1941: Medical Jurisprudence

There are apparently no limits to human gullibility as to the treatment of bodily ills. This is illustrated by the Indiana case of Crum v. State Board of Medical Registration, 37 N.E. (2) 65. In that case, Crum, who was licensed to practice chiropractic, naturopathy, and electrotherapy, claimed to have invented an 'etherator' with which he treated a wide variety of human ills including cancer, blindness, nervous disorders, abscesses, kidney ailments, hemorrhoids, varicose veins, etc. His machine was so marvelous that it could lengthen a leg, cause an amputated finger to grow back and fill a decayed tooth by restoring it to its original condition. The patient did not even need to come to the office for treatment. Treatments could be broadcast by Crum's wonderful invention. If the patient was financially embarrassed, the 'etherator' could also be relied on to treat his financial ills. Crum was deprived of his licenses although numerous witnesses appeared at his trial to testify to the miraculous cures effected by his extraordinary machine.

It is a sad commentary on the state of medical practice in this country that Crum who was only a high school graduate could be licensed without examination in chiropractic, naturopathy, and electrotherapy, after only one year at the 'College of Drugless Physicians,' which the court called a 'mere diploma mill.'

With medical qualifications so low in certain parts of this country and medical charlatanry so much in evidence, one would expect a liberal attitude toward the admission to practice in this country of distinguished foreign physicians, as one means of elevating the standards of the medical profession. Yet, one internationally known neurologist, Dr. Marburg, formerly head of the Neurological Institute of Vienna met an attitude of narrow provincialism when he sought admission to medical practice in New York State. Under New York Law, a foreign doctor could be admitted to practice without examination if he had reached a position of conceded eminence and authority in his profession. The New York Commissioner of Education claimed that Dr. Marburg did not come within this category although his eminence was attested to by leading American neurologists, many of whom had been his students and although he had been made clinical professor of neurology at Columbia University on his arrival in the United States. This action of the Commissioner was such a patent abuse of discretion that it was upset by the courts and Dr. Marburg's application to practice medicine was granted. (Marburg v. Cole, 23 N.Y.S. (2) 501.)

The North Carolina case of Mitchell v. Saunders, 13 S.E. (2) 242, exacts a high standard of care from the surgeon in accounting for the sponges which he uses in the course of an operation. The defendants in that case had left a gauze sponge buried in the leg of the plaintiff upon whom they had operated, requiring a second operation for its removal. No evidence of negligence in the performance of the first operation was adduced by the plaintiff. Nevertheless the court affirmed a judgment for the plaintiff on the ground that the mere fact of leaving a sponge within the body of the patient was in itself inconsistent with standards of due care and was necessarily negligent.

This high standard of care may be contrasted with the attitude of the Kansas court in the case of Bugg v. Security Benevolent Assn., 112 P. (2) 73. There a doctor on the defendant's staff diagnosed the breast of the plaintiff's wife as cancerous and stated that it should be removed. The plaintiff's wife then went to the Mayo Clinic and upon the basis of this diagnosis, the physicians attached to the Clinic removed the breast. The breast was in fact non-cancerous and should not have been removed. A majority of the Kansas Supreme Court held that the plaintiff had no cause of action against the hospital and its doctor for monies expended by him for the care of his wife. The wrongful diagnosis in the opinion of the court was not the 'proximate cause' of the injury. Three justices dissented from this finding, stating that the defendants could have reasonably anticipated what would follow their negligent diagnosis and therefore should have been held liable for its consequences.

Stemmer v. Kline, 17 A (2) 58 (N.J.), presented a malpractice situation which is a law professor's dream. In that case an action was brought by an infant plaintiff against a doctor for injuries caused by the doctor's negligent diagnosis and treatment with x-rays of his mother while he was still 'en ventre sa mère.' As a result of the doctor's treatments, the plaintiff claimed that he was born microcephalic, an idiot, without skeletal structure, sight, speech, hearing or the power of locomotion. Generally, the courts have denied the right of an infant to recover for injuries occasioned by a defendant's negligence which occurred while the infant was as yet unborn. In this case, however, the court concluded that where the defendant was a doctor and knew or should have known of the existence of the child 'that he owed a duty to that child and if that duty was disregarded and through his negligence the child was injured while the mother was quick, if it is born viable, an action should lie on behalf of the child for the damages occasioned.'

Limited licenses to practice the healing art are granted to the practitioners of disciplines such as osteopathy. A number of cases in 1941 illustrated the difficulty encountered in keeping these practitioners within the limits of their disciplines and of their licenses. Typical is the Nebraska case of State v. Wagner, 297 N.W. (2) 906, in which the defendant, an osteopath who had performed tonsillectomies, appendectomies, and other surgical operations, claimed the right to practice surgery on the ground that this subject was taught at the school of osteopathy which he had attended. But the court denied the right of osteopaths to engage in surgery since the general use of the knife or other surgical instruments was regarded as unnecessary and opposed to the osteopathic system of treatment. This method of treatment, according to the court 'is a system of manipulation of the limbs and body of the patient by kneading, rubbing, or pressing with the hands upon the part of the body. No drug, medicine or other substance is applied either internally or externally nor is the knife used or any form of surgery resorted to in the treatment.'

Canons of ethics and legislation deny the use of advertising to attract business to many professions. Members of the dental profession seem to have had particular difficulty with this prohibition during 1941 and disciplinary action was taken in a number of cases against dentists who resorted to advertising to increase business (see for example the California cases of Webster v. Board of Dental Examiners, 110 P. (2) 992, and Barron v. Board of Dental Examiners, 113 P. (2) 247). The case of Rust v. Missouri Dental Board, 155 S.W. (2) 80, illustrates the determination of the courts to enforce prohibitions against advertising by dentists even where it is not done by the dentists directly. Dr. Rust, a licensed dentist, had organized the Dr. Rust Dentist Laboratories Inc., which advertised in ways prohibited to a dentist. The laboratory did the work of taking x-ray pictures and making and repairing plates. Dr. Rust's dentist offices were, however, on the same premises as the laboratory and he and men employed by him did the dental work of examining teeth, fitting plates, etc. It was evident to the Missouri Dental Board that the purpose of the advertising by the corporation was to attract professional business to Dr. Rust. As a result, it revoked Dr. Rust's license and this revocation was sustained by the Supreme Court of Missouri.

The Illinois case of Lasdon v. Hallihan, 36 N.E. (2) 227, presented a problem similar to the Rust case. There, the dental laboratory was run by unlicensed individuals who advertised their dental plates for sale directly to the public. As in the Rust case a licensed dentist took the impression for the plates and fitted the plate after it was made. The court decided that the owners of the laboratory were 'practising dentistry within the terms of the Illinois law and being unlicensed had to desist.' In answer to the defendants' claim that they had a constitutional right to advertise their business and sell their products to the public the court stated:

'It is obvious that if they were permitted to thus advertise their business, the practise of the profession of dentistry would, to a great degree, be subservient to the business of those engaged in the making of plates. It is well known that masses of the public do not comprehend or understand the skill that is necessary to the making of proper dentures and the proper charges to be made for such services. Such persons are often attracted by the advertisement of the quack and charlatan and seek his services.'

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.

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.

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.