THE LAW IN ITS RELATION TO MEDICINE.

By EDWIN S. MACK, A.M., LL.B.

The Shortcomings of Expert Testimony.

The long experience and great ability of the writer of the editorial articles on expert testimony in the May number of this magazine give his conclusions exceptional weight; and yet they fail to take into account some of the inherent difficulties of the problem which suggest themselves to a lawyer. The English common law is peculiar in its rules of evidence. They are not based on any clearly regulated logical system, but they are the product of tradition and they arise from peculiarities of the jury system.

The suggestion is made that experts should be questioned on the same state of facts. The difficulty is that one of the essential questions for the jury is the determination of what the facts are. Take a recent murder trial as an example. The defense maintained that the defendant had frequently had epileptic fits and had had an attack shortly before the time the crime was committed. The prosecution maintained that he had been perfectly well the day of the crime and had attended a place of amusement during the time the defense maintained he was ill at home. Now the judgment of an expert witness as to the mental condition of the defendant might vary greatly with the circumstances as to whether the defendant had had an epileptic fit on the day of the crime. The province of the jury was to decide the question whether or not the defendant had an epileptic fit at that time, and after fixing the facts in their own minds, to determine the question of sanity from the expert testimony. It may undoubtedly be urged that the system is absurd which requires an uneducated, untrained and inexperienced body of men to find a solution for complicated questions of fact, and at the same time apply to these facts technical medical testimony. The only answer is that the evil is an inevitable result of the jury system, and that trial by jury is worshiped as one of our most valuable traditions; and so long as the jury system is maintained, we shall have to continue the system of having our expert testimony applied to the facts that each particular party urges, instead of to predetermined facts stated by the court.

The remedy must be sought not in the method of submitting questions to experts but in the character of the experts who are brought to answer the questions. If the same experts were required to testify as to the hypotheses offered by both plaintiff and defendant, the de

termination of the controversy would be greatly simplified. The result could be attained in one of two ways; either the court could appoint the experts and require them to testify as to hypothetical cases stated by each of the parties, or each of the parties could be permitted to call his own experts but with the restriction that each expert must be interrogated on the hypotheses of both parties. Either of these systems has shortcomings. Experts appointed by the court might frequently be men of inferior capacity and might utterly fail to consider theories which physicians under the stimulus of counsel employing them might discover. At the same time this comparatively small evil would be counterbalanced by the greater advantage that would arise from the impartial character of the experts. One of the worst evils we have now have to meet is the partisanship of expert witnesses. An expert is called to testify not with the purpose of obtaining his impartial scientific opinion but with the object of obtaining testimony to establish a given thesis. Before the trial the expert witness confers with his party's lawyer. He is usually presented only with the theory of facts on which his side depends; and he is in the company of men who think, talk and write to the one single purpose of establishing their side of the case. Thus there is every likelihood that by the time he takes the witness stand he will have become a decided partisan. Once on the witness stand he will probably be subjected to severe examination; and the inevitable effect of this will be to rouse him to greater positiveness in his judgments.

There is, however, another evil fully as great as that of the unconscious partisan bias of most expert witnesses, and that is the insufficiency of our tests of expert capacity. Were experts appointed by the court, we might eventually come to appoint only men skilled in the particular department of medicine involved in the case. As it is now any physician need testify only that he is a practitioner and has had some experience, and his evidence goes before the jury, whether his special qualifications be great or small. The ordinary jury make no distinction between men who all have the same right to call themselves "Doctor," and they have no basis on which to discriminate between the weight to be given the opinion of the most learned student and the guess of the most ignorant pretentious quack. It is difficult to prescribe any enforceable effective test of expert qualification. We have only to look at the kind of men who slip by our medical examiners to see how easy it would be to evade any rule. If the experts were to be named by the courts we could appeal to the discretion of our judges to see that only proper appointments were made.

Recent Cases.

In Munz vs. Salt Lake City Railway Co., 75 Pac., 852, the Supreme Court of Utah had to deal with a case where a physician was sent by a street railway company to examine a passenger who had been injured. It was held that the relation between physician and the injured persen was a confidential one and the physician could not testify as to the statements made to him.

In Gillette vs. Tucker, 65 N. E. Repy., 865, the Supreme Court of Ohio affirmed the rule that a physician not only must exercise due care in an operation, but that having assumed the case, he was bound to continue to treat the patient and exercise due care thereafter.

CORRESPONDENCE.

FOREIGN LETTER.

MEDICAL MEN ON THE SEA.

ON BOARD STEAMER IRENE, APRIL 11 TO 20, 1902, EN ROUTE TO THE INTERNATIONAL MEDICAL CONGRESS AT MADRID.

GIBRALTAR, April 20, 1902.

To the Editor of the Wisconsin Medical Journal :

DEAR SIR: After five days of somnolence induced by chloretone and the usual relaxing effects of mal de mer, I awoke at the Azores. Never in the goodly number of sea voyages that I have made, have I been so comfortable, that is to say, so little uncomfortable as on this trip. I ascribe the immunity to somewhat careful dieting for the two days previous to sailing, and to chloretone 0.30 every two or more hours, or sufficiently often to forestall the agonizing headache and vertigo of that form of sea sickness from which I usually suffer. I am about the ship and almost "acclimatized," and have had no chloretone to-day. On previous occasions, even the mildest trip, is to me a passage through purgatory. The ship doctor, Mandowsky, who, by the way, expects to come to Wisconsin with his English bride shortly, has likewise used chloretone with good results in a number of his seasick passengers. There seems to be no reaction of a disagreeable nature; indeed, I should be afraid of the formation of a habit, for the effect is distinctly agreeable.

With special pleasure have I noted that in this company Milwaukee is not spoken of especially as the town that has made a beverage famous, but as the home of men. I have been asked about many of

our professional men and others of our well-known citizens who have done something besides laying up the dollars.

There are about thirty of the medical profession on this steamship en route to the International Medical Congress which meets at Madrid from April 20th to 27th. The characteristics of some of our prominent men show strongly on ship board. First and most prominently known in our locality is Nicholas Senn. It is easy to see how he gets through such an amount of literary work; he comes aboard with a bundle of notes, and not only works away on these in his cabin, but has the ship doctor busy translating for him a portion of the day. His light reading on deck is an edition of Sabatier on Surgery, published in 1821 in the original French. Occasionally he swaps hunting or traveling stories with acquaintances, but is usually deep in his French author. Dr. Senn will read a paper before the Congress on "Surgery on the Battlefield." His experience with more than three thousand wounded in the Turco-Grecian and Spanish-American Wars, as well as his vast clinical and scientific experience all over the world, will make this most acceptable and interesting.

Dr. Howard Kelly, of Baltimore, is deeply immersed in the History of the Jews, upon which subject, I understand, he is preparing a book. He impresses one as a most devout and earnest Christian, and is said to carry his religious precepts even into his medical practice, not being satisfied-as was Ambrose Paré-with saying "Je tai operé que Dieu te guérierre." Dr. Kelly has been known for years to be an ardent evangelist, but it really seems to me that he now goes almost as far as the priest in proselyting his patients. Sunday services were held by him on the ship. All this may be for the best, for a man is seldom nearer his Maker than when he is ill. Dr. Kelly is preparing a new work on "Surgery of the Kidney."

Dr. R. Harvey Reed, formerly of Columbus, Ohio, now of Rock Springs, Wyoming, has a new and most interesting operation for floating kidney. He makes an anterior abdominal incision one and a half to two inches in length, replaces the kidney and fixes it in position by passing a double armed ligature of silkworm gut through the kidney and out through the back with two needles 5 to 7 inches in length, fixing it over the twelfth rib. The suture is removed on the tenth to fourteenth day, and in the twenty cases used has acted admirably. In two of these cases autopsies were obtained, (death from other causes) and in one an ovariotomy was afterwards made, the kidney in all three cases being found fixed in normal position. These needles are straight and round. Drs. Senn and Kelly are much interested and will try the operation.

Dr. G. V. I. Brown, of Milwaukee, is busy with his notes on "Surgery of the Mouth," and with plans for the medical and dental work of the St. Louis Exposition.

Among other notables are Dr. Ravogli, of Cincinnati, who has an article before the Congress on "Lymphadenoma in Syphilis," which is illustrated by a large number of photographs. Drs. Chas. B. Nancrede of Ann Arbor. A. E. MacDonald and Davidson H. Smith of New York are also with us.

Most of these gentlemen are ardent workers in the American Medical Association, and greatly regret the loss of the opportunity to be at the meeting in New Orleans in May, but one cannot eat his peach and have it, too, so we take the Spanish trip-expecting a warm reception, not, however, of the character we extended the Hidalgos several years ago.

H. V. WUERDEMANN.

XIV. INTERNATIONAL CONGRESS OF MEDICINE.

MADRID, April 30th, 1903.

I have deferred placing my impressions of the Congress on paper until after the affair was over. My impressions have been distinctly unfavorable, and comparisons with other medical congresses, more particularly the American Medical Association, are odious, and as odoriferous as are the streets and the common people.

I do not know of any American or Englishman, even though of high title, who has been at all satisfied with the so-called Spanish hospitality. In the first place a reduction of 50 per cent. was largely advertised by the officers of the Congress and the railroads throughout most of Europe, and yet physicians from England and France particularly have had much trouble in obtaining these reduced rates, which are undoubtedly granted, but with such an amount of red tape that many have preferred paying the regular rates to waiting for hours around some sub-official. For instance, at the station in France the tickets are not honored, but the intending traveler must go to the center of the city, miles away, and get some one at the head offices to countersign them; again at the Spanish frontier the officials of the Midi or Spanish company must be seen at their central offices. Further, the secretaries of each medical legation for each country had to countersign every ticket for their countrymen, and some-notably Dr. Brouardel of the French legation-protested that they were not clerks and could not certify to the correctness of any or all of their countrymen. Such red tape required a delay of 24 or more hours at one or more places for such delegates.