1

by heaven's

or disability The following the deepest de incumber Te have accord

ting his fair fame, the evil-minded frequently lend them-
selves to the ungracious task of extorting damages by
encouraging a suit for malpractice against him. In the
majority of cases these actions are the direct offspring of
"envy, hatred, malice, and all uncharitableness," and
when rocked in the cradle of calumny, and nursed by the
hand of speculation, injury is often inflicted upon the
character of a physician, who is at the same time left
without any proper remedy at law. The effect, also, of
such suits upon the public mind is apt to be pernicious,
for success in obtaining damages often stimulates others
into a repetition of the experiment, and the physician con-
sequently practices his art in chains, being perpetually
exposed to the risk of a suit which may ruin his reputa-
tion as well as his fortune. It becomes lawyers, therefore,
to consider, when called upon to institute such suits, that
little value can be placed upon the ipse-dixit of a layman
sitting as a critic upon the professional conduct of a
physician. And that, aside from such personal delin-
quencies as drunkenness, or gross negligence, cruelty
towards, or abandonment of, his patient, the field in which
the physician discharges his professional duties is practi-
cally a terra incognita to the unlearned, and one where no
lay critic can follow him. How, for example, can any
person, even the most learned, determine the precise limit
of influence of an exciting cause upon a lurking predis-
position, define the point at which a pathological action
commences in an organ like the brain, or measure and
prognosticate the effects of shock upon different constitu-
tions? Who can always decide when an effect flows
solely from the interference of human art, or whether
recuperative powers were not lost in consequence of shocks
in no other wise revealed than circuitously, thus entail-

ing, by heaven's own foreordained laws, permanent defor-
mity or disability?

The following observations of a French judge are worthy
of the deepest consideration in their exposition of the
duties incumbent upon courts in suits for malpractice.
We have accordingly ventured to translate them, although
well aware that they lose much of their force and perspi-
cuity by being presented in a different language: "Ad-
mitting even that the legislator could not, without danger,
have disarmed society upon this point (professional re-
sponsibility) it must be acknowledged also that courts
should employ the powers confided to them with pru-
dence and moderation. They are not competent judges
either of theories, opinions, or systems. They can
not appreciate the character of an opportunity for, and the
more or less perfect execution of, a surgical operation; nor
the value of a special form of treatment, because they can
never be converted into medical tribunals of ultimate ap-
peal, apportioning the blame to the penalty, and pointing
out the path which should be pursued. That, in conse-
quence, their intervention, in this region reserved to
science, can not be exercised at all. And that it only
begins beyond it, where, in the light of common sense,
and independently of all theories provoking discussion,
there has been exhibited on the part of the physician
grave errors, negligence, manifest want of intelligence,
unskillfulness, or ignorance of such things as all practi-
tioners of a profession should know; and that he has,
through these means, compromised the life of the patient,
or converted an operation performed upon him into a true
wounding."

requently lend themxtorting damages by gainst him. In the he direct offspring of j charitableness," and y, and nursed by the n inflicted upon the the same time left The effect, also, of apt to be pernicious, ften stimulates others ind the physician conns, being perpetually may ruin his reputa nes lawyers, therefore, stitute such suits, that pse-dixit of a layman essional conduct of a such personal delins negligence, cruelty ent, the field in which sional duties is practi ned, and one where no for example, can any mine the precise limit upon a lurking predis a pathological action brain, or measure and pon different constitawhen an effect flows uman art, or whether consequence of shocks rcuitously, thus entail

§ 55. While no professional man can expect to sail
'Aff. Viney & Schrieber, Jour. du Palais, vol. 45, p. 318.

!

er a criminal

asibility is implied in an emely diffic

always on a summer sea of success, where adverse winds
shall never buffet him, he has the right to insist that what
is not positively his fault or his wrong, the result of his
ignorance, unskillfulness, negligence, or harshness, shall
not be charged to the discredit of his reputation, or the
damage of his estate. Nature has the exclusive mastery
over her own laws and their operations, and although she
permits man at times to modify the latter to some slight
extent, she never allows him to usurp dominion there.
Hence deformities after fractures, or following surgical
operations, or special diseases, are not, necessarily, the
consequence of human interference, but oftener the legiti-
mate effects of nature's imperfect reparation, for there is
a point beyond which this faculty ceases to maintain its
integrity, and a species of secondary or provisional repair
is all that she can manifest of recuperative power.
such cases the defect is constitutional and natural, and
not the immediate consequence of human agency.

In

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Samuel T

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§ 56. Nevertheless, there are cases in which medical practitioners, or men styling themselves such, have unquestionably merited censure for their short-comings in proficiency, diligence, or considerate behavior. Cases, too, so far transcending the merely ethical canons of the profession as to bring their transgressors within the pale of legal accountability. And yet it is to be remarked as a singular illustration of criminal impunity, that while the army of quacks is enormously large, and the amount of malpractice committed by them correspondingly extensive, they have, as a class, suffered less, in pocket, for their sins than regular practitioners have for inevitable accidents occurring in their practice. The reason of this will be found in the fact that quacks are rarely, if ever, sued for damages. When brought before courts, it is generally

where adverse winds
ht to insist that what
ong,
the result of his
e, or harshness, shal

under a criminal prosecution, and as the gist of criminal
responsibility is the intention or malice, expressed
or implied in an act of wrong-doing, it becomes at times.
extremely difficult to prove the malus animus as laid in
the indictment. Whence it follows that the defendant
usually escapes, however flagrant his offence. This was
well illustrated in the case of those two eminent malfeas-
ants, Samuel Thompson,1 tried in Massachusetts in 1809,
and St. John Long,2 tried in England in 1830. The vic-
tims of both of these quacks died miserably under their
hands, and under circumstances of peculiar and most in-
excusable barbarism. There was more than ignorance
manifested in their malpractice. The treatment pursued
in either case was harsh, rash, and intemperate, to speak
in the mildest terms. It was a wanton tampering with
human life, carried on in the face of most unmistakable
proofs that it would terminate fatally, if persisted in.
Yet in both instances there was an acquittal of the offence,
as charged in the indictment, under the technical maxim
that, actus non facit reum, nisi mens sit rea. Although
they were undoubtedly associated with an act of homicide,
it was still held to be of that kind termed by misadventure,
which implies no guilty intention on the part of its per-
petrator, nor is the result of any act unlawful in itself.
In the absence of testimony to the contrary, the court felt
itself bound to consider that, in the treatment of their
patients, however unfortunate it may have proved, they
were actuated by a sincere desire to benefit them, and
when death ensued without evidence of criminal complicity
on their part, it could not go behind this fact to inculpate
them.3

his reputation, or the the exclusive mastery ons, and although she e latter to some slight surp dominion there. or following surgical e not, necessarily, the but oftener the legiti reparation, for there is ceases to maintain its y or provisional repair In cuperative power. ional and natural, and human agency. cases in which medical mselves such, have untheir short-comings in rate behavior. Cases y ethical canons of the gressors within the pale it is to be remarked as impunity, that while the rge, and the amount of rrespondingly extensive. ess, in pocket, for their e for inevitable accidents e reason of this will be

= rarely, if ever, sued for

e courts, it is generally

3

' Commonwealth v. Thompson, 6 Mass. 134.

2 Rex v. Long, 6 Bingham, 440, and 6. C. & P. 423.

Empiricism is not, however, the heritage of modern times alone, for

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patient b

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Although these decisions have risen into the authoritative character of leading cases, and can not be questioned upon the technical basis on which they rest, we are indisposed to consider them as in any degree settling the point upon which the gist of the issue should turn in such forms of malpractice. The question is not one involving personal malice towards the patient, any more than an act of carelessness on the part of a railroad engineer can be construed into evidence of a malus animus towards any particular passenger killed; for, although the running of a railroad train, or the administration of medicines, are both lawful acts in themselves, yet whenever they tamper with human life, through negligence or carelessness, they become at once trespassers, and as such impart a criminal character to their perpetrators. The true problem to be decided, then, is, whether a man professing to be a physician, and taking that title cum onere, should not be presumed, like every other intelligent human being, to intend the natural, necessary and inevitable consequences of his own acts. And by as much as he claims special knowledge of the operations of drugs, or surgical manipulations upon the human body, should better apprehend the probable consequences of their administration, or the effects of surgical operations, so as to retard rather than hasten fatal results. Is it, or not, gross ignorance, or want of ordi

their best rih both Th

Pliny, the historian, when speaking of the science of medicine in Rome, alludes in unmistakable terms to the ignorance and irresponsibility before the law, of physicians in those ante-Justinian days.

treatment

ened itself

telf to be sins who

"And then, besides, there is no law in existence whereby to punish the ignorance of physicians, no instance before us of capital punishment inflicted. It is at the expense of our perils that they learn, and they experimentalize by putting us to death, a physician being the only person that can kill another with sovereign impunity. Nay, even more than this, all the blame is thrown upon the sick man only; he is accused of disobedience forthwith, and it is the person who is dead and gone that is put upon his trial." Hist. Naturalis, lib. xxii. cap. 8, in Bohn's Classical Library.

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