1940: Medical Jurisprudence

Anti-trust Suit Against American Medical Association.

Many judicial decisions in 1940 affected the functioning of the medical profession and professions allied to medicine. The outstanding case of the year was that of United States v. American Medical Association. The American Medical Association, a corporation with a membership of 110,000 physicians, together with a number of affiliated medical societies and individuals, was charged with a conspiracy in restraint of trade in the District of Columbia in violation of Section 3 of the Sherman Anti-Trust Act. The defendants had attempted to destroy the Group Health Association, a non-profit making cooperative organization set up to furnish medical care to low paid government workers in the District of Columbia, on a risk sharing pre-payment basis. The defendants had made it difficult for the Group Health Association to obtain doctors for its staff through threats of disciplinary proceedings. They had also put pressure on hospitals in the District of Columbia to refuse doctors affiliated with the Association access to their facilities. This was held to be a 'restraint of trade' within the meaning of the Sherman Act, since the latter, according to the Circuit Court of Appeals, covered 'all occupations in which men are engaged for a livelihood,' and hence applied to the practice of medicine.

Medical Suit against Chiropractors.

Another round of the long standing feud between doctors and chiropractors was fought out in Arkansas and is evidenced by the case of Stroud v. Crow. There members of the Arkansas Medical Society brought an action against the State Board of Chiropractic Examiners to enjoin it from issuing licenses to chiropractors, until they had complied with the requirements of the Basic Sciences Act. Action was also brought against individual chiropractors to enjoin them from practicing until they had complied with the requirements of this law, which provided that no persons shall take an examination or be eligible for a license to practice 'the healing art or any branch thereof' unless he has presented a certificate of ability in anatomy, physiology, chemistry, bacteriology and pathology, the five 'Basic' Sciences. The Arkansas court sustained the contention of the Medical Society, that the Basic Sciences Act was intended to apply to chiropractors, pointing out in its opinion that 'the Legislature thought it proper that all persons seeking license to practice the healing art should have a knowledge of these subjects and we cannot say their inclusion as to chiropractic was unreasonable, arbitrary and without any relation to such practice.'

Practice of Optometry.

The problem of whether corporations can practice optometry was considered in Silver v. Lansburgh & Bro., and State ex rel. Harris v. Kindy Optical Co. Both cases decided that corporations can lawfully employ licensed optometrists and render optical service. The Court in each case pointed out that optometry was not one of the 'learned' professions, but was a 'skilled calling' and that the reasons for prohibiting corporations from practicing medicine and law did not apply to optometry.

Although medical and legal advertising have been under the ban for a long time, it is only in recent years that legislatures have begun to regulate advertising in such callings as optometry and dentistry. In Commonwealth v. Ferris, the constitutionality of a statute regulating optical advertising was attacked. The statute was, however, declared constitutional by the court which sustained the conviction for its violation. In Schwartz v. State Board of Registration, however, a revocation of the license by a dentist who had violated the statute against dental advertising, was held to be too severe a punishment and the penalty was fixed at a six month suspension.

Malpractice Prosecutions.

The year 1940 brought the usual crop of malpractice prosecutions. The principle of law applicable to these cases was ably summed up in Reed v. Church, as follows: 'A physician holds himself out as possessing the knowledge and ability necessary to the effective practice of medicine. He impliedly represents that he is keeping abreast of the literature and that he has adopted those techniques which have become standard in his line of practice. However, he is not an insurer, nor is he held to the highest degree of care known to his profession. The mere fact that he has failed to effect a cure or that his treatment has been deleterious will not raise a presumption of his negligence. He must exhibit only that degree of skill and diligence employed by the ordinary prudent practitioner in his field and community.' In this case a verdict for the plaintiff was upheld where the physician continued to administer a dangerous drug long after he should have stopped, had he followed the directions accompanying the drug.

In Domina v. Pratt, the above standard of care was made applicable to a doctor's diagnosis as well as to his treatment. A negligent diagnosis of diabetic coma, which should have been insulin shock and which resulted in serious damage to the patient, therefore, brought liability to the doctor. In Atkins v. Clein, the court exacted a higher degree of care in diagnosis and treatment from the specialist, a pediatrician, than it would have exacted from the ordinary practitioner.

In Whetstine v. Moravec, although the plaintiff could not prove negligence on the part of the dentist who extracted his teeth, the court held that the damage complained of, an extracted tooth entering the lungs, was of such an unusual character and carried with it such 'a strong inherent probability of negligence' that the rule of res ipsa loquitor was applicable. This meant that the burden was on the defendant dentist to disprove affirmatively his negligence instead of the burden being on the plaintiff to prove negligence as an essential element of his case.

Hohenthal v. Smith lays down the proposition that a surgeon is not liable for injuries caused by the negligence of an intern in carrying out the surgeon's instructions for treatment after an operation, in the absence of evidence that the surgeon was negligent in giving the instructions or in selecting persons to carry them out. In Post v. Crown Heights Hospital, however, it was held that where the negligent intern was an employee of a private hospital, the latter could be held liable for his negligence in administering treatment.

Welch v. Frisbe Memorial Hospital, raised the difficult question of whether charitable hospitals should be held liable to charitable patients if the latter suffer injury because of the negligence of hospital employees. The court took the view held by a minority of jurisdictions in this country, that, merely because a hospital is a charitable institution, it is not exempt from ordinary rules of agency law, which make employers liable for the negligent acts of their servants. Thus a verdict against the defendant hospital was proper, where injury resulted to the plaintiff from the negligent taking of an X-ray photograph by an employee of the hospital.

Kuroske v. Aetna Life Insurance Company raised the question of the conclusiveness of a blood test which showed that the deceased was intoxicated at the time of the accident. The plaintiff's claim turned on the question of the intoxication of the deceased and he brought in a large number of lay witnesses to show that the deceased was not intoxicated at the time of the accident. The defendant claimed that the opinion of his experts, derived from blood tests, constituted 'physical facts' and should be given the same controlling effect as any other undisputed physical facts. However, the appellate court upheld the trial court in refusing to instruct the jury that 'credible scientific evidence and tests' are entitled to greater weight than the opinions or conclusions of lay witnesses. Expert opinion drawn from blood tests, according to the appellate court was on a par with other expert testimony. Its relative weight and sufficiency was for the jury. Although the blood test showed that the defendant was intoxicated, the jury could weigh this evidence along with that of the lay witnesses in deciding the question of the deceased's intoxication.