Read Ebook: Medical Jurisprudence Forensic medicine and Toxicology. Vol. 1 by Becker Tracy Chatfield Witthaus R A Rudolph August

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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

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

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.

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, "when a pregnant woman was condemned to death, the sentence was not executed until after she was delivered." The same author tells us 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 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.

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

The earliest purely medical Sanskrit texts are the Ayur Vedas of Ch?raka and S?sruta, 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 , 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.

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 contain many facts which are of medico-legal interest: the possibility of superfoetation was recognized; the average duration of pregnancy was known, and the viability of children born before term was discussed, the relative fatality of wounds affecting different parts of the body was considered, 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, 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. 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. The writings of the Greek orators, Demosthenes, AEschines, Lysias, Antiphon, Isocrates, etc., which have come down to us substantiate the claim of AElian that "to Athens mankind is indebted for the olive, the fig, and the administration of justice."

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 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.

The third Tetralogy of Antiphon 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 summons no medical evidence but relies entirely upon a statement of his client's case.

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 says that the physician Antistius examined the dead body of Julius Caesar , and declared that of all the wounds only that received in the breast was mortal.

Pliny 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 quotes Masurius as having declared a child born after thirteen 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 , according to Gellius, sought medical information in a similar case, and decreed the legitimacy of a child born in the eleventh month, "after having considered the opinions of ancient philosophers and physicians."

Although the Justinian collections, the "Codex" , the "Institutes" , the "Digests," or "Pandects" , and the "Novels" , 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. There is also a provision that in cases of contested pregnancy, midwives 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.

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 , 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.

During the period of about a thousand years, intervening between the Justinian and Caroline 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 , of persons killed, and of women.

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.

In the kingdom of Jerusalem a person claiming exemption from trial by battle because of sickness or of wounds was visited by a physician and a surgeon , who examined him and made oath as to his condition.

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.

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;" and in case of death one or more surgeons are to "examine the dead body carefully before burial." They also contain provisions for the examination of women in cases of contested delivery, or suspected infanticide; for the regulation of the sale of poisons; for the detection and punishment of malpractice; and for examination into the mental condition in cases of suicide and of crime.

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, and describes the course which is to be pursued in the judicial examination of dead bodies. This is probably the earliest printed book containing reference to medico-legal examinations, and antedates the writings of physicians upon the subject.

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. 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.

Although the "Quaestiones 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 Par? to the latter part of the eighteenth century. Several treatises appeared, being chiefly upon legitimacy and kindred subjects, with a few treating of reports, signs of death, etc.

Somewhat later Fr. B. Chaussier, between 1785 and 1828, published at Dijon a number of treatises on infanticide, viability, surgical malpractice, etc. Fod?r?, 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. 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 and of Belloc, both of which went through three editions in ten years, and those of Biessy.

Contemporaneous with Orfila, and almost as prominent, was Devergie, the first edition of whose "M?decine l?gale," in three volumes, appeared in 1836, and the third in 1852.

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