Another cause, which has contributed to bring about the unenviable reputation of the physician in court, and it too is chargeable to the same system, is the fact that often men are summonsed to appear as expert witnesses, who have no just claim to such distinction in the particular class of cases involved in the question at issue, They are required to answer in the most dogmatic manner the famous hypothetical question, based on the facts of the case on trial, constructed, often by astute lawyers, with the sole view of aiding the legal aspects of the case on one side or the other. A question always unscientific: a question which I think the physician would do well to refuse to answer.

How long, I ask, would the practice be tolerated in private practice, of giving an opinion in a complicated case of disease of the brain or spinal cord, wholly on the presentation of the answer to questions propounded by a lawyer?

The class of diseases and injuries which are most apt to appear in Court, and in which the greatest conflict of opinions among medical men appear, and which have come to be of so alarming frequency, particularly in this country, is concussion of the spine in railroad accidents or "traumatic neuroses;" a disease manifested by a multitude of symptoms, very insidious in their development, proceeding often from apparently trivial injuries, of which there were no gross symptoms of violence done the body; symptoms almost wholly subjective in character, never constant in their onset, duration or behavior; symptoms which the medical experts or attendant, as the case may be, must take from the sufferer's mouth.

Who can measure the value of the statements of such a patient? The desire for sympathy; the fondness which seems planted in the mind of every human being when ill, to be regarded so sick or so much injured, as to be an object of marvel, as though it were an accomplishment; the coddling of friends, the promptings of a friendly doctor, the pointers from an interested attorney, as influences seem trivial to one who has little opportunity for observing such cases, but they are potent influences, nevertheless. Recent writers have been so much impressed by this thought, that the name of hysteroid has been suggested. Sajous, in the Annual for 1889, says: The importance of the recognition of this mental state for diagnostic and prognostic purposes, cannot be over estimated, and I believe that much of the incurability in railroad cases is due to the fact that the psychical treatment is not and cannot be attempted at an early period; once fully developed, like hypochondriasis, its removal is very doubtful.”

I have dwelt somewhat at length upon the details of the case for the purposes of the paper. Now, experts are summoned who have not, in all probability, examined the plaintiff minutely, if at all. They are not to testify as to matters of fact, but to matters purely of opinion.

The question presented him naturally divides itself into two separate considerations: First, as to the value of any symptom or symptom group, as indicative of the fact of the receipt of an injury. Second, admitting the injury, will the plaintiff recover wholly; if not, to what degree and when?

The first consideration is usually easily disposed of-there is little difficulty ordinarily in establishing the relation between a given effect and an alleged cause; but it is in relation to the second consideration that discrepancy in medical opinion is developed. It involves not an agreement as to facts seen or that are demonstrable, but relates purely to the legitimate deductions or conclusions to be drawn from certain facts assumed to be true. It is a projection from given premises into that débatable land of prophecy.

Such discrepancy of opinion in these complicated cases is to be expected, and is perfectly legitimate and for the conflict of views to which it leads in medical evidence, when these views have relation to matters of opinion only and not to matters of fact, much and very undeserved blame has been cast on the medical witness.

If public discrepancies of opinion were confined to the medical profession, the case indeed would be lamentable, and one that might justly be held as indicative of something wrong in the morale or judgment of its members. But how is it with the other professions? Are the great engineers found always ranged on one side of a question, which is one of practice or opinion, one which does not admit of the application of rigid laws of exact science? How, in politics; are all of the great statesmen of one mind? Is Law free from internal conflicts; are there no superior courts; are there no appeals from the decision of one court to that of another; are decisions never reversed? Do we never hear in the halls of Congress, conflicting opinions amongst the magnates of the legal profession, on the constitutionality of a law or act?

If strict analogy can serve to afford an illustration or to point an argument, I would submit the following, taken from the Vermont State Reports, to those members of the legal profession who too often refer to the differences of opinion of medical experts as brought out in these railroad compensation cases, only to point the conclusion that judgments, so divided in their course, and so little consistent, can only have slight weight attached to them, and deserve little consideration. From 1829 to 1844, 1090 cases were handed up to the Supreme Court of the State of Vermont, in which exceptions had been taken to, or appeals from, the rulings of the Judge in the Court below; of this number, 778 were affirmed and the remaining 312, a little less than one third, reversed. From 1880 to 1891, 1058 cases were carried up, of which number, 645 were affirmed and 413 reversed, that is a trifle over 39 per cent. of the whole number reversed.

I allude to these cases only to show what is already known, that there are differences, even conflict of opinion among those who contend for exact rules, and positive opinions. I admit that they should be expected in the legal as well as in all other liberal professions; that it is in many instances perfectly legitimate and inevitable. Far from me be it to speak disparagingly of it or them; I call your attention and invite their attention to the fact of the existence of this difference of opinion, as it relates to the medical witness in Court, and have endeavored to show that they flow from natural and unavoidable causes, common to all professions, the arts and the trades; and further that the very object which is sought is often defeated by the methods which are employed to arrive at the truth, trusting this feeble effort might excite a discussion and investigation, participated in by both, which would result in a better understanding of what is required on the one hand, for the application of the rules of law and evidence, and what can and cannot, on the other hand, be furnished, because dealing with laws and principles, not made by human hand, therefore "altogether past finding out." And finally, to the suggestion of some other system or method to pursue in the determination of the truth, that justice may be met in these most perplexing

cases.

I suggest in such cases as I have referred to, that if the medical men, representing the interests of the party to the litigation, were to meet in consultation, and, if necessary, that the patient be removed from the surrounding bad moral influences, to a hospital, where more abundant and continued opportunities are afforded for the critical observation of all the phenomena connected with the case, I venture to predict that the truth, so far as ascertainable, would more often be found and justice reached, than under the present system.

True it is now, that surgeons for the defendant in such cases have an opportunity of seeing and examining the plaintiff in the presence of his medical man, but no consultation is had, and no attempt is made to learn each other's opinions, or to reconcile discordant views. If it were had, and they each had equal opportunity for the observation of the patient, a conjoint report might be made, embodying the facts seen and opinions or inferences drawn, as to the nature, probable cause, and future of the case. This report to be handed to the Court for his guidance with the jury, in that part only of the case which relates to the purely scientific questions involved.

In case of the failure of the medical witnesses to arrive at a conclusion, which could be endorsed by all, or in case of an appeal from their decision, the Court might appoint two or three surgeons, of known skill in the department of medicine, to which the case under trial properly belongs, who should examine the evidence submitted in the report of the medical witnesses, as to facts learned, and grounds for the opinion

expressed, and whose opinion would be final, so far as relates to the purely surgical or medical part of the case. Their report would embody such information as the Court admittedly knows little or nothing about, and presumably what he most desires; the decision of the board would by reason of this fact, be an independent one; they could not be accused of unworthy motives; they could not be calumniated, and their evidence would not be stirred by groundless charges of partizanship.

I believe this plan would result in the greatest advantage to both the legal and medical professions; it would not interfere with the present plan of Court proceedure; the jury would decide in all cases as to matter of fact as now, except with reference to purely scientific questions, which would be, to all intents and purposes, referred to a jury of medical men.

I would not be understood that I believe the suggested plan would invariably and assuredly in every instance, do away with discordant views as among expert witnesses, but that the ends of justice would be sooner and more certainly attained than under the present system.

I may then in conclusion, sum up by saying: First, that the present system of laws and rules of Court, relating to expert medical testimony, is largely responsible for the apparent and actual discrepancy of opinion among medical witnesses.

Second That the Court and jury are incompetent to decide questions scientific in character, relating wholly to medicine, and that such questions should be referred to a board of physicians appointed by the Court for their determination, and whose decision should be final.

Third That the testimony or report of medical witresses, should, if contradictory, be referred to this board, who should report in writing to the Court the nature, probable or possible causes, extent and probable ultimate result of the plaintiff's injuries.

Gentlemen of the Vermont State Medical Society, in closing, permit me to acknowledge my profound appreciation of the proud distinction which has been accorded me in being selected as your presiding officer for the year. It is an honor that rarely comes except for long and honorable service; none appreciate the honor and my unworthiness more than myself.

In conforming to one of the requirements of the office, I present you my feeble effort, believing it will be received as former efforts have been, with charitable consideration, only hoping it may excite a healthful discussion which will ultimately lead to a revision of present laws and rules regulating the admission and use of expert medical testimony; if, in your opinion, it is for the best interest of all concerned.

The subject was discussed by Mr. Burnap and Mr. Taft, also by Drs. Hamilton, Wilder, Stimson and Grinnell.

Adjourned to Friday, at 9.00 A. M,

After the close of the evening session the Society met at the Van Ness House at 10 P. M., for the annual banquet, which was served in the large dining room, there being present the above named guests, the delegates from New York and Rhode Island, and members to the number of eighty or ninety.

Prof. J. H. Jackson of Barre, anniversary chairman, presided. After partaking of a bountiful repast, short speeches and stories were in order, the pipe of peace was lighted, and all enjoyed a social hour which ended at midnight.

SECOND DAY,—FRIDAY, OCTOBER 16.

Met at 9.30 o'clock.

The following resolution, introduced one year ago, was passed by a two-thirds vote :

Resolved, That the annual meeting be held at such place as the Society may elect, at the previous annual meeting.

Montpelier was selected as the place of meeting for 1892.

The following officers were elected for the ensuing year: