1938: Medical Jurisprudence

Unlicensed Practitioners.

State statutes universally provide for the examination and certification of physicians and surgeons and make it illegal for anyone not having a certificate to practise medicine. A number of decisions in 1938 turned on the question of what is involved in the practice of medicine or healing so as to bring the action of particular individuals within the terms of the status. A typical case is State v. Micike, 277 N. W. 420 (Minn.). The defendant induced women to come to lectures for which she charged a fee, and recommended and sold tablets containing 'female hormones' for those having menstrual trouble. The defendant contended that she was not practising 'healing' without first having obtained a certificate, a violation of the Minnesota law. The Supreme Court, however, took a different view of her conduct and sustained her conviction of illegally practising healing.

Limited-license Practitioners.

Not all persons bearing the title of 'doctor' have an unlimited right to practise medicine and surgery. A person who has been graduated from a medical college recognized by the State Board and received his degree of M.D., and who has passed the state examination, will receive an unlimited license to practise medicine and surgery in the state. State statutes, however, recognize limited licenses to practise medicine and surgery which are restricted to a particular branch of medicine, or to a special system or method of treating disease, or to a particular part of the human body. Such limited practitioners are optometrists, osteopaths, chiropractors, napropaths, electro-therapists, chiropodists, etc. There is a tendency for persons having restricted licenses not to remain within the confines of their particular field but to prescribe and treat persons for ailments outside of their domain, and to use methods which are not included in the terms of their licenses or certificates. An example of this kind is Joyner v. State, 179 So. 573 (Miss.). The defendant, who was licensed as a chiropractor, attempted to remove the tonsils of a patient. He was convicted of unlawfully practising medicine as a physician without first having obtained a license to do so, and his conviction was upheld by the Supreme Court of Mississippi, which stated that the defendant's license to practise chiropractic did not authorize him 'to engage in the use of any methods pertaining to the practice of medicine and surgery.'

Corporations As Practitioners.

The license to practise medicine and surgery or any particular branch of the healing art is a personal privilege. It can be granted only to persons who have met the necessary state requirements. No license to practise medicine or surgery can be granted to a corporation. But may a licensed practitioner work for an unlicensed corporation? This question was considered in New York and Pennsylvania with opposite results. In the New York case of People v. Dr. Scholl's Foot Comfort Shops, Inc. (277 N. Y. 151), the defendant corporation employed a duly licensed podiatrist to diagnose and treat foot ailments of its customers. The corporation was, therefore, charged and convicted in the lower court of practising podiatry without having obtained a license to do so. The Court of Appeals, however, stated that the licensing statute had no application to corporations, and that there was no restriction in the statute against a corporation employing a duly licensed chiropodist or podiatrist. In the Pennsylvania case of Neill v. Gimble Bros., Inc. (199 Atl. 178 Pa.), however, a contrary decision was reached. The corporation in that case had an optometry department in its store and employed a licensed optometrist. The Pennsylvania Supreme Court sustained an injunction restraining the defendant from practising optometry and from employing licensed optometrists, stating in the course of its opinion: 'A licensed practitioner of a profession may not lawfully practise his profession among the public as the servant of an unlicensed person or corporation . . . if he does so, the unlicensed person or corporation employing him is guilty of practising that profession without a license.'

Professional Publicity.

Physicians, surgeons, osteopaths, optometrists, dentists, etc., may be subject to regulations which would be unconstitutional if applied to other occupations or callings. An example is the Texas statute, which prohibits unprofessional conduct on the part of dentists, such as advertising professional superiority in the performance of services, bargains or cut rates, free examinations, testimonials from patients, etc. The constitutionality of this statute was challenged by five dentists but was upheld by the Texas Court of Civil Appeals, which stated in the course of its opinion, 'The power of the state through its legislature to regulate and circumscribe the character of advertising of their professional services, equipment and facilities by practicing dentists is now generally recognized and upheld. That power does not rest necessarily upon the theory or assumption that such advertising must be false or within itself harmful in every case. The true theory, is primarily at least, that such methods of inducing business are contrary to the now well-established and universally recognized and respected standards of ethics of an honored and useful profession' (Sherman v. State Board of Dental Examiners, 116 S.W., 2nd, 843, 846).

Blood Tests As Evidence.

There were interesting developments in medical jurisprudence in the year 1938 in fields other than those relating to the practice of medicine and allied professions. The case of Arais v. Kalensnikoff, 74 P. (2nd), 1043 (Calif.) brought into question the legal effect which should be given to the Landsteiner or Bernstein blood-grouping test as evidence of paternity. This test is predicated upon the theory that the blood contains two affirmative agglutinating substances, and that every individual's blood falls into one of four classes and remains the same throughout life. These blood characteristics are inherited. No agglutinating substance is present in the blood of a child which is not present in the parent. In the above case, the plaintiff made out a strong prima facie case showing that the defendant was the father of her child. The blood test, however, indicated that the blood of the child contained the agglutinating substance B-1. This was not present in the blood of the mother. It should, therefore, have had to be present in the blood of the defendant if he was the father of the child. It was not present in the blood of the defendant. The latter, therefore, claimed that the blood test conclusively demonstrated the fact that he was not the father of the child, and asked the court for a ruling to this effect. The trial court refused to make such a ruling, and found him to be the father of the child. The defendant appealed from this judgment. The California Supreme Court refused to sustain him, stating that 'whatever claims the medical profession may make for the test, no evidence is by law made conclusive and unanswerable unless so declared by the Code.' From the point of view of the law of evidence, the blood test is but expert opinion and 'expert opinion must receive the weight to which it appears in this case to be justly entitled.'

Lie-detector Tests.

Two New York cases raised the much-discussed question of the use of the 'lie detector' in criminal cases. In a robbery prosecution, People v. Kenny, 3 N.Y.S. (2nd) 348, the defendant offered the testimony of Rev. W. G. Summers of Fordham University as to the result of pathometer and psycho-galvonometer or 'lie detector' tests to which he had submitted. The prosecution objected to the admission of this evidence on the ground that the pathometer had not gone beyond the experimental stage. The trial court, however, overruled the objections of the District Attorney and admitted the testimony in evidence, stating in the course of its opinion that if courts were 'willing to accept and receive handwriting testimony, psychiatric testimony and other expert opinion. [they] should also admit in evidence testimony of the pathometer test and the results disclosed thereby.' The court was undoubtedly influenced by Father Summers' claim that his lie detector tests were 100 per cent efficient in the detection of deception.

In People v. Forte, 279 N.Y. 204, the Court of Appeals took an entirely different view of the efficacy of 'lie-detector' tests. The defendant, on trial for murder, moved, after all the evidence had been submitted to the jury, to reopen the case and be permitted to take a 'lie-detector' test. His motion was denied. The Court of Appeals sustained this action of the trial court, stating. 'The record is devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy. Evidence relating to handwriting, fingerprinting and ballistics is recognized by experts as possessing such value that reasonable certainty can follow from tests. Until such a fact, if it be a fact, is demonstrated by qualified experts in respect to the `lie detector,' we cannot hold that error was committed as a matter of law in refusing to allow the defendant to experiment with it!'

That the Court of Appeals adopted the sounder position is evident from a note on the Kenny case in Vol. 39 Journal of Criminal Law (1938), 287-91, which states that, in the field of lie detection, there is no substantial agreement either as to instrument or technique. Summers claims his is the reliable one. Marston . . . scoffs at Summers and claims his invention of the systolic blood-pressure test is the reliable test . . . the Scientific Crime Detection Laboratory staff believe that their work has been the most trustworthy. . . . 'In such a state of scientific disagreement the objection of the Wisconsin Court in the Bohner case (State v. Bohner, 210 Wis. 651) is cogent. 'The admission of the `lie detector' may easily result in the trial of the lie detector rather than the issues of the case.'

Expert Testimony.

While the New York Court of Appeals was reluctant to admit the probative value of experts in lie-detection tests, the Supreme Court of Pennsylvania had before it a remarkable demonstration of the value of expert testimony in other fields in the case of Commonwealth v. Fugmann. 198 Atl. 99 (Pa.). The defendant in that case was accused of sending through the mails six cigar-box bombs wrapped in brown paper, which killed two people. A search of the defendant's home revealed a small quantity of dynamite, some glue on a kitchen chair, two pieces of southern pine wood, some small nails and brads, some brown wrapping paper, a small flashlight with two batteries, and several feet of copper wire. A number of experts testified that the dynamite, wood, glue, nails and paper found in the defendant's home were similar to those used in the bombs. For example, Arthur Kochler testified that the wood in the cross pieces in the deadly cigar boxes matched the wood in the defendant's cellar, that they had been cut within close proximity of each other and at the same machine in a saw mill. Stanley R. Keith, a nail expert, testified that the nails used by the maker of the bombs in fastening the lids of the boxes were identical with the nails found in the defendant's cellar and also in the defendant's shoes, which he admitted he had repaired. A glue expert, Dr. Elwin E. Harris, testified that glue used on the bomb was a peculiar fish formula, to wit, Roger's Gluc. The defendant had repaired a kitchen chair with the same kind of glue.

Although the defendant objected to the admission of the testimony of these experts, the Pennsylvania Supreme Court commended the high degree of competency and skill and the great probative value of their testimony. 'A reading of the record,' states the Pennsylvania Supreme Court, 'will show their extraordinary preparation, study, experience and skill in their respective lines.'

Partisanship Factor in Expert Testimony.

Experts in legal proceedings are not always as competent and as thorough as those who testified in the Fugmann case, nor is their testimony always as convincing. In the past, expert testimony has suffered from the vice of being essentially partisan. It is presented by one side or the other in a proceeding to bolster its position. Experts are chosen by the parties in a legal dispute and receive their fees from them. They cannot help but be influenced in their opinions by this fact. This is one of the basic reasons for the battle of experts in legal proceedings where contrary opinions are maintained with apparently equal profundity and learning.

In order to eliminate as far as possible the evils of partisan expert testimony, the National Conference of Commissioners on Uniform State Laws has prepared a model Expert Witnesses Act which will eventually be recommended to the various states for adoption. This act gives the court the right, on its own motion or on the request of either party in a legal proceeding, to appoint from one to three experts whenever an issue arises upon which the court deems expert evidence is desirable. These experts can be called upon to prepare a written report on the subject examined and to testify, if necessary, at the trial and be subject to proper cross-examination. The act does not eliminate the right of a party to call its own experts if it so desires. Therefore it does not entirely do away with the possibility of conflicting expert testimony at the trial. However, the act makes it possible for the jury called upon to decide the issue to have the guidance of experts who are named by an impartial agency, namely, the court. This guidance will make it possible for juries to arrive at more adequate decisions in legal disputes.