Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1 by R. A. Witthaus et al.

[136] “Yei sei honron” (Lectures on medical jurisprudence, translated by Gento Oye), 3d ed., 2 vols., Tokio, 1880. [137] “Saiban igaku teiko” (Medical Juris.), 3 vols., Tokio, 1882-84. [138] “Sixteen Introductory Lectures,” etc., Phila., 1811, pp. 363-395. [139] Amer. Med. and Phil. Reg., N. Y., 1814, iv., 614. It is to be regretted that instruction in medical jurisprudence is not now given at this school (1893). [140] Beck, “Med. Jur.,” 7th ed., xix. The Index Catalogue contains the titles of forty-nine works by Caldwell, none of which are medico-legal. [141] Beck, _loc. cit._ [142] “Tracts on Medical Jurisprudence,” etc., Phila., 1819. [143] “Elements of Medical Jurisprudence,” 2 vols., 8vo, Albany, 1823; 12th ed., 2 vols., 8vo, Phila., 1863. A chapter on Infanticide by John B. Beck was added to the third edition. This and later editions are “by T. R. and J. B. Beck.” [144] N. Y. Med. and Phys. Jour., 1823, ii., 9-30. [145] “An Essay on Medical Jurisprudence,” Phila., 1824. [146] Phila. J. M. and Phys. Sc., 1825, x., 36-46. [147] “Syllabus of Lectures.” etc., Univ. of Va., 1827. [148] “An Introductory Address,” etc., Phila., 1829, and “Syllabus of a Course of Lectures on ... Medical Jurisprudence in the Philadelphia Medical Institute” [n. p., n. d.]. [149] “A Catechism of Medical Jurisprudence.” etc., Northampton, 1835. [150] Dean (A.): “Manual of Medical Jurisprudence,” Albany, 1840; Dean (A.): “Principles of Medical Jurisprudence,” Albany, 1854: Elwell (J. J.): “Medico-legal Treatise on Malpractice and Evidence,” New York, 1860; 4th ed., New York, 1881. [151] “Medical Jurisprudence.” Phila., 1855. 4th ed., edited by R. Amory and E. S. Wood, 3 vols., Phila., 1884. [152] “A Medico-legal Treatise on Malpractice and Medical Evidence,” N. Y., 1860; 4th ed., N. Y., 1881. [153] “The Jurisprudence of Medicine,” etc., Phila., 1869. [154] In that case (Bailey _v._ Mogg), the Court says of that statute (Laws of 1844, p. 406): “The triumph was now complete, for the legislature had made every man a doctor, and nostrums of every description and admixture could now be safely prescribed, and payments therefor exacted by authority of law.” [155] Notwithstanding these statutory enactments, it has been held that one who undertakes to cure disease by rubbing, kneading, pressing, and otherwise manipulating the body (massage) is not liable for having violated the provisions of the statute against practising medicine or surgery without a license. Smith _v._ Lane, 24 Hun (New York Supreme Court), 32. [156] Analysis of this decision shows that the main ground, upon which the court of last resort sustained the right of the applicant for admission to be admitted as a member of the society, was, that the provisions of the by-law in question were not specifically made applicable to a person applying for membership. The Court observed, pp. 192 _et seq._: “The regulations embodied in the so-called code are admirably framed, and commend themselves to every reader, as tending to raise to a still higher elevation the character of the learned and honorable profession to which they were submitted for approval and adoption. They are not limited in their scope to the range of moral obligation, but embrace express rules of conduct, in personal, professional, and public relations. They are regulations in the various departments of morals and manners, of courtesy and etiquette, of delicacy and honor. They bind those who pledge themselves to their observance, but cannot be recognized in law, as conditions precedent to the exercise of an honorable profession, by learned, able, and upright men, who have not agreed to abide by them. The non-observance of such regulations _may be made_ cause for exclusion or disfranchisement; but it must be either by the agreement of parties or by the exercise of the law-making power. “The applicant was not a member either of the American Medical Association or of the Erie County Medical Society, at the time of his alleged deviation from the formulas prescribed by these conventional rules. He was under no legal obligation to observe them, and had neither actual nor constructive notice of their existence. Those who were _members_ of the society could not lawfully be expelled for _antecedent_ deviation from the code (Fawcett _v._ Charles, 13 Wend., 477). Much less could such deviation be alleged, as cause for exclusion, against one who had never agreed to be bound by it, and as to whom it was not merely an inoperative but an unknown law. “As the relator demanded admission to the enjoyment of a franchise to which he was presumptively entitled, his exclusion could be justified only by facts repelling the presumption that he was duly qualified for admission, or by extraneous facts, showing that, if his application was granted, there were then subsisting causes, making ‘a clear case’ for immediate expulsion (_Ex parte_ Paine, 1 Hill, 665). “The burden was upon the appellant to establish affirmatively the existence of such present cause for expulsion. The society waived the right of making a return and taking a formal issue on the claim of the relator, to be determined as matter of fact by a jury, under the direction of the court; but submitted its objections in the form of affidavits, which failed to establish cause either for exclusion or expulsion. “The only _specific fact_ alleged in the opposing affidavits, as ground of objection, was the publication by the relator of a professional advertisement, which was inserted in one or more of the Buffalo journals in May, 1855, and discontinued in January, 1857, more than two years before his application was presented. It is charged that the printing of this notice was an empiricism, and in conflict with the code of ethics adopted by the Erie County Medical Society. “There is nothing in the terms of the advertisement from which any inference can justly be drawn against the relator, in respect either to his personal character or his professional skill. There is no suggestion, in the affidavits, that any of the statements of fact contained in the notice are untrue, and there is nothing in its contents inconsistent with perfect good faith on the part of the relator. It refers to the treatment of bronchitis, asthma, and consumption, as a special department of the profession to which he had directed his particular attention; and it alludes to his use of the method recently introduced, of medicated inhalation, through an instrument appropriate to that purpose, in aid of such general treatment as experience had proved to be beneficial in that class of diseases. It is not denied that the relator possessed peculiar skill in this department of the profession; and the case discloses the fact that the method of auxiliary treatment, introduced by him in the county of Erie, was not only successful in his own practice, but was adopted, with beneficial results, by members of the county society of high professional standing, and that it was accepted by a large proportion of the physicians of Western New York. If, at the time this remedy was introduced, he had been a member of the County Society or of the American Medical Association, he would not have been at liberty to direct attention, through the medium of the public journals, to the benefits resulting from its use. This would, perhaps, have been unfortunate for those who were suffering, in that vicinity, from this particular class of diseases; but it is undoubtedly true that the suppression of such an advertisement would have been more considerate toward his professional brethren, and more in accordance with the rules of delicacy and good taste. But an error, in this respect, by one who had no notice of the society regulation is not cause for disfranchisement. The act of the relator was neither immoral nor illegal. It was no violation of the by-laws; for, as to him, they were wholly inoperative. It was no present cause for _exclusion_; for the publication of the objectionable notice had been discontinued for more than two years. When he applied for admission, he proposed to become bound by the by-laws; and this the society refused to permit, for the sole cause that he had not observed them before they became rules of conduct for him. ‘Where there is no law, there is no transgression.’ The relator, therefore, had been guilty of no legal wrong which could bar his claim to the franchise.” [157] In Macpherson _v._ Cheadell (24 Wend., N. Y., 15) the Court said, p. 24: “In the first place I doubt much whether the defendant below, after retaining the plaintiff as a physician and accepting his services as such, could call upon him in the first instance to prove a regular license. In other like cases, the presumption is against the defendant. It is so as between attorney and client, in a suit for services performed under a retainer. Pearce _v._ Whale, 7 Donl. & Ryl., 512, 515, per Bayley, Judge; 5 Barn. _v_. Cress., 38, S. C. There, if the objection sound in the fact that the plaintiff was never admitted, or that his admission has become inoperative, it lies with the defendant to show it. _Id._, and see Berryman _v._ Wise, 44 T. R., 566. and other cases; 1 Phil. Ev., 227, Cowen _v._ Hill’s ed. Besides, the contrary would be doing great violence to the presumption that no man will transgress the command of a positive law.” See also Thompson _v._ Sayre (1 Denio, N. Y., 75), where this principle seems to have been assumed as correct without question upon the strength of the decision quoted above. A similar doctrine appears to have been enunciated in the State of Illinois in Chicago _v._ Wood, 24 Ill. App., 42; and Williams _v._ People, 20 Ill. App., 92. It may be sound, and undoubtedly the English cases cited in Macpherson _v._ Cheadell, _supra_, tend to support it. But in a case in which the physician’s right to practise is denied, the safe course will be for him to have a duly authenticated copy of his license ready to be offered in evidence. The general rule is that the burden is on the plaintiff to show all the facts which make up his right of recovery. See Bliss _v._ Brainard, 41 N. H., 256; Salomon _v._ Dreschler, 4 Minn., 278; Kane _v._ Johnston, 9 Bosw., N. Y. Superior Ct., 154. [158] That is, the burden devolves upon the defendant, and this notwithstanding the presumption of innocence, of showing what must be peculiarly within his own knowledge, namely, that he has been duly licensed. People _v._ Nyce, 34 Hun, N. Y., 298, and cases cited; 1 Greenleaf on Ev., § 79, and cases cited. See, contra, State _v._ Evans, 5 Jones. N. C., 250. [159] In Finch _v._ Gridley’s Executors (25 Wend., N. Y., 469-471), Nelson, Ch. J., said: “I am also inclined to think the evidence which was given competent to prove the _diploma_ from Fairfield College. The witness identified the corporate seal, _and had himself received a diploma from that institution subscribed by the same president and secretary_. Though he did not actually see them subscribe the paper, he had every means of becoming acquainted with their signatures; _the delivery_ of it to him was an acknowledgment they had signed it. Besides, he was familiar with diplomas from the institution under their signature,” etc. And see, also, Raynor _v._ State, 62 Wis., 289; Wendel _v._ State, _id._, 300. [160] In some of the States, persons who simply administered roots and herbs in treating disease, have been excepted from that portion of the statute which forbids the practice of medicine and surgery without a license. The proper construction of such an exception is, that it is a question of fact for the jury, whether the person accused who claims the benefit of the exception, simply administered a concoction of roots and herbs within the meaning of the statute, or whether, under the guise of so doing, he really held himself out as and acted as a regular practitioner. All such penal statutes are to be construed, like all other penal statutes, with due regard to the rights of the individual, and at the same time with such degree of liberality as will tend to preserve the public safety. [161] It has been held that the act of a physician in reporting to a health-board in good faith that his patient is suffering from small-pox, is not actionable. Brown _v._ Purdy, 8 N. Y. St. Rep.,