ness, I did not feel justified in advising operative interference, and therefore recommended palliative measures.

Before leaving my patient, she exacted a promise from me that I would operate on her, in case she would not be satisfied with the result of the treatment outlined. Scarcely

one week had elapsed when I received a message from her attending physician stating she was very anxious for relief, and wanted an operation. Accordingly on December 3, after fully explaining to her and her family the risk in the undertaking, the operation was done.

The incision was made over the prominence of the tumor, somewhat to her right. After evacuating about two quarts of a straw-colored fluid, it could be ascertained that the kidney was almost entirely destroyed. Similar to the case just reported, the kidney with the cyst was removed. The operation was not lengthy, and the patient lost very little blood. After about 12 hours' struggle against shock the patient began to rally, and made a perfect recovery. I saw her again about one year and a half later and found her the picture of health, weighing 130 pounds. Her weight at the time of operation had been reduced to 80 pounds. Very recently I had a letter from her physician stating that she is still living, now 75 years old, and enjoying splendid health.

CHAPTER IV-LEGAL MEDICINE

The Malpractice Laws of Ohio

BY WILLIAM J. GILLETTE, M. D., TOLEDO

Professor of Abdominal Surgery and Gynecology, Toledo Medical College; Surgeon to Robinwood Hospital

The discussion of matters of this kind is usually left to our legal brethren, but have we not in the past delegated to them too much authority in this respect? Is it not possible that if the physicians of Ohio were to become more actively identified as an organized body with its politics, especially in the selection of our judiciary,—that many malpractice suits, often nothing more or less than instances of legalized blackmail, would never be brought to trial?

At the last meeting of this Association, in a paper read before it by an eminent legal gentleman, the following advice was given us: "To an enlightened bar, and to the wisdom and honesty of the bench, you can safely trust the highest interests of your personal and professional welfare." This sounds well, but to a physician who has been subjected to much expense, trouble and vexation of spirit in defending a malpractice suit that has traveled from the lowest to the highest court of our State and back again, and the termination of which suit is, like the ways of the Lord, past finding out; to such a physician, this advice given us a year ago, reminds one strongly of "sounding brass."

"The grass-hopper on the drag preaches patience to the toad," but the toad and the doctor underneath know full well where each harrow tooth goes.

He who has had the misfortune to be drawn into a malpractice suit learns many things. For one, he learns that his is not the only profession not entirely made up of honest men: that even in the legal profession quacks or pettifoggers

creep in, and sometimes rise to places of high judicial authority. He learns for another, in the matter of the interpretation of the law, to appreciate the full force of the poet's statement that "Things are not what they seem;" that "English as she is writ" in statutes and judicial opinions does not always mean that which to the lay mind would seem obvious; and further, that there are members of his profession, but only a few, God be praised, who, though ignorant and degenerate, under the guiding intelligence of an unscrupulous and pettifogging lawyer, will attempt and for a time seemingly frustrate the administration of justice.

But while learning these most disagreeable lessons he is also taught to appreciate more than before the true loyalty and friendship of his fellow physicians, who willingly, nay eagerly, sacrifice time and money to aid him in his hour of need. He learns also that, like the medical profession, the bench and bar is largely composed of honorable upright and able men; men, who for the most part, are free from prejudice; who realize the difficulties that beset the practice of medicine, and who seem glad and willing to assist us to the extent of their ability over these rough places.

The statutes affecting the question of malpractice in Ohio are few in number. The first one fixes the time within which actions or suits against physicians for malpractice should be begun, was passed in 1804, and the limitation was six years; later, it seems to have been fixed at four years. In 1853 a law was passed providing that "An action for an injury to the rights of the plaintiff not arising on contract, and not hereinafter enumerated" should be brought within four years. For 40 years this was the statute under which actions against physicians and surgeons for negligent or unskilful treatment had to be brought, as the word "malpractice" had not then appeared in any of the statutes of limitation of Ohio.

In the year 1894, however, and largely through the efforts of Dr William Cherry of Toledo, another then existing statute was so amended as to read as follows: "Within

one year an action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice" must be brought; and since that time actions for alleged malpractice must be instituted within one year from the time when the cause of action accrues. The trouble now is to determine just when the cause of action does accrue. By that I mean the exact time when the patient has a legal right to bring suit against his physician for alleged negligent or unskilful practice; and upon this point the various courts of Ohio do not seem to be in exact accord, either with each other, or with themselves. In deciding a case in which I was, unfortunately, the defendant, in July, 1901, the Circuit Court of Lucas County laid down the following rule: "The duty of a physician and surgeon to continue in attendance upon a patient after the performance of a surgical operation until the person is cured of the operation, or until his services are no longer required, is as encumbent upon him as the duty of exercising ordinary care and skill in the actual performance of the operation, and an action for malpractice does not accrue against him until the cure has been effected, or until his attendance is no longer necessary." As we were not satisfied with this decision we took the case to the Supreme Court. In order to reverse it, it was necessary to convince four of the six Supreme judges of the soundness and legality of our contention. This, however, we were unable to do, only three holding in our favor. Thus by an evenly divided Supreme Court-three to three-this decision of the Circuit Court was allowed to stand as the law of the State of Ohio upon this subject. However, the three members who voted to sustain the Circuit Court put their reason for so doing upon a somewhat different ground than did the Circuit judges; but as to the question of the time when the statute of limitations begins to run, the two courts are practically in accord, although I am told by able lawyers that in this both courts depart from prior decisions in this State, and from the established law in the country at large, as laid down by the Supreme Court of the United States.

While an action for malpractice must be brought within one year after the cause for action accrues, this holding of the Ohio Supreme Court decides that the cause of action does not accrue at the time of the alleged unskilfulness of treatment or operation and not until the patient's case has been abandoned after due notice given by the physician, or until the professional relation has been otherwise terminated.

The judges of the Supreme Court voting to uphold this doctrine as the law were Chief Justice Burket and Justices Price and Spear; the three who voted to make the law of Ohio upon this point the same as that of her, sister States and of the United States, who voted to make the malpractice laws of Ohio no more burdensome to physicians than the demands of public safety require were Justices Davis, Shauck and Crew. Judge Davis delivered their dissenting opinion, which I should like to give you entire, but lack of time forbids. I will, however, quote three short sentences from it, viz: "Hence the Circuit Court was driven to its invention of ‘a continuing act of negligence' which for its novelty would be patentable if it were not entirely useless."

"I have diligently sought for authority for this strange doctrine, and have not found any; and have carefully examined all the cases cited in the foregoing opinion with no better result.

"The theory involved in the misleading phrases 'a continuing negligence,' 'a continuing wrong,' 'a continuing obligation,' is not only contrary to all authority but from my point of view it is utterly absurd when tested in the light of established principles." And now again in direct contrast with this decision of the Supreme Court and the Lucas County Circuit Court as to when the statute of limitations begins to run, is the following extract from the holding of the Richard County Circuit Court, in the case of Fronce vs. Nichols, decided in 1901. I quote: "The action counts upon (or in other words, the statute of limitations begins to run from the time of) malpractice, the maloperation, the breach of duty, and not knowledge of resulting injury, or damage resulting