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—Obvious print and punctuation errors were corrected.

—Multiple and antiquate spelling of specialistic words, expecially in French and German, have beed manteined out of consistency and due to the impossibility of determining what the spelling whas at the time this work was composed

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MEDICAL
JURISPRUDENCE

FORENSIC MEDICINE

AND

TOXICOLOGY

BY

R. A. WITTHAUS, A.M., M.D.

Professor of Chemistry, Physics, and Hygiene in the University of the City of New York, etc., etc.

AND

TRACY C. BECKER, A.B., LL.B.

Counsellor at Law,
Professor of Criminal Law and Medical Jurisprudence in the University of Buffalo

WITH THE COLLABORATION OF

J. Clifton Edgar, M.D.; D. S. Lamb, M.D.; W. B. Outten, M.D.; Hon. Wm. A. Poste; Edward S. Wood, M.D.; E. V. Stoddard, M.D.; Hon. Goodwin Brown; J. C. Cameron, M.D.; E. D. Fisher, M.D.; H. P. Loomis, M.D.; Roswell Park, M.D.; Irving C. Rosse, M.D.; F. P. Vandenbergh, M.D.; J. H. Woodward, M.D.; George Woolsey, M.D.

VOLUME ONE

NEW YORK

WILLIAM WOOD & COMPANY

1894

Copyright, 1894,
By WILLIAM WOOD & COMPANY

PRESS OF
THE PUBLISHERS’ PRINTING COMPANY
132-136 W. FOURTEENTH ST.
NEW YORK

CONTENTS.

————

PAGE Introduction

,

v Medical Jurisprudence

,

1

The Legal Relations of Physicians and Surgeons.

T. C. Becker

,

3

The Law of Evidence Concerning Confidential Communications.

Chas. A. Boston

,

89

Synopsis of the Laws Governing the Practice of Medicine.

W. A. Poste

and

Chas. A. Boston

,

135 Forensic Medicine

.

Thanatological

,

293

The Legal Status of the Dead Body.

T. C. Becker

,

295

The Powers and Duties of Coroners.

A. Becker

,

329

Medico-Legal Autopsies.

H. P. Loomis

,

349

Personal Identity.

J. C. Rosse

,

383

Determination of the Time of Death.

H. P. Loomis

,

437

Medico-Legal Consideration of Wounds.

G. Woolsey

,

457

Medico-Legal Consideration of Gunshot Wounds.

Roswell Park

,

591

Death by Heat and Cold.

E. V. Stoddard

,

627

Medico-Legal Relations of Electricity.

W. N. Bullard

,

661

Medico-Legal Consideration of Death by Mechanical Suffocation.

D. S. Lamb

,

705

Death from Submersion or Drowning.

J. C. Rosse

,

793

Death from Starvation.

E. V. Stoddard

,

813

INTRODUCTION.

The terms Forensic Medicine, Legal Medicine, and Medical Jurisprudence have heretofore been used interchangeably to apply to those branches of state medicine and of jurisprudence which have to deal with the applications of medical knowledge to the elucidation of questions of fact in courts of law, and with the legal regulation of the practice of medicine.

Medico-legal science therefore includes all subjects concerning which members of the legal and medical professions may seek information of one another, each acting in his professional capacity. It consists of two distinct branches: that treating of medical law, to which the designation of Medical Jurisprudence properly applies; and that relating to the application of medical, surgical, or obstetrical knowledge to the purposes of legal trials, Forensic Medicine.[1]

The term State Medicine, which is sometimes erroneously used as synonymous with forensic medicine, properly applies to a more extended field of medical inquiry; i.e., to all applications of medical knowledge to the public welfare. State medicine, therefore, while excluding medical jurisprudence, includes, besides forensic medicine, public hygiene, medical ethics, medical education, and military and naval medicine.

Toxicology, the science of poisons, may be divided into medical toxicology, whose object is the prevention or cure of all forms of poisoning, and forensic toxicology, whose aim is the detection of criminal poisoning. In its last-named relation toxicology differs from forensic medicine in one important particular. In all cases other than those of poisoning in which questions involving medical knowledge arise, the answers are entirely within the functions of the physician, the surgeon, or the obstetrician, but the problems of forensic toxicology require for their solution the further aid of the chemist and the pharmacologist.

Forensic medicine is an applied science, partly legal, partly medical, calling for information and investigation in widely divergent lines, and becoming more minutely ramified with the progressive advances in medical knowledge and in those sciences of which medicine is itself an application. Its development has been dependent partly upon the slow though progressive tendency of medicine from the condition of an empirical art toward that of an exact science, and partly upon the more rapid and more advanced development of criminal jurisprudence. Medical jurisprudence had reached a high development during the early history of the Roman Empire, and at a period long anterior to the first recognition of forensic medicine.

Although the literature of modern medico-legal science is very largely written from the medical point of view and by physicians, its earlier history is to be found in fragmentary form, partly in medical literature, but principally in the writings of historians, in the earlier criminal codes, and in the early records of legal proceedings.

In the earliest historical periods the functions now exercised by the priest, the lawyer, and the physician were performed by the same person, who, presumably, made use of what medical knowledge he possessed in the exercise of his legal functions. Among the Egyptians at a very early period it is certain that medical questions of fact were considered in legal proceedings, and that the practice of medicine was subject to legal regulation. According to Diodorus,[2] “when a pregnant woman was condemned to death, the sentence was not executed until after she was delivered.” The same author tells us[3] that “the physicians regulated the treatment of the sick according to written precepts, collected and transmitted by the most celebrated of their predecessors. If, in following exactly these precepts which are contained in the sacred books, they did not succeed in curing the sick, they could not be reproached, nor could they be prosecuted at law; but if they have proceeded contrary to the text of the books, they are tried, and may be condemned to death, the legislator supposing that but few persons will ever be found capable of improving a curative method preserved during so long a succession of years and adopted by the most expert masters of the art.” With the system of legal trial in use among the Egyptians[4] it is difficult to imagine that the question of the existence of pregnancy in the one case, or of malpractice in the other, would not be the subject of contest, and, if contested, determined without the testimony of obstetricians or of physicians.[5]

Medical knowledge among the Hindoos was further advanced than among the Egyptians. In the Rig Veda (about 1500 B.C.) occur a few medical references, among which is the statement that the duration of pregnancy is ten (lunar) months.

The earliest purely medical Sanskrit texts are the Ayur Vedas of Châraka and Sûsruta, which were probably written about 600 B.C., but which are undoubtedly compilations of information which had been handed down during many centuries before that time. In each of these is a section devoted to poisons and their antidotes (Kalpa), in which it is written that a knowledge of poisons and antidotes is necessary to the physician “because the enemies of the Rajah, bad women, and ungrateful servants sometimes mix poison with the food.” Full directions are also given for the recognition of a person who gives poison, and to differentiate the poisons themselves, whose number, from all the kingdoms of nature, is legion. The age at which women may marry is fixed at twelve years, while men may not marry before twenty-five. The duration of pregnancy is given as between nine and twelve lunar months, the average being ten. The practice of medicine is restricted to certain castes, and requires the sanction of the Rajah, and the method of education of medical students is prescribed.[6]

It is singular that the Greeks were apparently destitute of any knowledge of legal medicine. Although medicine and jurisprudence were highly developed among them, allusions to any connection between the two are of very rare occurrence and uncertain.

The Hippocratic writings (ca. 420 B.C.) contain many facts which are of medico-legal interest: the possibility of superfœtation was recognized;[7] the average duration of pregnancy was known, and the viability of children born before term was discussed,[8] the relative fatality of wounds affecting different parts of the body was considered,[9] and the Hippocratic oath makes the physician swear that he “will not administer or advise the use of poison, nor contribute to an abortion.” The position of the physician in Greek communities was an exalted one. No slave or woman might be taught medicine,[10] although later free-born women were permitted to practise in their native places. Homer also refers to physicians as men of learning and of distinction.[11] The Greek physician was therefore in a position, both from his information and from his standing in the community, to aid in the administration of justice.

The Greeks were also extremely litigious and possessed a code of criminal procedure which was elaborate, and in many respects resembled those now in use in England and the United States.[12] The writings of the Greek orators, Demosthenes, Æschines, Lysias, Antiphon, Isocrates, etc., which have come down to us substantiate the claim of Ælian that “to Athens mankind is indebted for the olive, the fig, and the administration of justice.”[13]

The writings of the Greek physicians contain no reference to any legal application of their knowledge, and certain passages in the writings of the orators seem to indicate that, while a physician was called to inspect and treat a wounded person, the testimony as to the patient’s condition was given in court by others.

Thus in the case against Euergos and Mnesibulus, in which an old woman had died some days after an assault, Demosthenes[14] states that he notified the accused to bring a surgeon and cure the woman; but that as they did not do so, he himself brought his own surgeon and showed him her condition in the presence of witnesses. Upon hearing from the surgeon that the woman was in a hopeless condition, he again explained her state to the accused and required them to find medical aid. Finally, on the sixth day after the assault the woman died. He further asserts that these statements would be proved by the depositions.[15]

The third Tetralogy of Antiphon[16] (B.C. 480) relates to a case in which the defence was essentially the same as that which was the subject of a vast amount of medical expert testimony in a celebrated trial for murder in New York not many years ago. A person wounds another, who dies some days afterward. The assailant is accused of murder and sets up the defence that the deceased perished, not from the wounds inflicted, but in consequence of unskilful treatment by the physicians.

In neither of these cases is any mention made of physicians having been called upon for testimony; indeed, the statements would lead to the inference that they were not. In another case in which a poor and sick citizen is accused of malingering to obtain the customary pecuniary aid from the State, Lysias[17] summons no medical evidence but relies entirely upon a statement of his client’s case.[18]

Medical legislation was not more advanced during the ascendancy of the Roman Empire, although medical science was greatly developed, principally by the labors of Celsus, and of Galen and other Greek physicians. A few cases are mentioned by the historians which would seem to indicate a closer connection between law and medicine than had existed among the Greeks, but they refer rather to the custom of exposing the bodies of those who had died by violent means to public view, in order that any one might express his opinion as to the cause of death, than to any appeal to medical science in the administration of justice. Thus Suetonius[19] says that the physician Antistius examined the dead body of Julius Cæsar (B.C. 44), and declared that of all the wounds only that received in the breast was mortal.

Pliny[20] cites an early instance of contested interpretation of post-mortem appearances in the case of Germanicus, who died A.D. 19, by the action of poison, said the enemies of Piso, because the heart did not burn. The friends of Piso, while admitting the fact of non-consumption, attributed it to the deceased having had heart disease. The same author[21] quotes Masurius as having declared a child born after thirteen (lunar) months to be legitimate, in an action for the possession of property, on the ground that no certain period of gestation was fixed. The Emperor Hadrian (A.D. 117-138), according to Gellius, sought medical information in a similar case, and decreed the legitimacy of a child born in the eleventh (lunar) month, “after having considered the opinions of ancient philosophers and physicians.”[22]

Although the Justinian collections, the “Codex” (A.D. 529), the “Institutes” (A.D. 533), the “Digests,” or “Pandects” (A.D. 534), and the “Novels” (A.D. 535-564), prepared by the best legal talent of the age, under the direction of Tribonian, do not provide for the summoning of physicians as witnesses; they contain an expression which indicates that at that time the true function of the medical expert was more correctly appreciated than it is to-day. His function was stated to be judicial rather than that of a witness.[23] There is also a provision that in cases of contested pregnancy, midwives (who were considered as belonging to the medical profession) should, after examination of the woman, determine whether or no pregnancy exist, and that their determination should be final. The practice of medicine, surgery, and midwifery was regulated. Those desiring to practise must have been found competent by an examination. The number of physicians in each town was limited. They were divided into classes, and were subject to the government of the Archiatri. Penalties were imposed upon those guilty of malpractice or of poisoning. The Justinian enactments contain abundant internal evidence of having been framed in the light of medical knowledge. They contain provisions relating to sterility and impotence, rape, disputed pregnancy, legitimacy, diseased mental conditions, presumption of survivorship, poisoning, etc., which indicate that the medical knowledge of the time was fully utilized in their construction.[24]

The Germanic peoples at about the same period possessed codes in which traces of a rudimentary medical jurisprudence existed. The most ancient of these was the Salic law (A.D. 422), in which the penalties to be paid for wounds of different kinds are fixed. The Ripuarian law, of somewhat later date, takes cognizance of the crime of poisoning. The laws of the Bavarians, Burgundians, Frisians, Thuringians, and Visigoths contain practically nothing of medico-legal interest. The Lex Alamannorum has numerous provisions relating to wounds, and expressly provides that the gravity of the injury shall be determined by a physician.[25]

During the period of about a thousand years, intervening between the Justinian and Caroline (vide infra) codes, the advancement of medicine and jurisprudence suffered almost complete arrest. The guilt or innocence of an accused person was determined rather by his own confession under torture, or by “the judgment of God” as shown by ordeal or by judicial combat, than by testimony either expert or of fact.

Even during the night of the Middle Ages, instances are recorded in which the opinions of physicians were sought to determine questions of fact in judicial proceedings.

In the duchy of Normandy, in 1207-45, the laws provided for the examination of those claiming to be sick (to evade military service or appeal to judicial duel), of persons killed, and of women.[26]

In a decretal of Innocent III., in 1209, the question whether a certain wound was mortal was determined by physicians.[27]

There is extant in the statutes of the city of Bologna, under date of 1249, an entry to the effect that Hugo di Lucca had been assigned the duty, when called upon by the podesta, and after having been sworn, to furnish a true report in legal cases.[28]

In the kingdom of Jerusalem (ca. 1250) a person claiming exemption from trial by battle because of sickness or of wounds was visited by a physician (fisicien au miége) and a surgeon (sérorgien), who examined him and made oath as to his condition.[29]

Sworn surgeons to the king are also mentioned in letters patent of Philippe le Hardi in 1278, of Philippe le Bel in 1311, and of Jean II. in 1352.[30] That of Philippe le Bel refers to Jean Pitardi as one of “his well-beloved sworn surgeons in his Chastelet of Paris,” whose functions are partly indicated by the extracts from the registers given below.

The registers of the Châtelet at Paris from 1389 to 1392 record several instances in which medical aid was rendered in judicial proceedings. Under date of March 22d, 1389-90, “Maître Jehan Le Conte, sworn surgeon to the king our sire,” reports to Maître Jehan Truquam, lieutenant to the provost, that “upon that day in the morning one Rotisseur had gone from life unto death in consequence of the wounds which he had received on the Monday evening preceding.”[31] Under date of July 22d, 1390, is an account of the examination of one Jehan le Porchier, accused of intent to poison the king (Charles VI.), in which there is reference to a very early instance of toxicological expert evidence. In the wallet of the accused certain herbs were found. The account proceeds: “Richart de Bules, herbalist, was summoned, to him the above-mentioned herbs were shown, and he was commanded that he should examine them and consider well and duly, reporting the truth of what he should find. The said Richart, after having examined them with great diligence, reported that in the box in which these herbs were he had found six leaves, namely: one leaf of jacia nigra, and one of round plantain, called in Latin plantago minor, and four of sow-thistle (lasseron), called in Latin rosti poterugni, and says that the leaf of jatria nigra is poisonous, but that in the others there is no poison known to the deponent.”[32] On August 12th, 1390, “Jehan Le Conte and Jehan Le Grant, sworn surgeons of our sire the king,” are present at the torture of a prisoner, but for what purpose does not appear. In another case the same Jehan Le Conte testified that a wound in the head of a deceased person was made with an axe.[33] At a later period in Italy, the infliction of “the question” took place under medical supervision. Zacchias devotes a chapter, De Tormentis et Pœnis,[34] to the consideration of the different methods of torture, the degrees of pain and danger attending each, and the conditions of age, sex, and health which render its application inadmissible.[35]

During this period, as indeed from the earliest times, the practice of medicine was regulated by law. Thus a law of King Roger of Sicily (1129-54) punished those who practised medicine without authority with imprisonment and confiscation of goods; and an edict of Frederick II. (1215-46) imposed like penalties upon those who presumed to practise except after graduation at the school of Salernum.[36]

Medico-legal science was formed in the middle of the sixteenth century by a simultaneous awakening of jurists and physicians to the importance of the subject.

It was in Germany that expert medical testimony was first legally recognized. In 1507, George, Bishop of Bamberg, proclaimed a criminal code in his domains. This was subsequently adopted by other German states, and finally was the model upon which the Caroline Code, the first general criminal code applying to the whole empire, was framed and proclaimed at the Diet of Ratisbon in 1532.[37]

These codes, particularly the Caroline, distinctly provide for utilizing the testimony of physicians. Wounds are to be examined by surgeons who are “to be used as witnesses;”[38] and in case of death one or more surgeons are to “examine the dead body carefully before burial.”[39] They also contain provisions for the examination of women in cases of contested delivery, or suspected infanticide;[40] for the regulation of the sale of poisons;[41] for the detection and punishment of malpractice;[42] and for examination into the mental condition in cases of suicide and of crime.[43]

An early work on the practice of criminal law, based on the Caroline Code, was published by the Flemish jurist, Josse de Damhouder, in 1554. It contains a chapter treating of the lethality of wounds, which should be determined by expert physicians and surgeons,[44] and describes the course which is to be pursued in the judicial examination of dead bodies. This is probably the earliest printed book (other than the laws themselves) containing reference to medico-legal examinations,[45] and antedates the writings of physicians upon the subject.

Although it was only in 1670 that the Ordinances of Louis XIV. gave to France a uniform criminal code, medico-legal reports were made by physicians and surgeons to the courts more than a century before. Indeed, the earliest medico-legal work written by a physician[46] is the 27th book of the Œuvres d’Ambroise Paré, first printed in 1575, in which he directs the forms in which judicial reports shall be made in various medico-legal cases.[47] During the remainder of the sixteenth century France produced but three treatises on medico-legal subjects.[48] One of these, written by the jurist A. Hotman, distinctly mentions the employment of physicians to determine questions of fact.

In Italy works on medical jurisprudence were published at the close of the sixteenth and beginning of the seventeenth century. The earliest of these was a chapter of Codronchius, treating of the “method of testifying in medical cases,” in 1597.[49] At about the same time, but certainly later, appeared the work of Fortunatus Fidelis, to whom the honor of being the first writer on medical jurisprudence is given by many.[50]

The great work of Paulus Zacchias, physician to Pope Innocent X., was first printed at Rome, 1621-35. This medico-legal classic contains in the first two volumes the “Quæstiones” and in the third the decisions of the Roman Rota. It treats of every branch of medico-legal science, and discusses physiological questions of legal interest, besides dealing with questions such as the infliction of torture and miracles.[51]

Although the “Quæstiones Medico-legales” of Zacchias was the first systematic work upon medical jurisprudence, his countrymen in succeeding centuries have contributed but little to this science. It is only during the latter part of the present century that Italians have again become prominent in medico-legal literature.

In France legal medicine progressed but little from the time of Paré to the latter part of the eighteenth century. Several treatises appeared, being chiefly upon legitimacy and kindred subjects,[52] with a few treating of reports, signs of death, etc.[53]

Toward the end of the eighteenth century the labors of Louis, Petit, Chaussier, and Fodéré elevated legal medicine to the rank of a science. The investigations of Louis (Ant. L.) were numerous and important in this as in other subjects,[54] and the “causes célébres” contain reports of many trials in which he threw light upon doubtful medical questions.[55] Antoine Petit, a contemporary of Louis, contributed an extensive work on the duration of pregnancy as affecting legitimacy.[56]

Somewhat later Fr. B. Chaussier, between 1785 and 1828, published at Dijon a number of treatises on infanticide, viability, surgical malpractice, etc.[57] Fodéré, a Savoyard, was the first to publish a systematic treatise on medical jurisprudence in France, which was first printed in 1798 and in a much enlarged form in 1813.[58] This last edition is an exhaustive treatise upon all branches of legal medicine and public hygiene, and won for its author the appointment as Professor of Forensic Medicine in the University of Strassburg.

At about the same period appeared the works of Mahon[59] and of Belloc,[60] both of which went through three editions in ten years, and those of Biessy.[61]

The most industrious and original of French professors of legal medicine was Orfila. A native of Minorca, he graduated in medicine at Paris in 1811, and devoting himself to chemical and toxicological investigations, published the first edition of his “Traité des Poisons” in 1814. This work, which may be regarded as the foundation of experimental and forensic toxicology, went through five editions to 1852, and was translated into several foreign languages. The first edition of his “Leçons de Médecine légale” appeared in 1821, and the fourth in 1848. Besides these Orfila published a work on the treatment of asphyxia and a great number of papers on medico-legal subjects, principally in the Annales d’Hygiène, of which he was one of the founders with Andral, Esquirol, Leuret, and Devergie. Orfila occupied the chair of chemistry and medical jurisprudence in the University of Paris for upward of thirty years, and was employed as expert in innumerable cases before the courts.

Contemporaneous with Orfila, and almost as prominent, was Devergie, the first edition of whose “Médecine légale,” in three volumes, appeared in 1836, and the third in 1852.

In 1820 the first edition of the Manual of Briand and Brosson was published. This work, the tenth edition of which was published in 1879, is the first in which a jurist was associated with a physician in the authorship,[62] and is one of five of which one of the authors is a lawyer.[63]

Special treatises on the medico-legal relations of insanity were published by Georget (1821), Falvet (1828), Esquirol (1838), and Marc (1840), and on midwifery by Capuron (1821).

Tardieu, Professor of Legal Medicine in the University of Paris (1861-79), published a most important series of monographs on hygienic and medico-legal subjects,[64] besides many papers, principally in the Annales d’Hygiène, etc., and testified before the courts in many “causes célébres.”

The first work of medico-legal interest to appear in Germany was the “Medicus-Politicus” of Rodericus à Castro, a Portuguese Jew living in Hamburg, printed in 1614, which deals principally with medical ethics and the relations of physicians, but contains chapters on simulated diseases, poisoning, wounds, drowning, and virginity.[65]

It was only toward the end of the seventeenth century that the subject was scientifically treated, and during the latter part of the seventeenth century and the beginning of the eighteenth great progress was made in the development of forensic medicine in Germany. Johannes Bohn, one of the originators of the experimental method of investigation in physiological chemistry and physics, at the University of Leipzig, was also one of the earliest German contributors to the literature of legal medicine. Besides smaller works he published two noteworthy treatises: in 1689 a work on the examination of wounds and the distinction between ante-mortem and post-mortem wounds, and between death by injury, strangulation, and drowning.[66] In 1704 a work giving rules for the conduct of physicians in attending the sick and in giving evidence in the courts.[67] At about the same period M. B. Valentini, professor in the University of Giessen, published three important works, containing collections of medico-legal cases, and of the opinions and decisions of previous writers.[68] Another extensive collection of cases and decisions was published in 1706 by J. F. Zittmann, from a MS. left by Professor C. J. Lange, of the University of Leipzig;[69] and still another by J. S. Hasenest[70] appeared in 1755.

During the latter part of the eighteenth century, the Germans cultivated legal medicine assiduously, and a great number of works upon the subject were published. Among these may be mentioned those of M. Alberti, professor at the University of Halle;[71] H. F. Teichmeyer, of the University of Jena;[72] A. O. Gölicke, of the universities of Halle and Duisburg, who was the first to prepare a bibliography of the subject;[73] J. F. Fasel (Faselius), professor at Jena;[74] J. E. Hebenstreit and C. S. Ludwig, professors at Leipzig;[75] C. F. Daniel, of Halle;[76] J. D. Metzger, professor at Königsberg, the author of a number of works, one of which, a compendium, was translated into several other languages;[77] J. V. Müller, of Frankfurt;[78] J. C. T. Schlegel, who collected a series of more than forty dissertations by various writers;[79] M. M. Sikora, of Prague;[80] J. J. von Plenck, professor in Vienna, who published a work on forensic medicine and one on toxicology;[81] K. F. Uden, subsequently professor in St. Petersburg, who was the first to publish a periodical journal devoted to legal medicine, which was afterward continued by J. F. Pyl at Stendal;[82] and J. C. Fahner.[83]

At this period compends for students were published in Germany, which indicate by their number the extent to which this science was the subject of study. Among these those of Ludwig (1765), Kannegieser (1768), von Plenck (1781), Frenzel (1791), Loder (1791), Amemann (1793), Metzger (1800), and Roose may be mentioned.

The Germans of the present century have maintained the pre-eminence in legal medicine achieved by their forefathers. Among a great number of investigators and writers a few may be mentioned: C. F. L. Wildberg, professor at Rostock, was a most prolific writer, edited a journal devoted to state medicine, and contributed a valuable bibliography of the subject;[84] A. F. Hecker, professor at Erfurth and afterward at Berlin, and J. H. Kopp each edited and contributed extensively to a medico-legal journal.[85] A much more important periodical was established in 1821 by Adolph Henke, professor in Berlin, and was continuously published until 1864. Henke also wrote a great number of articles and a text-book on legal medicine.[86] Jos. Bernt, professor at Vienna, published a collection of cases, a systematic treatise, and a number of monographs,[87] as well as the MS. work left by his predecessor in the chair, F. B. Vietz. A handbook containing an excellent history of medico-legal science was published by L. J. C. Mende, professor at Griefswald,[88] who also contributed a number of monographs, chiefly on obstetrical subjects. K. W. N. Wagner contributed but little to the literature of the subject, but it was chiefly by his efforts, while professor in the University of Berlin, that a department for instruction in state medicine was established there in 1832. A. H. Nicolai, also professor at Berlin, published a handbook[89] besides numerous articles in the journals. F. J. Siebenhaar published an encyclopædia of legal medicine, and in 1842 established a journal devoted to state medicine, which in its continuations was published until 1872.[90] J. B. Friedreich, professor at Erlangen, after editing a journal devoted to state medicine from 1844 to 1849, established one of the most important of current medico-legal periodicals in 1850,[91] to both of which he was a frequent contributor until his death in 1862. Ludwig Choulant, professor at Dresden, and more widely known as the author of important contributions to the history of medicine, published two series of reports of medico-legal investigations.[92]

The foremost forensic physician of this period in Germany was unquestionably John Ludwig Casper, professor in the University of Berlin and “forensic physician” (gerichtlicher Physicus) to that city, who greatly extended the department established in the university under Wagner. He made innumerable investigations, some of which are preserved in several collections of cases,[93] others in his classic Handbook,[94] and still others in the periodical which he established in 1852, and which is now the most important current medico-legal journal.[95]

It is necessary in this place to make mention of one work by living authors, as its appearance marked a new departure in medico-legal literature, and as in it the fact that forensic medicine extends over so wide a field of inquiry as to require treatment at the hands of specialists was first recognized. To Josef von Maschka, professor in the University of Prague, the credit is due of having been the first to produce, with the collaboration of twenty-two colleagues, a truly systematic work on modern forensic medicine.[96]

English works upon this subject did not exist prior to the present century,[97] although physicians were employed by the courts to determine medical questions of fact at a much earlier date. Paris and Fonblanque, in the third Appendix of their “Medical Jurisprudence,” give the text of reports by the Colleges of Physicians of London and of Edinburgh concerning the cause of death as early as 1632 and 1687 respectively.[98]

Lectures on medical jurisprudence were given at the University of Edinburgh by A. Duncan, Sr., at least as early as 1792.[99] The title of Professor of Medical Jurisprudence in a British university was conferred for the first time, however, upon A. Duncan, Jr., at the University of Edinburgh in 1806.[100]

The first English work on medical jurisprudence worthy of consideration is the medical classic known as Percival’s “Medical Ethics.” This was first published in 1803, and contains in its fourth chapter an admirable epitome of legal medicine.[101] A more elaborate work, based very largely, however, upon the writings of continental authors, was published by G. E. Male in 1816.[102] In 1821 Professor John Gordon Smith published the first systematic treatise on forensic medicine,[103] and was one of the first in Great Britain to show the importance of the subject.

Two years later, in 1823, appeared the elaborate and scholarly work of Dr. Paris and Mr. Fonblanque, the first in the English language in whose authorship members of the medical and legal professions were associated.[104] In 1831, Prof. Michael Ryan published the first edition of his “Manual of Medical Jurisprudence” from the memoranda of his lectures on the subject in the Westminster School of Medicine.[105] A similar work was published by Professor T. S. Traill, of the University of Edinburgh, in 1836.[106] The awakened interest in medico-legal subjects among the medical profession during the decade 1830-40 is evidenced by the publication in the medical journals of the lectures of A. Amos, in 1830-31; of A. T. Thomson, at the London University, in 1834-35; of H. Graham, at Westminster Hospital, in 1835; of W. Cummin, at the Aldersgate Street School, in 1836-37; and of T. Southwood Smith, at the Webb Street Theatre of Anatomy, in 1837-38.[107]

Among the noteworthy contributions to the science previous to 1850 are the writings of Dease (1808), Haslam (1817),[108] Christison, the successor of Professor Duncan in the University of Edinburgh, and best known as a toxicologist, Forsyth (1829),[109] Chitty (1834),[110] Watson (1837),[111] Brady (1839),[112] Skae (1840),[113] Pagan (1840),[114] and Sampson (1841).[115]

In 1836, Dr. Alfred Swaine Taylor (b. 1806, d. 1880), the first Professor of Medical Jurisprudence in Guy’s Hospital, published his “Elements of Medical Jurisprudence.” This, the most important work upon the subject in the English language, is now in its twelfth English and eleventh American edition. During forty years of devotion to forensic medicine Dr. Taylor also contributed other important works and numerous papers, published for the most part in the Reports of Guy’s Hospital.[116] In 1844, Dr. Wm. A. Guy, Professor of Forensic Medicine in King’s College, published the first edition of his excellent work.[117] In 1858, Fr. Ogston, Professor of Medical Jurisprudence in the University of Aberdeen, published a syllabus and subsequently (1878) a complete report of his lectures.[118] In 1882, C. M. Tidy, Professor of Chemistry and Forensic Medicine in the London Hospital, who had previously (1877) been associated with W. B. Woodman in the authorship of a valuable handbook, began the publication of a more extended work, which was interrupted by his death in 1892.[119]

The first Spanish work on legal medicine was that of Juan Fernandez del Valles, printed in 1796-97.[120] No further contribution to medico-legal literature was furnished by Spain until the appearance in 1834 of the work of Peiro and Rodrigo, which went through four editions in ten years.[121] Ten years later, in 1844, Pedro Mata, Professor of Legal Medicine and Toxicology at Madrid, published the first edition of a work, which in the development of its subsequent editions, has become the most important on the subject in the Spanish language.[122]

The first Portuguese medico-legal treatise was that of Jose Ferreira Borjes, first printed at Paris in 1832.[123]

A posthumously published report of the lectures of Albrecht von Haller was the earliest Swiss work on forensic medicine.[124]

In Sweden the earliest medico-legal publication was a comprehensive treatise by Jonas Kiernander, in 1776,[125] which was followed in 1783 by a translation of Hebenstreit, by R. Martin. The voluminous writings of the brothers Wistrand (A. T. and A. H.), including a handbook, were published at Stockholm, between 1836 and 1871. Between 1846 and 1873, several articles upon medico-legal subjects were published at Helsingfors, in Finland, by E. J. Bonsdorff, O. E. Dahl, and J. A. Estlander. In 1838 Skielderup[126] published his lectures on legal medicine, delivered at Christiania, and Orlamundt[127] published a handbook at Copenhagen in 1843. The earliest recognition of medico-legal science in Russia was in the lectures of Balk,[128] begun in 1802 at the then newly founded University of Dorpat.

Although dissertations upon subjects of medico-legal interest were published at the University of Leyden as early as the middle of the seventeenth century,[129] and the works of Pineau,[130] Zacchias,[131] Ludwig,[132] von Plenk,[133] and Metzger[134] were printed in Holland, either in Latin or in the vernacular, no original systematic work on legal medicine in the Dutch language has yet appeared.

The only Belgian contribution to the literature of forensic medicine, other than articles in the journals, is a text-book by A. Dambre, first published at Ghent in 1859.[135]

Two medico-legal works have been printed in the Japanese language, one a report of the lectures of Professor Ernst Tiegel, at the University of Tokio,[136] the other a treatise by Katayama.[137]

In the United States the development of forensic medicine has kept pace with that in the mother country. In an introductory address delivered at the University of Pennsylvania in 1810, the distinguished Dr. Benjamin Rush dwelt eloquently upon the importance of the subject.[138] In 1813, Dr. James S. Stringham was appointed Professor of Medical Jurisprudence in the College of Physicians and Surgeons of New York, and a syllabus of his lectures was published in the following year.[139] At the same period (1812-13) Dr. Charles Caldwell delivered a course of lectures on medical jurisprudence in the University of Pennsylvania.[140] In 1815, Dr. T. R. Beck was appointed Lecturer on Medical Jurisprudence in the College of Physicians and Surgeons of the Western District of the State of New York; and soon after Dr. Walter Charming was appointed Professor of Midwifery and Medical Jurisprudence in Harvard University. In 1823, Dr. Williams, in the Berkshire Medical Institute, and Dr. Hale, of Boston, each lectured upon the subject.[141]

In 1819, Dr. Thomas Cooper, formerly a judge in Pennsylvania, and at that time Professor of Chemistry and Mineralogy in the University of Pennsylvania, reprinted, with notes and additions, the English works of Farr, Dease, Male, and Haslam.[142] The works of Ryan, Chitty, Traill, and Guy were also reprinted in this country shortly after their publication in England.

In 1823, Dr. Theodric Romeyn Beck published at Albany the first edition of a treatise as admirable for scholarly elegance of diction as for profound scientific research. This remarkable work, facile princeps among English works on legal medicine, has had twelve American and English editions, and has been translated into German and Swedish.[143]

Papers upon medico-legal subjects or reports of lectures were published by J. W. Francis,[144] J. Webster,[145] R. E. Griffith,[146] R. Dunglison,[147] J. Bell,[148] and S. W. Williams[149] between 1823 and 1835. In 1840, Amos Dean, Professor of Medical Jurisprudence at the Albany Medical College, published a medico-legal work, followed by another in 1854, which with the later work of Elwell are the only treatises on forensic medicine upon the title-pages of which no physician’s name appears.[150]

Numerous papers and tracts upon medico-legal subjects were published by J. J. Allen, T. D. Mitchell, H. Howard, D. H. Storer, J. S. Sprague, J. S. Mulford, J. F. Townsend, and A. K. Taylor between 1840 and 1855. In the latter year appeared the first edition of the admirable work of Francis Wharton and Dr. Moreton Stillé, the first American product of the collaboration of members of the two professions, now in its fourth edition.[151]

Between 1855 and 1860 no systematic treatises on legal medicine were published, although the medical journals contained numerous articles bearing upon the subject. In 1860 the first edition of a treatise written from the legal aspect was published by J. J. Elwell.[152] In 1869 Dr. J. Ordronaux, recently deceased, widely known as a teacher of legal medicine and a graduate in law as well as in medicine, published a treatise which has been extensively used as a text-book.[153] At the present time the great number and variety of articles published in the medical and legal journals, bearing upon every branch of forensic medicine and of medical jurisprudence, and written for the most part by specialists, is evidence of the assiduity with which the science is cultivated.

The wide appreciation of the importance of medico-legal science in the United States is also indicated by the fact that at the present time there are but few medical schools in which the subject is not taught. To ascertain the extent of medico-legal instruction at the present time, a circular of inquiry was sent to the deans of 124 medical schools and of 56 law schools in the United States and British provinces. Answers were received from 103 medical colleges. Of these only 3 are without a teacher of “medical jurisprudence.” In 38 the teacher is a physician, in 50 he is a lawyer, in 5 he is a graduate in both professions, and 3 have two teachers, one a lawyer, the other a physician. The average number of lectures given is 21, and the average in those schools in which the teacher is a lawyer, and therefore presumably teaches only medical jurisprudence, is 15. The medico-legal relations of their subjects are taught in their lectures by the neurologist in 62 schools, by the surgeon in 66, by the obstetrician in 69, and by the chemist (toxicology) in 91. It appears from these reports that not only is the importance of medico-legal science appreciated, but that in the majority of our medical schools the distinction between medical jurisprudence and forensic medicine is recognized in the fact that the instructor is a lawyer, who presumably teaches medical jurisprudence, while the different branches of forensic medicine and toxicology are taught by the specialists most competent to deal with them. Every practising physician requires thorough instruction in medical jurisprudence, which, being strictly legal, is best taught by one whose profession is the law. The general practitioner only requires so much knowledge of the different branches of forensic medicine as will enable him to intelligently fulfil his obligations in such medico-legal cases as will be forced upon him as results of his ordinary practice. He can become a medical expert only by a particular study of and a large experience in some particular branch of the subject.

In our law schools the teaching of medico-legal science is not as general as in schools of medicine. Of 35 law schools, only 10 have professors of medical jurisprudence. Of these 6 are lawyers, 1 is a physician, 2 are graduates in both professions, and 1 is a doctor of divinity.

In this work the existence of specialists in the various branches of medico-legal science has been recognized for the first time in a treatise in the English language. Each branch has been assigned to a specialist in that subject, or at least to one who has made it a particular study.

In the arrangement of the matter, the primary division into the three sciences of medical jurisprudence, forensic medicine, and toxicology has been adopted. The division of pure medical jurisprudence is contained in the present volume, while the legal aspects of neurology, obstetrics, etc., will be treated of in future volumes along with the subjects to which they relate. In the division of forensic medicine the classification of Casper has been followed: i.e., Thanatological; including those branches in which the subject of inquiry is a dead body (contained in the present volume). Bio-thanatological; relating to questions concerning both dead bodies and living persons (in the second volume). Biological; relating to living persons (in the second and third volumes). The applications of the microscope to forensic medicine will be treated of in the second volume. The fourth volume will contain the division relating to toxicology.

R. A. W.

MEDICAL JURISPRUDENCE.

THE LEGAL RELATIONS

OF

PHYSICIANS AND SURGEONS,

INCLUDING

THEIR ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND
SURGERY; THEIR LEGAL DUTIES AND OBLIGATIONS; THEIR RIGHT
TO COMPENSATION; THEIR PRIVILEGES AND DUTIES WHEN
SUMMONED AS WITNESSES IN COURTS OF JUSTICE,
AND THEIR LIABILITY FOR MALPRACTICE.

BY

TRACY C. BECKER, A.B., LL.B.,

Counsellor-at-Law; Professor of Criminal Law and Medical Jurisprudence in the Law
Department of the University of Buffalo; Chairman Executive Committee
New York State Bar Association, etc.

LEGAL STATUS OF PHYSICIANS.

CHAPTER I.

OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY.

Legal Definition and History of the Terms Physician and Surgeon.

At common law the right to administer drugs or medicines or to perform surgical operations was free to all. And such was the rule of the Roman civil law. But the importance of prescribing certain educational qualifications for those who made such practices their means of gaining a livelihood soon became apparent, and as early as the year 1422, during the reign of Henry the Fifth in England, an act of Parliament was adopted forbidding any one, under a penalty of both fine and imprisonment, from “using the mysterie of fysyck unless he hath studied it in some university and is at least a batchellor of science.”

As a result of this and other statutory regulations, a class of professional men grew up, who were called “physicians,” because they professed to have the qualifications required by such legal regulations to wisely prescribe drugs and medicines for the cure of diseases. A chirurgeon or surgeon—Latin, chirurgus; Greek, χειρουργος, compounded of χειρ, the hand, and ἐργειν, to work—as the derivation of the word shows, was one who professed to cure disease or injuries by manual treatment and appliances.

It would be more interesting than profitable to trace the history of these terms, and of the professions of medicine and surgery from the early times, when the clergy administered healing to the body as well as to the soul, and when barbers were generally surgeons, and blood-letting by the knife-blade and the use of leeches caused the common application of the term “leech” to those who practised surgery.

Definition.—For the purposes of this treatise, however, it will be sufficient to define the term “physician,” as meaning any one who professes to have the qualifications required by law to practise the administration of drugs and medicines, and the term “surgeon,” as meaning any one who professes to have the like qualifications to perform surgical operations, for the cure of the sick or injured.

For a list of the early statutes of England relating to the practice of medicine the reader may consult Ordronaux’ “Jurisprudence of Medicine,” p. 5, note 2.

The present statutory regulations throughout the United States and in England and Canada will be more particularly referred to and synopsized hereafter in this volume.

CHAPTER II.

ACQUIREMENT OF LEGAL RIGHT TO PRACTISE MEDICINE AND SURGERY.

Now Generally Regulated by Statute.—In nearly all of the United States, as well as in England, France, Germany, and other civilized and intelligent communities, the legal right to practise the administration of drugs and medicines, or to perform operations in surgery for the purpose of curing diseases or injuries, has for many years been the object of statutory legislation. The necessity and propriety of regulating by law such practices is generally conceded. It is manifest to all that a person engaging in the practice of medicine or surgery as a profession is holding himself out to the world, and especially to his patients, as one qualified by education and experience to possess more than ordinary skill and ability to deal with the great problems of health and life. He professes to the world that he is competent and qualified to enter into the closest and most confidential relations with the sick and afflicted, and that he is a fit and proper person to be permitted freely, and at all hours and all seasons, to enter the homes, the family circle, and the private chamber of persons suffering from disease or injury. All this he professes and does upon his own account, and for his own profit.

Statutory Regulation of the Right to Practise, Constitutional.—The exercise by the States of these statutory powers is upheld as a valid exercise of the “police power,” to protect the health of the community. When the constitutionality of such enactments has been questioned, it has been attacked upon the alleged ground that the statutes under question unjustly discriminated in favor of one class of citizens and against another class; and as depriving those already engaged in the practice of medicine or surgery of “their property without due process of law.” State v. Pennoyer, 18 Atl. Rep., 878; ex parte Spinney, 10 Nev., 323; People v. Fulda, 52 Hun. (N. Y.), 65-67; Brown v. People, 11 Colo., 109.

Opinion of United States Supreme Court.—This subject has been carefully considered by the United States Supreme Court in a recent case, and the broad extent of the legislative powers of the States to regulate such matters clearly and fully declared. Dent v. West Va. (129 U. S., 114). The Court say—pp. 121 et seq.—Mr. Justice Field delivering the opinion, in which all the other Justices concur: “The unconstitutionality asserted consists in its [the statutes] alleged conflict with the clause of the Fourteenth Amendment, which declares that no State shall deprive any person of life, liberty, or property, without due process of law; the denial to the defendant of the right to practise his profession, without the certificate required, constituting the deprivation of his vested right and estate in his profession, which he had previously acquired.

“It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition. This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right where its exercise is not permitted because of a failure to comply with conditions imposed by the State for the protection of society. The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different States, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of the parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. The nature and extent of the qualifications required must depend primarily upon the judgment of the State as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation.

“Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society, may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practise in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance in its practice, but for the earnestness with which the plaintiff in error insists that, by being compelled to obtain the certificate required, and prevented from continuing in his practice without it, he is deprived of his right and estate in his profession without due process of law. We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practise medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the State as competent to judge of his qualifications. As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms ‘due process of law’ a definition which will embrace every permissible exertion of power affecting private rights and exclude such as are forbidden. They come to us from the law of England, from which country our jurisprudence is to a great extent derived, and their requirement was there designed to secure the subject against the arbitrary action of the crown and place him under the protection of the law. They were deemed to be equivalent to ‘the law of the land.’ In this country the requirement is intended to have a similar effect against legislative power, that is, to secure the citizen against any arbitrary deprivation of his rights, whether relating to his life, his liberty, or his property. Legislation must necessarily vary with the different objects upon which it is designed to operate. It is sufficient, for the purposes of this case, to say that legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subjects to which it relates, and is enforceable in the usual modes established in the administration of government with respect to kindred matters: that is, by process or proceedings adapted to the nature of the case.”

Early Common-Law Rule Concerning Suits by Physicians.

The common-law rule was that the physician could not sue and recover for his services, though he might for the medicines he furnished. The theory of the law followed the etiquette of his profession and forbade him from making a specific contract for pay for his services, and obliged him to receive what his patient chose to give him, which was called his “honorarium.”

The Early Common-Law Rule No Longer in Force.—As time went on this theory vanished from the law. For many years it has lost its place among the rules of professional etiquette. In its stead statutory provisions have been adopted which forbid a recovery for services performed by persons not legally authorized to practise. The right to contract with the patient or with those who employ the medical man, and his remedies to enforce such contracts, will be treated of hereafter.

Statutory Regulations in New York State.—Most of the States of the United States have enacted statutory regulations prescribing in one form or another the necessary qualifications which entitle a physician or surgeon to practise, and prescribing penalties for practising without having complied with such statutory requirements. In the State of New York such matters were regulated for the first time by statute in 1787. This was followed by a general enactment on the subject of the organization of county medical societies, and of State medical societies having boards of censors, to whom was committed the power to examine applicants for license to practise, and of issuing licenses (Laws of 1813, p. 94). This law remained in force, with certain modifications, until 1844, when all acts regulating the practice of medicine and surgery were repealed. A history of the statutory regulations in New York State up to the act of 1844 on this subject will be found in the case of Bailey v. Mogg, 4 Denio, 60.[154]

At the time of the passage of the act of 1813, and for many years afterward, nearly all of the physicians in New York State practised in accordance with the theories and precepts of what is now called the regular or allopathic school of medicine. That act provided that the physicians in the respective counties of the State of New York should meet in the respective counties and organize county medical societies. As a consequence of the fact that the physicians of that day were chiefly of the allopathic school, they necessarily obtained the control of the county medical societies and State medical societies. Hence it became difficult, if not impossible, for physicians who wished to practise upon other theories and tenets than those obtaining in that school, to obtain licenses to do so. With the growth of the homœopathic school of medicine and the eclectic school of medicine, came applications to the legislature asking for those practising under those schools the same rights and privileges of organizing county and State societies as had been extended to physicians generally by the act of 1813; so that in 1857, by Chapter 384, the legislature of New York State enacted that the homœopathic physicians might meet in their respective counties and organize county medical societies, with boards of censors having the same powers and privileges which were granted by the act of 1813; and by other laws similar privileges were granted to the so-called eclectic school. After the passage of the act of 1844, down to about 1874, as hereinbefore stated, there was no limitation upon the right to practise medicine or surgery in this State.

The inharmonious and injurious effect of such policy of the State becoming manifest, the legislature, by Chapter 436 of Laws of 1874, required all persons desiring to practise medicine or surgery to obtain a certificate as to their qualifications from the censors of some one of these medical societies. By the Laws of 1880, Chapter 513, additional and more extensive and particular provisions were made in reference to this matter, and all the physicians then practising were required, on or before the time limited in the act, to file with the county clerks of their respective counties their licenses to practise granted by the censors of their county medical societies, or a diploma of some chartered school of medicine; and those persons who desired to become licensed who were not in practice were likewise required to obtain similar licenses or certificates and file the same. A diploma of a chartered school or medical college was given the same effect as a license issued by the censors.

Recent Legislation in New York State.—The whole matter, however, of licensing physicians to practise has, in the State of New York, been recently regulated by Chapter 468, Laws of 1889, and 499 of 1890, which have reference to the qualifications of persons becoming medical students, and Chapter 507 of 1890, which gives to the Regents of the University of the State of New York power to select boards of examiners from persons nominated by each of the three State medical societies, viz., the New York State Medical Society, Homœopathic Medical Society, and Eclectic Medical Society. These boards prepare questions which are to be approved by the State Board of Regents; examinations are held in different parts of the State upon these questions, the examination papers are certified to that one of these boards of examiners which the student may elect, and that board in turn certifies whether or not the examination has been successfully undergone; and upon its certificate the Board of Regents licenses the student to practise, and his examination papers are filed in the office of the Board of Regents and become a matter of record. These provisions have been enlarged and modified slightly by various statutes since enacted. They are all now embodied in Chapter 601 of Laws of 1893. They will be found carefully synopsized below.

Penal Provisions in New York State.—The New York Penal Code, which went into effect in 1882, enacted that a person practising medicine or surgery, or pretending to be a physician or surgeon, without a license or a diploma from some chartered school, should be deemed guilty of a misdemeanor punishable by fine or imprisonment (Penal Code, Section 356); and the same statute, 357, made it a misdemeanor for a person, whether licensed or not, to practise medicine or surgery, or do any other act as a physician or surgeon, while intoxicated, by which the life of any person is endangered or his health seriously affected.[155]

Giving “Patented” Medicines No Exception.—At one time an attempt was made to claim, that under the patent laws of the United States a person had the right to administer patent medicines without being punishable for practising without a license, but this doctrine was repudiated by the courts. Thompson v. Staats, 15 Wend., 395; Jordan v. Overseers, etc., 4 Ohio, 295.

Courts may Compel Granting of License.—A person who is qualified and complies with reasonable rules of a licensing body, can compel such body to license him. This was held to be the law in the case of The People ex rel. Bartlett v. The Medical Society of the County of Erie, which is also an important authority in respect to a vexed question of medical ethics. It appeared in that case that under the general laws of New York in regard to the organization of medical societies, a medical society had refused to receive as a member a person otherwise qualified, because he had advertised in the public prints a certain cure, including a mechanical appliance used in treating throat troubles; it being forbidden by the code of ethics of the American Medical Association, which the County Medical Society had adopted as one of its by-laws, that a physician or surgeon should advertise. The Court of Appeals of the State of New York held that this constituted no defence to a proceeding instituted by such person to obtain a mandamus compelling the society to admit him to membership, if otherwise qualified.[156]

It has also been decided that a medical society had no right to make a by-law establishing a fixed fee-bill, or tariff of charges, and providing for the expulsion of a member charging at a different rate than that prescribed. Such a by-law was declared unreasonable and void in the case of People v. Medical Society of Erie County, 24 Barb., 570.

The effect of these decisions was, so far as they affect the validity of by-laws, attempted to be avoided in that State by Chapter 445 of Laws of 1866, by which it is expressly enacted that the county medical societies of the State of New York may make such rules and by-laws as they see fit, “not inconsistent with the laws of said State, and may enforce them by expulsion or other discipline.” It may be considered doubtful whether this legislation can accomplish its purpose in the case of the adoption of a by-law void as against public policy.

No Particular Schools Recognized by the Courts.—The general trend of the decisions in all the States, whenever any questions in reference to schools of medicine have been before our courts, is to avoid recognizing any particular system or school. The theory of the New York courts upon this subject is well expressed by the liberal-minded and learned Judge Daly in the New York Court of Common Pleas, in the case of Corsi v. Maretzek, 4 E. D. Smith, 1-5. In that case it was claimed that a certificate of incapacity because of sickness, given by a “homœopathic” physician to an opera-singer, was not binding. It was argued that the employment of a “homœopathic” physician under the contract did not fulfil a provision thereof which required the event of the singer’s sickness to be certified to by “a doctor,” to be appointed by the director.

The Court said: “The system pursued by the practitioner is immaterial. The law has nothing to do with particular systems. Their relative merit may become the subject of inquiry, when the skill or ability of a practitioner in any given case is to be passed upon as a matter of fact. But the law does not, and cannot, supply any positive rules for the interpretation of medical science. It is not one of those certain or exact sciences in which truths become established and fixed, but is essentially progressive in its nature, enlarging with the growth of human experience, and subject to those changes and revolutions incident to any branch of human inquiry, the laws of which are not fully ascertained. The labors of the anatomist, the physiologist, and the chemist have contributed an immense storehouse of facts; but the manner in which this knowledge is to be applied in the treatment and cure of diseases has been, and will probably continue to be, open to diversity of opinion. No one system of practice has been uniformly followed, but physicians from the days of Hippocrates have been divided into opposing sects and schools. The sects of the dogmatists and the empirics divided the ancient world for centuries, until the rise of the methodics, who, in their turn, gave way to innumerable sects. Theories of practice, believed to be infallible in one age, have been utterly rejected in another. For thirteen centuries Europe yielded to the authority of Galen. He was implicitly followed—his practice strictly pursued. Everything that seemed to conflict with his precepts was rejected; and yet, in the revolutions of medical opinion, the works of this undoubtedly great man were publicly burned by Paracelsus and his disciples; and for centuries following, the medical world was divided between the Galenists and the chemists, until a complete ascendency over both was obtained by the sect of the Vitalists. This state of things has been occasioned by the circumstance that medical practitioners have often been more given to the formation of theories upon the nature of disease and the mode of its treatment, than to that careful observation and patient accumulation of facts, by which, in other sciences, the phenomena of nature have been unravelled. I am far from undervaluing the great benefits conferred upon mankind by the study of medicine, and have no wish to minister to any vulgar prejudice against a useful and learned profession, but it is not to be overlooked that, as an art, it has been characterized, in a greater degree, by fluctuations of opinion as to its principles and the mode of its practice, than, perhaps, any other pursuit. That it has been distinguished by the constant promulgation and explosion of theories, that it has alternated between the advancement of new doctrines and the revival of old ones, and that its professors in every age have been noted for the tenacity with which they have clung to opinions, and the unanimity with which they have resisted the introduction of valuable discoveries. They still continue to disagree in respect to the treatment of diseases as old as the human race; and at the present day, when great advances have been made in all departments of knowledge, a radical and fundamental difference divides the allopathist from the followers of Hahnemann, to say nothing of those who believe in the sovereign instrumentality of water.

“In fact, nothing comparatively is known of the philosophy of disease. 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. In adverting to the conflicting views and differences of opinion, that exist and have ever existed in the practice of the healing art, it is not to call in question the value of learned, skilful and experienced physicians, but merely to show the error of attempting, in the present state of medical science, to recognize, as matter of law, any one system of practice, or of declaring that the practitioner who follows a particular system is a doctor, and that one who pursues a different method is not.” And see also White v. Carroll, 42 N. Y., 161; Ordronaux’ “Jurisprudence of Medicine,” 27.

This decision was prior to the statute of 1874 and the provisions of the Penal Code before noted. Since those statutes, it is a misdemeanor to practise except as permitted by the provisions of those statutes.

IN NEW YORK AND ELSEWHERE PRACTITIONER WITHOUT LICENSE CANNOT SUE AND RECOVER FOR HIS FEES.

Since the passage of the New York Act of 1844 (Laws of 1844, p. 406), there has been no precise statutory provision in that State prohibiting in terms persons who practise physic or surgery without a license, from suing to obtain a recovery for services performed. But this is of little consequence, for, as we have already stated, so practising has been declared to be a misdemeanor by the Penal Code of New York.

It is a well-settled principle that when any act is declared by statute to be criminal, a contract calling for the performance of such an act is illegal and void. The early English authorities on this point are fully collated in Wheeler v. Russell (17 Metc., Mass., 258), and the later English and American cases may be found in “American and English Cyclopædia of Law,” title “Contracts,” Vol. III., p. 872 et seq.; see also id., Vol. XVIII., p. 440. Further consideration of the validity of contracts for medical and surgical services will be had hereafter. A full synopsis of the statutes of the different States regulating the licensing of physicians and surgeons in force at the time this volume goes to press will be placed in another chapter.

In a suit between a person who has performed medical and surgical services, and one who employed him, it is said that the person performing the services is presumed to have been licensed to do so.[157] If the State sues for a penalty, a different rule is claimed to prevail.[158]

How may a Diploma or License be Proved in a Court of Law?

It is evident from the foregoing considerations that in any proceedings to punish for practising without license or legal authority, and in actions to recover payment for professional services in the States and countries, where a license or diploma of a regularly chartered school or college is required by statute to entitle the person to practise, it may become important to establish—first, the legal authority to grant the license or diploma; and second, the genuineness of the license or diploma produced. It frequently happens that the diploma or license has been obtained in another State or country. Under the New York statutes, especially the laws of 1880 and 1890, it was made necessary to file a diploma. When it had been issued by a chartered school of another State it must be certified to by some lawfully incorporated medical college in this State, before being received for filing, or regarded by the law as conferring upon its possessor the right to practise in that State.

As to the chief element of authenticity, namely, the legal incorporation or authority of the body or institution granting the diploma, it is clear that the act of incorporation itself would be the best evidence of the incorporation of the college or school, and a special act granting the power to license to a board of censors or other official body or board would have to be produced to show the right vested in that board or body to grant a license. In Georgia it has been held (Hunter v. Blount, 27 Ga., 76), that to prove a diploma given to a physician in another State, the existence of the college, and the fact of its being a chartered institution, must be shown by producing its act of incorporation.

In Thornton’s case (8 Term Rep., 303; same case, 3 Esp., 4), it was held that the mere production in court of a diploma under the seal of one of the universities, is not of itself evidence to show that the person named in the diploma received the degree which the diploma specified. In another and later case, however, Simpson v. Dunmore (9 M. & W., 45; same case, 5 Jurist, 1012), it was held that it was unnecessary for the person producing a license from the Apothecaries’ Company (an incorporated body) to practise as an apothecary, the seal on which license was proved to be genuine, to give any additional evidence of his identity with the person named in the license. The reason for this doctrine is probably to be found in the well-known rule of evidence, that identity of both christian name and family name, is sufficient to raise a presumption of fact that the person bearing the name is the identical person so named in any written instrument.

In Walmsley v. Abbott (1 K. & P., 309; same case, 5 D. & R., 62), proof of the signature of one of the examiners who signed a certificate of examination was held sufficient to warrant the acceptance of the certificate in evidence in the first instance. In another case the proof was that a person previously a stranger to the place went to a town which was the seat of a university, and was told that a certain building was the college, and that a certain person whom he saw there was the librarian, and that this librarian showed him what purported to be the seal of the university, and also a book which the librarian stated was the book of acts or records of the university, and the seal so shown him was compared with the seal of a certain diploma, the genuineness of which was in question, and a copy was made from the said book of acts, of an entry stating that the degree of M. D. had been conferred by the university upon a person bearing the same name as that in the diploma, and this proof was held a sufficient authentication of the diploma, and of the act or authority of the university conferring the degree. Collins case, 1 Addison & Ellis, 695; same case, 3 N. & M., 703.[159]

The Rule in Criminal Prosecutions.—We have seen above, that in a criminal prosecution the burden is on the defendant to produce and prove his license, but to warrant a conviction for practising without a license it must be shown that the accused actually practised. It is not enough to show that he is called by persons whom he attends personally, that is, for whom he prescribes, or to whom he gives medicine or whom he treats. There must be proof shown that he has done this on his own account or for his own profit. But proof of a single act connected with other circumstances, such as tend to show that he held himself out as a physician, is enough. Burham v. State, 116 Ind., 112; Hill v. Bodie, 2 Stew. and P. (Ala.), 56; Pedgrift v. Schiller, 8 C. B., N. S., 200 (same case, 6 Jurist, N. S., 1341). And if he simply practises “massage,” he does not fall within the acts against practising medicine, even though he pretends to accomplish as much good as could have been accomplished by a regular physician. Smith v. Lane, 24 Hun, N. Y., 632. But see also Leech v. Ripon, 12 Cent. L. J., 479; State v. Schultz, 11 Reporter, 701.[160]

Falsely Pretending to be a Licensed Practitioner Generally a Misdemeanor.—In some of the States, and in England, it is not only made a misdemeanor to practise without a license, but falsely pretending to be a licensed practitioner is made a misdemeanor. Such is the provision of the Penal Code of New York heretofore cited. In England such a statute has been somewhat strictly construed in the case of Carpenter v. Hamilton (37 Law Times Rep., 157). In that case it appeared that a person advertised himself as “John Hamilton, M.D.,” of the “Metropolitan Medical College of New York.” It further appeared that he was not registered as required by the law of England. In a prosecution against him for falsely pretending to be a licensed physician, the only proof of his practising being as just stated, an acquittal was sustained by a majority of the court, which held that it was a question of fact to be determined by a trial court whether or not what he did was pretending to be a physician authorized to treat a patient. The Court intimated that the person simply pretended to be what he really was, namely, a doctor of medicine of the Metropolitan Medical College of New York.

State and Local Boards of Health—Powers Governed by Special Statutes.

In addition to the rules and regulations prescribed by the general statutes, modern sanitary science has developed so broadly throughout most of the civilized states and countries, that the different governments have established state boards of health, and in many instances local boards of health, the latter being limited in their authority and operation to specific municipal divisions, to which boards the government has committed the power to pass certain sanitary rules and regulations, which rules and regulations may have an important bearing upon and relation to the practice of medicine and surgery. The jurisdiction and powers of these boards are to be found in the special statutes creating them, and prescribing their powers and duties, and cannot be treated of extensively here. They will be considered further under the special subjects to which they relate.

Physicians Bound to Report Contagious Cases and Not Liable for Mistaken Report.—The duty to promptly report[161] to boards of health every case of contagious or infectious disease is manifest.

CHAPTER III.

OF THE CONTRACTUAL RELATION BETWEEN PHYSICIAN AND PATIENT.

Employment and Rights in Regard To Compensation.

Legal Character of the Employment.—Whatever may have been the theories of the Roman civil law, and following it of the early English common law, as to the character of the employment of physicians and other professional men, it is now so well settled that the reciprocal duties and obligations arising between physician and patient, or attorney and client, and the like, are to be classed under and governed by the law of contracts, that any extended discussion of these theories is unnecessary here.[162] Mr. Ordronaux, in the second chapter of his interesting work on the “Jurisprudence of Medicine,” has considered them fully, and has quoted amply from the books of the earlier and later text-writers, and from the expressions of the judges, to show what these theories and rules were; and he and all later authorities agree that the ancient notion, that professional services are always gratuitous unless a special contract to pay for them is made, has long been abandoned. He observes (pp. 13 and 14): “But in our day the increase in the number of professional practitioners, and their exclusive devotion to a special class of services as a means of living, has essentially modified the practical character of the contracts with their patrons. Although in legal acceptation a mandate, yet from force of circumstances growing out of an altered state of society, the mandate is practically changed into a contract of hire (locatio operis). This doubtless reduces professions to the status of artisanship, and places them on a par with manual labor, conjoined to the special skill of a particular calling. But it also simplifies the contract, removes it from the category of innominate or imperfect obligations, requiring the intervention of legal fictions to furnish a means for their enforcement, and brings it within the pale of consensual agreements based upon a sufficient consideration.”

The physician’s right to sue on contract in England was declared by legislative enactment by Chap. 90 (Sec. 31), 21 and 22 Victoria. It has never been denied in the United States. Adams v. Stephens, 26 Wend., 451-455.

Physicians’ and Surgeons’ Service in a Sense Voluntary.—Though it is true, as in the case of many other doctrines of ancient law which were formulated under social conditions far different from those which prevail in modern times, that these rules and theories have long since lost their potency as distinct rules governing actions at law, nevertheless the legal aspect of the peculiar relationship between physician and patient, is still affected by the idea that the service on the part of the physician is voluntary—that is, the physician or surgeon is not bound to come and perform services whenever or wherever he is called. He is at liberty to refuse any and every patient who attempts to employ him.

Patients may Cease Employing at Any Time, unless there is a Contract for a Certain Period.—And when he is employed, the patient may at any moment discharge him, without incurring liability in damages, unless a special contract has been entered into between them that the services shall be rendered for a fixed period.

Service once Begun by Physician must be Continued until Notice of Intention to Cease is Given by Him.—If, however, the services are begun, they must be continued until notice has been given of the intention to discontinue them, and a reasonable time allowed the patient to obtain the services of another person. The reasons for this rule will be considered more fully below.

Contracts either Express or Implied.—The contract between the physician and patient may be an express one, that is, one in which all the terms are agreed upon or expressed between the parties, or it may be what is called an implied contract, or one in which the patient, or another person, simply calls on the physician or surgeon to come and perform services, and neither party specifically stipulates or agrees upon any of the terms of the employment.

Express Contracts may Include any Stipulation Not Contrary to Public Policy.—In the case of an express contract the agreement of the parties settles and determines their mutual obligations, whether it be written or merely verbal. But an express contract may also be made in such a form that certain conditions are required to be performed by the physician before he becomes entitled to any compensation for his services. It may also embody an agreement that the patient shall pay certain sums at certain times as the treatment goes on, or that no other physicians shall be employed without the consent of the attending physician, or if so employed that they shall be under the direction of the attending physician.

Almost anything may be stipulated which is not contrary to public policy, and a breach of any such stipulation entitles the aggrieved party to rescind the contract and cease from performing it.[163]

Qualifications of the Rule that Express Contracts may Include any Stipulation.—Some qualifications of this rule of law must, however, be noted. A breach by the patient of any one of these stipulations would entitle the physician to treat the engagement as terminated like any other contractual relation, and to bring his action for a recovery for services rendered up to the time of the breach; but it is doubtful whether he would have any action for damages for failure to permit him to perform further services. This doubt arises from the legal doctrine, hereinbefore referred to, that a patient is always at liberty to dismiss his physician at any time without notice, and without assigning any cause, which recognizes and grows out of the fact that if the trust and confidence of the patient are destroyed, or impaired, no matter how unreasonably or unjustly, the relation between them must thereafter be unprofitable to both parties, and dangerous to the patient. On the other hand there is little doubt but that whenever an express contract is made by a physician to treat a patient for a certain length of time for a particular disease or injury, the physician is not at liberty to arbitrarily terminate that relation or his connection with the case, unless he has in the contract specifically reserved the right so to do.

Contracts Making Payment Contingent upon Successful Treatment Valid.—The express contract between the parties may also contain a stipulation, by which the physician makes his compensation contingent upon his effecting a cure. Smith v. Hyde, 19 Vt., 54; Mack v. Kelly, 3 Ala., 387. See also Coughlin v. N. Y. Cen. R. R. Co., 71 N. Y., 443. In such a case, however, if the patient does not permit the physician opportunity to treat him during the time named in the contract, or for a reasonable time, if no specific time is fixed, the courts would probably permit the physician to recover a reasonable compensation for his services for the time during which he treated his patient.

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. If he fails to do this he is liable in damages for the results that follow as the proximate consequence of his abandoning the case.

This Rule True even in the Case of a Charity Patient.—This is true, it is believed, even when the patient is a charity patient, and the services are gratuitous. Shiels v. Blackburn (1 H. Blacks., 159). For any other rule less strict might entail the most serious consequences. Ordronaux, “Jur. of Med.,” 13 and 14, citing Inst., lib. 3, 26, 11; Pothier, “Du Contrat Mandat,” Chap. I., § 4.

Elements of the Contract Between Physician and Patient.

Duties of Physician.—When the relations between physician and patient are not defined otherwise by express contract, the implied contract is, and the law presumes, that the physician contracts, first, to use the necessary care and attention; second, to use the necessary skill; third, in case the physician furnishes his own medicines (and the obligation to furnish them would probably be imposed, if it was the custom of the school or class of physicians to which the particular physician belonged to do so), that the medicines are proper and suitable. As a corollary of these duties it necessarily follows, also, that the physician contracts that the instruments or appliances which he uses are free from taint or contagion, and are suitable and proper for the uses to which they are put. Upon this theory an action could be maintained against a physician for using impure vaccine.

Duties of Patient.—The patient on his part contracts, first, to give the physician information concerning the facts and circumstances of the case, and full opportunity to treat him properly; second, to obey his instructions and follow his directions, and, third, to pay him the reasonable worth and value of his services. The different branches of this contract are reciprocal. The failure of either party to fulfil the obligation of any one of them which is imposed upon him, would bar him of his remedies against the other party to recover damages for any breach, or any proximate result of his breach, of such obligations. The necessary care and attention required of the physician in such a case are measured by the requirements of the case and the physician’s duties to his other patients, modified, however, by the rule that the physician is presumed to know, at the time he takes up the case, the condition and situation of his other patients at that time. Consequently, if those who have first employed him are so situated at the time that his services for them are likely to be soon and continuously required, he cannot without making himself liable in damages undertake another case and then neglect it, but he should either decline to take it, or should with the full knowledge and consent of the patient make provision for the temporary substitution of some other physician, during the time that his prior obligations engross his attention. Nevertheless, if the situation and condition of those to whom he has first contracted his services is such that he had, although he exercised due professional knowledge and skill, no reason to apprehend that these patients would need his exclusive service, and by a sudden development, arising from those occult causes which obtain in all serious diseases and injuries, any of his prior patients suffer a sudden and dangerous relapse, or from an accession of new and dangerous symptoms and conditions so that he must fly to their aid, he would not be liable to another patient, to whom he had afterward contracted his services, for neglecting his case; still he should in such instances use extra means to obtain the services of some other and equally skilful man.

Only Ordinary and Usual Skill Required.—The degree and character of necessary skill contracted for has been variously defined by the courts. When malpractice is discussed, a more extended consideration of this matter will be required. At present the doctrine laid down in Shearman and Redfield on “Negligence,” paragraphs 433-435, may be adopted. It is as follows:

“Although a physician or surgeon may doubtless by express contract undertake to perform a cure absolutely, the law will not imply such a contract from the mere employment of a physician. 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. To render him liable, it is not enough that there has been a less degree of skill than some other medical man might have shown, or a less degree of care than even himself might have bestowed; nor is it enough that he himself acknowledged some degree of want of care; there must have been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result.... But a professed physician or surgeon is bound to use not only such skill as he has, but to have a reasonable degree of skill. The law will not countenance quackery; and although the law does not require the most thorough education or the largest experience, it does require that an uneducated, ignorant man shall not, under the pretence of being a well-qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations. If the practitioner, however, frankly informs his patient of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the lack of that which he knew did not exist.”[164]

Average Standard of Skill of any Professed School must be Attained.—It is also a rule that one who professes to adhere to a particular school must come up to its average standard, and must be judged by its tests, and in the light of the present day. Thus a physician who would practise the reckless and indiscriminate bleeding which was in high repute not very many years ago, or should shut up a patient in fever and deny all cooling drinks, would doubtless find the old practice a poor excuse for his imbecility. So, if a professed homœopathist should violate all the canons of homœopathy, he would be bound to show some very good reasons for his conduct, if it was attended with injurious effects. Upon many points of medical and surgical practice all of the schools are agreed, and indeed common sense and universal experience prescribe some invariable rules, to violate which may generally be called gross negligence. Yet the patient cannot justly complain if he gets only that quality and kind of service for which he bargains. If he employs a cheap man, he must expect cheap service. Puffendorf, in his “Law of Nature and Nations,” observes: “We read a pleasant story of a man who had sore eyes and came to a horse-doctor for relief. The doctor anointed his eyes with the same ointment he used among his horses, upon which the man falls blind, and the cause is brought before the judge, who acquits the physician. For if the fellow, says he, had not been an ass he had never applied himself to a horse-doctor.” See also Jones on Bailments, 100; 1 Field’s “Lawyers’ Briefs,” sub. Bailments, Sec. 573; Musser v. Chase, 29 Ohio St., 577; Lanphier v. Phipos, 8 Carr. & Payne, 478.

Degree of Care and Skill Used a Question of Fact.—In an action at law, whether brought by a physician to recover for his services, or by a patient to recover for malpractice or neglect, it is always a question of fact, to be determined by the jury under proper instructions as to the measure of care and skill required, whether or not the physician has in a given case used that degree of care and displayed that amount of skill which might reasonably be expected of a man of ordinary ability and professional skill. These same rules apply to the surgeon. He must possess and exercise that degree of knowledge and sense which the leading authorities have announced, as a result of their researches and experiments up to the time, or within a reasonable time before, the issue or question to be determined is made.[165]

Rule in Leading Case of Lanphier v. Phipos.—In the case of Lanphier v. Phipos, 8 C. & P., 478, already cited, Chief Justice Tyndall enunciated the rule as to the degree of skill required of a physician or surgeon, which has been followed by all the courts since then. He said: “Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. 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. Hence he is never presumed to engage for extraordinary skill, or for extraordinary diligence and care. As a general rule, he who undertakes for a reward to perform any work is bound to use a degree of diligence, attention and skill, adequate to the performance of his undertaking; that is, to do it according to the rules of the art; spondet peritiam artis. And the degree of skill arises 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 does not engage for more.”

Physician Must Instruct Patient how to Care for Himself, etc.—A corollary of these rules is, that the physician must give proper instruction to his patient how to take care of himself, how to manage a diseased or injured member, when and how to take any medicines that may be prescribed, what diet to adopt, and that in case the physician fails to give these instructions he is liable for any injuries that result from this failure. Carpenter v. Blake, supra.

Patient Must Inform Physician Fully Concerning his Case—His Communications Privileged.—On the other hand, as we have already stated, the patient owes the duty to his physician of informing him fully of all the varied symptoms of his disease, or the circumstances attending his injury, and to freely and with due confidence answer all questions concerning his past history which would tend to throw any light upon his present condition. To battle with the occult forces which play so important a part in determining the course or consequences of disease, it is absolutely essential that the physician should know all that is possible to be known of the patient’s history, and of the history of the patient’s family. As we shall see later on, all such communications are, in most of the States of the Union and elsewhere, by statutory enactment made privileged, and without the consent of the patient the physician or surgeon is absolutely forbidden to divulge any communication or information which he receives in order to enable him to prescribe. This rule applies equally whether the physician or surgeon is acting for hire or is treating the person as a charity patient, and it has been extended by construction by the courts in some States, so as to include examinations made by jail physicians or other physicians sent by the prosecuting officials of the State to examine a prisoner, for purpose of giving evidence, but who allowed the prisoner to suppose that they were there simply to treat him in their professional capacity. People v. Murphy, 101 N. Y., 126. At the same time the courts have been careful to make an exception in the case of advice given for the purpose of enabling the person receiving the advice to commit a crime, and of any information received by the physicians while the persons asking for it were engaged in a criminal attempt. All of these interesting questions will be examined and treated of at length hereafter.[166]

Conditions of Contract Between Physician and Patient Further Considered.—It has been observed that the contract between the physician and patient may be conditional or unconditional. By this it is meant that limitations upon the reciprocal obligations between them may be imposed, or extensions of such obligations made, by special agreement. 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. 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. In the case already suggested of a request by the medical man for information as to the patient’s past history, or that of the patient’s family, or the circumstances concerning the injury or symptoms of the disease, if the patient should give false information, or should wilfully neglect to give true information, the physician would have a right, upon giving reasonable and due notice, and opportunity to employ some one else, as already intimated, to decline to proceed further with his care of the case, and might sue and recover pay for the services rendered.

Physicians Cannot Contract that they shall Not be Responsible for Want of Ordinary Care and Skill.—An important and salutary exception to the general rule that all parties may contract freely as between themselves stipulations measuring their reciprocal obligations, doubtless applies to the relations between physician and patient. It is an exception which has been applied to the contract relations existing between a common carrier and a shipper or a passenger. This is that persons contracting to perform services which are to a certain extent public in their nature, and which, as in the case of the common carrier or in the case of the physician or surgeon, are founded upon conventional relations, and affect the public welfare, are not permitted, from reasons of public policy, to contract for a release or escape from liability arising out of their own negligence or wrong. In short, a physician or surgeon cannot contract with a patient that the patient shall waive any claim for damages growing out of his want of ordinary care and skill. Nevertheless, the physician or surgeon may frankly inform his patient of his want of knowledge and experience as to the particular kind of treatment required by any special and unusual disease or injury. If after full information on this point, and full opportunity to employ some one else, the patient insists that the physician or surgeon go on with such treatment as he is able to give to the case, and injuries result which a more skilful and experienced practitioner might have avoided, it is probable that the courts would hold that the practitioner was not liable under such circumstances, or that such circumstances could be pleaded in mitigation of damages. But it would be the duty of the practitioner in such a case to be exceedingly careful in performing any surgical operations, and not administer any powerful drugs with the strength and medicinal qualities of which he was not acquainted. If he should assume to perform such operations or administer such drugs instead of confining himself to modifying the ravages of disease by the use of well-known simple remedies, or protecting against the consequences of severe injury by the use of ordinary antiseptic dressings and treatment, he would no doubt be liable for any resulting damage, and could not recover pay for his service.

Experiments Not to be Tried on Patients—This Rule Applies to Charity Patients.—For like reasons of public policy it has been held that a physician has no right to try experiments on his patient.[167] In this respect a charity patient will be protected by law and compensated for damages received from experiments on his health and person, just as much as a person from whom a large fee could be expected. Humanity and public policy both forbid that experiments should be tried upon one class of patients any more than another. However this may be, in a case of extreme danger, where other resorts have failed and everything else done that could reasonably be required, and if the patient and his family consent after full information of the dangerous character of the operation, or the unknown qualities and powers of the drug to be administered, the practitioner would be justified and protected if some new methods of treatment not entirely developed or known to the profession, but supposed to be efficacious, should be adopted, although the result might prove unfavorable. In such a case, however, it would be extremely perilous for the physician to stand upon his own judgment alone. He should consult the best talent in his profession available, and abide by the judgment of his colleagues or a fair majority of them; and even then should apply to his course of action the maxim. When in doubt run no risks; better let a patient perish from disease or injury, than while attempting uncertain experiments with the surgeon’s knife or the use of dangerous drugs. The safe rule is to take no chances, unless there is a consensus of judgment of several physicians. It may be objected that if no experiments are tried no new medicines or surgical devices could be discovered, or their effects observed. The answer to this objection is that vivisection, and other experiments upon live animals, permit of experimentation to a considerable degree, and often effectually point out the proper course of treatment of the human subjects. In the case of drugs and medicines the practice is well known of physicians trying the effects thereof upon their own persons, in their zeal and anxiety to give to the world new discoveries. But, as heretofore observed, the law does not recognize the right of the medical or surgical practitioner to tamper with his patients’ health by the use of untried experiments, without imposing upon the practitioner liability for all injuries proximately resulting from their use. All of such matters will, however, fall more properly under consideration when the liability of the physician and surgeon for malpractice is considered.

CHAPTER IV.

OF THE LEGAL RIGHT OF PHYSICIANS AND SURGEONS TO RECOVER COMPENSATION FOR SERVICES.

Liability to Pay for Services.—An important matter for physicians and surgeons is the question as to who is responsible, or liable to pay for their services. If there is an express contract this question does not arise; but in most instances the person performing the services renders them upon call, and it is necessary for him to understand his legal right to recover pay for services in the absence of an express contract.

Person Treated, and not Person calling in Physician, Employs Him and is Liable.—In the first place, it must be stated as a general proposition that the person for whom the services are actually rendered, or upon whom the operation is performed, is bound to pay for them, if otherwise capable in law of making contracts and incurring obligations. And secondly, that one who calls a physician or surgeon to attend a patient is not presumed to have contracted to pay for the services rendered, unless his relations with the patient are such that he would be obligated in law to pay, even if he had not himself called in the medical man.

In the first case it is presumed that the patient is liable, because he receives the benefit of the services, and nothing less than a distinct understanding that he was not to pay will relieve him from this obligation.

Married Women and Infants Generally Not Liable.—Where such a person is a married woman, unless the case arises in States or countries where married women have been declared by statutes to be liable the same as if single, this rule does not obtain. Nor is an infant personally liable when he is living with his parent or guardian. Hull v. Connelly, 3 McCord (S. C.), 6; Klein v. La Amoreaux, 2 Paige Ch., 419; Atchinson v. Bruff, 50 Barb., 384; Wilcox v. Smith, 26 Barb., 341. But the contract of an infant for medicine and medical attendance is deemed a contract for necessaries, and will be held valid and enforced against his estate if there is no person standing in loco parentis who can be held liable. 3 Barn. & Cress., 484; 2 Kent Com., 236. In cases when the parent of the infant or the husband of the married woman is liable, this liability obtains because the services rendered are deemed necessary, and fall within the common-law obligation of such persons to provide and pay for necessaries for those whom they are bound to support and maintain.

Burden upon Physicians Treating Minors to Show Services Necessary.—But even in such cases the burden is upon the person performing the services, to show that they were necessary, and it is his duty to know, or learn, the true legal status of the patient, and the true legal relations of the patient to the person other than the patient from whom payment is to be claimed. As said in the case of Crain v. Baudouin (55 N. Y., 256-261), “in the case of minor children even, the law imposes this duty upon those who would furnish them with necessaries, relying upon the credit of their fathers, and seeking to charge them. (Hunt v. Thompson, 3 Scam., 179; Van Valkinburgh v. Watson, 13 J. R., 480).” “A fortiori, it is so in the case of an adult married daughter living with her husband.” And as to the liability of the husband of a married woman in the absence of statute giving her legal capacity to contract and charge her separate estate. Consult Moody v. Osgood, 50 Barb., 628; Potter v. Virgil, 67 Barb., 578; Crain v. Baudouin, 55 N. Y., 256-261.

Mother of Infant probably Liable after Father’s Death.—It has been a much disputed question whether after the father’s death the mother becomes responsible for necessaries furnished for her minor children. The theory of law upon which a father is made liable proceeds upon the ground that he is bound to support the child and has a right to the child’s services during its minority.[168] It has been held that the mother after the death of the father is entitled to those services. Campbell v. Campbell, 3 Stock. (N. J.), 265; Cain v. Dewitt, 8 Iowa, 116; Furman v. Van Size, 56 N. Y., 435-439, disapproving Bentley v. Richtmeyer (4 Comstock, 38), and approving In re Ryder, 11 Paige, 185. If she is entitled to the services of her child, she must be bound to support and care for it; and so it was held in Furman v. Van Size cited above.

Estates of Insane Persons Liable in a Proper Case.—Persons of unsound mind are liable for necessaries furnished for their benefit, and can be made to pay therefor at reasonable and proper rates, but they cannot make contracts for a specific rate. It is always a question of fact as to what sum should be charged against their estates, if they have any.

Master Not Liable for Services Rendered Servant without Special Contract.—In the case of master and servant, while at common law as between a master and servant the master was bound to provide medicine and food for the servant when the servant was an inmate of the master’s house, this is an obligation which a third person could not enforce, and the master can only be held liable for services rendered to the servant, upon proof of a specific contract with him to pay for them.

Case of Crain v. Baudouin Considered.—The case of Crain v. Baudouin, supra, affords an interesting discussion before the highest court of New York State, as to the question as to how far a father calling a physician for an adult child for whom he is not bound to provide, although lying sick at the father’s house, can be held liable for the services rendered upon such call. In that case the plaintiff attended as a physician upon the daughter of the defendant, who was sick at his house. The daughter was of full age, married and living with her husband, but was brought from that of her husband to that of her father in order that she might be under the care of her mother. Defendant was present when plaintiff made his calls, gave the latter a history of the patient’s illness, and received directions as to her treatment. He told others of the frequency and length of the plaintiff’s visits, and of his opinion of the case, without any disclaimer of liability. The Court held, however, that these facts were insufficient to imply a promise on the father’s part to pay for the services, and that the additional facts that the defendant consented to the calling in of a consulting physician, and that a bill was sent in by the plaintiff, unless acknowledged and acquiesced in by defendant, or that he had before this employed other physicians, were also insufficient to raise an implication of law of such a promise to pay. The plaintiff relied in his argument upon the fact that the patient was a daughter of the defendant, but the Court held that any presumption which might arise from this had the daughter been under age, was overcome by the fact that she was past a majority, and was married and lived with her husband and children. The plaintiff also relied to support his cause of action upon the interest exhibited by the defendant in the course of treatment pursued, and the other facts as to the presence of the defendant when the plaintiff made his professional calls alone and in consultation; his receiving directions as to treatment; his recognition to others of the fact that the plaintiff was in attendance; his reciting to others a knowledge of the frequency and length of the visits of plaintiff without any disclaimer on the part of the defendant of liability. The Court said as to these facts: “It is true that particular acts will sometimes give rise to particular obligations, duties and liabilities. But the party whose acts are thus to affect him must be in such predicament as that those acts have, of legal necessity, a significance attached to them, at the time, which he may not afterward repel.... It has been held that a special request by a father to a physician to attend upon his son, then of full age but lying sick at the father’s house, raised no implied promise on the part of the father to pay for the services rendered.” See Boyd v. Sappington, 4 Watts (Pa.), 247; and so in Veitch v. Russell, 3 Ad. & Ell. (N. S.), 927, it is said: “A physician attends in every case on request; that fact alone is not enough for the inference of a special contract;” and see Sellen v. Norman, 4 Carr. & P., 284. Still less where there has been no special request by the father to the physician, and no more than acquiescence in his calls. As it would be unnatural for the parent of an invalid child, though legally emancipated, or for an intimate and confidential friend of hers, not to know the rise and course of her malady, not to be interested in the state of it as disclosed at any time to skilled inspection, not to be so anxious as to be in waiting when scientific skill was to be applied for its cure, not to be ready to receive directions for treatment in the intervals; so it is not to be implied in the one case more than in the other that, from these manifestations, because unaccompanied with an express repudiation of liability, a liability may be implied. They are to be referred to natural affection and friendly sympathy, rather than to an acquiescence in the rendition of a personal benefit, or counted as acts done under a sense of legal obligation.” The Court further said that “even if it should be assumed that the usage exists that the physician called to consult with him who is in attendance, with the consent of the person who has employed the latter, is in contemplation of law in the hire of that person, still the assent of the defendant to the calling in of the consulting physician, and his expression of desire to be present when he came—until he is shown to have employed the plaintiff—is a basis too weak for an implication of law, that he promised to pay his consultation fees. Still less it is a fact from which to imply a promise to pay the plaintiff.” This case is, however, close to the border line, and it may be well criticised and denied its apparent full weight of authority, notwithstanding the very great learning and ability of the learned Judge Folger, who wrote the opinion, upon the ground that it appears that the father had as a witness expressly denied calling in the plaintiff or authorizing anybody to call him in, or authorizing the employment of a consulting physician, and that on the trial the Court had found upon the whole testimony in the case that the defendant had never employed the plaintiff. Taking the decision as a whole it cannot be regarded as determining that upon such a set of circumstances as is there disclosed, the father could not in any event have been held liable, but rather that the trial court having found upon the whole testimony that the defendant was not liable, having witnesses before it fully able to judge of their capability, the appellate court could not say as a matter of law that a finding in favor of the defendant should be overruled. This case is considered here at some length chiefly for the purpose of affording an illustration to physicians and surgeons which will suggest to them the advisability of care in ascertaining in all cases who is responsible for their charge for services. See also Bradley v. Dodge, 45 How Pr. (N.Y.), 57; Smith v. Riddick, 5 Jones (N. C.), 42.

Liability of Third Persons Calling a Physician—General Rule.

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.

Liability of Railway Company Calling Physician in Case of Accident to Employees, etc.—Another more troublesome question has arisen where physicians and surgeons have been called in by employees of a railway company in case of sudden accident or injury. In one case in New York, the Superior Court of New York City held, that although the general superintendent of a railroad company testified that he had general authority to hire and discharge men, and that he had employed a physician, the railroad company was not liable.[169]

This doctrine seems to be opposed to the weight of authority. See cases collated in Vol. 18, “Am. and Eng. Cyclopædia of Law,” p. 434 et seq., some of which are: Toledo, etc., R. R. Co. v. Rodrigues, 47 Ill., 188; Same v. Prince, 50 Ill., 26; Indianapolis, etc., R. R. v. Morris, 67 Ill., 295; Cairo, etc., R. R. Co. v. Mahoney, 82 Ill., 73; Atchison, etc., R. R. v. Beecher, 24 Kansas, 228.

Same Rule does Not Prevail in United States in Case of Accidents to Passengers.—The cases just noted were all cases of employees. In the cases of injured passengers it has been doubted whether the same rule applied, some State courts holding that in that case there is no obligation to furnish medical and surgical attendance, but that the physician attending must look to the persons whom they attended. Union Pacific R. R. Co. v. Beatty, 35 Kansas, 265; Brown v. Missouri, 67 Missouri, 122.

Different in England.—In England a different rule prevails—one more humane and in consonance with the moral obligation imposed by the relationship of the parties. In Walker v. The Great Western R. R. Co., a recent case (Law Reports, 2 Exch., 228), Chief-Justice Kelley, in the course of the argument, made this remark: “Must a board be convened before a man who has his legs broken can have medical attendance?”

But in Cox v. The Midland Counties R. R. Co. (3 Wellsby, H. & G., 268), the station master, employed as the chief officer of the passenger and other departments, called in a surgeon to perform an operation upon a passenger injured by a train. The road was held not liable.

On the other hand, in Langan v. Great Western R. R. Co. (30 Law Times, N. S., 173), a sub-inspector of railway police was held to have implied power to employ a surgeon for an injured employee. But in Arkansas an attorney for a railroad company was held not authorized to do so. St. Louis, etc., R. R. Co. v. Hoover, 53 Ark., 377.

Doctrine in Indiana the More Sensible One.—The more sensible doctrine seems to be established in this country, in the State of Indiana at least, in the case of Terre Haute R. R. Co. v. McMurray (98 Ind., 358), in which the Court held that where there was great necessity for the employment of a surgeon, the conductor of a train has authority to employ the surgeon, if the conductor is the highest officer in rank on the ground at the time. But in that case the Court expressly states that this liability grows out of the exigencies of the case; not out of any theory of general authority.

Authority of Railroad Physician to Employ Nurses, etc., Doubtful.—It has also been disputed whether the authority of the company’s physician extended far enough to render the company liable for services performed by nurses employed by him, or for board and lodging engaged by him for injured employees. In Bingham v. Chicago, etc., R. R. Co. (79 Iowa, 534), it was held that the authority was sufficient, but in that case testimony appeared tending to show that an agent of the company who had authority to employ the physician had authorized him to employ two nurses. The converse doctrine—namely, that the fact that a physician of the company was authorized to buy medicines on the credit of the company does not authorize the inference that he has power to render the company liable by a contract for board and nursing of a person injured on the company’s road—was held in Maber v. The Chicago, etc., R. R. Co., 75 Missouri, 495; Brown v. The Missouri R. R., 67 Missouri, 122. To the same effect, see Louisville, etc., R. R. Co. v. McVeigh, 98 Ind., 391; Cooper v. N. Y. C. & C., 6 Hun, 276; and St. Louis, etc., R. R. Co. v. Hoover, 53 Arkansas, 377. 2 Redfield on Railways, 114:

On the other hand, where a physician and surgeon has been duly employed by a sub-officer or servant of the railroad company, ratification of this employment, by those having authority to employ him and to render the company liable, will be inferred from slight circumstances.

Such was the case of Louisville R. R. Co. v. McVeigh, which has been cited.

And in another case where information of the fact of the employment had been conveyed to the company’s general manager, and he had neglected and omitted to repudiate the employment or to terminate it, and the surgeon went on and performed services, it was held that from these facts a ratification will be inferred. Indianapolis R. R. Co. v. Morris, supra. See also Toledo, etc., R. R. Co. v. Rodrigues, supra; Same v. Prince, supra; Terre Haute, etc., R. R. Co. v. Stockwell, 118 Ind., 98.

Presentation and Retention of Doctor’s Bill Raises No Presumption of Liability.—The presentation of a bill to a person containing charges against him for services rendered another person, and his retention of that bill without disclaimer of liability, does not raise a presumption of liability, for it is not necessarily an account stated. To constitute an account stated, there must be not only a statement of account, but acquiescence in it; mere retention of the account is not sufficient.

Bills Presented Not Conclusive as to Amounts Charged.—On the other hand, if a bill is presented which contains charges which are not acquiesced in, the person making out and presenting the bill is not absolutely bound by the charges therein contained, although such a bill affords some evidence as to the value of the services rendered.[170]

Claims Against Estates of Deceased Persons.—A bill for a physician’s services constitutes a claim against the estate of a deceased person, like any other debt. In some States it is a preferred claim.[171] In this connection it should be observed that short statutes of limitation exist in most countries and States applicable to such cases, shorter than the ordinary limitation imposed by law upon the right to sue upon claims for services rendered (which is six years). In order to preserve his legal rights, the physician should as soon as possible after the death of the person for whom his services have been rendered, ascertain who is the administrator or executor of the estate of such person, and file with such representative, personally, proof of his claim.

Patient who Receives Benefit of Services of Consulting Physician Liable.—The liability of a patient for the services of a consulting physician is generally governed by the same rules as his liability to the physician in immediate charge of the case.[172]

Where the patient accepts the services of a consulting physician, although he has not directly requested them, he must pay for them if he receives the benefit of them without objecting, because it will be presumed that he ratified the act of the physician who was in charge of the case, in calling the other physician into consultation.[173]

But, however this may be, it is a principle of professional ethics, which has almost acquired the authority of legal doctrine, that a physician in charge of a case should obtain the full assent of a patient, or of his family and friends, if he is too ill to give his own consent, to the calling of another physician in consultation.

No Other Stranger can be Called into Sick-Room without Assent of Patient.—A limitation upon the authority and right of an attending physician is, that if he desires or attempts to call in a stranger not a physician, he must obtain his patient’s consent. The obligation of a physician toward his patient of secrecy and confidence is regarded as very strict, and if a physician should call in a student or other stranger, without first consulting his patient, or those who are in some measure related to him and connected with him, it would be a very severe stretch of morals and possibly of law. In fact, in a recent case in Michigan, a physician was held liable for damages who called in a stranger, an unmarried man, who was an unprofessional man, to be with him while he was in attendance on a confinement case. In that case both the physician and the person so called in, and who was present at that time, were held liable in damages; and it was further held that the right to recover was not affected by the fact that the patient supposed that the person so called in was a medical man, and therefore submitted to his presence without objection.[174]

The statutes which create the privilege as to professional communications and information necessary to enable the physician to prescribe, might not apply to students or other strangers, and this is probably the reason for the rule of law laid down in the Michigan case. The obligation to preserve inviolate a communication as a privileged communication, including in the meaning of the word “communication” all knowledge or information received while in attendance upon a case, would be held to have been broken by the act of the physician in bringing in a stranger who would not be privileged from testifying.

Measure of Recovery for Services Rendered.

Terms of Express Contract Govern—Reasonable Worth the Rule in Implied Contracts.—In case of an express contract its terms necessarily measure the amount of the charges. In the absence of an express contract fixing the value of the services to be rendered, the measure of damages for breach of payment is like that in any other case of personal services, the reasonable worth and value of the services performed. So likewise if medicines or appliances are furnished, which are not reasonably to be expected and furnished, according to the custom of the school to which the physician or surgeon belongs, the reasonable worth and value at the time of furnishing them, and at the place of furnishing them, is the measure fixed by the law to determine what shall be recovered for them.[175]

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. The tendency of the later decisions, however, seems to be that the breach of the patient’s contract to pay relieves the physician from his obligation of secrecy, and consequently, that if it is necessary for him to go into court and prove the value of his services, he may testify, within reasonable limitations, to all matters necessary to inform the court fully as to the nature and extent of the disease or injuries of the patient, in order that he may show the responsibility imposed upon him and the extent of the services that he has rendered. This subject will be fully considered under the head of “Privileged Communications.” The usual course of practice where there is not an express contract fixing the charges, is to prove the facts and circumstances showing the treatment and services, and then to produce other physicians who, in answer to a hypothetical question stating the facts and circumstances in the case, assuming them as true, are allowed, if they state they know the value of such services, to give an expert opinion as to what that value is.[176] It has also been said (Ordronaux, “Jurisprudence of Medicine,” § 43), that if a fee-bill of charges for such services has been established by an association of physicians recognized by law, such as a county medical society or a State medical society, incorporated pursuant to statute, such fee-bill can, if properly authenticated as having been adopted by the association, be offered in evidence on behalf of the patient and against the physician. But such a fee-bill in such a case would not be held to be conclusive evidence of the value of the services, but will be received in evidence, if at all, merely for the purpose of showing what was the usual and ordinary charge in such cases. As we shall see later on, under “Malpractice,” a judgment for services rendered, however small, is a bar to an action of malpractice, because a judgment for the value of the services rendered involves proof on the part of the plaintiff, and a finding on the part of the court, that the services had value and were skilfully performed and properly rendered.[177]

Custom of Physicians to Treat Each Other Gratis, Enforceable.—Physicians frequently treat each other, and it has been held, where the custom exists to do so without charge, that such a custom is binding. Of course, this rule does not prevent physicians from making an express contract to waive the custom and agreeing that the services be compensated.

Elements to be Proved in an Action for Service, etc.—General Advice.—The result of these rules may be thus summarized, viz.: The elements to be established in an action for services by a physician against a patient are three in number—(1) the employment; (2) the performance of the services;[178] and (3) the value of the services, that value being either a fixed value determined by the terms of the contract between the parties, or the reasonable worth and value of the services determined by evidence of experts upon that subject. It is, therefore, important that physicians and surgeons should be advised, when entering upon the practice of their profession, to keep a record of their transactions and of their business generally. Because, if they are compelled to go into court to recover for their services, they will be called upon to describe with minuteness the character and extent of the services they have performed in order that the value thereof may be correctly ascertained and determined in the suit. Any person in active practice who is not blessed with a most tenacious and particular memory is liable to forget a great many details which, with a record in hand, properly kept, could be brought to his memory and be testified to with absolute truthfulness and conviction. And the record itself, when properly shown to be a book of original entry, is generally receivable in evidence, as a memorandum of the transaction.[179]

CHAPTER V.

OF THE PRIVILEGES AND DUTIES OF PHYSICIANS AND SURGEONS WHEN SUMMONED AS EXPERT WITNESSES IN COURTS OF JUSTICE.[180]

Introductory—Distinction Between Expert Witnesses and Other Witnesses.—One of the most important positions that a medical man is called upon to assume by virtue of his professional character, is the position of expert witness. Most writers on medical jurisprudence confine themselves, in the discussion of this subject, to presenting the medico-legal rules which appertain to this position, and concede its high importance. Before defining what is meant by the term expert witness, or treating of the rules which determine the status of such witnesses in court, and their duties, it seems advisable to introduce the subject by a brief consideration of the distinction between ordinary witnesses and expert witnesses. When medicine and law are united in the purpose of investigating facts, and bringing about a legal determination as to what are or are not facts, they co-operate with each other in this way. The law furnishes the machinery for the inquiry and the rules which determine how it shall be prosecuted. The medical man, however, is called upon as an assistant to the law, because of his skill and experience in his profession, which enable him to ascertain and interpret the circumstances from which the facts sought to be established are to be inferred. Ordinary witnesses testify concerning matters of observation, the court and jury being endowed with the sole power to determine the credibility of their evidence and the true result of their observations. Yet the border line of distinction between witnesses who testify merely to actual matters of observation, and those who give their opinions upon and draw inferences from established facts and circumstances, is a wavering one. The general rule of evidence is well understood, that hearsay evidence is inadmissible, and yet, like any other rule, this has its exceptions which grow out of the necessities of given cases. This is so because there are and always will be, matters brought before courts for investigation and determination, long after the witnesses who personally saw the facts and circumstances of the particular case in which such matters are concerned have died, or have withdrawn beyond the reach of the process of the court. Possibly no record in writing of such facts and circumstances has been left, or if in writing it lacks the sanctity of being a judicial writing, and hence is no better evidence than any other form of hearsay evidence. For this reason in matters of family history, pedigree, custom, and the like, hearsay evidence is permitted, and is entitled to as much weight as any other evidence, if the witnesses giving it be trustworthy.

In Matters of Common Experience Witnesses in General Often State Conclusions.—Moreover, in matters of common experience, the testimony of any witness, if carefully analyzed, often shows that he is sometimes allowed to draw, and state, his conclusions and inferences, instead of being required to confine his evidence simply to telling in the strictest possible way, and with the closest limitations, what he actually witnessed. A good illustration of this is the case of a person who sees a crime of homicide committed by shooting, and is called upon to testify in court. He would be allowed to testify that the defendant, if he could identify the prisoner at the bar as such, was the person whom he saw fire the shot, although he might not have examined him with close scrutiny, and might never have seen him before the crime. In saying that the defendant was the person who fired the shot, while he would be in terms testifying to a fact, he would still be drawing an inference, and giving an opinion, based upon his recollection of the person whom he saw engaged in the act of firing, and of the likeness or resemblance of such person to the prisoner at the bar, which would be a matter of comparison and of opinion. So, too, although he could not see the bullet take its course from the mouth of the gun and imbed itself in the body of the deceased, yet if he saw the firing, heard the explosion, saw the flash and smoke of the powder, observed the direction in which the accused pointed the weapon, and saw the deceased stagger and fall, he would be allowed to testify in answer to a direct question whether or not the accused shot the deceased. And, yet in making up that answer he would be testifying not simply to a matter of actual observation, but to a conclusion. As it is in reference to the question of identity so it is as to many other matters which come before our courts, in all of which the witnesses are permitted, without objection, to testify to conclusions and to give answers which are the result of inferences which they draw themselves, rather than a statement of their actual observations. The law is not a metaphysical but a practical science, limited and confined by the practical restrictions which experience has shown must be put upon it, in order to enable it to accomplish its object of administering justice between man and man. Men form such conclusions as have been indicated, instinctively and unconsciously, and it would be practicably impossible for them to narrate any occurrence without embodying in their narration some of these natural and unconscious conclusions. The law, therefore, includes among the matters which witnesses are permitted to characterize as facts, those daily and hourly inferences and deductions which all men are accustomed to make, and concerning which no two men who are properly constituted can greatly differ. It is true that this practice sometimes leads to error, but it has grown out of necessity. The greatest safeguard is, that upon the trial of a question of fact both sides are represented by counsel, and the opportunity which cross-examination offers to an advocate of even reasonable and ordinary skill is such, that these conclusions and inferences may be sifted down through the chain of observation, and the process of drawing these conclusions and inferences from a series of facts, tested in such a manner that the improbability, probability, or truth of any given inference or conclusion may be determined with substantial accuracy. The illustrations which have been given above exhibit the simplest form in which so-called direct testimony can be demonstrated to be not always positive and direct testimony, but somewhat a matter of inference. Other examples and illustrations of common occurrence will exhibit still more closely the line between actuality and opinion. At times it becomes essential to the determination of a question, that the courts should know whether or not a person was angry, whether or not he was intoxicated, or whether or not at a given time, when his mental status was under observation, he acted rationally or irrationally. Lay witnesses have for many years been permitted to testify from observation, and without possessing any special qualification to do so, as to the existence or non-existence of such conditions as those just mentioned in a person whose actions are under consideration. It is manifest that in making any such inferences the witnesses’ testimony is mainly a conclusion based on inference. Take the case of anger. How shall that be determined? It is difficult to describe anger. A loud voice, a flushed face, the use of bitter words, nervous, excitable, demonstrative action—all these symptoms might occur, or but few of them might occur. So, too, in the matter of intoxication. It is well known that some individuals exhibit the effects of intoxicants in an entirely different manner and degree from others. Some men who are very much intoxicated, so as to be quite incapable, in the eye of the law, of forming a criminal intent, or of contracting an obligation which would be valid, may still be able to walk perfectly straight, or to talk without much confusion. Others, whose walk and demeanor would indicate a considerable degree of intoxication, might be mentally clear and unruffled and even stimulated by intoxicants to precise mental co-ordination and reasoning. Again, there are persons, as to whom a witness, after stating that he had observed them, and after stating the particular matters and things in which such persons were engaged, might with apparent accuracy state that they acted rationally or irrationally, and yet such persons might nevertheless, upon further examination, be found to have been acting according to a particular custom or habit, or idiosyncrasy of long years’ standing. Thus it is apparent that in each of these cases, when the witness attempts to state what, out of necessity, the court treats as a fact—viz., whether a given person is or is not angry, or intoxicated, or irrational—the witness is really testifying to the result, in his own mind, of his observations of the condition and conduct of the person who is under investigation, when compared with a standard which the witness has erected for himself. Hence such results are really matters of opinion evidence, pure and simple. Other examples of a like character are found in statements as to weight, height, distance, speed, and the like, as to which men of common powers of observation, who are not strictly experts, are, because of convenience and necessity and the probability of reasonable and ordinary accuracy, commonly permitted to give their own judgment and conclusions as evidence.

All Witnesses Often Permitted to Draw and State Conclusions in Matters involving Numerous and Complicated Details.—Thus the practical necessity of the administration of justice has led to the establishment of the rule, that where the details of an occurrence are numerous and complicated, and are incapable of precise description by ordinary observers, witnesses are permitted to use, in testifying, general expressions which really embody their conclusions from the facts or details observed by them. Greenleaf on Evidence, Section 440, note A; Wharton on Evidence, Section 434.

Wharton says that “the distinction between expert witnesses and ordinary witnesses is this: the non-expert witness testifies to conclusions which may be verified by the adjudicating tribunal; the expert, to conclusions which cannot be so verified. The non-expert gives the results of a process of reasoning familiar to every-day life; the expert gives the results of a process of reasoning which can be determined only by special scientists.” See also People v. Fernandez, 35 N.Y., 49. People v. Deacons, 109 N.Y., 374-382.

This learned writer (Wharton) also says, at Section 437 of the same treatise:

“Where conclusions depend upon facts whose evidential weight can only be determined by those familiar with a particular specialty, then these conclusions may be given by experts in such specialty.” Such also is the exact derivative meaning of the word expert, it being derived from the Latin word “expertus,” meaning, literally, “experienced,” and hence skilled by experience.

Functions of an Expert Witness Essentially Judicial.—It is the function of an expert witness to reason about facts, to explain their connection with one another, and to draw conclusions and inferences from them. Hence, a witness, however expert in any ordinary sense in his specialty, when he is called upon merely to narrate facts which he has observed, is an ordinary witness, and is governed by the same rules which apply to the ordinary witnesses. When, however, he is called upon, in addition to recounting facts, to explain or interpret them by reference to assumed facts, he becomes properly an expert witness. It thus appears that an expert witness must necessarily perform a part of the duties which devolve upon the court or the jury. His position is, therefore, essentially judicial, except that he has no power to enforce his determinations by judicial process. The importance and responsibility which the law thus confers upon an expert are of the highest character. He ranks the coequal with the tribunal itself in his peculiar province, so far as relates to his individual responsibility. That this should tend to elevate such witnesses to a high social position, and ought to require the most exact and faithful integrity of purpose and statement, is self-evident.

Difference Between Status of Expert Witnesses in France and Germany and in the United States and England.—In some foreign countries, notably in Germany and in France, experts in medico-legal matters have an assured official position, and are generally not allowed to be selected at hap-hazard according to the will or the length of the purse of those who need their services. The consequence of this method of obtaining expert evidence is, that expert witnesses in those countries command a high measure of respect and honor.

Unfortunately, however, in this country, where the opposite practice prevails, the weaknesses of human nature are such that the common people, newspapers, lawyers, and even the courts in some recorded opinions and decisions, have come to express a great want of confidence in the weight and value of expert testimony. This deplorable result of a bad system of procedure is universally recognized, yet our State legislatures have as yet refrained from attempting to correct it.

Hence, in considering the value of expert testimony in matters of medical jurisprudence, it must be conceded, in the first instance, that the difference between the system prevailing in this country and in England, and that which prevails on the Continent, notably in Germany and France, has not tended to raise but to depress the value of such testimony in the first-named countries. In the latter countries, the experts upon medico-legal questions are officers of the court, or are treated as such. They form, in a sense, a part of the judicial system, and the expression of their opinions consequently carries with it great weight. Moreover, under the system which prevails there, it has been possible for men to be educated up to a high degree of skill and experience in the particular branches of physiological or psychological or physical investigations which they pursue, while here in America, and to a certain extent also in England, experts are such for other reasons, and by the operations of other causes, than the fact of their permanent employment in that capacity. As a general thing they become skilled in their profession or in the particular branches of it in which they practise as specialists, and are summoned to testify simply because they are selected by one party or another to a lawsuit.

Mr. Wharton’s View of this Question in the Main Hostile to the Prevailing System Here.—The effect of the methods which thus prevail has not been entirely to the advantage of the medical profession or of our courts. Wharton, in his work on “Evidence,” Section 454, observes upon this point: “When expert testimony was first introduced it was regarded with great respect. An expert was viewed as the representative of a science of which he was a professor, giving impartially its conclusions. Two conditions have combined to produce a material change in this relation. In the first place it has been discovered that no expert, no matter how learned and incorrupt, speaks for his science as a whole. Few specialties are so small as not to be torn by factions, and often the smaller the specialty the bitterer and more inflaming and distorting are the animosities by which these factions are possessed. Particularly is this the case in matters psychological, in which there is no hypothesis so monstrous that an expert cannot be found to swear to it on the stand, and to defend it with vehemence. ‘Nihil tam absurdo,’ which being literally translated means that there is nothing so absurd that the philosophers won’t say it! In the second place, the retaining of experts by a fee proportioned to the importance of their testimony is now as customary as is the retaining of lawyers. No court would take as testimony the sworn statement of the law given by counsel retained on a particular side, for the reason that the most high-minded men are so swayed by an employment of this kind as to lose the power of impartial judgment; and so intense is this conviction that in every civilized community the retention by a judge of presents from suitors visits him not only with disqualification but disgrace. Hence it is that, apart from the partisan character of their opinions, their utterances, now that they have as a class become the retained agents of the parties, have lost all judicial authority and are entitled only to the weight which sound and consistent criticism will award to the testimony itself. In making this criticism a large allowance must be made for the bias necessarily belonging to men retained to advocate a cause, who speak not as to fact but as to opinion, and who are selected, on all moot questions, either from their prior advocacy of them or from their readiness to adopt the opinion to be proved. In this sense we may adopt the strong language of Lord Kenyon, that skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence.”

This author then proceeds to show that under the civil law system the conclusions of experts were formerly treated as unassailable facts, but under the English and American common law system this is not the case, but their testimony is to be weighed by the court. He says: “The grounds on which the conclusion is reached may be asked for: the expert’s capacity for drawing conclusions, as well as his premises, may be assailed. Cases of conflict are to be determined, not by the number of witnesses, but by the weight of their testimony, and though the opinion of an expert of high character may be entitled to great respect, yet if questioned, its authority must ultimately rest upon the truth, material and formal, of the reasoning on which it depends.”

Judge Davis, of the Supreme Court of Maine, in Neil’s case (cited in Wharton and Stille’s “Medical Jurisprudence,” Vol. I., Section 294), said: “If there is any kind of testimony that is not only of no value, but even worse than that, it is in my judgment that of medical experts. They may be able to state the diagnosis of a disease more learnedly, but upon the question whether it had at a given time reached a stage that the subject of it was incapable of making a contract, or irresponsible for his acts, the opinions of his neighbors, of men of good common sense, would be worth more than that of all the experts in the country.”

Such stinging criticisms as these, and others which might be cited, of a like character, may not be always merited. It is certain that medical experts’ opinions, if fully enlightened by scientific research and free from partisan bias, ought to occupy a position like that of judicial opinions in weight and decisiveness upon the questions submitted to them. Such was the position occupied in the public estimation, and in that of judges and counsel, by the great Dr. Caspar in Germany, and Foedere or Pinel, and others since their time, in France. But this position was acquired chiefly because of the fact already mentioned, that under the system of administration of justice which prevails in those countries these great men were regarded, and acted, as a component part of the judicial system. They were called in as officers of the law to assist the court in forming a judgment, and determining disputed questions of fact, in cases involving life and death, or the devolution of property, where scientific experience, knowledge and skill, not possessed by judges or by counsel, was necessary for the determination of the questions involved. The root of the evil in America is, as already pointed out, to be found in the system which allows parties to retain and pay their own experts without any substantial restrictions. Sooner or later, among the other reforms in our judicial system, it will be found necessary to reform this evil by the enactment of laws requiring that the witnesses in medico-legal cases, particularly those in which a crime is alleged to have been committed, shall be designated by the court, or by some public authority, and paid from the public treasury instead of by the parties. Such experts would then occupy their proper position of special counsel, advising and assisting the legal counsel and the court, but they would not be taken out of this sphere and put in the utterly inconsistent one of witnesses. Their status and their duties would be as clearly distinguished from that of expert witnesses as now known, as the status and duty of the lawyer are from the status and duty of the judge. The present system has been said to be very much like putting a lawyer, who has just argued his client’s case, on the bench to decide it. Whether experts should be appointed as permanent government officials, like our judges, or should be selected specially for each case like juries, referees, or arbitrators, and in the latter event whether they should be nominated by the parties and selected by the court from such nominees, or otherwise, are all questions of detail.

Our judges and lawyers seem slow to recognize the fact that the duties of experts are judicial, or at least quasi-judicial; to pass upon certain facts which neither the court nor the jury can understand without their aid. But, as we have seen from the citations just given, judges and lawyers have fully recognized the unreliability of expert testimony, produced as it now is in England and in this country at the whim and selection of the parties and paid for, much or little, according to the means of the parties.[181]

Method of Preliminary Examination of Experts—On Medical Questions a Licensed Physician Presumed Competent.—As the system exists here, the only power that the court has over the selection of an expert, is to determine, in advance of his testimony and of the elucidation of his opinions, whether or not he is competent as an expert. 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. This is so without regard to the amount of study and experience he may have had in the particular matter under consideration. The naked fact that he is licensed to practise is enough. He then—that is, after testifying that he is a practising physician—is clothed with the garment of authority. The only way in which his knowledge can be tested is by cross-examination as to his experience and skill, and possibly by contrasting him as he appears upon the witness-stand and his history as he gives it, with other and more or less experienced and skilful men who follow him.

The rule is, that when a witness is produced to give an opinion on a medical question, he is interrogated by the counsel who produces him as to his qualifications. At this point, before he is allowed to give his opinion, it is proper and customary that the counsel upon the other side of the case should be allowed an opportunity to cross-examine as to his competency, and then the court determines whether or not he is a competent witness. If the court pronounces him competent, a hypothetical question is put to him stating the facts of the case, as the counsel interrogating him claims them to be established by the evidence, and the expert is then asked to give his opinion on the question at issue, based upon an assumption that the facts stated are truly stated. Then the opposing counsel has the right to cross-examine, and to ask his views and opinions upon the same question at issue, but assuming as true other and different facts or premises, as he claims them to be established by the evidence. This often involves a test of wit and intelligence, and of forensic acumen, between the counsel and the witness, which serves very little useful purpose, except perhaps to elucidate more strongly than has been here stated the defects of the system which now obtains. It is also not unusual, and in fact is the result of the workings of human nature, that under the manipulations of counsel skilled in cross-examination, skilled in methods of indirection in stating facts, and armed with the powerful weapon of the rule which permits them to insist upon a categorical yes-or-no answer to a question, the jury and the court become confused, the witness loses his temper, or becomes affected more strongly than ever before by bias against his persecutors, as he feels them to be, and the examination ends in a farce. This is not always the case, and the illustration given is an extreme one. Like the citations from judicial criticism of expert testimony which have been given, these matters are only adverted to here as danger signals, a warning to both professions, and with an earnest suggestion of the necessity of reform.

EXPERTS, HOW SUMMONED INTO COURT.

They Must Obey the Summons and Appear and be Sworn. In General they need Not Give their Opinions unless Duly Compensated.—An expert witness is brought into court like an ordinary witness by the usual process of the court. This process is, under the American system, an ordinary subpœna, and, being process of the court, whether or not he has been paid or promised compensation for giving his opinion he must obey the process to the extent at least of appearing in court when called, to be sworn. Interesting questions have been raised as to his obedience to the subpœna to the extent of testifying when he has not been compensated. It has been argued, and the argument is sustained by the decisions of courts of high authority in some States, that his knowledge and skill, acquired by study and by experience, is his property, of which he cannot be deprived without just compensation, under his constitutional rights guaranteed to him by the organic law of this country. On the other hand, in some other States it has been held that he is so far a necessary part of the judicial system that he may be called upon to give the results of his experience, knowledge, and skill forming his opinion, without payment other than the ordinary compensation to witnesses. It is believed, however, that the better opinion is the former; that he does not stand on the same footing as an ordinary witness, whose province it is to testify solely to matters of observation of fact, but that he stands in the position of one who has something to give; something to impart in the way of knowledge or experience, which is his property as much as any other thing movable or immovable of which he is possessed.

A somewhat different question has arisen in the case of a witness who, like a family physician or attending physician, has learned facts and has been paid for his attendance, or who exacts payment for his attendance, as a physician from his patient, and this question is; when such a professional man has been called upon to testify to the information he thus attained, whether he can be asked for, and required to give, opinions based on those facts? Necessarily, having learned the facts by observation, such as the appearance, symptoms, and actions of the patient, he is, when testifying as to these matters, nothing more or less than an ordinary witness, because he is testifying to matters of observation. As to these matters public policy requires, except so far as it has been modified, or rather extended, by our statutes which forbid testimony as to privileged communications, that he must testify, the same as any other witness. But suppose that, having so testified to the facts, he is asked to give his opinion; for example, in an insanity case, whether the symptoms that he found in his patient led him to the belief as a professional man of experience and skill that his patient was sane or insane. The question is, Can he be compelled to give that opinion, if he chooses to decline to give it without the promise or assurance of further compensation than the mere per diem fee and mileage of an ordinary witness? The best authority is to the effect that he must so testify, the reasoning of the court being that his opinion is only a part of what he derived from his original relation of physician to his patient. Wright v. The People, 112 Ill., 540; same case, 33 Alb. L. J., 79.

Same Rule in Civil and Criminal Cases.—The rule is the same whether the professional man is called to testify as an expert in civil or criminal cases. In either one he is not obliged to give an opinion as such, independent of a personal knowledge of the facts in the case, without being paid or assured reasonable compensation therefor. His proper course of conduct is, when he has obeyed the subpœna and is in the presence of the court and has been sworn, and the questions put by counsel disclose that the object of his examination is to elicit from him an opinion, to state to the court that he has not been paid any other compensation than that of an ordinary witness, and that he respectfully declines to give an opinion in the case as an expert, without compensation proportionate to the value of his opinion.[182]

Whether Witness Competent a Question for Court in Limine.—After the expert is placed upon the stand, as we have seen, the counsel upon the side of the case by which he is summoned interrogates him as to his capacity, the purpose of the interrogation being that his answers shall qualify him and show him to be an expert. Whether or not he is an expert so as to permit the giving of his opinion as part of the case to go to the jury, is for the court to decide in limine, that is, at the threshold, and as a matter of discretion, and the exercise of that discretion, if fair and reasonable, will not be disturbed upon appeal by the higher court. It is permissible, but also discretionary, after the counsel calls the witness and has apparently qualified him, for the counsel upon the other side to cross-examine the witness as to his qualifications before he is examined in chief, with a view of determining whether or not there are limitations upon those qualifications which should prevent the court from permitting him to testify as an expert. The general rule is as stated by Greenleaf in his work on Evidence, Sec. 440, that it is not necessary that the medical expert should have actually practised his profession. Nor is it essential that the witness should belong to any particular school of medicine. The law does not undertake to pass upon conflicting theories of medical practice, in determining the question of the qualification of a medical expert. It is proper, however, for counsel to inquire as to what school of medicine the witness is an adherent, because of its importance in weighing the value of his testimony after it has been given.

Persons Not Duly Licensed Sometimes Held Not Competent.—It has also been a mooted question in those States where it is necessary, in order to enable a person to practise physic or surgery, that he should be licensed, whether a person practising without a license, however extensive his reading and practice, would be considered qualified as an expert witness in a court of justice. This point, so far as diligent examination discloses, has not been determined in any reported case, although it has been suggested at nisi prius and has been, in one instance within the knowledge of the writer, decided that he is not to be considered an expert in matters involving medical knowledge and skill. The reasoning of the court was that the policy of the State is to prohibit persons not possessing the qualifications required to obtain a license, from acting in any capacity as professors and practitioners of medicine or surgery. If the witness is a member of the profession, legally qualified as such, it has been held that he is sufficiently qualified as an expert if he shows that he possesses the average ability of members of his profession. Hall v. Costello, 48 N. H., 176; Tellis v. Kidd, 12 Ala., 648; Wharton on Evidence, Sec. 446; Rogers on Expert Testimony, Secs. 17 and 18; Slocovich v. Orient Mutual Ins. Co., 108 N. Y., 56.

As to the question whether it is necessary that the witness should actually have practised his profession, see the last-cited text-writer, Secs. 43 and 44, who seems to have entertained views opposite to those stated by Professor Greenleaf.

Wharton on Evidence, Sec. 439, states the rule as follows: “He must have special, practical acquaintance with the immediate line of inquiry more than a mere vague, superficial knowledge. But he need not be acquainted with the differentia of the specific specialty under consideration.... A general knowledge of the department to which the specialty belongs would seem to be sufficient.”

Interested Persons may still Testify as Experts.—Since the law forbidding interested persons from being witnesses has been changed, it has been suggested that an interested person although otherwise qualified might not be a competent witness to give an opinion as an expert. But the established doctrine is that he may give such an opinion; the weight of it, however, would be for the jury to determine. Greenleaf on Evidence, Redfield’s edition, Sec. 440, citing Lockwood v. Lockwood, 2 Curtis, 309; Dillon v. Dillon, 3 Curtis, 96, 102. See also Dickinson v. Fitchburg, 13 Gray, 546.

Testimony of Expert, how Impeached.—Sometimes, on cross-examination or otherwise, the fact becomes known that the witness who is proposed as an expert has expressed an opinion on the subject in hand contrary to that which he has given upon the witness-stand, and the question has been raised as to establishing that fact at the outset and before his testimony goes before the jury, in order to enable the trial judge to determine whether he is competent. The rule in that case is that the testimony as to his prior expression of opinion is not to be received at that time, but will come properly up as rebuttal, he having been asked upon his cross-examination, giving time and place, whether he has made the statements attributed to him. An expert witness may in other respects be impeached like any other witness, that is, by the oaths of persons who know him and have known his reputation, and who testify that his reputation for truth and veracity is bad and that they would not believe him under oath. He may also be impeached by producing witnesses to prove that his special knowledge or technical skill is not reliable or adequate to the undertaking which he has assumed. But this testimony must be from personal knowledge of the man and not from general reputation. Wharton on Evidence, Sec. 437; Le Rose v. Commonwealth, 84 Pa. St., 200.[183]

General Rule as to Required Amount of Skill and Experience Stated.—The general rule may be stated thus, as derived from these and other authorities:

The extent of the previous study and investigation, and the amount of skill and information which must be shown, will depend upon the facts of each particular case. But some special and peculiar knowledge or skill must be established, the amount of it to be determined by the trial judge in his discretion. The possession of such knowledge and skill is presumed in medico-legal cases if the witness is a licensed practitioner.

Some Practical Suggestions as to Conduct of Witnesses on the Stand.—In this preliminary examination, the conduct and demeanor of the witness are of no little importance, because it is then and there that he makes his first impression upon the court and jury. He should be perfectly open and unreserved in stating his means of special information, in explaining what are the limits of his personal experience and the extent of his reading; but, at the same time, it would be well for him to avoid all appearance of self-glorification and all tendency to exaggerate his individual acquirements. Often has it occurred that expert witnesses of undoubted capacity and honesty, who are unfortunately grandiose and self-assertive in their manner, have, however honest and able they might be, lost entirely their weight with the court and jury by undue self-complacency and exaggeration of their personal qualifications, during their preliminary examination. This is a matter requiring tact and judgment and nerve, and should be fully understood between counsel calling him and the witness, before the witness is placed upon the stand. In that event, it will be quite safe for the witness to closely follow the questions of counsel by his answers, and to volunteer little or nothing. If his answers are not full and complete enough, counsel can renew the question in the same or in other form or carry the matter into greater detail. If, on the other hand, his answer is too full or he appears too eager, he may create a prejudice against him which nothing can overthrow, and which the art of counsel upon the other side in cross-examination and in making comments upon his testimony when summing up before the jury, will very effectually use to destroy his weight as an expert.[184]

Scope and Extent of Examination of Expert Witnesses.—Having stated how experts may be summoned and qualified, it remains to consider the scope and extent to which they may be examined.

The advancement of the sciences and the progress of research in special fields of knowledge have made expert testimony of large importance during the present century. The basis of its admission is the fact that there are certain processes of reasoning which an ordinary jury is incapable of performing, even with the assistance of courts and lawyers. Oftentimes in the administration of justice in our courts, proof is given of circumstances which although admitted would have little or no significance in the mind of an ordinary juror, and which he would be unable to contrast and compare with other facts, successfully, without the aid of those more familiar with scientific matters and the inductive process of reasoning than he is. In such cases it is necessary that the jury should be specially enlightened by persons who have, through training, skill and experience, acquired the power to enlighten them. A common instance and illustration of this matter is to be found in the case of homicide by poisoning. A human body is found dead; externally there may be no indicia to show positively the cause of death. Under such circumstances the laws of all civilized countries permit what is called a post-mortem examination by skilled physicians, who, finding no external evidences of the cause of death, are permitted by the officers of the law to remove the internal portions of the body for special and careful examination. If this discloses traces of inflammation or of lesions of an abnormal character, further power is vested in the authorities to have at the expense of the State a chemical examination of the internal organs. If this examination, which is necessarily long and excessively technical, results in the discovery of any poisonous substance, such as would produce death, and if it is found in sufficient quantities to produce death, these persons who made the post-mortem examination and discovered the outward indications of the administration and effects of the poison, and the chemists who discovered the poison itself in the tissues of the body, in sufficient quantities to produce death, are called as experts before the jury. The post-mortem examiners explain what the appearance of the body was, as distinguished from the appearances of the body of an individual who had died from natural causes. The chemist describes his course of experimentation, the various deductions which he made from his experiments, the tests which he applied in his investigation in discovering poison, and is then allowed to testify that the poisonous substance was found in sufficient quantities to produce the physical appearances which the post-mortem examiners have described, and to accomplish the death of the human being in whose body the poison was found. It is obvious that the power of observation and the skill, which the skilled chemists and physicians used as the basis of their reasoning in this case, were such as an ordinary man, unskilled and inexperienced, would not possess, and the ability to use them must have come from the study of treatises on such subjects, and from teaching and experience, to such an extent as to entitle the persons so testifying to be considered by the courts as qualified to express an accurate and sound opinion on the matters and things under investigation. Thus it appears how, in such cases, a departure became essential to the successful administration of justice, from the strict rule that witnesses shall testify solely to matters of fact and observation, and why it has long been considered that some witnesses must be allowed to testify to opinions and conclusions.

Again, in a like case, a body is found bearing evidences of wounds or bruises. The question to be determined is whether they were inflicted before or after death; if before death, whether they were sufficient to cause death. Some wounds and injuries might be sufficiently apparent and dangerous so that the common, inexperienced eye would at once detect that they were sufficient to cause death. But in most instances this is not the case, and in such instances the testimony of experts is required by the necessity of the case, to show that the wounds and injuries were sufficient to cause death.

The General Rules Stated as to Subjects for Expert Testimony.—Hence the general rule is, that wherever the facts to be investigated are such that common experience and knowledge of men do not enable them to draw accurate conclusions, but are such that the study and experience of specialists do enable such specially endowed persons to draw accurate conclusions, then the inferences and deductions they have drawn can be testified to by those who qualify themselves before the court as persons having sufficient skill and experience as such specialists to entitle them to give opinions. The cases in which expert testimony is permitted to be given are set forth in Rogers on Expert Testimony, Sec. 6, quoting from Jones v. Tucker (41 N. H., 546), as follows:

“1. Upon questions of science, skill, or trade, or others of like kind.

“2. Where the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment without such assistance.

“3. Where the subject-matter of investigation so far partakes of the nature of science as to require a course or previous habit of study in order to the attainment of knowledge of it.”

So also Chief Justice Shaw of the Supreme Court of Massachusetts, in New England Glass Co. v. Lovell (7 Cushing, 319), said:

“It is not because a man has a reputation for sagacity and judgment and power of reasoning that his opinion is admissible in testifying as a witness. If so, such men might be called in all cases to advise the jury, and it would change the mode of trial; but it is because a man’s professional pursuit, or his peculiar skill and knowledge of some department of science not common to men in general, enable him to draw inferences where men of common experience, after all the facts have been proved, would be left in doubt.”

To the same effect see Muldowney v. Illinois Central R. R. Co., 36 Iowa, 472; Wharton on Evidence, Sec. 436; Greenleaf on Evidence, Sec. 441.

Qualifications of this General Rule.—The extent to which an expert witness can go in giving his opinion is limited to matters of science and skill, and does not extend to the expression of views on matters of legal or moral observation, or the manner in which others would probably be influenced if the parties had acted in one way rather than in another. Campbell v. Richards, 5 B. & Ad., 345.

So it has been held that the question whether a physician has honorably and faithfully discharged his duty in a given case, either to his medical profession or to his patient, is not a question of science but of pure ethics, upon which the jury is as competent to decide as any one else, and in such a case an opinion would not be allowed to be given either by another medical practitioner or by a professor in the science of morals. Rogers on Expert Testimony, Sec. 11, citing Ramadge v. Ryan, 9 Bing., 333.

There are also some matters of fact which apparently transcend the dividing line between common experience and judgment and scientific experience and judgment, as to which expert testimony is not receivable, but the jury and court must weigh the facts and draw the inferences for themselves. An interesting example of this is found in the case of Manke v. The People, 78 N. Y., 611 (17 Hun, 410), cited in Stephens’ “Digest of the Law of Evidence,” p. 107, note H, decided in the New York Court of Appeals a few years ago. In that case one Adolf was killed by a gunshot, and pieces of paper were found near the scene of the homicide bearing certain marks. An expert was called upon to say whether they were powder-marks, and whether the condition of the paper was such that in his opinion it was wadding which had been fired from a gun. This evidence was held to be inadmissible by the General Term of the Supreme Court, and this decision was affirmed by the Court of Appeals. These courts held that the question as to whether this was a wad fired from a gun was a matter which the jury was as competent to judge of as the witness. In delivering the opinion at General Term, Presiding Justice Talcott said that this case was very close to the border line, but in his judgment it was beyond the province of experts and within the province of jurors.

Nevertheless, in that case the evidence of chemists who had examined the wadding, and had discovered the marks on it which were said to be powder-marks, and upon analysis had determined that they were powder-marks, or that they were marks of powder which had exploded, would have been clearly admissible.

The subjects concerning which medical men may be called upon to testify as experts are as numerous as the diseases, injuries, mental and physical conditions of the human race which fall within the range of the practice of medicine and surgery. It is therefore practically impossible to give them in detail.[185]

Practical Suggestions and Admonitions Embodied in Rules.—It is deemed advisable that the following practical suggestions and admonitions to physicians, concerning their duties as expert witnesses, shall here be given.

First: A physician should refuse to testify as an expert unless he is conscious that he is really qualified as an expert.

Second: After accepting the responsibility, his first duty should be to make a diligent examination and preparation for his testimony, unless it is upon a subject with which he is familiar and which he is satisfied that he has already exhausted, by reading the best authorities that he can find, and by careful reflection upon particular questions as to which his opinion will be asked.

Third: Where he is to make an examination of facts, such as the post-mortem examination of a body, a chemical analysis or an examination of an alleged insane person, he should insist upon having plenty of time and full opportunity for doing his work thoroughly. He should take particular pains to make his examination open and fair, and, if possible, should invite opposing experts to co-operate with him in it.

Fourth: He should be honest with his client before the trial in advising him and giving him opinions, and upon the trial should preserve an absolutely impartial attitude, concealing nothing, perverting nothing, exaggerating nothing.

Fifth: On the preliminary examination as to his qualifications as a witness he should be frank and open in answering questions. He should state fully the extent and the limits of his personal experience and of his reading upon the subject, without shrinking from responsibility, yet without self-glorification.

Sixth: He should be simple, plain, and clear in his statement of scientific facts and principles, avoiding the use of technical language, and trying to put his ideas in such form that they will be grasped and comprehended by men of ordinary education and intelligence.

Seventh: He should avoid stating any conclusions or principles of which he is not certain, but having an assurance that he is right he should be firm and positive. He should admit the limitations of his knowledge and ability. Where a question is asked which he cannot answer, he should not hesitate to say so; but he should refuse to be led outside the subject of inquiry, and should confine his testimony to those scientific questions which are really involved in the case, or in his examination of the case.

Eighth: And finally, he should always bear in mind that at the close of his testimony an opportunity is usually given to him to explain anything which he may be conscious of having said, which requires explanation; and partial statements which need a qualification to make them a truth. This is the physician’s opportunity to set himself right with the court and with the jury. If the course of the examination has been unsatisfactory to him, he can then, by a brief and plain statement of the general points which he has intended to convey by his testimony, sweep away all the confusion and uncertainty arising from the long examination and cross-examination, and can often succeed in producing for the first time the impression which he desires to produce, and can present the scientific aspects of the case briefly and correctly.

Probably no man was ever so gifted as to be able in practice to carry out all of these principles in giving medical testimony. If he could, he would be the ideal expert witness. But the principles are, after all, simple and easily followed in the main. Any physician who knows his subject and who has a clear head and the ordinary faculty of expression, by observing these principles can make himself invaluable as an expert witness. There is no branch of the profession which brings a broader fame, greater influence, or larger emoluments than this. There is no branch, on the other hand, in which men of real ability make more lamentable failures.

CHAPTER 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.

[136] [137]

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).