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

Font size: 10 px 15 px 20 px 25 px 30 px 35 px

Background color: BlackWhiteGrayLight GrayDark GrayDim Gray

Text color: BlackWhiteGrayLight GrayDark GrayDim Gray

Apply/Save settings

Ebook has 3622 lines and 316026 words, and 73 pages

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.

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, and is one of five of which one of the authors is a lawyer.

Special treatises on the medico-legal relations of insanity were published by Georget , Falvet , Esquirol , and Marc , and on midwifery by Capuron .

The first work of medico-legal interest to appear in Germany was the "Medicus-Politicus" of Rodericus ? 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.

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. In 1704 a work giving rules for the conduct of physicians in attending the sick and in giving evidence in the courts. 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. 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; and still another by J. S. Hasenest appeared in 1755.

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 , Kannegieser , von Plenck , Frenzel , Loder , Amemann , Metzger , 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; A. F. Hecker, professor at Erfurth and afterward at Berlin, and J. H. Kopp each edited and contributed extensively to a medico-legal journal. 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. Jos. Bernt, professor at Vienna, published a collection of cases, a systematic treatise, and a number of monographs, 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, 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 besides numerous articles in the journals. F. J. Siebenhaar published an encyclopaedia of legal medicine, and in 1842 established a journal devoted to state medicine, which in its continuations was published until 1872. 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, 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.

The foremost forensic physician of this period in Germany was unquestionably John Ludwig Casper, professor in the University of Berlin and "forensic physician" 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, others in his classic Handbook, and still others in the periodical which he established in 1852, and which is now the most important current medico-legal journal.

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.

English works upon this subject did not exist prior to the present century, 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.

Lectures on medical jurisprudence were given at the University of Edinburgh by A. Duncan, Sr., at least as early as 1792. 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.

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. A more elaborate work, based very largely, however, upon the writings of continental authors, was published by G. E. Male in 1816. In 1821 Professor John Gordon Smith published the first systematic treatise on forensic medicine, 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. 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. A similar work was published by Professor T. S. Traill, of the University of Edinburgh, in 1836. 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.

Among the noteworthy contributions to the science previous to 1850 are the writings of Dease , Haslam , Christison, the successor of Professor Duncan in the University of Edinburgh, and best known as a toxicologist, Forsyth , Chitty , Watson , Brady , Skae , Pagan , and Sampson .

In 1836, Dr. Alfred Swaine Taylor , 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. In 1844, Dr. Wm. A. Guy, Professor of Forensic Medicine in King's College, published the first edition of his excellent work. In 1858, Fr. Ogston, Professor of Medical Jurisprudence in the University of Aberdeen, published a syllabus and subsequently a complete report of his lectures. In 1882, C. M. Tidy, Professor of Chemistry and Forensic Medicine in the London Hospital, who had previously 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.

The first Spanish work on legal medicine was that of Juan Fernandez del Valles, printed in 1796-97. 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. 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.

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

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

In Sweden the earliest medico-legal publication was a comprehensive treatise by Jonas Kiernander, in 1776, which was followed in 1783 by a translation of Hebenstreit, by R. Martin. The voluminous writings of the brothers Wistrand , 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 published his lectures on legal medicine, delivered at Christiania, and Orlamundt published a handbook at Copenhagen in 1843. The earliest recognition of medico-legal science in Russia was in the lectures of Balk, 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, and the works of Pineau, Zacchias, Ludwig, von Plenk, and Metzger 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.

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, the other a treatise by Katayama.

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. 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. At the same period Dr. Charles Caldwell delivered a course of lectures on medical jurisprudence in the University of Pennsylvania. 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.

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. The works of Ryan, Chitty, Traill, and Guy were also reprinted in this country shortly after their publication in England.

Papers upon medico-legal subjects or reports of lectures were published by J. W. Francis, J. Webster, R. E. Griffith, R. Dunglison, J. Bell, and S. W. Williams 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.

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 Still?, the first American product of the collaboration of members of the two professions, now in its fourth edition.

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. 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. 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 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.

R. A. W.

MEDICAL JURISPRUDENCE.

THE LEGAL RELATIONS

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.

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

LEGAL STATUS OF PHYSICIANS.

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."

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.

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.

ACQUIREMENT OF LEGAL RIGHT TO PRACTISE MEDICINE AND SURGERY.

"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 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.

Share on: WhatsApp @Hash Facebook Tweet