Medical Responsibility and Malpractice: 
: 
-M' ‘ ■ ; ' ' ' 
AN ADDRESS 
US’* , 
DELIVERED AT AT/BANY BEFORE THE 
HP'* | 04:r" 
||f(liral Sorictij of the Jjjitate of :|m jjorh. 
At its Sixty-Sixth Annual Meeting, 
FEBRUARY 7, 1872. 
By william c. wey, m. d., 
President of the Society. 
ALBANY: 
THE ARGUS COMPANY, PRINTERS. 
1872.- Medical Responsibility and Malpractice: 
AN ADDEES.S 
DELIVERED AT ALBANY BEFORE THE 
jleiical J>omtg of ihc |»tate of |gttt jjorlt, 
At its Sixty-Sixth Annual Meeting, 
FEBRUARY 7, 1872. 
By WILLIAM C. WEY, M. D., 
President of the Society. 
ALBANY: 
THE ARGUS COMPANY, PRINTERS. 
1872. ADDRESS. 
Gentlemen of the Society: 
In assuming the rights and privileges of medicine or the law, 
certain obligations are also assumed, which, in common with indi- 
vidual responsibility in the affairs of ordinary life, are immediately 
dependent upon the proper foundation and government of society. 
These obligations, or many of them, have been evolved in the 
gradual progress of civilization, as society has arisen out of confusion 
and disorder and taken the form of law and order. What at one time 
seemed crude and unsettled in theory, practice and individual judg- 
ment, under the growth and leveling influence of the force and 
power of society and the State, has taken specific form and direction, 
until it has Anally become written authority, sustained by the 
decrees of formal law. This process has been necessarily slow and 
tedious. It has expanded and developed as the ages of the world 
have measured out their revolutions. It embraces the reciprocal 
relations of men in communities, and the share and portion which 
each man sustains to his neighbor'in the personal affairs of life, and 
the responsibilities which attach to them collectively under pre- 
scribed forms of social organization. In other words, the association 
of people in communities leads to such mutual advantages that 
mutual liabilities and responsibilities are necessarily engendered. 
The mixed nature of such communities, grouped and rendered 
coherent under the form of professional, industrial and mechanical 
employments, causes the pursuit or business to which each represen- 
tative has devoted his time and talents to be directly obedient to the 
laws and customs by which he may be surrounded. At the same 
time, the nature of the compact bestows on every man, in whatever 
sphere he may legitimately exercise his skill or genius, certain 
inalienable rights; the right to pursue a profession, under just 
restrictions—the right to conduct a trade or to engage in manufac- 
ture, whose every detail is subject to wisely-formed laws,—the rights 
of commerce, including banking, insurance and exchange, according 
to the demands and necessity of the age and period, secured by the 4 
shield and protection of organized and individual interests. It is the 
principle that so often qnd under such conflicting circumstances in 
the history of nations has been asserted and maintained, that each 
individual has rights under the civil code which cannot be taken 
from him, in the use and enjoyment of which he possesses immuni- 
ties, however humble he may be, which belong, in equal proportion, 
to the most privileged member of the commonwealth. In tins 
respect the most privileged, by reason of education, position and 
wealth, is a citizen and nothing more. His wealth, mental endow- 
ments and social state, while adding immeasurably to his power and 
usefulness, in no sense diminish his individual responsibility, but 
materially increase it. As he has attained, by the exercise of this 
combination of advantages, multiplied capacity for organizing and 
governing industrial, mechanical and many other extended opera- 
tions, and for influencing and directing the minds as well as the pro- 
ductive bodies of his fellow'-men, it is evident that his obligations are 
increased with the varied and expanded character of his interests in 
community. In this way only does his individual responsibility as a 
member of society extend beyond the personal responsibility of men 
whose operations and employments are less numerous and diversified. 
In the varied relations to which I have referred, he is held to increas- 
ingly strict accountability, as if he possessed the faculty of multiply- 
ing himself into many distinct corporeal forms, each representing a 
commercial, mechanical or other specific interest. The condition of 
such a man is illustrated by the members of the body, which are in 
harmony with and dependent on the commanding influence and 
integrity of the mind and brain. 
In all the ordinary business operations of life, such as buying and 
selling, the arts and manufactures, and the conveyance of property, 
the legal responsibility of persons engaged in these acts appears to be 
settled and understood, under the form of special contracts and 
engagements, influenced and governed by the usage and customs of 
society. The physician and his patient, as well as the lawyer and 
his client, enter into obligations, in one sense precisely the same as 
those that regulate the commercial relations of business men. In 
another sense the obligation is so entirely unlike, that professional 
skill and knowledge, in being brought in juxtaposition with 
petroleum, cattle and salt, experience such a shock as to be driven 
from seeking to define the distinctive place of legitimate science 
under the order and direction of legal investigation on one hand, or of 
claiming exalted position because of confessed superiority on the other. 5 
The profession of medicine insists, with unquestionable authority, 
upon possessing prerogatives and immunities infinitely above and 
beyond a purely commercial aspect of bargain and sale, or of employ- 
ment by a patient under an implied contract to perform ordinary or 
even extraordinary service. In the position which I have the honor 
to occupy, and before an audience of enlightened and thinking men, 
I feel as if I was commissioned to speak clearly and positively* on 
this subject. And yet I do not complain of the lack of justice 
which this principle of association of the professions and trades in a 
common responsibility would Seem to impose on us. To subserve 
the great ends and purposes of justice, it is becoming that we 
should be held to accountability for the faithful performance of our 
manifold duties. We recognize and appreciate the reasonableness of 
this necessity in the social compact, and with no purpose of ques- 
tioning the excellence of the law or our fealty to its course and 
operations, we have reason, as I propose in the course of my address 
to show, to complain of a harsh and unjustifiable construction of its 
spirit and intention, as if, in many cases, it had been made to bear 
with prejudice and discrimination upon members of our profession. 
On the bold and bad men in the ranks of medicine, who, disregard- 
ing the attributes of law and the obligations of their calling, commit 
crimes against nature and against the State, I could look with com- 
placency and witness the utmost infliction of penalties. With this 
remark I dismiss any further allusion to criminality in connection 
with the subject of malpractice. 
In the most comprehensive meaning of the term, our profession is 
law abiding. I desire to be understood as referring to educated phy- 
sicians, who have earned the title through early and well-governed 
preparation for professional pursuits. Aside from an intuitive desire 
to conform to every moral as well as every legal requirement, which, 
though not always born of education and refining associations, are 
astonishingly modified by them, in the principles and practice of our 
art we are impelled by a broad and enlightened impulse, to render 
benefits to the suffering and distressed members of the race. You 
have seen, in some representative man in medicine, an indwelling 
power to relieve the most appalling infirmities and abnormities, or to 
search out and overcome obscure and serious forms of disease. You 
have observed in what respect and reverence he is held by members 
of the profession, and by thinking and appreciative as well as by 
ignorant and thoughtless people. In a worldly or business aspect, 
his skill and knowledge represent capital. Measured by the same 6 
standard, it should represent large capital, which yields such revenue 
as makes its possessor rich and powerful, as he is expected to be 
wise and beneficent. Ilis intellectual capital, as compared with 
material wealth, cannot be estimated in gold, silver, bonds or other 
securities. A test of its great worth and wide-spread influence is 
shown in the universal acknowledgment of such a man’s gifts and 
accomplishments, and his ability and readiness to employ them in 
the needs of humanity. I do not claim that such service should 
be gratuitously rendered ; I would not think of expecting it. If the 
laborer is worthy of his hire in a limited measure, surely he is 
worthy who, with such extended responsibility, assumes such cares 
and burdens. 
Of confessed value in society, a profession like medicine, the law 
or civil engineering, implies special ability in a particular field of 
investigation. The prerogative of fitness and devotion to duty in a 
given direction is attended with additional responsibility, because of 
tlie expectation of the many in respect to the merits of the few. This 
constitutes spontaneous loyalty of the people to the learning and 
influence of a privileged class, who in turn have it in their power to 
bestow incalculable advantage in relieving the needs of those who are 
grouped together in the varied pursuits of life in cities, villages and 
hamlets, as well as in the waste places of the earth. Thus by seeming 
necessity, which in itself is law, distinctions in society have been per 
ceived and adopted by the people, and have become such fixed and 
positive events and incidents as to lead to the adoption of unalterable 
rules and customs, which have insensibly formed and moulded a sys- 
tem of jurisprudence, by which, as a class and for a specific purpose, 
we are associated together this day 
Any man is privileged to study, and, if found competent, to prac- 
tice tlie profession of medicine. He is free to choose for himself, and 
if at any time he finds that he has not chosen wisely, with tlie 
unlimited liberty given by our law, he may abandon one occupation 
or profession and take up another. It is not uncommon to see a man 
trained in the Military Academy of the United States, after such 
experience in the field, on the frontier or as an instructor, as satisfies 
him that his occupation is not according to his tastes, drift, as if by a 
natural law, into one of the professions or in a particular department 
of science or business. Or a man educated for the bar finally enters 
the ministry, and so on through an unending series of changes, the 
purpose and destiny of life is achieved in spite of impediments. 
When he finally adopts a profession or other vocation which falls 7 
within the meaning of the law, and assumes obligations to which allu- 
sion has been made, he becomes responsible for the consequences of 
his acts, the nature of which I propose to consider, as they refer to 
physicians. 
It is not necessary to enter upon ah historical recital of the charac- 
ter of the contract between a physician and his patient. It has under- 
gone many modifications in the course of transition from interpreta- 
tion under the Koman law, down through the sifting process of 
English ruling and construction, to the more positive and material 
times in which we live. At one period, in this review of the subject, 
the services of a physician were regarded in the form of a mandate, 
and to use the language of Dr. Ordronaux, “ a mandate was in its 
nature always gratuitous, being founded in personal confidence. In 
this respect it differed from all consensual contracts.” The present 
estimate of the nature of an engagement between a physician and his 
patient is changed from a mandate into a condition of hire. Under 
this principle “ the civil responsibility and duties of physicians, law- 
yers, engineers and machinists, ship-builders, brokers and other classes 
of men whose employment requires them to transact business demand- 
ing special skill and knowledge, are the same.” (.Elwell.) 
The wisdom of this system or method, while, as I have stated, it is 
in some degree offensive to medical men and certain specialists, is, 
notwithstanding, so simple and plain in its details and practical work- 
ing, and so just withal, that we can interpose no reasonable objection 
to be tried by it, if we are so unfortunate as to be brought under 
charge of malpractice, subject, as a matter of necessity and as a right, 
to the ruling and interpretation of a discriminating and learned 
judge. 
An impression prevails, not alone among the ignorant, that a phy- 
sician is compelled to render services in every ease to which he may be 
called. Some among you may have heard the declaration angrily 
made by disappointed friends and messengers of the sick, that means 
would be employed to compel your attendance where you had posi- 
tively declined to take part. Such refusal is one of your rights, which 
you are as free to exercise as the tradesman, who, through caution, or 
a desire to protect himself, or caprice, or prejudice, declines to sell his 
goods, or the lawyer who objects to engage in a cause, or the civil 
engineer who refuses to give advice or personal attention in a matter 
relating to the construction of a bridge or a railway. 
If a physician once assumes the care and responsibility of a case, 
he is under an obligation, which has the binding force of a carefully- 8 
written contract, to exercise his “best skill and all necessary diligence 
to carry it to a speedy and successful termination.” (Ordronaux.) 
Unless a contract is made between a physician and his patient to 
accomplish a specific result, the former cannot in any manner be 
regarded as a warrantor or insurer. He also possesses the right to 
relinquish a case, on giving notice to that effect to the person or per- 
sons chiefly interested in the result. He cannot abruptly terminate 
his connection with a case, without giving timely notice of his inten- 
tion to withdraw from its care. Failing thus to give notice will sub- 
ject him to liability for the consequences of his act, which is held to 
be a serious form of negligence. If a physician withdraw, as for 
illustration, in a case of fractured bone during a certain stage of treat- 
ment, and his successor is unable to remedy or overcome defects that 
have occurred in the course of management of the previous attendant, 
and which ultimately operate to the disadvantage or detriment of the 
patient, the first practitioner can be held responsible for the results of 
his errors or want of skill. While the terms of the law are so precise 
and explicit to direct and govern the acts of a physician, they give 
the patient liberty, at any moment, in a paroxysm of anger, while 
suffering pain or during a period of despondency, summarily and per- 
haps without cause to dismiss his physician. 
Ill case of special contract to effect a cure or to accomplish certain 
results in the treatment of disease, the parties are mutually under 
obligations, and may be made mutually liable for failure to perform. 
The consideration of this particular feature of the compact or bargain 
between physician and patient brings us so completely and offensively 
within the domain of empirical practice that I am not disposed to 
comment upon it, except to quote the ruling in a case of this nature 
that was tried in the State of Vermont: “If a physician commence 
attending upon a patient, under a contract that if there is no cure 
there shall be no pay, he cannot recover for his services or medicines 
unless he show a performance of the terms of the contract on his 
part.” (Ordronaux.) I will add as a corollary the termination of an 
agreement between a strolling surgeon and a man living near Elmira, 
whose son suffered from necrosis of the femur, with fistulous open- 
ings just above the knee. The contract, prepared by the surgeon, 
stipulated that for the sum of one hundred dollars, half to be paid on 
signing and the remainder in three months, at the conclusion of treat- 
ment, the dead bone should be removed and the sinuses closed. A 
day was fixed for the operation, and upon the arrival of the surgeon 
at the house of the patient, the latter was engaged in hoeing corn in 9 
his garden. After a few words spent in conversation, he took his 
place on the operating table, chloroform was administered by an 
inexperienced pupil in dentistry, an incision was made through the 
fistulous tracts down to the seat of disease, and while in the act 
of using a semi-circular chisel blade to detach portions of decayed 
bone, its point slipped and divided the popliteal artery. Immense 
hemorrhage occurred, which the operator lacked knowledge to arrest, 
either by compressing or ligating the artery, and he proceeded to 
amputate the thigh, the patient being kept profoundly under the 
influence of chloroform. He nevef returned to consciousness, and 
died in a few minutes from the combined effects of hemorrhage and 
chloroform. Two days following, the father of deceased caused a 
warrant to be served on the surgeon, to recover the money paid on 
the contract. Failing to procure bail, if the surgeon refused to pay, 
would subject him to imprisonment. The service of the paper was 
made on the street, near the office of the surgeon, who asked the 
privilege of going to his sleeping room for a short time. On seeking 
him, he was found by the sheriff lying on his bed, breathing faintly, 
and almost immediately expired, from the effects of prussic acid. 
Professional service, whether rendered by a physician, a lawyer or 
an engineer, implies that which is not always taken into account with 
respect to the arts and trades, that particular skill and knowledge are 
associated with the contract or undertaking. If a physician offers his 
services to the public, he announces, with the force of a proclamation, 
that he is learned in the art he professes, in which he will exercise 
such ordinary skill as is possessed and employed by those who are 
engaged in the same occupation. Ordinary skill, as Dr.. Ordronaux 
says, “ is the lowest standard of capacity tolerated in the law.” 
It is not necessary that a physician should make known to the world 
his business by means of a sign, advertisement or other method of 
attracting attention to his calling. The fact that he is known among 
men and employed in the capacity of a physician is evidence of 
responsibility in his profession. 
The principle of responsibility, in all cases in which the question of 
malpractice has been considered by courts and by writers on the sub- 
ject, has been made to depend on the skill of the physician charged 
with the offence. A distinction has been clearly and justly established 
between common or ordinary skill and uncommon or extraordinary 
skill. Ordinary skill is such as is possessed and practiced by the pro- 
fession generally in the common experience of life. Extraordinary 
skill is an attribute of few only in the profession, as compared with 10 
the many; upon such exceptional men is laid a large share and a high 
degree of responsibility. It seems doubtful, in scrutinizing this sub- 
ject, if a surgeon who enjoys extraordinary skill can properly be held 
to increased accountability, in view of accumulated decisions in the 
books in regard to skill alone. The following language was used in 
a recent case in the State of Maine : “ This rule,” referring to 
requisite skill and knowledge, “ does not require the possession of the 
highest or even the average skill, knowledge or experience, but only 
such as will enable them ” (the physicians) “ to treat the case under- 
standingly and safely.” (Ordronaux.) 
It is a nice question to define the peculiar significance of skill as it 
relates to responsibility, when not in the highest nor in an average 
degree is it required to govern professional acts. To assume liability 
because of skill, knowledge and experience confessedly below the 
average possessed by the profession, is to reduce the standard of medi- 
cal requirements to such an inferior plane that they cease to be repu- 
table. A degree of skill below the average in a profession ceases to 
be skill and becomes ignorance, and it is not easy to perceive in what 
manner such imperfect knowledge can be accounted sufficient “ to 
treat the case and safely.” 
This doctrine, however strange it may at first sight appear to mem- 
bers of our profession, is really the principle on which the courts have 
nearly always adjudged the degree of skill to which we shall he held 
responsible. This is a charitable if not at all times an enlightened 
construction of the meaning of the words ordinary skill, and affords 
additional proof of the justice of the law which prescribes and directs 
our professional responsibility. Men of distinguished skill in medi- 
cine need never shrink from being judged by this rule; indeed, accord- 
ing to the theory which it suggests and the practice which it sanctions, 
malpractice with them is well-nigh impossible. A skillful physician 
is expected, nevertheless, to devote to a case more than common skill, 
as skill is estimated among medical men as they are found in commu- 
nity. The fact that he is employed in a case because he enjoys repu- 
tation and is conceded to possess superior knowledge, implies that he 
will not exercise common or ordinary skill, but the whole force and 
strength of his ability. Less than this would change his position, as 
well as responsibility, from high reputation and acknowledged skill to 
the average of both reputation and skill in the profession, and conse- 
quently diminished liability. 
Skill should be measured by the locality in which it is exercised, in 
addition to the advantages and opportunities of its possessor. This 11 
estimate of skill has undoubtedly been considered by courts in holding 
physicians to account for alleged malpractice, and in this way we are 
enabled to reconcile the otherwise conflicting character of the princi- 
ples of law by which such cases have been governed. If in one situa- 
tion and under a particular train of circumstances not even the average 
of skill, knowledge and experience are required, which I doubt not is 
true, and the court thus instructs a jury, in another locality, influenced 
by diverse surroundings, “ in judging of the degree of skill which he 
(the physician) contracts to bring to the service of his patient, regard 
is to be had to the advanced state of the profession at the time.” 
(Ilaine v. Beese.) 
This dogma takes note of the progress of medical science, and 
requires of the profession such familiarity with its literature and study 
and practice as will enable its followers to acquit themselves with 
credit and honor when trial is made of their skill. Governed by such 
an enlightened opinion of the dignity of our profession, and the 
moral and legal responsibility of its members, we can appreciate with 
what contempt a court would reject the testimony of a witness who 
declared that on setting out to engage in a particular line of surgical 
duty to which he had been assigned, he critically examined seve- 
ral late works on the subject, and found in them no principles or 
recommendations in practice that he had not learned more than thirty 
years before, adding, almost in the same sentence, that except on the 
occasion which called him to testify, and while in the court-room, he 
had never before heard of such authorities in the profession as Gross 
and Frank Hamilton, although he had read carefully Hamilton on 
Purgatives. 
In addition to skill, a physician is required to bring other qualities 
of fitness and excellence to the discharge of his professional duty. 
Skill may take in at a glance the present conspicuous or hidden pecu- 
liarities, as well as the continued progress of a case. It may be fault- 
less in its estimate concerning diagnosis, prognosis and the appearances 
to be found after death, and yet fail to exercise such diligence and care 
as will most speedily and safely insure the recovery of the patient 
from an injury, an operation or a specific form of disease. It has been 
said that an honest man is always under oath. In the same sense a 
physician is under such moral obligation to his patient as forbids 
inattention and consequently lack of care. The word care, unless 
qualified by the adjective “reasonable,” is so vague in its purport as to 
be impotent to convey the literal significance of responsibility. Judge 
Story says, “ different things may require very different care. The 12 
care required in building a common door-way is quite different from 
that required in raising a marble pillar.” (Elwell.) And Elwell very 
pertinently points out the differing degrees of skill called for in the 
treatment of iritis and rheumatism. The first disease, involving an 
exceedingly delicate structure, whose integrity is essential to vision, 
undergoes rapid and disorganizing changes, which can only be pre- 
vented by prompt and intelligent treatment; while rheumatism, self- 
limited and tedious, runs to its termination by gradually succeeding 
stages, and does not call for active interference. In the treatment of 
iritis the practitioner must exercise quick, ready and available know- 
ledge ; in the treatment of rheumatism time is given, if required, 
carefully to study the peculiarities of the affection and mark out a 
course of procedure. 
A physician is under a degree of obligation to his patient, which 
cannot be made to depend on the fact that he expects to be paid for 
his services. The circumstance that he, from among many physicians, 
has been selected at a time of suffering and emergency, denotes faith 
and trust on one hand, which must be met and returned by devotion 
and faithful performance of duty on the other. If this principle was 
more thoroughly and conscientiously considered, it would ease the 
minds of physicians of a vast burden of doubt and distrust. It should 
be appreciated by the members of our profession in such a spirit of 
truth and candor as will make the reciprocal relations of attendant 
and attended entirely confidential and unselfish. Our Code of Ethics, 
so catholic and comprehensive in its scope and purpose, contemplates 
this idea when it refers to the greatness of the mission of the physi- 
cian, “ and the responsibility he habitually incurs in its discharge;” 
to which are added the expressive words, “ every case should be 
treated with attention, steadiness and humanity.” 
The words “ best judgment ” are frequently used in connection with 
skill, diligence and care, in measuring the degree of responsibility of 
a physician. Though differing from those three requisites in effect 
and meaning in some unimportant features, in another sense skill and 
judgment are synonymous terms, and have been used indifferently in 
legal phraseology. For instance, in Haine v. Reese, tried in Phila- 
delphia, in November, 1870, before Judge Thayer, that learned 
authority held as follows: “ On the part of the patient, it is his duty 
to conform to the necessary prescriptions and treatment, if they be 
such as a surgeon or physician of ordinary skill and care would adopt 
or sanction.” Here you will observe that the “ necessary prescriptions 
and treatment” include the measures prompted and suggested by the 13 
skill and care of the medical man; in other words, such perscriptions 
and treatment as are indicated by his judgment of the demands and 
necessities of the case. And we may ask what directs his judgment % 
Evidently, skill and knowledge. And so closely are these two quali- 
ties interwoven with the mental composition of the man as to produce 
an attribute which governs and controls his thoughts and actions; 
restraining from impulse, prompt to advise and wise to take advantage 
of opportunity, and to indicate measures for speedily and safely 
rescuing and delivering his patient from pressing necessity. 
In contrast with this view of the construction of the words best 
judgment, is the fact that a surgeon was held liable in heavy 
damages for not amputating a thigh nearer the liip-joint than the 
place selected for the operation; not, as the court held, because he 
was not a good surgeon, for that was proved; nor that the operation 
was not skillfully performed, for that was admitted, but because an 
error of judgment was committed in choosing the place of amputa- 
tion. As Elwell justly remarks, in noticing this case, “ the court 
should have held that the surgeon was not responsible for mere 
errors of judgment; then there would have been no such verdict.” 
Disconnecting the words “ best judgment ” from their actual mean- 
ing under the law, skill, diligence and care may belong in an eminent 
degree to a physician who is deficient in judgment. lie may 
possess ability to discriminate disease in such a manner and under 
such trying circumstances as will prove his title to be called skillful 
among his associates—even pre-eminently skillful. He may also 
exercise such care and diligence in the treatment of disease as 
evince aroused and awakened zeal and interest, and yet so mani- 
festly lack judgment as to make choice of unsuitable remedies, and 
allow the time for specific interference or for the performance of an 
operation to pass hopelessly by. Such instances will doubtless rise up 
in your memory, as they do in mine, and an anomaly is presented 
of skill and knowledge proving exact and applicable in detecting 
disease, yet, unsupported by good judgment, being comparatively 
powerless to prevent or abate its progress. 
If by reason of idiosyncracy depending on the constitution of the 
human mind, certain attributes for the direction and government of 
the individual are lacking, while others are sufficiently or perhaps 
unduly exercised, in the strict interpretation of accountability it is 
questionable if the man thus composed can be considered responsible 
for his apparent delinquencies. 
I do not think it necessary to refer at much length to the respon- 14 
sibility of patients, upon whom are laid certain obligations which are 
as binding as those to which we are amenable. The contract between 
physician and patient, as I have shown, is mutual in its character; 
and while the former does not seek to avoid responsibility for the 
proper performance of his acts, the latter, I am sorry to say, fre- 
quently evades obligation and conceals his evasions in such a cunning 
and Artful manner as to cause his attendant great anxiety and often- 
times irreparable injury. The principle that should actuate a patient 
in his efforts to promote recovery from an injury or an operation, as 
well as from sickness, is based on co-operation with the plan and 
purpose of the attending physician.' The law holds him to this duty 
as his part of the compact. If from any cause he does not subscribe 
to the necessary directions of his advisor, but sets up an independent 
and rebellious will, even while seeming to be governed by the judg- 
ment that directs him, and thereby is subjected to unpleasant or 
unfortunate results, “ his neglect is his own wrong or misfortune, for 
which he has no right to hold his surgeon responsible.” The doc- 
trine is founded on wisdom, which declares “ that no man shall profit 
by his own wrongand as Dr. Ordronaux adds, “ Nor does it 
matter in what form that wrong manifests itself, whether it consist 
in negligence, unwillingness or inability to follow the physician’s 
directions, or in a wrongful interference with his treatment for 
sinister purposes.” 
The fact has doubtless been vividly impressed upon some,among 
you in the form of a summons, and upon others by reading and 
observation, that surgeons almost exclusively and physicians rarely 
have been held to accountability in the charge of malpractice. It is 
interesting to consider some of the causes that have prompted the 
selection of one class in our ranks over another, for a measure of 
responsibility which, I am sure, is as much incurred by the exempted 
as by the prosecuted portion. If facts could speak for themselves; 
or, if on a large scale, the errors of physicians could be exhibited in 
contrast with the faults of surgeons, no one in this audience would 
rise to declare that the latter deserved to be held responsible, rather 
than the former, for the consequences of their professional acts. 
The allied character of anatomy and surgery, and the direct 
dependence of skill in the latter upon knowledge of the former, for 
every operation performed, for every broken bone replaced and 
adjusted by suitable dressings, and for every dislocation reduced, 
renders the practice of this branch of science more precise and 
demonstrable than the interpretation of symptoms in the ordinary 15 
course of disease and the fitting employment of remedies. The 
manual operation of the surgeon and the results he endeavors to 
accomplish are so manifest and striking that the most ignorant and 
unappreciative cannot fail to be impressed by the method that plans 
and directs the former, and the laudable hope and expectation that 
wait on the latter. This mechanical feature of operative surgery 
commends it to the attention of the people as a system akin to tin? 
crafts and trades, and the manual dexterity of an operator, while it 
gains him applause and reputation among the vulgar in or out of the 
profession, at the same time adds so immensely to his responsibility 
as to place him in the attitude of a stair-builder or the owner of a 
steam-tug, directly liable for the consequences of his acts. This, of 
course, is an ignorant and debased estimate of the actual position of a 
surgeon and the aim and scope of his duties. It is an estimate which 
all true surgeons who are sensitive of the honor and dignity of the 
profession would desire to repudiate as offensive and unjust. Viewed 
in the light of science, the art and practice of surgery is compromised 
by the mere exhibition of manipulative dexterity. Men without pre- 
cise anatomical knowledge, deficient in judgment and discretion, with 
no moral responsibility of consequences, no thought or care beyond 
the brilliant display of an operation, are now and then found in con- 
spicuous places as teachers in the schools or offensively pursuing their 
trade, to the disgust and shame of their more loyal and conscientious 
associates. 
Whether practiced with elevated purpose as a science, or mercenary 
spirit as a trade, the surgeon engages in a work of acknowledged 
responsibility, which subjects him to vexation and annoyance, from 
which his more fortunate neighbor in medicine is entirely relieved. 
If the veil that hides the chamber of sickness from the eye and 
scrutiny of criticism could be lifted, what a record would be revealed 
of errors committed at the hand of the physician, whose authority and 
judgment in the character of family attendant are never questioned, 
but held in the highest reverence and obeyed and believed as if 
inspired by more than human wisdom! 
I will not attempt to point out instances of faulty judgment among 
my associates in medicine. I am painfully conscious of my own errors 
and infirmities, and how far short I come every day of reaching that 
degree of excellence which, though I may strive to attain, seems 
continually to recede before me. 
It is well that our professional lives, in the more privileged field of 
medicine, are not subject to such an inspection as compels us to give 16 
an exact name to every form and feature of disease and a logical rea- 
son for every prescribed plan of treatment, beside being held respon- 
sible for the immediate and remote consequences of our oversight and 
care in the treatment of disease. 
As I have already mentioned, members of the legal profession are 
governed by the same requirements in every particular as those that 
regulate the practice of medicine. They are held to the same degree 
of responsibility, and are expected to exercise such care, skill and 
diligence in advising clients and in the management of causes in the 
courts as will prove their fitness to practice a profession in which a 
certain share of learning is considered absolutely essential. A funda- 
mental error lies at the very beginning of legal as of medical pupilage 
and preparation for the responsible duties of professional life. Edu- 
cation and especial adaptation of the qualities of the mind to the pur- 
suit to be followed are as lightly regarded in one profession as in the 
other. Hence we see the ranks of medicine and the law filling with 
young men utterly deficient in that kind of training and preparation 
which should be esteemed the only proper door of entrance to the 
mysteries that lie beyond. 
Before the passage of the Code of Practice in 1846, the terms of 
study and clerkship required of a student, in imitation of the English 
rule, extended over a period of seven years. It was necessary that 
this long pupilage should be spent in the office of a practicing attorney 
of the supreme court, whose certificate as to duration of clerkship and 
proficiency was required before the student could be admitted to exami- 
nation. The attorney was also called upon to furnish evidence of suitable 
age and moral character. If the aspirant desired to rise to the grade of 
counselor-at-law, he was obliged to practice as an attorney three years 
and be subjected to an additional examination. By a sweep of power, 
this salutary guard and check against the admission of unworthy and 
undisciplined men to the bar was abolished, and provision was made 
that “any citizen of good moral character, upon an examination 
whenever prepared, and upon being found duly qualified, is admitted 
to practice in all the courts of the State, both as attorney and coun- 
selor.” 
I refer to this subject for the purpose of instituting a comparison 
between the methods of admitting attorneys and physicians to practice 
in their respective professions. Loose and unsatisfactory as are the 
laws and requirements by which a student in medicine is received in 
the profession, and deficient, as in too many instances he proves to be 
in preliminary education; yet more is required of him, even at the 17 
very threshold of his career, than of the pupil in law, because a defi- 
nite term of study and attendance on two full courses of lectures is 
prescribed. If the comparison is carried further, the presumption is 
evident that three years of study under a competent teacher, and 
attendance upon lectures, affords better preparation for a future of 
usefulness and intelligence in a profession, than a term of reading, 
subject to no positive oversight, and with no restriction as to time 
save the ability of the pupil to pass an examination, by which he is 
admitted to practice in the courts of the State.* 
A question naturally occurs in this connection with respect to the 
remarkable exemption of members of the bar from the consequences 
of malpractice, when, as all intelligent men are aware, they would, if 
subjected to the same legal discipline as that which governs the prac- 
tice of surgery, he made frequently to respond in damages to their 
clients for crude and faulty advice, for imperfect knowledge of the 
law, and for deficient skill, care and diligence in the management of 
causes in the courts. The accountability to which they are legally 
liable is sufficiently strict and precise. The sentiment of the fraternity, 
however, influenced by custom and expediency, is radically averse to 
holding them to the consequences of their errors, even when suffici- 
ently flagrant to admit of no palliation under the charge of mal- 
practice. The results of imperfect or deformed union of a broken 
bone bear no proper proportion to the evils which arise from the alien- 
ation of an estate under improper advice, or the surrender of rights 
and privileges, which, with better counsel, might have been preserved 
and enjoyed. 
It does not require a stretch of imagination to comprehend the 
deplorable effects of hasty and ill-advised litigation in our State. 
The courts are taxed to the extreme limit of their time and ability to 
hear and dispose of the cases and questions that come before them. 
Even with the multiplication of facilities by which cases in the lower 
courts are carried to the higher, the business of them all is hindered 
and obstructed to such an extent that serious detriment is done to 
* Since writing the above, I have learned that the Court of Appeals, under authority of a law 
passed by the Legislature in 1871, have so modified the rules for admission to the bar as to require 
of the pupil “ a regular clerkship of three years in the office of a practicing attorney of the Supreme 
Court, after the age of seventeen years,” or “any portion of time not exceeding one year actually 
spent in regular attendance upon the law lectures in the University of New York, Cambridge Uni- 
versity, or the law school connected with Yale College, or a law school connected with any college or 
university of this State,” etc., etc. 
Under the encouraging influence of this wholesome rule, at a recent examination of law pupils in 
the city of New York, twenty were rejected out of a class of thirty. The examiners reported that 
the ease with which admission is gained to the profession has led, as in the cases before them, to 
hasty and imperfect preparation, both in the principles of law and their application to practice. 18 
the public, immense cost is imposed upon the State and contestants, the 
courts, the bar and community are forced to admit either the insuffi- 
ciency of the system by which justice is rendered, or an amazing and 
incomprehensible increase,of litigious people. From a medical or 
other stand-point, which lifts the spectator up out of the machinery 
of courts and gives him a position of independent scrutiny, it would 
seem as if contest for principle in law, in some directions at least, 
must long since have been settled by such fixed and authoritative 
judgment and decision as to render the strife of further litigation 
both unbecoming and unnecessary. 
To illustrate: the construction of statutes has opened an illimit- 
able held to the student in law, in which he enjoys an opportunity 
of reviewing the entire range of jurisprudence from ancient times to 
Magna Charta, and so on down to the interpretation of the latest 
enactment of law. And jurists, with power of mind and training 
adapted to such investigation, go forth on the wide sea of research 
and inquiry, and come back with grave and learned opinions, in 
conflict, perhaps, with the decisions of their associates, and falling 
short of expressing the true intent and purpose of the law which they 
are expected to interpret. A yet higher court takes up the subject, 
and after persevering and exhaustive study and consideration, final 
judgment is rendered, and the fact now appears, that all along in 
the case, from its inception under legal sanction, on to its slow con- 
clusion, the advice, counsel, skill, care and management of attorneys 
on the lost or defeated side, exhibit, if not malpractice, at least such 
faulty and erroneous conduct and superintendence as entail upon a 
client vexation, disappointment, pecuniary loss and disaster. 
In a case to be found in Wendell’s Reports, the late Judge 
Bronson uses the following language, “ It was said at Westminster 
Hall, more than seventy years ago, that the statute of frauds had not 
been explained at a less expense than one hundred thousand pounds 
sterling; and Chancellor Kent, at the time he wrote his commen- 
taries, thought the same might then be put down at a million and 
upward.” 
In view of this sentiment uttered by Judge Bronson, I asked a 
lawyer of acknowledged experience and wisdom, who occupies an 
exalted position on the bench, how much it had cost litigants and the 
State in defraying the expenses of the courts, to settle questions 
arising under the Code of Practice, where counselors-at-law had 
erred in the construction to be placed upon it, and his answer was 
that it would be impossible to state accurately, but it had cost 19 
infinitely more than the sum mentioned by Chancellor Kent, in less 
than one-half the time. 
I asked the same judge if lie had ever known a lawyer to be pro- 
secuted for mistakes or misjudgment in regard to the true construction 
to be given to any law, and he answered that he had not. I then 
inquired if he had ever known a lawyer to be prosecuted upon the 
allegation that he did not in his profession exercise ordinary care and 
skill in conducting the business of his client, and he replied that he 
had not known such an instance. I further availed myself of the 
privilege of requesting to be informed how many suits he had 
known to be brought against members of the medical profession 
for any of these allegations, and he said he had known a great 
many, adding that if the same practice which had been adopted in 
the prosecution of members of the medical profession had been 
adopted, as against members of the legal profession, it would be 
impossible to place a limit upon the consequences. 
The fact is so apparent as to be confessed and acknowledged with- 
out reservation, by the older members of the bar, that malpractice 
among lawyers is of very frequent occurrence. It is not uncommon, 
in fact, it is so common as to have passed into a settled custom, for a 
certain class in the legal profession to seek the aid and advice of their 
more learned and astute associates, for the purpose of extricating them 
from the confusion and perplexity in which the affairs of their clients 
had become involved by reason of the unsound and defective advice 
and practice to which they had been subjected. 
This exhibition of legal malpractice in the aggregate is startling and 
extraordinary. It is concealed, however, by a tacit agreement to pre- 
serve the errors of the profession entirely within itself, and never 
were the requirements of a brotherhood of interest more zealously 
regarded. 
The immense money value of unnecessary litigation to parties 
engaged — the great expense borne by the State at large — the addi- 
tionally oppressive burdens of verdicts and judgments — the costly 
process of appeal, and the trial a second time of the issue — these are 
some of the fruits of “ negligence in the conduct of business intrusted 
to him,” for which the attorney will be compelled to plead guilty to 
the charge of malpractice. Other and equally serious results grow 
out of individual estrangement, jealousy and hatred, disturbance of 
the peace of communities and of the State, an effort by persistent liti- 
gation to unsettle public policy and the development of a spirit of strife 
among the people. 20 
In consideration of these facts, which are suggestive of thought and 
reflection, it may very properly be asked, what should be the attitude 
of the legal toward the medical profession, when both claim to be 
learned before the world and engaged in the highest interests of the 
race? Should one profession prej upon the other, not because of 
superior knowledge, diminished liability, greater virtue or strength 
of purpose, but because it has control of the machinery by which the 
process of complaint of malpractice and efforts to convict under the 
charge, are made to bear with undiscriminating and hateful effect ? 
A great profession, with fame coeval with history, numbering among 
its illustrious men such names as Blackstone, Sir Matthew Hale, Story 
and Kent, and a brilliant array such as these, is not to be judged by 
the reprehensible acts of a few of its followers. I use these words 
with due caution and speak deliberately when I declare that a suit of 
malpractice against a member of the medical profession who consci- 
entiously discharges his duty in case of sickness, an accident or a sur- 
gical operation, is a violation, on the part of an attorney, of moral 
obligation, as culpable as it is oppressive and vindictive. Continually 
subject to the same charge of malpractice, and escaping its legal con- 
sequences through the charity of the bar and the bench, and the cre- 
dulity and ignorance of the people, it would seem as if consciousness 
of his own professional failings and imperfections would prompt him 
to be considerate of the alleged faults and errors of the medical pro- 
fession. 
I am reminded, in this allusion to the ignorance and credulity of 
the people in regard to the subtlety and mystery of the law, and the 
exemption of an attorney from responsibility for the results of faulty 
and injurious advice, to a sentence or two in a work recently published 
in London, as follows: “ The very small place filled by our own English 
law in our thoughts and conversation is a phenomenon absolutely 
confined to these islands. A very simple experiment, a very few 
questions asked, after crossing the channel, will convince you that 
Frenchmen, Swiss and Germans of a very humble order have a fair 
practical knowledge of the law which regulates their every-day life. 
We in Great Britain are altogether singular in our tacit conviction 
that law belongs as much to the class of exclusively professional sub- 
jects as the practice of anatomy.” (Henry Sumner Maine.) 
But what shall be said of an attorney who advises a suit of mal- 
practice against a physician and conducts its management in court, 
under an implied agreement that if he does not succeed in obtaining 
judgment, his services shall be gratuitously rendered ; but if a verdict 21 
is found for his client, he will retain one-half or some other specified smn 
as his share of compensation ! If such a course is not the most flagrant 
malpractice, it would be difficult to conceive of an offence that would 
justify a more pointed use of the term. It is more than malpractice; 
it is an attempt to extort money, by inducing a jury to believe that 
injury has been done to a client, that pecuniary advantage may accrue 
to his attorney. It is virtually, by the terms of the agreement entered 
into, placing the attorney in the position of the party on whom the 
alleged malpractice has been visited. It is an act of professional piracy 
that merits the scorn and execration of the bar, as it does the contempt 
of all good citizens, and that should subject the offender to the disci- 
pline of the courts and the forfeiture of his privilege longer to practice 
in them. The same obloquy should attach to an attorney who brings 
an action of malpractice against a physician with the expectation that 
it will not come to trial, but, for fear of expense and annoyance, will 
be settled by the defendant for such a sum of money as will prove 
satisfactory, not to the plaintiff actually, but to his cunning and 
unprincipled adviser. 
Mischief-makers, such as I have mentioned, are to be found in the 
ranks of our legal brethren. They are excrescences that disfigure the 
commanding proportions of jurisprudence and cause it to appear 
hideous and unnatural; or, like barnacles collected on the hull of a 
noble ship, in spite of the nice mathematical construction of the ves- 
sel, its trim masts and spars and spread of canvass, its speed and effect- 
iveness are materially diminished, and it is compelled to labor under 
the disadvantages of degeneracy and decay fastened upon its own 
body.* 
“ Jeremy Taylor lays it down as a rule that all advocates must deal 
plainly with their clients, and tell them the true state of their case.” 
Quoting from the same source—Lawyer and Client; Their Rela- 
tions, Rights and Duties. By Wm. Allen Butler, Esq.—these 
appropriate words occur: “Many a client would be saved time, 
temper, peace of mind, money and reputation, were he advised 
at the beginning, what he so often discovers at the end of a lawsuit, 
that he has no defence to a debt which he owes, or that he has 
no remedy for the wrong which he seeks to redress.” Another 
authority, John Livingston, Esq., Law Magazine, says, “ It must be 
* A Quiet County.—Noble county, Ohio, with a population of 20,000 people, is well worthy of 
the name it bears. There is not a saloon in the whole county, there is not a case on the criminal 
docket, and not a person has been arrested for a whole year on a criminal charge. There were only 
five lawsuits last year, and if it hadn’t been for a meddling lawyer, three of these would not have 
been recorded. {Detroit Free Press.) 22 
remembered that if lawyers were never to give way to loose and care- 
less practice, the term sharp practice would be almost unknown ; and 
if the regulations which the Legislature and the courts have laid 
down with so much care were more uniformly studied, and steadily 
followed by those whose chief duty it is to act according to law, far 
fewer charges of professional misconduct would be heard of.” Mr. 
Butler, quoted above, says : “ The law is for the redress of wrongs ; it 
is never their cause. The stirring up of lawsuits lias always been 
under the ban of a just public opinion, and the purchase by lawyers 
of causes of action is included in the censure. It is repugnant to the 
genius of the law, and to the sound moral sense of men, and has been 
repeatedly the subject of express statutory prohibition. The juris- 
prudence of civilized States condemns and forbids it.” 
Strongly as we are inclined to reprehend the acts of certain lawless 
members of the legal profession, in justice to the profession, as a 
whole, we are bound to yield to its followers such honor and inde- 
pendence as betoken a proper appreciation of the underlying princi- 
ples of law and a just sense of courtesy extended to us, as from one 
body of learned men to another. 
Suits of malpractice would be rare indeed if a client and his attor- 
ney were the only elements that enter into their conspiracy of con- 
ception, preparation and management. The assistance of a third 
party is indispensable to the birth of the monster, and the wicked 
alliance is made complete by the presence of a member of the medi- 
cal profession. This must be spoken to our shame and mortification. 
In all the cases of malpractice that have fallen under my observation, 
physicians having authority to practice, or men presuming to be phy- 
sicians under the sanction of loose laws, have been instrumental in 
urging on the odious prosecution. I will not attempt to analyze the 
motives of these traitorous men. They are such as would prompt the 
defamer of character to asperse his neighbor without cause, or the 
confidential clerk to betray and rob his employer, or the physician 
who has become the custodian of family secrets to retail them in the 
gossip of social life or spread them to the world through the agency 
of the witness-stand. 
The fellowship of the bar is much more in accordance with a senti- 
ment of brotherhood in this respect, and, as I have shown, the errors 
and shortcomings of its members remain concealed under the sem- 
blance of charity and forbearance, which, like a broad garment, 
envelops the entire profession. A common interest governs the legal 
profession to a greater degree than that which directs and controls the 23 
operations, either fundamentally or experimentally, of the science 
or art of medicine. The principles of law are founded in justice, 
based upon elements of divine truth and equity. The principles of 
medicine are the production of human agency, subject to individual 
interpretation, the construction of succeeding eras of investigation 
and conflicting schools of thought. Codes of ethics cannot bind our 
profession everywhere more than codes of learning. 
We may pertinently inquire what is the present position of the 
medical profession in view of the charge of malpractice, based on the 
latest ruling of law and the most enlightened construction of our 
responsibility, gathered from published reports of adjudicated cases? 
While the principles of law remained unchanged, the custom of the 
courts had undergone very little modification of the course usually 
pursued in the management of suits of malpractice, until in Novem- 
ber, 1868, in Walsh v. /Sayre, Judge Samuel Jones, of the Superior 
Court, in the city of New York, rendered a decision which created 
a profound sensation in legal and medical circles. That this decision 
is not a step simply, but a flight toward reform ; in other words, 
reform, in itself, of a system or custom which bore with hardship and 
unfairness on a physician in an action for malpractice, liberal-minded 
men in each profession will gladly affirm. It has established a pre- 
cedent which will be so generally adopted by the courts as to become 
a settled policy in all cases of a like character. It gives to the pro- 
fession that which had never before been conceded, that a personal 
inspection by experts can be made to supersede the interested and 
prejudiced testimony of medical and other witnesses who strive to 
accomplish the conviction of the defendant. It gives to a physician 
charged with malpractice an opportunity to show, to men worthy to 
be called his peers, whether or not errors have been committed, or 
due skill, care and diligence exercised in the treatment of a particular 
case. The application of this rule takes away from the trial of a suit 
of malpractice nearly all the dread which medical parties experience 
in prospect of rebutting the allegations of the plaintiff: and the 
testimony of his adherents. Judge Jones has so conspicuously 
advanced medical jurisprudence by his ruling in this case, that he is 
entitled to the warmest praise and gratitute of educated members of 
our profession and the profession which he illustriously represents. 
Before judicial authority, we have no reason to apprehend the 
consequences of our professional acts. The views of a partisan 
advocate are not the sober and deliberate views of a judge sitting on 
the bench. In assuming the ermine he lays aside theory and specu- 24 
lation, and puts on the matter-of-fact principles of law, by which he 
will be directed through all his judicial life. He knows our account- 
ability as medical men just as he knows the liability of the members 
of the bar, who are never out of his sight. If our alleged errors 
could be investigated by him alone, without the intervention of a 
jury, we would never feel in doubt of the issue. Our vexation and 
annoyance would consist merely in being sued and in collecting testi- 
mony and making up a defence. But the ordeal of a trial by jury 
has to be met. Questions of fact are to be weighed and judged by 
men who are in no manner qualified, as juries are commonly com- 
posed, to decide in matters affecting the rights and responsibilities of 
physicians. Esteemed as trial by jury may be regarded in the prac- 
tice of the courts in ordinary civil suits, it is defective and oppressive 
when applied to the charge of malpractice. Guided and governed 
by such positive instruction from the court as to forbid the mani- 
festation of passion, prejudice or ignorance on the part of a jury, our 
rights may be considered really safe in their hands. The wholesome 
authority of the court, however, must be exercised to prevent juries 
from being led away by jealousy of a profession or of educated men 
to judge vindictively rather than impartially in matters committed 
to them. 
Men of conspicuous ability have been driven from the profession 
through fear of being held to responsibility for the consequences of 
surgical practice. With love of science, and endowed with skill and 
knowledge to take a commanding position in medicine, they have 
been impelled by a desire of self-protection to avoid the annoyance 
and pecuniary sacrifice which its daily requirements impose upon 
them. After years of faithful devotion to duty, and the realization 
of the products of toil and labor, with which to educate children or to 
comfort the decline of life, the inexorable verdict of a jury has 
despoiled such men of their goods and substance, and reduced them 
to penury. Not to establish a principle, not to vindicate the dignity 
and honor of the law, nor for the purpose of teaching physicians a 
lesson of obedience to the responsibilities of their calling—but simply 
for the hateful object of obtaining vindictive damages under cover 
of strict legal accountability. 
More than twenty-five years ago, my honored preceptor, Dr. Alden 
March, was sued for malpractice, in consequence of an operation for 
strabismus, which terminated in such opacity of the cornea as to pro- 
duce nearly total blindness in one eye. Damage was claimed to the 
amount of ten thousand dollars. After an exceedingly perspicuous 25 
charge by Judge Amasa J. Parker, in which the liability of phy- 
sicians was laid down at length, the subject was submitted to a jury, 
who stood, on the first count, eleven for conviction and one for 
acquittal. “ Why,” said the dissenting juror, “ do you take such 
ground, in opposition to the evidence and the law of medical respon- 
sibility, as explained by the court ?” “ Because,” was the reply of 
one of the eleven anti-rent communists, “ Dr. March is rich and the 
plaintiff is poor.” By persisting in his position until hunger, thirst 
and other physical necessity, rather than mental or moral conviction, 
constrained his. associates, a verdict of acquittal was rendered. 
Nothing but the inflexible will, and by comparison the measureless 
distance, as regards intelligence and appreciation of justice between 
one juror and eleven others sworn to discharge a specific duty, saved 
an illustrious surgeon from the consequences of trial by jury. 
In another case, tried in Broome county, in which damage was 
claimed, because of shortening and lateral deflection of a limb, due 
to the conduct of a patient, in the treatment of fracture of the tibia 
and fibula, a juror inquired of a medical witness if lie thought, 
when the leg regained full strength, the bones would grow out to 
their original length? Of course judgment was given against the 
defendant. 
In Chemung county, an agricultural juror, after vainly striving to 
urge upon his companions his own impressions of medical responsi- 
bility rather than the law as expounded by the judge in his charge, 
requested to have the jury brought in court, that he might discuss 
the matter with that official. This being done, he deliberately drew 
from his pocket a paper, from which he proposed to read eight objec- 
tions to the charge of the court in respect to the legal accountability 
of physicians. With great dignity of bearing, apparently undis- 
turbed by the extraordinary proceeding, the court informed the 
juror that when, in the course of events, he should be raised from 
the jury-box to sit on the bench, and the speaker was made to occupy 
a place among the jurors, he might very properly read the eight 
objections referred to. u But until that time arrives,” the court 
added, “ you must receive the law as I have given it to you.” 
Unabashed, the irrepressible juror informed the court that he also 
differed from one of the medical witnesses, Dr. Alden March, in 
some matters of surgical practice. With the remark, “ the court is 
not competent to discuss questions in surgery,” the jury was again 
sent out to deliberate on a verdict. In a few hours they returned, 
unable to agree, standing eleven for acquittal and one for conviction. 26 
It is unnecessary to state that the agricultural jurist proved to be the 
non-agreeing juror. # 
In view of all that has been said, it may be asked what is the 
remedy for medical malpractice ? In respect to the profession of law, 
we cannot appropriately suggest any method by which the mental or 
moral condition of certain of its representatives can be changed. We 
cannot exact or enforce compliance with the requirements of a fixed 
standard of legal etiquette, much as such, a measure of reform is 
needed. We can only hope that the revolutionary system ydiich 
threw down the barriers of educational preparation by which the 
profession was attained, and made access free to all who are able to 
conform to the reckless provisions of the statute, by the very evils 
which it has been the means of introducing, will work out such a 
plan of purification and improvement as will cause a return to the 
better days of theory and practice in law. Enlightened and conscien- 
tious devotion to the interests of a profession, whether of law or 
medicine, is not to be expected as a product of hasty and ill-advised 
preliminary and office pupilage and training. It can only come 
by the elevating influence of education, not as a matter of course 
acquired in schools and colleges, and by patient and systematic study 
and investigation. A learned lawyer is a safe advisor. A learned 
and scrupulous counselor would scarcely bring his mind to the con- 
clusion of recommending a suit of malpractice against a faithful 
physician. 
The remedy for malpractice, as it affects our profession, depends 
upon a single word, which has so often rung in our ears through the 
better class of medical journals, through the reports of committees in 
medical conventions, and through special essays, that we have become 
indifferent to its importance. The necessity of a higher, more uniform 
and comprehensive plan of education among medical men is so appa-. ‘ 
rent in this connection, that it seems a superfluous task to refer to it. 
Not that education will save physicians from the risk of being prose- 
cuted for alleged malpractice. I have discussed this feature of thb 
subject, and have shown that skill and knowledge are not shields' 
against the attacks of the mercenary plaintiff and his legal advisor. 
Skill and knowledge, however, lift the physician up out of lower into 
higher planes of thought, and impose attributes of moral and intel- 
lectual character, which are the legitimate fruits of the educational 
system. The proposition may be safely stated that a more thoroughly 
cultivated and educated profession would materially lessen the fre- 
quency of suits of malpractice by taking away that element to wliiclr 27 
has been made, which lends its counsel and assistance in the 
inception and progress of the case. A low and faulty standard of medi- 
cal education, which barely allows a pupil to pass an insufficient exam- 
ination, apparently to comply with the requirements of law, which are 
purposely and ingeniously evaded, is to be charged with this result. A 
class of men not only ignorant,, but with blunted moral sense, is thus 
permitted to enter the profession by a door whose breadth permits 
them to find ingress in such numbers, that they exert a wide-spread 
and damaging influence as well on their better qualified associates as 
on society at large. Medicine, with them, is an ignoble trade. It 
sanctions a bargain to produce abortion; it leagues itself with a dis- 
affected patient and a willing attorney to concoct against a fellow- 
physician an action of malpractice; it prepares evidence to sustain 
the alleged charge, and appears as chief witness in the prosecution. 
It poisons popular sentiment by every device peculiar to cunning and 
unscrupulous conduct, and, by cultivating the society and fellowship 
of illiterate and prejudiced men, it arrays one class in community 
against another, and thus disturbs the public peace. 
This is not an overdrawn estimate of the consequences of loose and 
precipitate medical education. It presents a small portion only of the 
evils of imperfect preparation for the practice of our art. 
With the profession rests the power to accomplish a reform of the 
system of medical education; such a thorough reform as will extend 
throughout the nation. Some among you, I know, have pictured to 
yourselves an ideal standard of preparation for the profession, includ- 
ing the processes by which a pupil is carried through the stages of 
growth in medicine to the possession of his degree, and so on to the 
higher positions to which his qualifications give him access. Through 
much strife, opposition and discouragement, such a change is surely 
coming. Not in your day, nor in mine, but in that future which 
awaits the greater development of our country, disenthralled medical 
• science will stand conspicuously forth as teaching given from God. AN ADDRESS 
BEAD AT ALBANY, FEBRUARY 6, 1872, AT THE OPENING OF THE 
&****! flit 
By WILLIAM C. WEY, M. D., 
President of the Society. 
Gentlemen of the Society: 
We are again permitted to gather in this ancient capital to cele- 
brate the sixty-sixth anniversary of our honored Society. Animated 
by a spirit of progress, with augmented numbers, with increased 
reputation, with improved means for utilizing the multiplied sugges- 
tions, revelations and discoveries in our art, this yearly assembling 
of ourselves together has become an event of significant and absorb- 
ing interest to a large number of devoted men in every portion of 
the State. 
The age and character of this Society, its achievements in science, 
as exhibited in its published volumes, which compose a library, and 
its recognition at home and abroad, attest the wisdom and learning 
of its founders and the zeal and devotion of their successors in the 
fields of knowledge and research which for so many years they have 
assiduously cultivated. 
The immediate and remote effects of medical fellowship are illus- 
trated by the history of this Society. Insensibly, but with great 
power, it has exercised its influence upon every section of the State. 
It has so materially elevated sentiment in remote districts, under the 
form of combination among medical men, even though few in num- 
ber, that the greater and more enlarged interests of the profession 
have been conserved and perpetuated. An element like a medical 
organization, regularly and earnestly sustained, has so often proved 30 
the means of resisting error among the people, of inducing obedience 
to the standard of ethics and doctrine, and of individual profit and 
advantage to its members, that its value cannot be adequately 
estimated. 
No one who has observed the evidence of medical growth and 
strength will question that incalculable good develops out of profes- 
sional intercourse that has passed beyond the technicalities of consti- 
tutional amendments and the alteration of by-laws, and attained a 
condition that savors absolutely of legitimate scientific improvement. 
The fact has been repeatedly demonstrated in a survey of the medi- 
cal societies of the State, that the provisions of the Code of Ethics 
are most faithfully and conscientiously observed, and the personal 
standard of character ranks highest in those counties and organiza- 
tions in which active, hearty fellowship is maintained. I may add 
respecting the Code of Ethics adopted by this Society, and ante- 
dating all other American codes, which in some quarters has been 
ridiculed and despised as effeminate and circumscribed in its teaching, 
that it is grounded upon a basis of morals which comprehends and 
illustrates the golden rule, and embraces in its scope an epitome of 
Christian teaching. 
To such an extent am I persuaded of the necessity of a more 
enlarged and specific knowledge and understanding of the ethics of 
our profession, that I would gladly see the whole subject made a 
branch of medical teaching in the schools, as a positive and necessary 
part of the means of education of the student. 
According to the methods of instruction now practiced, inspiration 
of honor and character may be communicated to a pupil through the 
daily consistent walk and conversation of his preceptor. This ideal 
of excellence may be carried through the period of instruction and be 
incorporated in the professional life of the student, and it is a notice- 
able fact that if his former educational advantages have been liberal, 
his perception and appreciation of medical ethics will be immeasur- 
ably increased. On the other hand, if without previous preliminary 
preparation, his early life has been devoted to practical rather than 
educational duties, and if it be his misfortune to pursue his studies 
under the training of a physician whose aim and purpose is to procure 
business, regardless of the manner in which it is obtained, it is easy 
to see how, at the very beginning of his career, he is made to acquire 
false views of morality, honor and professional decorum, which subse- 
quent lectures and instruction are in no way calculated to remove. 
In the first case, the student, by reason of adequate education 31 
before taking up the study of medicine, is instructed in elements 
which, under proper direction, will produce the full development of 
professional character and learning, and, as a natural consequence, a 
jealous estimate of the ethics by which he is to be governed in his 
intercourse with his associates and patrons. 
In the other instance, the whole subject of medical ethics remains a 
sealed book to the pupil, simply because his former life tended in no 
degree to prepare him for its comprehension. It was not illustrated, 
except by violation, and as a matter of course, during his term of 
study, and received no explanation or illumination in the ordinary 
lecture term of a medical college. 
Considering the importance of this subject, in comparison with 
many upon which much time is spent in medical colleges, its present 
and remote bearing on the pupil, on the profession at large, and on 
the public generally, I cannot but hope that it will ultimately receive 
the earnest attention of educators, so as to become an incorporated fea- 
ture of teaching in the scho’ols. 
The tardy publication of the Transactions of this Society calls for 
some action at your hands. This evil, under the immense pressure 
of the printing and publishing engagements of the State, is yearly 
growing more and more serious. The edition of Transactions for 
1870, as you are aware, was entirely consumed by fire in February 
last, just as it was about being distributed by the publishers, more 
than a year after the session of the Society. At the meeting in 1871 
but two or three copies in sheets could be obtained for the use of the 
officers of the Society. The Transactions for 1871 will not be forth- 
coming for many weeks. 
But for the modification of an arbitrary rule, made a year ago, 
giving the authors of papers contributed to this Society an oppor- 
tunity to publish them in medical journals or in pamphlet form, the 
delay in the appearance of the Transactions would serve as a means 
of limiting or preventing the preparation and introduction of .valuable 
articles bv the members of this organization. This would especially 
be the case in respect to new and original matter, which it might be 
important to bring promptly to the attention of the profession. If 
compelled to take the fate of the published Transactions, the value of 
a paper would be entombed more than twelve months. The saving 
permission to publish elsewhere, redeems it from the evils of such 
sepulture. 
At its organization, and for many years thereafter, this Society was 
limited in membership. Attendance at its sessions was confined to 32 
members and delegates living in the near neighborhood of Albany. 
The season of the year and the difficulty of travel rendered it impos- 
sible for members of the profession residing from fifty to one hundred 
miles from the capital to be present at the annual meetings. Physi- 
cians in the northern, western and south-western limits of the State 
were as distant in time from Albany, in midwinter, during the first 
twenty-five or thirty years of the existence of this Society, as we are 
now from the western territories. 
I believe the period has arrived for inaugurating a complete and 
radical change in the manner of publishing our Transactions. Two 
or three methods might be proposed. 
If it is in accordance with the provisions of law, the Legislature 
might be asked to appropriate a sufficient sum each year to allow the 
publishing committee promptly to present the Transactions to the 
Society, in an inexpensive but neat and attractive form, and free from 
the inaccuracies and blemishes of type and paper which have so com- 
promised their appearance. Competition among publishers would 
reduce the price of printing, and improve the typographical excellence 
of the volume. 
As regards the treasury of the State, as long as the commonwealth 
assumes the responsibility of paying the cost of publication, it would 
seem to be a matter of very little importance whether it is done by 
specific appropriation, or in the usual course of compensating the 
State printer. By one mode the volume wfill bear the impress of 
individual enterprise, and will be presented in such dress as will reflect 
credit on the Society and the skill and art of the printer. By the 
other it will come to us in poor paper, with many errors, and repre- 
senting the art of printing when the Society was in its infancy. 
Another method would suggest that the Society should be alto- 
gether independent of State control, in the matter of publication. 
A fund should be secured from the Legislature, if possible, the inte- 
rest of which would defray the cost of printing. This sum should be 
invested in such a way as to yield an adequate amount for the object 
contemplated, and the printing should be supervised by a suitable 
committee, without regard to the State printer, unless he should feel 
disposed to enter into competition for the work under certain restric- 
tions. 
A third plan consists in raising money in the Society for the actual 
expenses of its yearly sessions, including the publication of its Trans- 
actions. This plan is commendable and at the same time practica- 
ble. It may require constitutional changes to authorize a demand to 33 
be made upon county societies, the New York Academy of Medicine 
and medical colleges actually represented, for a certain annual or 
biannual amount, according to size and delegation, and increased con- 
tributions from delegates and permanent members. This Society is 
so large that it can afford to be quite select if such demands are not 
promptly and willingly paid. Individual donations might also be 
solicited. My impression is that in no case of county organization, 
county representation, medical college or election to permanent mem- 
bership, will any scruple be felt toward responding to the assessment 
of the parent Society. 
This question should be carefully considered by a competent com- 
mittee, and a report presented at the present or at a subsequent 
meeting of the Society. 
Several weeks since, I addressed a letter to the Surgeon-General 
of the United States Army, apprising him of the time and place of 
meeting of the Society, and inviting him to designate one or more 
members of the medical staff stationed within the limits of our State, 
to be present during the session. It seemed not only proper but 
just, that representatives of a branch of medicine in which some of 
the most brilliant and extraordinary discoveries in special science 
have been recently made, should be honored by being asked to sit 
with us in council and take part in our deliberations. In a very 
courteous reply, the Surgeon-General concluded as follows: “ I shall 
be glad, at the proper time, to convey your invitation to one of the 
medical officers of the army on duty within your State, should the 
then condition of the service permit.” 
I would respectfully recommend that a committee of members, 
residing in this city, be appointed to petition or urge upon the com- 
missioners of the capitol the propriety of assigning to the uses and 
purposes of this Society in that building, rooms in which to hold its 
annual meetings and for the deposit and preservation of its papers, 
records, volumes and other property. The immense capacity of the 
proposed structure will readily enable the commissioners, at the sug- 
gestion of the committee, to perfect an elaborate and appropriate 
hall, in which the Society, the growth and emanation of the Legis- 
lature, and shielded by its authority, may in perpetuity enjoy the 
comforts and privileges of a settled home. 
A spirit has been manifested, where we would not have looked for 
evidence of such disregard of the obligations of professional obedience 
and discipline, to cut short the process of investigation of preferred 
charges against a member in a properly qualified medical society, by 34 
an appeal to the civil courts to restrain the course of the inquiry by a 
summary injunction. Such a procedure is subversive of morals as 1 
well as justice, and effectually puts an end to all attempts to enforce 
compliance with the salutary rules by which voluntary and chartered 
organizations are sustained and perpetuated. . It strikes at the very 
root of authority, by first assuming to be loyal and subject to disci- 
pline, and afterward rebelling against its power in a way so treach- 
erous and cowardly, that but one course is left for a society thus com- 
pelled to yield to the interference of the officer of the law, and that 
is promptly to expel the revolutionary member; or, if prevented by 
additional legal hindrances, to cease to hold social or professional 
relations with him. 
I would press upon you the necessity of vigorously urging the 
Legislature to pass a law to compel the plaintiff, in case of alleged 
malpractice agifinst a physician, to file a bond of indemnity for the 
reimbursement of his adversary in Costs, should he fail to obtain 
damages against him. This subject was noticed by an appropriate 
resolution passed at the last session of the Society, but the Legislature 
gave no heed to it. . 
As at present constituted, the law appears to offer inducements to 
irresponsible and unscrupulous men to bring suit for alleged medical 
malpractice, for the sake of effecting costly compromise, or to compel 
a defendant to submit to the expense and injustice of a trial. As is 
well known, malpractice suits are nearly universally brought by men 
as deficient in property as in character. A single spirit prompts the 
action, and that is a prospective money recompense for alleged physi- 
cal disability, the result of accident and surgical treatment. 
If a law, such as has been proposed to this Society, is passed by the 
Legislature, we shall see how promptly and effectually a check will be 
put on the prevailing tendency to hold medical men responsible for 
the consequences of surgical practice, especially in the treatment of 
fractured and dislocated bones. 
I refer to the condition of medical literature in the State with 
peculiar pleasure. This remark applies as well to the journals as to 
the publication of original matter in the shape of extended volumes 
on special topics. Medical journals devoted to the general purposes 
of the profession, and those advocating particular departments in our 
art, are so ably conducted by educated physicians, so enriched by con- 
tributions of the highest order from progressive, representative men, 
so full of the results of research and investigation in all the fields of 
practical and scientific thought and inquiry, so greatly in advance of 35 
the last decade, and so fresh and glowing with the enthusiasm of a 
great cause, that it> is a source of common pride and praise to utter a 
word in their behalf. 
The conservative and substantial book literature of the profession 
is yearly becoming more and more noticeable and important. So 
many valuable additions are being made to our stock of standard 
authorities by hard-working and patiently investigating men, whose 
names are familiar as instructors and practitioners of eminence, that 
at home and abroad the reputation of the State of New York is well 
established among authors and students. I will not particularize when 
so great a number of elaborate works on specific subjects have been 
issued from a prolific medical press during the past five years, or even 
in the course of the preceding twelve months. Minute investigation 
of an exhaustive nature, in the hands of earnest men, is working out 
the positive and beneficent results which are sure to follow ardent and 
continuous devotion to particular lines of study. 
It remains to allude to the only sad feature of the year of the 
k ociety since we last assembled. Five permanent members have 
died: Dr. Barent P. Staats, of Albany; Dr. Andrew Yan Dyck, of 
Oswego; Dr. Erastus L. Hart, of Elmira; Dr. Henry D. Buckley, of 
New York; and Dr. Darius Clark, of Canton. Drs. Staats and 
Buckley were present at the last session. Suitable notices of these 
eminent men will be contributed for publication in the Transactions 
of the Society. 
With the hope that the fruits of this session may be peaceful and 
profitable, and that it may be well for us to come together in counsel, 
in the name and for the purposes of science, I have the pleasure of 
announcing that the Society is prepared, to proceed to the discharge 
of business.