A medico-legal treatise on malpractice and medical evidence : comprising the elements of medical jurisprudence

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Preface

The active practice of Medicine and Surgery for several years, having taught me something as to the magnitude of the duties and difficulties, the wants and liabilities of the Medical profession ; and a corresponding length of time devoted to the study and practice of Law, having deeply impressed me with the importance of the two professions, relatively as well as independently considered, developing also the obvious fact, that legal men, and legal works, devote too little attention to Medico-legal subjects ; — I have thought that in no way could I better serve the interests of the two great professions to which I have devoted my life, and promote the great ends of Science and Justice, than by endeavoring to embody in a concise, complete, and comprehensive work, all the settled principles, and known authorities, as well as the result of my own thought and experience, upon the subject of Majlpeactice and Medical Evidence.

"While a member of the Medical profession, and in the practice of Surgery ; and also, during my subsequent practice at the Bar ; my attention has been repeatedly and imperatively called to the subject of Malpractice, as well as that of Medical Evidence. In looking around for light upon these important questions, I was astonished, and disappointed to find nothing upon the subject of Malpractice in our works upon Medical Jurisprudence, where I thought it properly belonged ; nor did the works on the practice of Surgery afford the necessary information. Except the able reports of Prof. Hamilton upon Deformities after Fractures, made to the American Medical Association, and where now and then a case has found its way into the medical periodicals, this subject is scarcely alluded to in the whole range of medical literature.

I have been equally surprised to find the same deficiency existing in the elementary works of the Legal profession ; although it is

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VI PREFACE.

well known that the attorney experiences the greatest difficulty, doubt, and perplexity, in preparing cases involving the question of Malpractice, and in the examination of medical witnesses. The difficulties which embarrass the lawyer in this particular field of legal investigation, arise from the fact that the medical aspect of these questions, — of Malpractice in particular, — is to him buried in the technically intricate labyrinths of another science, while his own authorities lie scattered in undigested confusion throughout the vast range of law Reports.

On viewing the field, therefore, from these two points, — the Medical and the Legal, — and being fully aware of the complicated difficulties and perplexities surrounding the whole subject, and deeply impressed with the magnitude of the undertaking, I felt that valuable service might be rendered by me, to the two professions, by attempting the systematic arrangement of a medico-legal treatise ; thus supplying, if possible, a general want. A somewhat extensive correspondence with leading physicians, surgeons and lawyers, in this and other States, has encouraged and confirmed the idea, — they uniformly agreeing with me as to the necessity of such a work.

It is now submitted, such as it is, with some confidence, to the hands and judgment of the members of the two professions for whom it is designed.

"Whatever the value of the work may be, it has been the result of much thought, and long labor ; and I claim fur it complete originality, in the general plan and treatment of the subject, whether good or bad.

It is my earnest desire that its mission may be beneficial, by relieving, to some extent, the labors of the attorney, while it sets forth and maintains the rights of the medical and surgical practitioner,— not shielding the culpable and guilty, — and at the same time bringing the two professions into closer union, producing greater harmony, sympathy and usefulness.

J. J. ELTTELL.

Cleveland, December 1, 1S59.

MALPEACTICE AND MEDICAL EVIDENCE.

Introduction

THE GENERAL PLAN AND SCOPE OF THE WORK.

Frequent, important, and troublesome as are the cases of alleged Malpractice by medical men, there is yet no work treating upon the subject, and medical and legal inquirers after information upon the question, are obliged to seek it in the vast range of elementary works upon Medicine and Law, and in the unlimited field of Reports, constituting the larger part of every lawyer's library.

The author trusts that in the first part of this work he has supplied this desideratum, — at least, to a considerable extent.

Happily, Criminal Malpractice is but rarely met with in courts of justice; while Civil suits for damages are of a frequency, alarming, both to the profession of medicine and to the public. Suits of this class, in some parts of the country, seem to be on the increase. So common an occurrence is it for the surgical treatment of the oldest and best physicians and surgeons, in general practice, to be called in question and overhauled in courts of justice, that there is at this time a general feeling of uneasiness, and a conviction that the business is at best very dangerous, so far as property and reputation are concerned. The result is, that some of the most thoroughly qualified medical men, utterly refuse to attend surgical cases, — confining their practice to

8 INTRODUCTION.

that of medicine alone. They say the compensation usually attending the practice of surgery does not warrant a man of property in exposing himself to the probability of having, sooner or later, to defend his treatment in an action for Malpractice. Victory in these cases is in one sense, defeat, because the disgrace, vexation, and cost, are generally ruinous.

So great has the evil of this indiscriminate attack upon the members of the medical profession become, that some of the State Medical Associations have felt called upon to take the matter into consideration, and act upon it as one of grave importance.

In 185G, the committe on surgery, through their able chairman, Dr. J. W. Hamilton, reported to the Ohio State Medical Association, that, in their opinion, the subject of Malpractice was at that time of more importance to the profession than any other connected with surgery. They say : " there is a standing and apparently cumulative evil, — an evil bearing with the weight of an incubus upon the profession. It is the frequency of difficulties on account of alleged Malpractice in the treatment of fractures. The cases reported, with several others not included in the report, were forced upon the attention of a single member of the committee during the past year, by parties to the difficulty who sought testimony or sympathy. During one week, in as many different counties, four cases were tried."

These statements are illustrated by eight or ten Malpractice cases, in all of which the surgeon had the alternative presented to him of compromising, not only his own reputation, but the honor of his profession, by paying damages, or contesting the question in a court of justice, where a verdict in his favor would be attended with a loss of business, and a heavy bill of expense. Some took one course, and some the other ; all suffering more or less in business and property. The parties sued were all believed to be good and well-educated professional men. In conclusion the report says : " What course shall the profession take in regard to the matter ? Severe implications are being meted out to our

GENERAL PLAN AND SCOPE OF THE WORK. 9

professional brethren on account of imperfections, resident not in themselves, but in their art."1

If it is true that a certain class of citizens, — a particular profession,— is thus situated and exposed without fault on their part, what is the remedy for the evil ? Can not the negligent, careless and ignorant be punished without involving the careful, skillful and innocent? These questions are important.

It is suggested in the report already referred to, that the profession of medicine protect itself thus : " Let it be distinctly understood that those individuals immediately implicated are entitled to the sympathy and assistance of as many of their professional brethren as may be necessary to sustain them. And where it is possible to avoid it, let not a member of the profession be found in the ranks of the prosecution. It is believed that in this way very much may be done to diminish the frequency of the occurrences, and thus afford protection to individuals in the profession, as well as promote its dignity and usefulness."

This plan may be found impracticable ; indeed it always has proved so. Professional sympathy will not remedy the evil.

The only effectual and permanent mode, it is believed, by which the evil can be reached, remedied, and guarded against, is, by elevating the standard of Medico-legal knowledge in the professions of Law and Medicine. It is not to be denied that members of the legal profession, with few exceptions, are imperfectly informed upon medical questions connected with law, though they may be well educated in law generally, and well informed on every other subject.

The science of law and its legitimate details are so boundless, lawyers seem to have no heart or time to look closely and critically into another, sister science, equally extensive and difficult with their own. The reluctance and failure on the part of the

1 Transactions of the Eleventh Annual Meeting of the Ohio State Medical Society, 1856, p. 53.

10 INTRODUCTION.

members of the Bar to study Medico-legal subjects, arises, in part, if not principally, from the bad arrangement, and general character of the works upon Medical Jurisprudence, which pretend to treat upon those matters. The subject of Malpractice being altogether ignored, the attorney is at once startled, if not disgusted, at their theoretical and formidably medical and chemical character ; except which, he thinks he sees but little.

The work written by Mr. Chitty, who was originally educated for the medical profession, is really an elaborate work on Anatomy, Physiology, Pathology, the Practice of Medicine, and Surgery. There is but little Medical Jurisprudence in it, excepting the name, and the study of it is equivalent to the study of medicine in all its departments.

Dr. Beck's great work, consisting of two ponderous volumes, is a vast store-house of undigested facts, collected during a lifetime by its learned author ; many practical and useful, and many valueless. It is a great compilation from every quarter; embodying the history of Medical Jurisprudence; treating upon Chemistry, the Practice of Medicine, etc. As a work of reference it is of much value ; yet so elaborate and so endless are its details, that the practical is often covered up with the useless and obsolete. Almost every case that has ever been published, in any country, in book or newspaper, important or unimportant, here finds a resting-place. Often the circumstances, authority and date of the case are not given, leaving the whole in confusion and doubt.

These old and isolated cases are constantly making trouble in courts. The attention of the medical witness is called to them as contradicting what he avers to be the present state of the question ; and resting, as they do, upon the authority of Beck, much more consequence is given to them than they deserve. This kind of matter should not be embodied in works on Medical Jurisprudence,— it only tends to embarrass both witness and counsel.

Many of the later works upon the subject of Medical Jurisprudence are obnoxious to the same objection, possibly, to a less

GENERAL PLAN AND SCOPE OF THE WORK. 11

degree than the leading ones named. Thus, the attorney is compelled, by the manner in which the subject is treated in these works, to pursue an unnecessarily extensive course of medical reading and study, in order to become at all familiar with the points involved in Medico-legal questions.

Could the subject be presented in a clear and brief manner, so that the medical element entering into the case, and that alone, should appear, — enabling the lawyer to fully comprehend the points and connection, without throwing upon him the laborious and general study of the medical science, — it would go a great way toward encouraging the study of those questions by the members of the Bar ; as they have not the time for a general investigation of all the subjects connected with medicine, unless they neglect something of equal importance.

On the other hand, the medical man has no possible mode of determining the extent of his responsibilities and liabilities, as such, in a case of alleged Malpractice, without a thorough study of the principles of law, as well as a laborious examination of libraries of Reports. He derives no help whatever from the works on Medical Jurisprudence. He may read them all, and he is still in the dark as to the rules of law that bear upon him, and by which he is to be judged ; and from his knowledge of the usual results attending such cases, he is at once discouraged, ready to compromise in any way, and then, perhaps, leave the profession : when, if he could turn with confidence to the correct and highly humane laws applicable to such cases, if properly administered, — ascertaining at once where he stands and what are his chances, — he would take courage and feel comparatively safe.

The author has attempted in this volume to present the Medico-legal questions likely to engage most frequently the attention of attorneys and medical men, in a circumscribed and compact form ; and to reduce, if possible, the voluminous literature of the subject, — scattered throughout law and medicine, — to a practical system : — with what success, others are the judges.

12 INTRODUCTION.

Proceeding upon the idea that much more matter of a strictly theoretical and medical character, is connected with the discussion of Medico-legal subjects, in most works upon Medical Jurisprudence, than is necessary ; tending as it does, to repel, rather than enlighten the legal inquirer, and rendering his search uselessly laborious ; the author has endeavored to strip the subject of all such profitless details and discussions, leaving the consideration of speculative themes to other works and writers.

It is also the aim of the present work to furnish to the medical man that necessary information respecting his legal responsibility as a practitioner and witness, which he has been hitherto unable to attain except by the general study of law. In short, the author believes it possible for both of these classes to arrive at the desired point, and command the necessary information, by a much shorter road than that usually taken, and at a much less expenditure of time.

In the opening chapter of the work, the author has attempted to lay down the general principles of law applicable to medical responsibilities, as held by the courts of England and this country, with full references to the cases where medical men have been tried for alleged Malpractice, as well as to other cases involving the same principles ; then, in a series of chapters, the difficulties peculiar to the medical profession, — its possibilities and its impossibilities,— what the medical practitioner can do and what he can not, — are set forth as concisely as may be, with references. The subjects of Amputations, Fractures and Dislocations, — out of the treatment of which grow the great majority of suits for Malpractice, — are taken up, and an exhibit of the present state of the science in regard to the Surgery of these cases presented ; that just what should be rightfully expected and required of the surgeon, may appear as far as possible, and what should excuse an imperfect result in his treatment. These several subjects are followed by the leading adjudicated cases upon the questions, in English and American courts.

A digest of Prof. Frank II. Hamilton's able and valuable Report

GENERAL PLAN AND SCOPE OF THE WORK. 13

on Deformities after Fractures, and a chapter on the responsibilities of Druggists, with the leading cases where they have been sued, closes the part of the work devoted to Civil Malpractice.

Criminal Malpractice, including the subject of Abortion, is next presented, together with the leading adjudicated cases.

Part Second, is devoted to the consideration of the leading points and subjects involved in Medical Evidence.

The medical man should understand clearly, his rights and duties while discharging the obligations of a witness, if he would acquit himself creditably ; this knowledge he can only gain by giving some attention to the general rules of evidence by which he is governed and guided while in court ; hence, in several chapters the subjects of Evidence in General, Circumstantial Evidence, the Testimony of Experts, Privileged Witnesses and Communications, and Medical Books as Evidence ; are briefly considered. If the medical witness would devote as much time and thought to these several departments of evidence, as the attorney gives to the consideration of the medical questions arising where he is interested, there would at once be a more perfect understanding between the witness and lawyer, and a material cause of irritation and misunderstanding would be removed. Is not this exceedingly desirable ?

It is possible, the importance of the medical witness's position, to himself, and to his profession, and as the vindicator of justice, has been over-estimated in this treatise. It is thought, however, that at this point, the members of the medical profession should make a firm stand, and by their knowledge, candor, and firmness, vindicate their profession before the world. A distinguished lawyer has said : " The condition of a scientific witness must be most awful, who gives any other opinion than that which is infallible. Opinions in cases of poisons we have always considered highly questionable, and requiring the utmost possible care, and especially in the application of new systems, that even have not undergone the test of time and experience. The jurymen shelter themselves under the opinion of the doctor, ignorant of their own

14 INTRODUCTION.

privileges and duties, and not observant of the defendant's rights; and the doctor, thus being superior in matters of science, forgets his limits, and often spreads ruin around."1

In this treatise are discussed only those Medico-legal subjects, which are constantly engaging the attention of courts, and the medical witness ; these, it is believed, are treated thoroughly.

The great and difficult question of Insanity, which is almost entirely in the hands of the medical witness, is examined at considerable length, and the leading adjudicated cases appended. Also, the subject of Poisoning, — by arsenic and strychnia in particular,— is treated, with the leading cases given. Cases of criminal poisoning by arsenic and strychnia are more frequently before the courts than all others ; these, therefore, have been fully considered in their Medico-legal bearings.

Infanticide, Wounds, Rape, and Coroner's Inquests, close up the subjects treated in this work.

Throughout, the author has intended to leave abstract questions of Science, Anatomy, Physiology, Therapeutics, Chemistry, and the like, to those able writers who have made them specialties, and whose works are in the libraries of every medical man. To these, the attorney can have access should he wish to pursue any particular point, or branch of study, into its minute details. It would be folly, in a work of this character, to attempt to anticipate him here, — indeed, this is the objection to many works on Medical Jurisprudence. To the physician or surgeon, it would be useless, as he has the discussions in full in his elementary works.

David Paul Brown, 2 Forum, 236.

CONTEXTS OF CHAPTERS

CHAPTER I. page

General Principles of Law applicable to Medical Men, 19

Coroner's Office and Inquests, 477

PARTI

MALPRACTICE.

MALPRACTICE.

Chapter I. General Principles Of Law Applicable To Medical Men"

The general principles of law, denning the civil responsibilities and duties of physicians, lawyers, engineers, machinists, shipbuilders, brokers, and other classes of men whose employment requires them to transact business demanding special skill and knowledge, are the same.

It is of much importance, therefore, to these classes, that the rules of law applicable to them, be well and clearly settled, and thoroughly understood by those upon whom they are to act, as. well as by the authorities upon whom devolves the responsibility of their administration.

Some of these classes, however, are erroneously supposed to be held to a more strict accountability than others. This sterner rule has been, at times, applied to the medical profession. It was said by the Court, in the case of Leighton v. Sargent,1 that,, "at the present time, it is to be feared, there is a tendency to impose some perilous obligations, beyond the requirements of the law, upon medical men." It is to be regretted that not only in New Hampshire, but in almost all parts of the country, this has been the case, as if more is to be expected of that class, under the same set of circumstances, than any other.

At the outset, then, of our inquiry into the subject of Medical Malpractice, it becomes necessary to carefully define, as far and clearly as may be, the nature of the contract entered into between the medical man, on the one hand, and the public, or patient, on the other, in regard to his duties, qualifications and general conduct, while this obligation rests upon him.

The nature of the contract between the physician and patient, and attorney and client, are alike: neither class, without an express contract to that effect, is a warrantor or insurer.1 Certainly nothing unreasonable or oppressive should characterize the rule of law in its application to the conduct of the professional mau, thus making a different rule from that applicable to other men.

The professional man does not agree, or stipulate, to carry the case through to a successful issue, at all events, and notwithstanding all contingencies ; and he is not to be tried by the result.

If a man contracts to do a thing that is absolutely impossible at the time of making such contract, he is not bound thereby, because no man can be compelled to perform an impossibility .- But a distinction is taken between a contract to do a thing which is accidentally impossible, and wherein the party engages to do something absolutely impossible ; for, in the former case, the contract is binding, notwithstanding it was beyond the power of the party to perform it — it being his own fault and folly that he did not expressly provide against those contingencies he should know might possibly transpire, and exempt himself from responsibility in certain events. In such a case, therefore, the performance is not excused .by the occurrence of an inevitable accident, although it was not foreseen by, or within the control of the party.3

2 Chitty on Cont. 629 ; Potliier's Treaite des Obligations, c. 1, sec. 4.

3 Chitty on Cont. 630 ; White v. Mann, 561.

The physician or surgeon may, undoubtedly, undertake, by express contract, to perform a cure absolutely.1 In a contract of this kind, the utmost diligence and skill will not excuse him, should the result be unfortunate ; because it was his own fault, or inexcusable ignorance, that so uncertain a result should have been guaranteed successful. The extent of the physician's or surgeon's liability, under an express contract to cure, will depend upon the circumstances of the case. If he undertakes an absolute impossibility, the law will not hold him responsible for the full extent of the damage resulting to the patient by reason of the failure to cure. His responsibility extends to a forfeiture of all compensation for medicine and service. The impossibility of the undertaking excuses him in part.

Neither will a want of sufficient skill or knowledge to fulfill an express contract excuse its performance. A builder may agree to erect a house or a ship of a certain description, and he can not afterward excuse himself on the ground of his want of sufficient skill. In that case, the maxim of the Civil law applies — spondei periiiam artis — the person undertaking to do the work is bound to use a degree of skill and attention adequate to the performance of his undertaking; that is, to do it according to the rules of the art.2 So, a surgeon may contract for the removal of a limb, the physician for the cure of a disease, or the lawyer for the foreclosure of a mortgage ; and by that contract he becomes a guarantor of the result. It is his fault to undertake to do a thing beyond his strength, or for which he has not sufficient skill, or to employ bad workmen : imperitia mlpw annumeratar — ignorance is like negligence, for which one is responsible.3

Every person who offers his services to the public generally, impliedly contracts with the employers that he is in possession of

1 Loighton v. Sargent, 7 Foster, 468.

2 Jones, Bailm. 22, 23, 62, 97, 120 ; Story on Bailm. sec. 431 ; Coggs v. Bernard, Ld. Raym. 909 ; 1 Bell's Com. 459, 5th Ed.

3 Story on Bailm. 279 ; Chitty on Cont. 165 ; 3 Blackstone Com. 122 ; 2 Greenl. Ev. 145 ; 1 Bouv. 403 ; Dig: 50, 17, 132.

the necessary skill and experience which is possessed ordinarily by those who practice, or profess to understand the same art or science, and which is generally regarded by those most conversant with that profession, or employment, as necessary to qualify him to engage in such business successfully.

Mr. Justice Story says : " In all these 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 engage 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."1

Lord Chief- Justice Tixdall says : " Eveiy person who enters into a learned profession, undertakes to bring to the exercise of it a reasonable, fair and competent degree of skill."2

This is the doctrine of the common law, in its application to the ordinary rank and file of the professions of Medicine and Law.

It may, at times, be difficult to determine just what the "ordinary degree of skill," as used by law writers, amounts to. It may vary in the same State or country. There are many neighborhoods, in the West especially, where medical aid is of difficult attainment; yet cases of disease and surgery are constantly occurring, and they must, of necessity, fall into the hands of those who have given to the subject but little, if any thought. Thus the inexperienced and the unlearned attend to the surgery in their way, or it is not attended to at all. In such a case, and under such circumstances, and for these reasons, the ordinary degree of skill required by law would be good common sense, or such knowledge as the operator had, joined with a good purpose to help the afflicted, even if such interference rendered the patient a cripple for life. This is the law in both England and

this country. Even in England, it was said by Hullock, in the case of Van Butchell, that " many persons would be left to die if irregular surgeons were not allowed to practice."1 In these cases, no more, of course, should be expected of the operator than the exercise of his best skill and judgment, however limited that might be.2

In large cities and towns, are always found surgeons and physicians of the greatest degree of skill and knowledge. Their pretensions are properly large. They are to be held to a corresponding high degree of responsibility. They contract to do more than the ordinary physician, and they are paid a higher price for what they do ; consequently the contract is more difficult to fulfill.

In the smaller towns and country, those who practice medicine and surgery, though often possessing a thorough theoretical knowledge of the highest elements of the profession, do not enjoy so great opportunities of daily observation, and practical operations; where the elementary studies are brought into every day use; as those have who reside in the metropolitan towns; and though just as well informed in the elements and literature of their profession, they should not be expected to exercise that high degree of skill and practical knowledge possessed by those having greater facilities for performing and witnessing operations, and who are, or may be, constantly observing the various accidents and forms of disease.

It will not, therefore, as a general thing, require so high a degree of knowledge to bring this class of physicians up to the rule of ordinary knowledge and skill, as in places where greater facilities are afforded, by which higher professional knowledge is attainable.

Judge Bouvier, it is true, has laid down a different rule, which, upon principle, can not be correct He says : "If, for example, a

2 McCandless v. McWha, 22 Penn. 268.

lamer undertakes to cure a horse, he is required to use reasonable skill — if a carpenter undertakes to build a ship, he engages to use the same kind of ability — and the degree of skill rises in proportion to the value and delicacy of the operation. But he is, in no case, required to have more than ordinary skill, for he docs not engage for more. Under this rule, all professional men, who can recover for their services in an action, are included ; and their contract is loccdio operarum, and not mandate."1

For the reasons already given, a man should be held responsible according to what he is actually able to accomplish, or for what he pretends he is able to do. He asks a large price for his services, and gets it, because he is really superior to others in his knowledge and skill, or fraudulently makes those who employ him think that this is the case. He contracts, on his part, to do more, and to do it better than the generality of the profession. Why not hold him to this implied contract ? The high-minded medical man wishes to be so held, and the charlatan and pretender certainly should not be allowed to escape behind the ordinary skill and knowledge of honest practitioners, who actually are prepared to accomplish more than he, but promise and pretend less.