Medical jurisprudence

“ A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected it must be expressly stipulated for.... The general rule, therefore, is, that a medical man, who attends for a fee, is liable for such want of ordinary care, diligence or skill on his part as leads to the injury of his patient. ”

“ Value—How Proved.—When the medical man is compelled to go into court to enforce payment for his services, it has been questioned whether he can testify to the services rendered, and the facts and circumstances surrounding the patient at the time of the treatment, because it has been claimed that he could not do so without violating the statute against the disclosure by physicians of information received which is necessary to enable them to prescribe. ”

“ Index, for p. 156-184, read 320-348.
i_b INTRODUCTION. Medical Jurisprudence [1] may be defined, a science by which medicine, and its collateral branches, are made subservient to the construction, elucidation, and administration of the laws; and to the preservation of the public health. ”

“ 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 ”

“ 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 ”

“ The science of Medicine is progressive; genius irradiates its onward march. Few other sciences have advanced as rapidly as it has done within the last half century. Hence it has happened that in many of its branches text-books have not kept pace with the knowledge of its leading minds. Such is confessedly the case in the department of Medical Jurisprudence. This very term, Medical Jurisprudence, as now used in colleges, is generally acknowledged to be a misnomer. ”

“ The patient may agree to come to the physician’s home or to a hospital or other place agreed upon between them, for the purpose of being treated, or of being operated upon by a surgeon, and a failure to perform such an agreement on the part of the patient absolves the medical man from carrying out his agreement to treat the patient. ”

“ Haslam, in his work on Medical Jurisprudence as it relates to Insanity, (London 1817) are so pertinent to our present subject that we shall give them in his own words: “The important duty which the medical practitioner has to perform, when he delivers his testimony before a Court of Justice, should be closely defined, conscientiously felt, and thoroughly understood,—his opinion ought to be conveyed in a perspicuous manner ”

“ 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 ”

“ He does not, if he is an attorney, undertake at all events to gain the cause, nor does a surgeon undertake that he will perform a cure; nor does the latter undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes to bring a fair, reasonable and competent degree of skill. And in an action against him by a patient, the question for the jury is whether the injury complained of must be referred to a want of proper degree of skill and care in the defendant, or not. ”

“ 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 ”

“ Physician must Allow Reasonable Time to Supply his Place if he Quits his Patient.—In any event, whether the contract be express or implied, conditional or unconditional, the law through motives of public policy, and with a just regard for the welfare of the sick and injured, undoubtedly requires that if a physician has once taken charge of a case, and determines to abandon it, he must give the patient reasonable notice and reasonable opportunity to supply his place. ”

“ Unless the barrister has sufficient medical knowledge to be able to appreciate the force, or to see the fallaciousness of the medical evidence, the administration of justice can scarcely ever derive any solid advantages from the science of medicine. I believe I pronounce no libel on the members of the bar, when I assert, that, with few exceptions, they come to the Profession, both in England and here, and grow old in it, without the knowledge necessary to manage medico-legal inquiries. ”

“ 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. ”

“ 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 [276] in medicine, surgery, or midwifery is punishable by a penalty of from $25 to $100 (ib., s. 47) . ”

“ 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. ”

“ 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 ”

“ 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. ”

“ Its eradication or cure, where the result of human agency is, in the great majority of instances, attributable rather to the careful observation, judgment and experience of the particular practitioner, than to the application of general or established methods available to all. The popular axiom, that ‘doctors differ,’ is as true now as it ever was, and as long as it continues to be so, it is impossible for the law to recognize any class of practitioners, or the followers of any particular system or method of treatment, as exclusively entitled to be regarded as doctors. ”

“ 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. ”

“ As to liability for services rendered, when the medical man is called by one person to attend another, it may be stated as a general rule that in order to create such a liability it must appear that the person calling either actually intended to become responsible, or acted in such a manner that the physician was led to suppose that he so intended. ”

“ Any bodily or mental infirmity or ill-health which may result from an injury and its necessary treatment in the past and future, all these questions and many more unnecessary to mention may be required of the medical witness. No general rules can be laid down for all such cases. In giving his testimony the medical man must depend in any particular case upon his knowledge, judgment, and experience. ”

“ 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. ”

“ Nor are these subjects limited, as might at a first and superficial view appear, to the testimony required of physicians and surgeons in criminal cases, but extends in a greater or less degree through every branch of jurisprudence; nor can we yet assert that we have anticipated every point on which medical, chemical, and surgical questions may arise; as recent examples have evinced, that the rapid progress of science which has marked the last half century above all others, is daily eliciting new points both for scientific and judicial enquiry. ”

“ 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. ”

“ You will find, gentlemen, as we proceed in our course, that Doctors have very many occasions in which to apply the lessons of Jurisprudence in their medical practice. I even suspect that they need to be more conscientious in regard to the dictates of the higher law than any other class of men, the clergy alone, perhaps, excepted. They need this not only for their own good, but also for the good of their patients and of the community at large. ”

“ But this power affords little or no check or restriction, because in the effort to get all the light that is possible upon the questions under consideration, and to avoid unduly interfering with counsel in the conduct of the case at bar, the practice has become universal, and is recognized in the decisions and text writers, of permitting any medical man who has a license to practise his profession, to testify as an expert, and to give his opinion as such on any question cognate to his profession. ”

“ The physician may contract to cure, and may make the cure a condition precedent to receiving any reward for his services or medicaments, and a breach of such a contract will be enforced by the courts as a bar to an action for services rendered or medicines furnished. ”

“ 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 ”

“ It cannot, however, be said that private counsel should be called in rather than such as the law has appointed. Certainly, if he really thinks the case to be one of small-pox, it is his duty to communicate his opinion to the public authorities, who furnish skilled physicians peculiarly competent to pass upon the case. They are the experts the law points out for the physician. The attendance of these experts upon a patient can cause no injury, and thereafter the responsibility rests solely upon the public officer. ”

“ 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. ”