1939: Medical Jurisprudence

Medical jurisprudence covers a wide variety of subjects of interest to both the criminal and civil side of the law. Outstanding cases in 1939 dealt with professional malpractice, relations between hospital and patient and between doctors and patients. Other cases concerned the medico-legal expert in criminal proceedings, the problems of the 'lie detector' and the insanity defense.

Malpractice.

People have at times an exaggerated faith in the ability of those who minister to human ills. When that faith is not justified they are likely to express their grievances in malpractice suits against the doctors who have treated them. These suits are frequently brought under the impression that it is enough to show that the results of the illness or the doctor's ministrations were unfortunate for liability to ensue. As a general rule however, a physician does not guarantee results. As long as he uses average skill and knowledge and exercises ordinary care, he cannot be held liable for bad results flowing from errors of judgment. Occasionally, however, the breach of professional duty on the part of the doctor is so flagrant that a malpractice judgment against the doctor is sustained by the Appellate Courts. Of this character is the Illinois case of Shutan v. Bloomenthal 20 N.E. (2)570. There a specialist in teeth extraction broke the plaintiff's jaw in taking out a wisdom tooth. He failed to take X-rays for eleven days after the plaintiff complained of acute discomfort. After the X-ray was taken, he failed to inform the plaintiff of the fact that her jaw was broken; nor did he give the treatment usual in such cases. As a result of the defendant's negligence 'a permanent condition of malocclusion of the jaw and paralysis of jaw and chin developed.' According to the court this state of facts tended to show that the defendant did not use the skill and care in his treatment of the plaintiff 'which persons in the same profession ordinarily have used in similar circumstances.' Under these conditions a verdict of the jury for $2,500 was a proper one.

Patient-Doctor Relations.

That a doctor may have liability thrust upon him, where he fails to act as well as where he is guilty of positive acts of negligence is illustrated by the Florida case of Saunders v. Lischkoff 188 So. 815. There the doctor refused to visit the patient after he became too sick to come to his office, even though periodic medication was necessary. The court set aside a direct verdict for the defendant. 'The obligation of continuing attention,' stated the court, 'can be terminated only by the cessation of the necessity which gave rise to the relation of physician and patient or by the discharge of the physician by the patient or by the physician's withdrawing from the case after giving the patient reasonable notice so as to enable him to secure other medical attendance.'

The fact that the doctor rendered his services gratuitously in a charitable hospital was held not to bar liability where the doctor left a surgical sponge in the abdomen of the plaintiff after an operation. (Barnes v. Gardner 9 N.Y.S. (2)785.) The court in the case of Miller v. Mohr 89P(2)807, however refused to hold the charitable hospital itself liable for the negligence of its employees stating in the course of its opinion 'A charitable hospital, not conducted for profit is not liable under the rule of respondeat superior for the negligence of its employees . . . unless it appears that the hospital itself was negligent in failing to exercise ordinary care in the selection and the retention of the employee.'

In Hoff v. State 279 N.Y. 490 however, the Court found no difficulty in making the State of New York answer for an act of misfeasance by a superintendent of a state hospital for the insane. The plaintiff Hoff was confined in the state hospital. Believing he was sane, he had written to many men in public life asking for their assistance. The plaintiff's wife had been annoyed by inquiries from persons who received such letters. She therefore requested the hospital superintendent to send to her all of the letters written by Hoff. Among the mail so forwarded to the wife was a petition for a writ of habeas corpus, signed by Hoff. Two weeks later, Hoff's attorney himself presented the petition for the habeas corpus and Hoff was later found to be sane. The Court stated that since Hoff's release from the institution was delayed two weeks, by the act of the hospital superintendent, the state was liable for any damages caused thereby.

Sometimes the dereliction of duty on the part of the doctor is so serious that the sanctions of the criminal law are invoked against him. In the Washington case of State v. Karsunky 84P(2)391, a so-called drugless healer assumed to treat a man suffering from diabetes. The latter on the recommendation of the defendant, abandoned his prescribed diet and his insulin treatments. As a result he fell into a diabetic coma and died within nine days. The Court stated that the defendant was 'bound to know the nature of the remedies he prescribed and also the treatment . . . and he is responsible criminally (for manslaughter) for the death resulting from the gross ignorance in the application of the treatment.'

A doctor must not only not exploit a patient's physical weakness, he must also refrain from exploiting his moral authority over a patient. This is strikingly illustrated by the Washington case of Foster v. Brady 86P(2)760. There an eighty-three year old man entered the hospital of the defendant and shortly before his death made out a will leaving all but $100 of his estate to the defendant. The will was drawn by the defendant's attorney, and was witnessed by the latter and by a tenant of the defendant. The defendant and his wife were in and out of the room, while the will was being written. The bedside charts of the patient had been tampered with and padded bills were presented against the patient's estate for nursing services. These facts, the Court felt established undue influence, stating that 'the very relationship (of physician and patient) . . . imposes upon the physician the duty to exercise the highest degree of good faith in dealing with his patient not only in professional matters but in all other relationships and particularly such a transaction as this.'

Medico-Legal Cases.

An outstanding demonstration of the value of the medico-legal expert in criminal cases was furnished by Dr. Sidney Smith, a noted Scottish text writer in legal medicine. In the course of cleaning out a village well, three separate bones were found which were submitted to Dr. Smith for examination. The bones were from the left and right hips and from the sacrum of a human being. The following report was submitted by Dr. Smith. 'The bones are from the same body, and have formed a pelvis of a young woman of small stature and light build. She was twenty-three or twenty-four years of age and possibly had had one or more pregnancies. She had been lame on the left side since infancy or early childhood. She was injured by the discharge of a shot-gun loaded with irregularly-shaped and possibly home-made slugs. The shot was fired from the front of the woman, at a range of some yards. If the woman was in an erect position at the time, the direction of the shot was from before backwards, slightly from left to right and slightly upwards. The shot must have penetrated the abdomen and injured the viscera. Death occurred about seven to ten days after the shooting, and was probably due to septic peritonitis. The whole occurrence is not more recent than three months ago, and may be considerably more remote.'

The facts disclosed by this examination were later found correct, and were useful not only in establishing an identification but in apprehending the murderer.

Useful as the medico-legal expert is in the solution of criminal cases, his efforts are frequently challenged in the Courts. In the Nevada case of Skidmore v. State 92P(2)979, for example, where the defendant was charged with impairing the morals of a minor, a physician examined the defendant for gonorrhea at the request of the sheriff. The defendant claimed that the physician's testimony violated his constitutional rights against self-incrimination. The Court however affirmed the conviction. A similar attitude was taken by the Iowa Court in the case of State v. Norkrid 286 N.W. 412, where the defendant was convicted of operating a motor vehicle in an intoxicated condition. Error was alleged in that the defendant's blood and urine were taken for chemical analysis, and the results of such analysis were introduced at the trial against the defendant. The Court, however, was unable to find any compulsion in the taking of the blood and urine and sustained the conviction.

Lie-Detector Cases.

The testimony of experts is welcomed in criminal cases when it is based upon reasonably certain techniques. The 'lie detector,' however, is still in the stage of experimentation and its use is still frowned upon by the Courts. This is illustrated by the New York decision in the case of People v. Forte 279 N.Y. 204. The Court of Appeals sustained the trial Court's refusal to permit the defendant in a homicide case to be examined by a 'pathometer commonly known as the lie detector,' stating in the course of its opinion: 'We cannot take judicial notice that this instrument is or is not effective for the purpose of determining the truth. Can it be depended upon to operate with complete success on persons of varying emotional stability? 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 as a matter of law that error was committed in refusing to allow the defendant to experiment with it.'

While the Courts may frown on evidence obtained through 'lie detectors,' the Pennsylvania court in Commonwealth v. Hipple 3A(2)353 has indicated that it will not exclude confessions induced by the machine. In that case the defendant was arrested on suspicion of having committed a murder. He was questioned by the state police for nine days without result. A lie detector was finally applied to the defendant. He was told when the machine was placed upon his arm that he could lie to the officers but not to the machine. Two hours later he made a full confession that he had committed the murder. The court held that this confession was properly admitted in evidence. 'Since the use of the device,' writes the Court, 'was for the purpose of inducing the defendant to tell the truth and nothing was done to influence him to do otherwise, an objection based solely on the fact that he was thus induced to confess cannot be sustained.'

Insanity As Defense.

The problem of the insanity defense in criminal cases is a perennial one. The Georgia case of Barker v. State 4 S.E. (2)31 clearly illustrates how far the legal ideas as to insanity and criminal responsibility, differ from the medical ideas on these subjects. In that case the defendant killed his wife by cutting her throat with a razor. He was an unbalanced individual and among the delusions which probably caused the homicide was the delusion that his wife went out with other men. The Court pointed out that in order for the insanity defense to be available to this defendant on his trial for murder 'it must appear not only that the defendant was actually laboring under a delusion . . . but that the act itself is connected with the peculiar delusion under which the prisoner is laboring, and also that the delusion was as to a fact which, if true, would justify the act.'

In this case the delusion, even if the facts were true, 'would not have justified the defendant in taking the life of his wife.' A murder conviction was therefore affirmed. Thus it did not matter that the defendant was insane from a medical point of view; so long as the facts which he understood to be true did not justify the crime, he was criminally responsible.