTABLISHED PRACTITIONER.—A person who has attended medical lectures during three sessions of a medical school in the British possessions, and who has actually been engaged in the practice of medicine for over thirty years in the province, may, on proof of these facts to the satisfaction of the provincial medical board, and producing a certificate signed by two resident medical practitioners in the neighborhood where he has practised that he has succeeded in his profession, and is entitled to the consideration of the board, be entitled to a license and to registration without an examination (ib., art. 3,993).

UNREGISTERED PERSONS.—No person unless otherwise authorized is entitled to recover any charge for medical or surgical advice, or professional service, or for the performance of any operation, or for any medicines prescribed or supplied, nor is he entitled to any of the rights or privileges conferred, unless he has registered according to law and paid his annual contribution to the college (ib., art. 3,994).

No certificate required from any physician or surgeon or medical practitioner is valid unless the signer is registered (ib., art. 3,995).

PERSONS GUILTY OF FELONY.—Any registered member of the medical profession convicted of felony forfeits his right to registration, and the medical board causes his name to be erased from the register (ib., art. 3,996).

If a person known to have been convicted of felony presents himself for registration, the registrar is required to refuse him registration (ib., art. 3,997).

OFFENCES AND PENALTIES.—A person not entitled to register convicted of having practised in contravention of this law, for reward or the hope of reward, is liable to a penalty of $50.

A like penalty is incurred by every person assuming the title of doctor, physician, or surgeon, or any other name implying that he is legally authorized to practise, if unable to establish the fact by legal proof, and by every person who in an advertisement in a newspaper or in a written or printed circular, or on business cards or on signs, assumes a designation so as to lead the public to believe that he is duly registered or qualified; and by every person who offers or gives his services as a physician, surgeon, or accoucheur for gain or hope of reward, if he be not duly authorized and registered.

BURDEN OF PROOF.—In every prosecution, proof of registration is incumbent on the party prosecuted.

WITNESSES.—Members of the college are not incompetent witnesses by reason of their membership.

COSTS.—The court imposing a penalty adds costs, and, in default of payment within a delay which it fixes, condemns the defendant to imprisonment in a common jail of the district for sixty days (ib., art. 3,998).

EVIDENCE.—In cases where proof of registration is required, the production of a printed or other copy or extract from the register, certified under the hand of the registrar of the college, is sufficient evidence that all persons named therein are registered practitioners and any certificate upon such proof, or other copy of the register or extract from such register, purporting to be signed by any person in his capacity of registrar of the college, is prima facie evidence that such person is registrar without proof of the signature or of his being in fact such registrar (ib., art. 3,999).

HOMŒOPATHISTS.—The rights of homœopathists are not affected by the foregoing sections (ib., art. 4,002).

The homœopathic physicians and surgeons of the province form a corporation under the name of the Montreal Homœopathic Association (ib., art. 4,003).

The corporation has power to appoint three medical graduates of a British or provincial university or medical licentiates of a British or provincial college or board legally incorporated to be a board of examiners, to examine all persons who may desire to obtain a license to practise homœopathic medicine (ib., art. 4,008).

A person desiring to be examined touching his qualifications to practise according to the doctrines and teaching of homœopathy shall give notice in writing of at least one month to the secretary or treasurer of the association, and show that he is not less than twenty-one years of age; has followed medical studies for not less than four years under the care of one or more duly qualified medical practitioners; has attended at some recognized university or incorporated school of medicine not less than two six-months’ courses of anatomy, physiology, surgery, theory and practice of medicine, midwifery, chemistry, materia medica, and therapeutics respectively, and not less than one six-months’ course of clinical medicine and medical jurisprudence respectively, or their equivalents in time; and shall have complied with the regulations of such university or incorporated school of medicine with regard to such courses, and shall have followed such other course or courses as may hereafter be considered by the board of examiners requisite for the advancement of a medical education.

All such persons shall, at a regularly appointed time and place, be examined on all the aforesaid branches by the board of examiners (ib., art. 4,009).

If the board be satisfied by examination that a person is duly qualified to practise either or all of said branches of medicine, as taught and practised by homœopathists, they shall certify the same under the hands and seals of two or all of such board.

The lieutenant-governor, on receipt of such certificate, may, if satisfied of the loyalty, integrity, and good morals of the applicant, grant to him a license to practise medicine, surgery, and midwifery, or either of them, conformably to the certificate, and all such licensees are entitled to all the privileges enjoyed by licentiates of medicine (ib., art. 4,010).

The corporation appoints a secretary who keeps a register of names of all persons duly licensed to practise medicine, surgery, and midwifery, or either of them, according to the doctrines and teachings of homœopathy.

Only those whose names are inscribed in said register are qualified and licensed to practise according to the doctrines and teachings of homœopathy (ib., art. 4,015).

The said secretary is required to make the necessary alterations in the addresses or qualifications of the persons registered (ib., art. 4,016).

OFFENCES AND PENALTIES.—A person practising according to the homœopathic doctrines for reward in contravention of this act, or assuming a title implying that a person is legally authorized to practise according to homœopathic doctrines, if unable legally to establish such authorization; or by advertisement published in a newspaper or in a written or printed circular, or on business cards or signs, assuming a designation to lead the public to believe that he is duly registered and qualified to practise according to the doctrines of homœopathy; or offering or giving his services as physician, surgeon, or accoucheur for gain or hope of reward, if not duly authorized or registered, is punishable with a penalty of $50.

BURDEN OF PROOF.—In every prosecution, the proof of registration is incumbent on the party prosecuted.

COSTS.—The court may condemn the defendant to pay $50 in addition to costs within a delay which it determines, and to imprisonment of sixty days in a common jail of the district on default of payment within the delay (ib., art. 4,017).

WITNESSES.—A member of the corporation is not an incompetent witness on account of his membership (ib., art. 4,018).

FEES.—The provincial board of medical examiners may establish examination fees (ib., art. 3,981).

Members of the College of Physicians and Surgeons of the Province of Quebec are required to pay an annual fee of $2 (ib., art. 3,986).

FORENSIC MEDICINE.

THANATOLOGICAL.

THE

LEGAL STATUS OF THE DEAD BODY;

THE DISPOSAL AND OBLIGATION TO DISPOSE OF THE SAME; HOW AND BY WHOM IT MAY BE EXHUMED OR REMOVED; AUTOPSIES, BY WHOM ORDERED; THE RIGHTS OF RELATIVES AND ACCUSED PERSONS.

INCLUDING

AN APPENDIX CONTAINING A SYNOPSIS OF THE STATUTES OF THE DIFFERENT UNITED STATES AND TERRITORIES CONCERNING SAME.

BY

TRACY C. BECKER, A.B., LL.B., ETC.,

Counsellor at Law, etc.; Professor of Civil Law and Medical Jurisprudence, Law Department, University of Buffalo.

LEGAL STATUS OF THE DEAD BODY.

=Disposal and Obligations to Dispose of the Same.=—There is no right of property, in the ordinary sense of the word, in a dead human body; but for the health and protection of society it is a rule of the common law, and which has been confirmed by statutes in civilized states and countries, that public duties are imposed upon public officers, and private duties upon the husband or wife and the next of kin of the deceased, to protect the body from violation and see that it is properly interred, and to protect it after it is interred. A parent is bound to provide Christian burial for a deceased child, if he has the means, but if he has not the means, though the body remains unburied so long as to become a nuisance, he is not indictable for the nuisance although he could obtain money for the burial expenses by borrowing it of the poor-law authorities of the parish, for he is not bound to incur a debt. (Reg. v. Vann, 2 Div. C. C., 325; 15 Jur., 1,090.) On the other hand it has been held in England, that every householder in whose house a dead body lies is bound by the common law, if he has the means to do so, to inter the body decently, and this principle applies where a person dies in the house of a parish or a union. (Reg. v. Stewart, 12 A. & D., 1,272.) And the expense may be paid out of the effects of the deceased. (Tugwell v. Hayman, 3 Camp., 298, and note.)

In Pierce v. The Proprietors Swan Point Cemetery, 10 R. I., 227, s. c., 14 Am. Rep., 667, the Court said: “That there is no right of property in a dead body, using this word in its ordinary sense, may be well admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead; a duty, and we may also say a right, to protect from violation; it may, therefore, be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case; ... but the person having charge of it cannot be considered as the owner of it in any sense whatever, he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it.” See also Wyncoop v. Wyncoop, 42 Pa. St., 293; 4 Albany Law Jour., 56; Snyder v. Snyder, 60 How. Prac., 368; Weld v. Walker, 130 Mass., 422; Guthrie v. Weaver, 1 Mo. Apps., 136; Johnson v. Marinus, 18 Abb. N. C., 72, and note.[493]

The law casts the duty of burial of the wife upon the husband, and of the husband upon the wife. In Secord v. Secord (cited in note 1 above), the Court said: “There are cogent reasons connected with public policy and the peace of families, where in the absence of testamentary disposition the possession of a corpse and the right to determine its burial should follow the administration of the estate.” Inasmuch as the husband has the first right to administer upon the estate of the wife, and the wife upon the estate of the husband, the law imposes the correlative duty of burial upon the person having such right; and so it has been held that the husband is liable for the necessary expense of the decent interment of his wife from whom he has been separated, whether the party incurring the expense is an undertaker or mere volunteer.[494]

Where the deceased leaves a will appointing executors, the executors have a right to the possession of the body, and the duty of burial is imposed upon them, but it has been doubted whether at common law a direction by will concerning the disposal of the body could be enforced, and therefore the right to make such direction has been conferred by statute in several States.[495]

And where a widow ordered a funeral of her husband, it was held that she was liable for the expense, although she was an infant at the time, the Court holding that the expense fell under the head of necessaries, for which infants’ estates are liable.[496]

If there be no husband or wife of the deceased, the nearest of kin in the order of right to administration is charged with the duty of burial.[497]

Such acts as casting a dead human body into a river without the rites of sepulture (Kanavans Case, 1 Me., 226); stealing a corpse (2 East, PC., 652) or stealing for dissection a dead body of one executed when the death sentence did not direct dissection (Rex v. Cundick, D. & R., n. p., 13), were indictable offences at common law.[498]

In the works of the early dramatists, and by some writers of fiction, it has been stated, or implied, that the body of a deceased person could be seized and detained to compel the payment of his debts. This was never the law. In Jones v. Ashburnham, 4 East, 460, it was held that to seize a dead body on pretence of arresting for debt would be contra bonos mores, and an extortion on the relatives, and that case distinctly overrules any authority to be derived from the case of Quick v. Coppleton, 1 Vent., 161, to the effect that forbearance to seize or hold a body upon such a pretence would afford any consideration for a promise to pay a debt. So, also, where a jailer refused to give up a body of a person who had died while a prisoner in execution in his custody, to the executors of the deceased, unless they would satisfy certain claims against the deceased due the jailer, the Court issued a peremptory mandamus in the first instance, commanding that the body should be delivered up to the executors (Rex v. Fox, 2 Q. B., 247). And in R. v. Scott, 2 Q. B., 248, it was said, that a jailer who should attempt to do so would be guilty of misconduct in his public character, for which he would be liable to prosecution.[499]

How and by Whom the Dead Human Body may be Removed or Exhumed.—Where the right of burial has been exercised, and the body interred in its final resting-place, no person has any right to interfere with it without the consent of the owner of the grave, or of the properly constituted public authorities. In Foster v. Dodd, 8 D. & E., 842-854, it was held, that a dead body belongs to no one, and is, therefore, under the protection of the public. If it lies in consecrated ground, ecclesiastical authorities will interpose for its protection; but whether in ground consecrated or unconsecrated, indignities offered to the remains or the act of indecently disinterring them, are the ground of an indictment.[500]

Even the purchaser of land upon which is located a burial-ground may be enjoined from removing bodies therefrom, if he attempts to do so against the wishes of the relatives or next of kin of the deceased. Every interment is a concession of the privilege which cannot afterward be repudiated, and the purchaser’s title to the ground is fettered with the right of burial.[501]

On the other hand, the right of the municipal or state authorities, with the consent of the owner of the burial lot or in the execution of the right of eminent domain, to remove dead bodies from cemeteries is well settled.[502]

After the right of burial has once been exercised by the person charged with the duty of burial, or where such person has consented to the burial by another person, no right to the corpse remains except to protect it from unlawful interference.[503]

On the other hand, where a husband did not freely consent to the burial of his wife in a lot owned by another person, it was held that a court of equity might permit him, after such burial, to remove her body, coffin, and tombstones to his own lot, and restrain any person from interfering with such removal.[504]

In Rhodes v. Brandt, 21 Hun, N. Y., 1, the defendant brought an action against one Beelard to recover for services rendered by him, as a physician, in treating a child of Beelard’s for a fracture of the thigh-bone, in which action Beelard set up malpractice on the part of the defendant as a defence. During the pendency of the action the child died and was buried. Subsequently Beelard, the father, acting under the advice of his counsel, directed and allowed the plaintiff, a physician, to cause the body of the child to be exhumed, and a portion of the thigh-bone to be removed, in order that it might be used in evidence on the trial of the question of malpractice. After the bone was removed, the body was returned to the grave. The defendant thereupon caused the plaintiff to be arrested for unlawfully removing the body from the grave contrary to the provisions of the statute, and the plaintiff sued the defendant for malicious prosecution. The Court held that the plaintiff had not removed the body from the grave “for the purpose of dissection or from mere wantonness,” as these terms were used in the statute (3 R. S., 6th ed., 965), for violation of which he had been arrested, nor had he committed any offence against public decency or the spirit of the statute.[505]

Autopsies, by Whom Ordered; the Rights of Relatives and Accused Persons.—As shown in a previous article in this volume, on the Powers and Duties of Coroners and Medical Examiners, in cases of sudden or suspicious death, it has been the law for nearly a thousand years that an inquisition or inquest super visum corporis must be held by an officer known as a coroner, and that this office and its powers and duties were inherited by this country as part of the English common-law system in force at the time of the formation of the republic of the United States. When a body has been buried, and the coroner believes that an inquest is necessary, he has power to disinter the body and hold an inquest, and he may direct a post-mortem examination to be made, but after having done so he must cause the body to be reinterred. It is now well settled that in holding such an inquest, and making such an autopsy or post-mortem examination required by his official duty, the coroner has authority to employ, and it is his duty to employ, professional skill and aid, and his contract will bind the county to pay a reasonable compensation for the same.[506]

As will be seen below from a synopsis of the statutes relating to this matter, many of the States have enacted statutes defining and prescribing the duties of the coroner and other public officers in such cases. At an early period in England (see 2 and 3 Will. IV., chap. 75, sec. 7) it was enacted by the English Parliament that any executor or other person having lawful possession of the body of a deceased person, and not being an undertaker or other party entrusted with the body for the purpose only of interment, might lawfully permit the body of such deceased person to undergo an anatomical examination, unless to the knowledge of such executor or other party such person should have expressed his desire during his life in writing, or verbally in the presence of two or more witnesses during his illness whereof he died, that his body after death might not undergo such examination, or unless the surviving husband or wife or known relative of the deceased shall require the body to be interred without such examination. By another section of this statute (sec. 10), professors of anatomy and other persons duly licensed were declared not liable to punishment for having in their possession human bodies when having such possession according to the provisions of the act.

Section 308 of the New York Penal Code, subdivision 3, as amended by chapter 500, Laws 1889, enacts that whenever and so far as the husband, wife, or next of kin of the deceased, being charged by law with the duty of burial, may authorize dissection for the purpose of ascertaining the cause of death and no further, the right exists to dissect the dead human body. The same statute also provides that whenever any district attorney of that State, in the discharge of his official duties, shall deem it necessary, he may exhume, take possession of, and remove the body of a deceased person, or any portion thereof, and submit the same to a proper physical or chemical examination or analysis, to ascertain the cause of death, which examination or analysis will be made on the order of a justice of the Supreme Court of the State, or the county judge of the county in which the dead bodies shall be, granted on the application of the district attorney, with or without notice to the relatives of the deceased person, or to any person or corporation having the legal charge of such body, as the court may direct. The district attorney shall also have power to direct the sheriff, constable, or other peace officer, and employ such person or persons as he may deem necessary to assist him, in exhuming, removing, obtaining possession of, and examining physically or chemically such dead body, or any portion thereof; the expense thereof to be a county charge paid by the county treasurer on the certificate of the district attorney.

The matter of ordering autopsies and dissections of dead bodies, or exhuming the same for that purpose or other purposes, is a matter of so much public importance that it has been regulated in nearly all of the United States by statutory enactments, which together with the other statutes relating to the subject-matter of this article are hereunto appended.

The author of this article is greatly indebted for assistance in preparing the same, and in compiling these statutes, to Mr. Amasa J. Parker, Jr., of the Albany, N.Y., bar.

Spotted a typo or a problem in this chapter? Tell us