REPORT  ON  MALPRACTICE
A   PAPEE
READ KKFORE TUB
lu*N  Jfe&al  1[ss0riattoiit
JUNE 12, 1878.
BY EUGENE F. SANGER, A. M., M. D

          OF BANGOR.
   PORTLAND:

STEPHEN BERRY, PRINTER.
)
)
1878.
 
r
 
REPORT ON  MALPRACTICE.
A  PAPEE
BEAD BEFORE THE
[aht^  Jp&al  totfriata,
JUNE 12, 1878.
J
BY EUGENE F. SANGER, A. M., M. D.,
         OF BANGOR.
/0S^SiTsny
   PORTLAND:
STEPHEN BERRY, PRINTER.
1878. 
<s 0\ :-.\ 
MALPRACTICE.
  The aphorism^hat the burnt child dreads the fire applies with
peculiar force to those of our profession who  have had any experi-
ence with civil malpractice suits.  The laws of our State permit the
patient to sue the doctor at a nominal price, without any guaranty
for costs, sufficient cause, or good iatth.jih.ey virtually  leave us at
the mercy of the legal  profession, whicn^ under the guise of mal-
practice,  plunder the very men who give aid and comfort to  the
sick in times of need without money and without price.
  The common rumseller, whom the law is enacted to destroy, has
the protection of his patrons, which the surgeon does not enjoy, as
the law on malpractice actually induces the patient to pounce upon
his  physician like a thief at night and rob him, though it may not
profit  the patient any, of his good name, his property, and his
means of doing good.
  The patient descends  upon his  physician when  he least expects
it and least deserves it, in his errands of  mercy and his best en-
deavors to relieve human suffering and correct natural or accidental
deformities.   These  claims  for damages  are co-ordinate with the
human imagination, and beget lawsuits which are without limit in
expense and time.
  I  propose, as  my text, my own experience, an experience which
applies to the medical profession alone, as the other professions  and
sciences are  based  upon laws and principles of right and accounta-
bility which the doctor knows not of, unless it may be the right of
the irresponsible patient to wantonly sue him without vouchers for
costs and consequences,  and the accountability of  the doctor to re- 
4
lieve and restore all human ills and injuries which come under his
observation.
   During the past few months, I  have wasted one whole month of
my time in the Court House,  and been  put to more than $2,000
expense, to defend two of the simplest acts of surgery, for which I
received ninety cents pay.
   The first case,  Harriman v. Sanger, was a case of  congenital
club-feet, or talipes equino-varus, in a child twelve months old, spastic
or spasmodic in character, as is usual  in this species of  deformity.
The operation was tenotomy of the tendo Achillis, or heel cord, and
the use of the improved Scarpa shoe, with instructions to report
from time to time, which they did not do.  Six mmiths afterwards, I
voluntarily visited the child; found it  running around, doing well,
and furnished a second pair of shoes.  Receiving neither pay for the
shoes nor the operation, discontinued my services until re-imbursed.
  A,—Condition of the feet May, 1871, at the time that I cut the heel cords and
adjusted the improved Scarpa shoes.  B,—Condition of the feet November,
1871, when I dismissed the case because the parents did not  re-imburse me
for money paid out.  The posterior tibial tendon and plantar fascia still
needed to be cut to prevent a relapse and perfect a cure,  which the parents
neglected to have done, and sued me for their neglect five years afterwards.
  I was sued for  f 7,000, because I cut the sheath of the tendon in
tenotomy of the tendo Achillis, spilt a few drops of blood, discontin-
ued my visits, and used the improved Scarpa shoe !  The prosecu-
tion  claimed  that I should have adopted the Barwell and Sayre
theory of paralysis of the peroneal  muscles, used Sayre's shoe with
rubber tubing, electricity, and made repeated visits.  The parents 
5
and a jail-bird SAvore to the existence  of paralysis, and three sur-
geons to the paralytic theory and treatment,  but paralysed their
own evidence by admitting a total want of experience in the Sayre
system, rubber tubing, electricity and  repeated visits.
  Dr. Jewell, my assistant, the only  surgeon who ever examined
the child from birth to the time of the suit, testified to contrac-
tion  of the  heel cord and to a skillful and successful operation.
Paralysis was not demonstrated at the trial.  The Sayre shoe had
not been used in Massachusetts General Hospital, or Maine, prior
to my operation, and the leading orthopedic  authors,  as Adams,
Little, Brodhurst, Stromeyer, Guersant, Knight,  &c, did
not sustain  the  Sayre theory.  Crosby, of New York, Tewks-
bury,  Hill and Bobbins, of this  State, endorsed my treatment.
  I got a verdict.  It went to the law court on exceptions.  Ex-
ceptions overruled;  and when I applied for judgment on my bill
for services, was threatened with a suit of warrant to cure, which
caused me to drop my case, as he was poor, and I should have had
to pay my own costs.
  October 11, 1876, a month later, was sued  again for $12,000,
making attachments of $19,000 on what little property I had, and
a trustee of my bank account, which forced  a bond from me to get
a voice in the management of my private affairs.
  My  second case,  Bowley v. Sanger, was more frivolous, and
yet more prolific in  trouble and expense, as it was the last dying
struggle of a conspired effort at my pocket.  The first  jury took
more stock in a  grass widow, who  testified  I would cut up  a man
for $20, than in their own virtue, so  that I was  called  a second
time to demonstrate to twelve of my fellow countrymen the propri-
ety of giving free vent to a burrowing abscess in the immediate
vicinity of a scrofulous knee-joint.
  The disease of the joint, of many years' standing, had been ag-
gravated by a blow of a stick of wood  on the shin bone, below the
tuberosity and back of the tubercle of  the tibia, causing  a diffuse
abscess under the seat of the blow.
  The blow was received April, 1876, and the leg had been treated
three or four months by three other physicians, without improve- 
6
meht, the last of whom had imperfectly lanced it over the knee-joint,
instead of a more dependent part.  The result was burrowing, infil-
tration,  acrid  pus, an imperfectly drained  cavity, erysipelas, and
danger of pyaemia.  I was called August 12th,  about a fortnight
after  the abscess  had been lanced, and, with  the assistance of Dr.
Weston, a surgeon of experience, slit open the abscess downwards,
on a grooved director, cutting through the skin and fascia only, and
introduced a cotton tent into a sinus which  extended backwards
from the bottom of the abscess towards the calf.   The incision was
forked at the lower end.   I was dismissed twelve days afterwards,
August 23, 1876, and was never permitted to  see the leg again for
fourteen  months, until the day before it was amputated, Novem-
ber 5, 1877,  for scrofulous  disease of the knee-joint, commonly
called white  swelling.   During all this time  after it left me, the
knee was treated  with salves, poultices  and  lotions only, and the
patient with Avhite swelling was permitted to run at large without
even a splint to support it.
  The next week  after  I was dismissed, a  photograph was taken
by Marston, at the attending surgeon's request, and, as Marston
testified, an exaggerated view, to  please the surgeon,  who  boldly
stated that I Avas a G—d d—n idiot;  he was  d—n mad with me.
I had cut out a piece of sound flesh, opened  the  knee-joint, let out
the joint-water, and ruined the knee.   It was a case of  malpractice,
and I could be made to pay.  The writ  alleged, in substance, the
same.
  Dr. Weston, my assistant, and the boarding master, an ignorant
fello\v, by name of Michael  Finnegan,  were  the only persons
present during the laying open and dressing of  this abscess.  Dr.
Weston and self swore that not a particle of flesh was cut out.
Finnegan swore that we  cut out a  piece 2  X 3| inches, as you
would cut the rot out of an apple, and flipped it into the Avash-bowl.
The photograph was used to sustain Finnegan, and the plaintiff's
surgeons testified that it showed the loss of flesh and injury to the
capsular ligament of the knee;  they believed a piece of flesh had
been  cut out, because Finnegan said so.   No  photograph was
taken the following winter, when  my cut had entirely healed  up,
and no one ever saw the piece of flesh claimed  to have been cut out. 
7
  A,—Knee-joint.  B,—Point over the abscess where my predecessor made an
 opening, which was too small to discharge the matter, burrowing in the direc-
 tion of D, E, K and H; at K, the leg was badly infiltrated and swollen; ex-
 tended his cut from B to D and from C to E, and stretched the wound open
 with lint, as seen in the figure.  Abscess improved rapidly. There still existed
 scrofulous inflammation of the head of the bone, which I proposed to trephine
 between B and C in a few days, and save the joint, as I had done  in similar
 cases, but was prevented by a suit for malpractice.
   To disprove the cutting out of any flesh, we took their own pho-
 tograph, measured the width of the cut, which was one-fourth of an
 inch, the length of  the shin bone, which was four inches, and the
 estimated  length of  Bowley's shin bone, which  was  fourteen
 inches, and proved  that the wound  was not over seven-eighths of
 an inch wide, which was less than the ordinary gaping of  a simple
 incision three inches long.   By measuring the width of the leg on
 the photograph, which was a little over one and a quarter inches,
 we proved, if the wound represented two inches of lost flesh, with-
 out allowing for gaping  even, Bowley was a monster twelve feet
tall, with a leg as large as an elephant's, thirty-three inches around
the calf.  We  proved that Bowley had been lame for years, and
Dr. Folsom, his family physician, was threatened with a like  suit,
because he advised the attorney not to prosecute it as it was an in- 
8
curable case of white swelling of years' duration.  We proved that
Bowley said he had a soft thing  on Sanger, the Doctor said so;
he meant to have some money;  the cut did not amount to much.
  The dissection of the leg by  Dr.  Bright, in the presence of
Drs. Jones, Morison and  Simmons,  and the expert testimony of
Drs. Hill,  Tewksbury,  Bates, Manson, Huckins, Shepard,
Briggs,  Bradbury, Coe, Preble,  &c, all  went to prove a case
of caries  of the bones of the joint,  and that Dr. Sanger did not in-
jure or cut into the joint, but that his operation was good surgical
treatment, and, after Dr. Sanger was dismissed, an essential ele-
ment of treatment to save the leg had  been neglected,  such as rest
by the use of splints, extension, and the removal of diseased bone
by drilling, trephining, excision, &c.
  These  two cases illustrate the extreme  peril and danger, to the
physician and surgeon, of civil malpractice suits.  They illustrate
the dangers from jealous rivals,  tricky lawyers, impecunious and
ignorant  patients, of family conspiracies  and  of the unholy alliance
of the  sachel and scalpel.  They  illustrate the dangers of success-
ful  operations on neglectful and designing patients, and of opera-
tions made to appear unsuccessful by wicked doctors, and of dangers
which  do not cease until the grave has closed  over our mortal re-
mains, and the administrator has settled up our estates.
  The risks and temptations of  malpractice suits are inconceivably
great.  The industrious, faithful and thrifty doctor seems to be the
legitimate victim of the lame, the blind' and the halt.  The body
must be  made whole, whether from accidental injuries or  constitu-
tional  diseases.  As the broken  down merchant  and speculator
rushes to the faro bank and last  bonanza to  retrieve his broken
fortunes,  so the diseased and  deformed  use  their calamities  to
gamble away the doctor's  substance, forgetting that his patient
care has  saved whatever of life and limb they possess,  eager to kill
the hen that laid the golden egg.
  The doctor becomes the sacrificial offering of the ills to  which
flesh is heir, as well as  the  scape-goat of every willful violation of
established physical laws.  He must restore whatever he under-
takes to repair.  The artisan does not pretend to restore  worn out
material, because he cannot create the material which he uses; so 
9
the surgeon, in patching the human body, cannot create the vital
principles of assimilation and innervation, absorption and secretion,
reproduction and  decay, sensation  and motion,  contraction  and
reflex action.   He may modify the functions and  direct the forces
of the body, to a limited extent, but he has in the main to depend
upon the "vis medicatrix naturceP
   Even nature cannot reproduce lost substances equal in structure,
beauty and usefulness to the original tissues, and some cannot be re-
produced at all; much less can  the physician and surgeon save life
or prevent deformity.   Every disease has its uniform per .cent, of
deaths,  and every fracture and morbid  growth  its per cent,  of
shortening and deformity,  which  all the malpractice suits in the
world cannot alter.  We cannot apply the square and compass to the
human frame.  We cannot be unerring in our judgment or avoid
mistakes, because the varying factors of disease, diathesis, inherit-
ance and  vocation are too numerous to admit of  fixed conclusions
or uniform action.
   The irresponsible quack must  surely displace  the experienced
and responsible surgeon, if patients claim  the right to  compel the
doctor to defend himself against irresponsible attacks at his own
expense, and test the  surgeon's knowledge of the general principles
of surgery and his skill in every operation by a suit at law.  Unless
the law which  enables worthless  patients,  by simply  paying the
price of a writ, to keep the surgeon constantly under the charge of
the sheriff or at the mercy of lawyers  is  abolished, we must step
down and out.
   I have collected, within the past month, a few of the threatened
and instituted malpractice  suits in our State.  You will be startled
with the number, and  vow you will  abandon the practice.  You
will thank a kind Providence for an exemption, and curse the legal
facilities for ruining and blowing your profession to atoms, without
the benefit of  the clergy, at the behest of  any worthless patient or
misguided and unscrupulous lawyer.
   I  escaped  prosecution for twenty-three  years  of  hospital  and
private, civil and military practice, but  when the simoon struck it
shook me from stem to stern; it made my  hair stand on end and 
10
 my voice stick in my throat.   I did not literally  lose a year's
 growth, but I lost more  than a year of study  and practice from
 mental solicitude, which dwarfs body and mind.
   There are about 600 regular physicians in this State.   During
 the short space of one month I received communications from 114
 of  them, from  which  I  have collated  seventy  malpractice suits,
 fifty-five threatened  suits, and  fifty-eight exemptions.   The latter
 were largely young physicians or possessed but little available
 property.   Not more than three or four who had been blackmailed
 reported, though I am knowing to quite a large number of such
 cases.   Of those reported, only fifty-eight, or less than thirty-three
 per cent, escaped prosecution,  threats  or  the payment of smart
 money.  The  inference is, that pride and fear of injury to reputa-
 tion deterred a great many from reporting,  and, if we had received
 a full report, we could show that hardly a practitioner of medicine
 of experience and property gets through with his professional career
 without some such infliction.  All my reports are within the knowl-
 edge of the present generation.
  Of the  seventy  who were  sued for damages,  ranging from
 $1,000 to $25,000, six paid from $100  to $350  rather  than be
 dragged into the court house, three paid from $25 to $350, after
 one or more trials, rather than be kept there perpetually, and nine
 were cast in damages from $103 to $2,000.   The nine plaintiffs
 who settled, eight of the nine who were  awarded damages,  and
 all  but eight of those whose suits failed, were worthless.   Out of
 seventy prosecutions, the plaintiffs in sixty-one of them were unable
 to pay taxable costs,  and  very many were shiftless and dissipated.
 Only one in eight got a verdict.  The nine who were paid some-
 thing prior to a  trial or after one or more disagreements, aggre-
 gated only  $1,950, but, as  one  tried  his case six  times  and two
others  twice  each, and as none of the  plaintiffs were able to pay
taxable costs,  it  is  probable that expenses  absorbed the  whole
amount. The nine  who got verdicts amounting to $6,253 had
long-repeated and expensive suits, so that not over $3,000  re-
mained for distribution.   I doubt whether the  patients  received
much of that, in view of  the  chances which the  lawyers took of
getting their pay by  stripping our profession. 
11
   These  suits for  malpractice  were brought  for the following
 causes:   Two for fracture of  the thigh within the capsule of the
 joint, eight for fracture of the thigh, eighteen for  fracture of the
 leg  near or through the ankle, six of the elbow, three of the fore-
 arm, two of  the wrist, one of the neck of  the shoulder blade, and
 one  of the  knee, one for dislocation of the thigh, two for disloca-
 tion  of the elbow, two for amputation of the thigh, two for ampu-
 tation of the leg,  and two for amputation of the  forearm, two for
 hip  disease, two  for vesico-vaginal  fistula, the result of tedious
 labor, one for osteosarcoma of the shoulder, one for incised .wound
 of the  foot, one  for excision of the thumb after fearful laceration
 and  injury of the hand, one  for abscess, one for club-foot, one for
 ophthalmia,  one for erysipelas and abscess, and one for inversion
 of womb.  The amount sued  for was $423,640, which would  have
 swept our profession out of existence if these suits had prevailed.
   There were nine  convictions, as follows :  Grover, for amputa-
 tion  of  the  thigh, $2,000; Dam, for fracture  and amputation at
 the wrist, $300; Chase's estate, for fracture  of  wrist, gangrene
 and reamputation of the arm, $1,200;  Albee,  for fracture of the
 arm, gangrene and  amputation, $1,000;  Campbell, for fracture
 of the  thigh,  $600; Prescott, for fracture of the tibia into the
 knee-joint, $400;  Bullard, for dislocation of the elbow, $250;
 Tingley, for fracture of the  thigh, $103; Allen, for fracture of
 the leg, $400.
   There were nine settlements, as follows:  one for vesico-vaginal
 fistula-following labor, $300;  one for fractured  thigh  within cap-
 sule  of joint, $350;  one fractured elbow—-olecranon, $100;  one
 fractured wrist, after one trial and disagreement,  $350; one frac-
 tured neck of scapula, after six trials, $125; one fractured neck of
 femur, after one trial, $25; tAvo fractured legs, $300 each; and
 one dislocation of the hip, $100.
  We will now consider  the expense of the cases which resulted in
 acquittal, disagreement,  or were  never  brought to trial.   Taking
 thirty-four suits as the basis  of our  estimates,  sixty-one surgeons
paid  out  more than $43,000, which,  with.court and other ex-
penses, aggregates more than $100,000 wasted in  speculative liti- 
12
gation.   All but three or four were groundless actions, and would
not have been  brought if our State law did not actually offer a pre-
mium on malpractice suits.
  If we count  the loss of time to surgeons and patients, including
the small sums  filched  from the mouths of hungry children by
the prosecuting attorneys,  we shall  find that  the expenditures
vastly exceeded the receipts for damages, and involved in debt and
taxation the counties, without  a scintilla of  benefit to any one ex-
cepting the lawyers, who fatten upon us without in  any way being
held accountable.   I  think I  am safe in saying.that my trials
alone cost the County of  Penobscot  $2,000 to $3,000, and me
about as much more,  making $5,000 to  $6,000 actually thrown
a\vay.
  The class of cases prosecuted were of the  most aggravating and
dangerous character. Congenital deformities, irremediable accidents
and incurable diseases, from which patients did not expect complete
restoration, but were satisfied with relief from suffering and natural
results,  until tempted  into prosecutions which  would cost them
nothing, but, if successful,  would pay handsomely  from the hard
earnings of the physician, whom the law presumes to  be the pension
bureau of all human ills.
  Fractures of the neck of  the femur rarely,  if ever, result in bony
union;  fractured thighs have an average shortening of a half to an
inch and a half ; fractured  joints are always  restricted in motion ;
amputations of the forearm, arm, leg  and thigh  are followed by a
mortality of twelve to ninety-nine per cent.; resections of joints
with a smaller per cent., and both are liable to muscular retractions,
gangrene, necrosis,  secondary hemorrhages, deformities, secondary
amputations and death; vesico-vaginal fistula may occur in  any
tedious  labor, with or Avithout instruments; osteosarcoma is always
fatal; hip diseases generally, followed  by shortening and disloca-
tions of the thigh, are liable to  extensive lacerations and imperfect
results.
  The largest verdict  for  damages in alleged malpractice was in
the case of Dr. John  Grover, of Bethel, amounting, with court
costs, to $2,500, for "an error of judgment in not  removing more
of the limb,  the moral of  which  is, in sawing off a leg, saw it off 
13
short.   The patient  had been afflicted with necrosis of the thigh
bone for years, which necessitated amputation of  the  limb.   Dr.
Grover successfully amputated it.  Conical stump and an exten-
sion of  the disease called for a second amputation, which did not
prove to be high enough to include all of the diseased bone; and, as
the weakness of  the patient would not admit of  cutting off more
bone at the time, it was left to a subsequent attempt when the patient
had gained sufficient strength.   Finally, Dr. Sweat amputated at
the hip-joint with success.
  Because of the retraction of the flaps and of  the rapid extension
of the diseased bone, Judge Wells, in his review  of the case on
exceptions for a  new trial,  arrived at the illogical conclusion that
nothing short of the entire  removal  of the bone at the hip would
have saved life.
  Retraction of flaps is  not an infrequent result of any amputation.
The most eminent surgeons  fail  sometimes to  determine the limit
of diseased bone, through infiltrated and indurated tissues.   Dr.
Grover's second  amputation prepared the way for Dr. Sweat's
successful one, by the removal of most of the diseased bone, which
had reduced the patient, and by giving tolerance to a hip-joint am-
putation.  The average  mortality at  the place where Dr. Grover
amputated is seventy per cent.,  and at  the hip-joint ninety-nine
per cent.  It would have been foolhardy for  Grover to have in-
curred the additional risk in the weakened condition of the patient,
when there was only one chance in a hundred under the most favor-
able conditions.  Judges are presumed to be infallible ;  and,  while
Judge Wells would not.set aside the verdict,  he remitted $500 of
the verdict on the ground that the jury might have been unduly
influenced.
  I showed, in my club-foot  case,  that the patient  waited nearly
six  years before  bringing suit for damages, and I now  shall show
that the claim is  good  until the  doctor's  estate  is administered
upon, four years longer.  The estate of Dr.  Samuel  Chase, of
Mount  Vernon,  was sued,  and  $2,000 damages  claimed,  by a
hungry  pack of wolves who were  too cowardly to allow  the  doctor
a defense during his life, for the amputation of the forearm, conse-
quent upon the retraction of the flaps of a previous  amputation, at 
14
the wrist, of a mangled hand.  A verdict, including costs, of about
$1,200, was rendered, which pauperized his widow and children.*
  Dr. Wm. Gallupe, of Bangor, was tried six times for fracture
of the neck of the scapula, which cost him over $2,000.   A worth-
less and drunken plaintiff set up the plea of an unreduced disloca-
tion of the shoulder.  There was much evidence on both sides, and
the plaintiff  ultimately  settled  for  less than  $150, leaving his
attorneys to the tender mercies of their own consciences.
  The living patient can pursue  the dead doctor,  and so can the
living husband immolate the living doctor on the carcass of his
dead wife.  Dr. I. Palmer, of North Anson, was sued, and dam-
ages claimed at $2,000,  for the services of  his wife, who  died of
osteosarcoma of the head of the humerus, which the plaintiff charged
was an unreduced dislocation of the humerus.  Although the plain-
tiff Avas one of the nine enumerated, who were able to pay taxable
costs, the defence cost the doctor over $100, -w4ro-proved that the
wife died of incurable cancerous disease.
  The surgeon is liable  for extemporaneous dressings  applied to
injuries received in  transitu.   Dr. J. A. Parsons,  of  Windham,
was sued three times, with damages claimed at $8,000,  for setting
a wrist broken by the accidental overthroAV of a carriage while pass-
ing through  his village.   He dressed the injury temporarily,  and
requested the patient to call in the family physician on  her arrival
in Portland.   The  jury disagreed, standing  ten  for the  doctor.
Before a second trial, the doctor paid $350 rather than be annoyed
with a successful defence, which  would have cost him more money
than he paid to settle the suit, as the plaintiff was worthless.  The
humane act of adjusting a broken bone proved an expensive luxury
to the  doctor, and taught  him that  the  next  time a person got
injured by the wayside he should pass by on the other side.
  The law renders  us  liable to  prosecution for the  treatment of
hereditary disease developed by exposure or accident.  Drs. Emer-
son and Page were sued for morbus  coxarius, or hip disease, in a
boy injured by being thrown off  a sled.   They visited the boy two

  * We have since learned that the plaintiff received §200 damages, which he
spent, and more too, in lawyers' fees and expenses. 
15
or three times; diagnosed the case  and applied splints, which the
father took off the next day.   When  the  boy became of age, he
sued for $1,500 damages.  This action was brought by one of the
present bench of  judges, and, although it  was dropped, it cost the
doctors about $150.
  We are made liable for incurable injuries, as fractures inside of
the capsular ligament of the hip-joint.   Dr.  C. H. Kowell, of
Fairfield, was sued for $10,000 for this fracture, which the prose-
cution claimed was a dislocation, resulting  in shortening and de-
formity.   Verdict of $1,600 rendered,  but  a new trial was granted,
and the doctor settled for $25.   Cost him  $250 to defend.  Dr.
G. P. Jeffards was sued  for the same fracture, $6,000 damages
being claimed.   There was not any shortening, crepitation or ever
sion at the time of the injury.  Drs. Cooper and Brodie were
once puzzled by a similar case.   It resulted in less than two  inches/^
shortening! and a very useful limb.  Case was referred, and resulted
in a verdict against the doctor of $350.   He visited the case only
three or four times.
  The doctor is liable to prosecution for injuries from which he is
dismissed before he has determined their nature. Dr. J. M. Small,
of Lewiston, was sued for $5,000  damages for a compound fracture
of the ankle-joint.  He was dismissed  on  the second visit,  before
he had determined whether he could save the leg or not.  Doctor
prevailed.  Cost the plaintiff $2,400.  Plaintiff got a very good
leg.
  The doctor is liable to prosecution in case  of injury from  which
he is dismissed before the  result can  be  determined or existing
defects corrected.  Dr. Jos. Springal was sued for $3,000 in case
of fracture and contusion of the leg near  the ankle. Discharged
on the third week.  Shortening followed.   Jury disagreed and case
dropped.  Cost the doctor $300.
  In a multitude of counsel there is safety, does not apply to our
profession, because the medical  counsel is liable to be included
with the attending physician in malpractice suits.   If the attend-
ing physician is poor and the counsel rich, the latter may  have to
contend single handed, as law  is very discriminating in its  vic-
tims. 
16
  Dr. J. A. Richards, of Farmington, has a suit pending,  with •
$10,000 damages  alleged,  for fracture and contusion of  the leg,
which he saw but once in consultation.   Advised placing it upon a
splint and waiting until the swelling was reduced.  Dr. Anderson,
of Gray, was sued for $10,000 for two consultation visits with Dr.
Stevens in a case  of oblique fracture of the leg.   Case non-suited.
Proved  that the bandages were removed by plaintiff.  Cost Dr. A.
$500 to defend.  Attending physicians in both cases poor, although
Drs. Anderson and Stevens were  both sued.  Dr.  S.  Whit-
more, of Gardiner, was sued because a  patient of his died  from
the profuse hemorrhage of a severed artery of the foot.
  We are prosecuted for unavoidable accidents happening in an
attempt to obviate  the effects of congenital deformities.  Dr. J. B.
Pollard, of Orrington,  was  subjected to a reference  suit for a
vesico-vaginal fistula caused by an instrumental delivery of a woman
with deformed pelvis, whom he had delivered with instruments three
times before.  Dr.  Thomas Brown, of Paris, was sued for $6,000
in a case of vesico-vaginal fistula from malposition, protracted loss
of water, prolonged pressure and instrumental delivery.   Settled it
for $300 and costs.
  It cost Dr. N. P. Monroe, of Belfast, $1,000 to defend a case of
purulent ophthalmia, with loss of sight, from getting lime into the
eyes.  Dr. Patten, of Monson, was sued for the  treatment  of a
case of  erysipelas.   Might as  well  hold  the  mariner responsible
for the disasters of the Avinds and waves.   Dr.  J.  M. Jonah, of
Eastport, was sued for dislocation of the hip, with fracture  of the
acetabulum and laceration, which he reduced.  The bandages were
removed, and  he  was not permitted  to see it again.   $5,000
claimed.  Settled it for $100  and costs.  Patient worthless.  Dr.
E. K. Prescott was sued for fracture  of  the tibia into the knee-
joint.   Verdict, $400 and costs.  Saw case but  once, and thought
it was not fractured.   Could hardly expect a perfect result  in  such
a case.   Dr. Thos. Frye,  of  Rockland, was  twice  sued for  frac-
ture of  the  thigh,  and twice  threatened for fracture of the leg.
Three of the patients  were worthless.   He prevailed  every time
but it cost  him $4,000.  It injured his  practice and broke down
his health.   Damages as high as $20,000 were claimed. 
17
  The most  vexatious  suits are for warranty, because the  very
nature of our business precludes any such idea; and it is accusing
us of idiocy or rascality to charge us with any such agreement.   Dr.
N. A. Hersom, of Portland, was sued for fracture  of  the  leg, in-
volving the ankle, followed by rheumatic arthritis.   Damages laid
at $5,000.  The doctor prevailed, and a new trial  was  denied.
He was sued again for warranting a cure.  Although this plaintiff
was  one  of the nine who were able to pay taxable costs, it cost the
doctor $800 to prove the impossibility of a perfect result in  such
cases, and the absurdity of a suit for the warranty of an impossible
thing.
  My  reports  of  the threatened cases were very  imperfect, but I
have been able to classify twenty-seven cases, as follows : Fracture
of the thigh,  oblique, one;  fracture of the leg, six ; fracture of the
ankle, one; compound fracture of the leg and  ankle, one ; fracture of
the arm, two; fracture of the forearm, two;  fracture of the elbow,
three; fracture of the wrist, one; dislocation  of the elbow, reduced,
one; dislocation of the  elbow  and wrist and fracture of the ulna,
one, result good; Hays' amputation of a gangrenous foot, one; am-
putation of two fingers, slight necrosis following, one;  explosion of
powder, causing the loss of both eyes, one; injured leg, one; still-born
child, one ; craniotomy, one ;  medicine, producing miscarriage, one ;
causing hysteria, one ; injury to health, one ; sickness  of daughter,
one.  Not one was  able to pay  the taxable  costs of a lawsuit.
Four of  these  surgeons were frightened into  paying, because the
costs of defense would be burdensome and the notoriety unenviable.
One surgeon paid $100 in case of shortening of  a fractured leg
between  one-fourth  and one-half inches, which was less than the
average;  another  surgeon paid $50 in a similar case; one  paid
$100 for a fractured arm, and another  paid  $250  for a fractured
forearm.   Not one dared to enforce his bill for services.  If we are
to pay  for all still-born children, the next  class of suits  will be
warranty in conception.
  There  is neither safety nor  money in the practice of medicine,
under  the existing  law.  Either we must  give  up  surgery en-
tirely, or select, among reliable patients, cases which promise favor-
able results.   The poor are a  prolific source of malpractice suits,
             2 
18
and, so long as attorneys go unpunished for their black-mail attacks
upon us,  we must leave the afflicted poor as barbaric tribes do,
to perish by  the wayside, or for the towns  and  cities  to take
care of.
  A law should  be enacted which will protect us in the legitimate
practice of  our  profession and secure skillful treatment to  our
patients.  The present law enables the poor patient to throw the
entire responsibility upon the surgeon, and  encourages negligence
and disregard of  instructions, in  hopes that some slight deviation
from perfect results will  establish a claim against the surgeon for
damages,  the  conviction prevailing,  perhaps  most  markedly in
fractures  and  dislocations, that  the  careful and  skillful surgeon
possesses  the power to correct all deformities and cure all diseases.
  The burden of proof virtually rests upon the surgeon.  The laws
of disease are ignored, and imperfect results are prima facie evi-
dence of guilt.   Constitutional infirmities and congenital deform-
ities are no exception.  Divine law, which says we are born heirs
to disease, and nature's law, Avhich cannot perfectly restore solution
of continuity and loss  of substance, are forgotten.  No mortal power
can resist the contraction of a scar, any more than it can control the
rending and lifting power of frost.  Imperfect stumps, shortened
limbs, deformed hands  and  feet, contracted  tendons and  rigid
cicatrices, are in accordance with pathological laws, and as unalter-
able as astronomical,  chemical and mathematical laws.
  It  costs the  poor  man comparatively  nothing,  under existing
laws, to prove a claim which has  public sympathy and prejudice in
its favor,  and  which  the  surgeon has to combat by an expensive
elucidation of the general principles of the medical science, as we
would the problems of Euclid.
  In my  club-foot trial, the jury were shown a boy born with de-
formed feet, which did not show any marks  of any  surgical  opera-
tion, but  did show six years of parental neglect, and yet I had to
send four hundred miles for my assistant, Dr. Jewell, to prove a
skillful operation, to  Boston to show the universal use of Scarpa's
shoe in such cases, and for experts in and out of the State to prove
that I did not injure what did not show  the marks of  injury, that
treatment often  failed, and  that it  often required  years of  treat- 
19
ment by the  parents, under the direction of  a surgeon, to succeed.
Should the law give a poor lawyer or a  poor patient the power to
put me to more expense than  any surgeon in this city can save in
two years' practice, without redress or the pledge of a single dollar
as a guaranty of  good faith  in parading me before the  courts to
prove a negative ?  Are  not our patients, our profession and our
county the sufferers ?
   In my second trial, Bowley, minus a leg, and a dependent wife
with an infant at the breast, were flaunting witnesses of a great
calamity.   I had opened an abscess, he had lost a leg; the loss of
a  leg was a  great misfortune—ergo, bad surgery was the cause of
this misfortune, which I must disprove by two long, expensive and
tedious trials.
   This case  demonstrates the injustice of our statutes,  which com-
pelled me to prove, by expert testimony, that the physiological law
of the  gaping of  incised wounds disproved the perjured loss of
flesh, that the diseased joint existed prior to the  alleged loss of
flesh, and that the loss of  a piece of  flesh, as described, would not
have injured a well joint.   The plaintiff would not have put me to
the expense  of proving a reductio ad absurdum if the law had held
him accountable for costs.
   Skill in medicine is  just as sensitive as capital in trade, and is
bound  to  disappear under  extra-hazardous  risks.   Barber phle-
botomy, incantations, and the red hot searing iron, will inevitably
 displace surgery, or it will be confined to the rich who cannot afford
 to prosecute the surgeon.  The  present law  presents the singular
 paradox that those who  can afford to pay for skilled  labor cannot
 afford to sue, and those who can afford to sue cannot afford to pay
 for  such labor.
   The only  remedy is a law which will compel the plaintiff to pay
 taxable costs in case of defeat.  If the poor plaintiff proves his
 case, he gets paid for the cost of his suit, for the damages which he
 received, and bankrupts  the surgeon;  he exchanges place with
 the surgeon.  The plaintiff carries  around a game leg, with the
 surgeon's money to  support  it,  and the surgeon carries around  a
 game reputation, with  nothing  to support  it.   Such a law will 
20
teach the  patient caution in  selecting a surgeon, care in following
direction,  and hesitation in starting frivolous suits.
  As it is now, the unfortunate patient tries  to  retrieve his bad
luck by levying upon the hard-working surgeon, without risking or
staking anything for the chance of testing what may prove to be no
case at all.  He sues upon the principle of flipping the  coppers,
heads I win, tails you lose.  The suit depletes the surgeon's pocket
and ruins  his reputation.  To pay is ruinous, to defend is  ruinous,
and to live in constant dread is ruinous.  It blunts the moral senses,
distracts the mind, destroys the courage and kills out laudable ambi-
tion, by lessening the value of reputation and the security of prop-
erty,  besides keeping the surgeon in constant jeopardy of being
robbed by every unprincipled patient or attorney who covets his
fame or property.  We  should be put on an equal footing,  at least.
with our patients.
  The objection to a malpractice law is, that it is special  or class
legislation.  Surgery is indispensable to the welfare and existence
of the human race.   By saving life and utilizing labor, it is a pro-
ductive industry, and needs the protection of a productive industry.
Practically, it receives neither the protection, support nor tolerance
of law.  It is a hazardous industry, full of risk and liability, and,
as such, deserves the special protection of the law as much as any
hazardous pursuit.
  Towns are protected by special laws against the dangerous claims
for damages on the highways.  Previous notice of the defect and
limited time to make complaint are required.  No kind of  a notice
protects us, and the  patient has  six  years  after the accident and
four after the  death of the  surgeon to prosecute for damages.
Formerly, sheep were protected by a bounty on wolves and bears,
until the latter were exterminated, and now the State proposes to
exterminate the surgeons by a similar process.
  We have game laws,  fish laws, railroad laws, ice laws,  nuisance
laws, manufacturing laws and insurance laws, and why not surgical
laws ?  Is the  porgie industry more  valuable than  the  surgical,
and protecting  ice fields from kerosene  more important than pro-
tecting surgery in its mission of mercy ?  Ohio, New York, Illinois,
&c, have  special laws regulating the practice of medicine.   In New 
21
York, every physician must have a diploma from one of the ac-
credited State institutions and join the County Medical Society, or
be prosecuted.  In Illinois, a physician cannot practice without a
diploma, and  in New Hampshire itinerant  physicians  must  be
examined by a medical board.  Michigan, Massachusetts,  &c, have
a general law requiring a bond for costs.   Ohio gives special pro-
tection.  In Maine, any one can practice medicine and any one can
sue the doctor without restrictions.
   The demagogue claims that such a law  would be a restriction
upon the rights of the people.  We have already shown that mal-
practice  suits are without profit to the patient and oppressive to the
surgeon, and that the right is merely nominal, because it don't pay.
The vigorous enforcement of such a right would cut off the occasion
for it  and virtually abolish it, because the surgeon would abandon
practice among  the poor  if  he was  held to  an unnatural  and
ruinous  accountability.   The refusal of  pretended friends to sign
the plaintiff's bond would  show hypocrisy, insincerity and want of
confidence in a suit in which the bondsmen could risk nothing if
the suit was well founded.  The plaintiff should not be permitted to
inflict costs upon the surgeon for defending a prosecution presumably
wrong.  His claim is not for a debt contracted by the surgeon, but for
an infliction of the Almighty or of the patient's imprudence, for the
relief of which he is largely dependent upon the powers of nature.
The surgeon does not contract to furnish anything  more than a
helping hand.
   The purpose of law is to  prevent encroachment upon  the indi-
vidual rights of person and property and assert the presumption of
innocence.  It is not to protect the poor plaintiff,  in frivolous suits
for fancied grievances, against the equally poor defendant, and com-
pel the innocent defendant, rich  or poor, to pay the expenses of a
prosecution unjustly forced upon him.  The present  law  virtually
forces the doctor to  pay for his own defence or be defaulted.  If
his means  are limited he cannot secure able  defence, by  which he
becomes deprived of the presumption of innocence, as he  will have
to buy off cheaply what he cannot afford to defend, and sacrifice
the right to practice  his  profession with safety.  It is a  wrong to
the doctor, the patient and the community. 
22
   The poor are induced to abandon legitimate industries for litiga-
 tion, in which failure costs nothing and success draws a prize.  The
 law offers a premium  on rascality which levies black-mail on the
 physician, who prefers to pay rather than contend at unequal odds
 with perjury.   Without accountability  for false swearing, they
 have a decided  advantage over the physician.   In my Bowley case,
 the Judge charged that either Dr. Weston and myself committed
 perjury, or Finnegan,  through  ignorance,  might be  mistaken.
 It cost me more than  $1,000 to  prove  that  this mistake was  a
 deliberate falsehood.  Is it to be wondered at  that surgeons pay to
 be let alone, or that our courts swarm  with unprincipled attorneys
 who seduce the poor into the delusion of litigation for the purpose of
 robbery, demoralize the people and burden our counties with debt ?
 The surgeon becomes sour and disgusted, and, in the flush of man-
 hood, abandons the practice, or does timidly what requires zeal and
 courage to do  well.  He  sees the poor-house and jail constantly
 staring him in  the face.
  I have taken pains to collect and  classify  the  opinions of the
 prominent medical men of this State upon the proper law, not only
 to protect the interests of the surgeon  but also of the patient.   I
 have received 115 reports ; eighty-two  are decidedly in favor of  a
 bond for taxable costs; four, a  bond for costs and remuneration to
 the surgeon for trouble, &c.; eleven had  not matured an opinion,
 and sixteen were satisfied with the present law,  guarded by the
 following qualifications:  one favored  a  better education of the
 masses in medicine; three, written exemptions from prosecution in
 doubtful cases; two, the jury one-half or  two-thirds medical  men ;
 one, preliminary hearing; one, strict observance of medical ethics;
 three, higher standard of medical  education, and a diploma, as an
 indispensable requisite; one, an expert law; one, abandon fractures
 and dislocations; one, common-sense jury; two, counsel and wit-
 nesses in all surgical cases;  one,  cover  risks  of  prosecutions by
 adequate charges; and one, a dissection bill.
  These reports show that seventy-five per cent, of the physicians
 of this State are in favor of a bond for taxable  costs, thirteen per
 cent,  advocate more protective measures  still, while only nine per
cent, are satisfied with the present law.  With eighty-eight per cent. 
23
of the doctors opposed to the existing law, our law-makers may rest
assured that it must be modified, or the poor will not get any sur-
gical aid whatever, and the rich a poor quality at a very high price.
   The thirteen per cent, who  advocate the  present law with re-
strictions, suggest requirements more impracticable than the bond
for costs.   For instance, a  better  education of the masses  in
medicine, aside from other objections, would incur the  risk of a
little knowledge is a dangerous thing.  A written exemption from
prosecution in doubtful cases would be impracticable  in cases  of
extreme peril and suffering.  A jury composed of one-half to two-
thirds medical men would infringe upon an accepted principle that
every citizen is a peer.  A closer observance  of medical ethics is a
parody upon the proverbial jealousy of our profession.  The reports
of suits and threats show, that  ignorant and jealous doctors are in-
variably mixed up  with designing and  unscrupulous lawyers  in
these malpractice suits, making it all the more necessary that some
law should be enacted to protect the good and meritorious physi-
cians and punish the wicked lawyers.  A higher standard  of
education and a diploma is a burlesque upon the present statutes,
which give budding genius the unrestricted right to practice med-
icine without any study.  A common-sense jury is  what the law
presumes;   Medical counsel in difficult cases is no protection what-
ever, as the counsel is as liable to be  sued  as  the attendant, and
more so  if the richer.  Higher charges,  to  cover the risks, is
another way of  refusing calls to the  poor.   The abandonment  of
fractures  and dislocations is simply  to give  up surgery  in the
country.  A dissection  bill has failed.
   An expert law would be an  excellent thing.  It would  exclude
from court the narrow-minded and ignorant men of our profession,
and confine medical expert  testimony to those whose  pride  and
special qualifications would  elevate them above small  local jeal-
ousies and  the  prejudices of  ignorance.  The lawyer would  be
unable to use them or turn their  estimony to bad account, and the
pay which they would  be entitled to would secure good  talent,
capable of enlightening a jury.  Under  the  present law, medical
experts are permitted to testify upon subjects which, technically or
practically, they never have had the chance or inclination to study,
basing their qualifications upon an  imperfect knowledge of a few 
24
general principles of an extensive science.  In  my club-foot suit,
the most pronounced expert witness against me  confessed that he/
never operated on a club-foot,  never fitted a  shoe, and  was unac-
quainted with the leading authorities on orthopedic surgery.
  We failed to  get a bill through the last Legislature  to  protect
the science and art of surgery, mainly through the instrumentality
of a low grade of lawyers, who kept out of sight their selfish and
material  interests  in defeating it.   My only reply  is:  let these
humane and  philanthropic legislators contribute a moiety of their
time and money to the suffering poor; let them run for the doctor
at night, requite him for his thankless service, and, as an evidence
of their sincerity and faith, become  surety for  the malpractice suits
which they delight to encourage; let  them work without retainers,
relinquish  their preferred claims on unsettled  accounts and in-
solvent estates;  let them step forward and cast their  bread upon
the waters, take the same risk that we do of  prosecution for their
mistakes, and the same  chances of getting their pay,  and their
hypocritical  cant will vanish into thin air.   Even modify the law
so as to compel pettifoggers to give bonds for taxable costs in all
actions which they encourage where the  plaintiff  cannot, or is un-
willing to, and then,  when  they throw  their drag-net, the people
will be prepared to meet the mischief which these natural enemies
of prosperity and professional excellence are capable of doing.
   I am satisfied that the people are with us.  They realize the im-
portance of  the medical  profession and the  value of  skilled and
intelligent labor;  they realize that the  community need no better
guaranty against  malpractice than the educational record and the
unrequited services of the self-sacrificing and  devoted family physi-
cian, whose interests run pari passu  with the patient's, and whose
greatest reward is a consciousness  of having met  the approbation
of  his patrons and doing his work well; they realize that all  laws
which put the  physician at the mercy  of  the pettifogger and the
ungrateful patient  simply  discourage  the doctor in  well doing,
alienate him from his patrons, and deny them, in hours of distress
and affliction, good and willing treatment, which law cannot furnish
and  cannot  force the doctor  to furnish  where it is  not  for his
interest to furnish it. 
25
                            DISCUSSION.

  Dr. Sangeb offered the following resolutions :
  Resolved, That, with the  existing State laws on civil malpractice, it is un-
safe to practice surgery among the poor.
  Resolved, That a committee of  five be chosen by this Association to pre-
sent the subject to the next Legislature and ask for proper legislation.

  Dr. Gordon said he hoped something would  be done in reference to this
matter.  If some  relief was not obtained, the profession would be forced to
take the  position indicated in the  resolution.   The appalling statistics pre-
sented were almost enough to lead the profession to abandon the practice of
surgery.   Special legislation was not  asked for.  He claimed that it would
be a benefit to the whole community.  The statistics showed that, even when
the plaintiff  secured a verdict, he realized almost nothing from it.   It went
to pay the costs of court and lawyers.  It was not special legislation to claim
that the plaintiff should be responsible for the costs in case of defeat.  If
persons knew that they were to be thus responsible, they would hesitate to
institute suits that had no real foundation.

   Dr. Sangeb said he wanted to  impress upon the  profession that the idea
that any man could escape suit by care was a false one, as both the medical
attendant and the counsel employed for the purpose of protection are often
made defendants in the same suit.  The statistics presented showed that any
man might be prosecuted;  125 out of 600 of the physicians of this State had
been prosecuted within the  last generation.  It was safe to conclude that
there was not a physician of large practice in Maine who had not been obliged
to remit his  bill or make some  other concession to escape suit.  The present
system held  out  an inducement to  fraud and extortion.  There were plenty
of lawyers who would fight a suit on shares, and, notwithstanding it was con-
trary  to law, they always managed to escape  upon  the  principle  that dog
 won't eat dog.  The poor were induced to prosecute for what they could get.
 If they did not get a verdict, it cost them nothing.   All that was asked was
 that they should give bonds for the taxable cost in case of defeat.   If a man
had a good case, there would be  no  trouble in getting bondsmen, if he were
 poor.
   The subject was further discussed by  Drs. Osgood, Jewett and French,

   The resolutions were then adopted.
3