Medical Jurisprudence, Forensic medicine and Toxicology. Vol. 1 by R. A. Witthaus et al.
668. Wisconsin, Reynolds _v._ Graves, 3 Wis., 416. Vermont, Briggs _v._
1787 words | Chapter 270
Taylor, 28 Vt., 180.
[165] See Shear. & Redf. on Negligence, 440; Elwell on Malpractice, 55;
Carpenter _v._ Blake, _supra_; Rex _v._ Long, 4 C. & P., 422; Slater
_v._ Baker, 2 Willes (Eng.), 259; Ordronaux on Jurisp. of Med., pp. 29
_et pass._; 20 Am. Law Rev., 82.
[166] On the points here suggested _cf._ Edington _v._ Life Ins. Co.,
67 N. Y., 185, same case, 77 N. Y., 564; Grattan _v._ Life Ins. Co.,
80 N. Y., 281; Dilleber _v._ Life Ins. Co., 87 N. Y., 79; Westover
_v._ Life Ins. Co., 99 N. Y., 56; People _v._ Murphy, 23 N. Y. Weekly
Digest, 42; same case, 101 N. Y., 126; Hunn _v._ Hunn, 1 T. & C., 499;
Pierson _v._ The People, 79 N. Y., 432-435; People _v._ Carlyle Harris,
136 N. Y., 424.
[167] Patten _v._ Wiggin, 51 Me., 594.
[168] See on this question also Bigelow’s “Leading Cases,” on Torts,
295-303.
[169] Stevenson _v._ The New York, etc., Railroad Co., 2 Duer, 341;
same case, 1 Am. & Eng. R. R. Cases, 343; Cincinnati, etc., R. R. Co.
_v._ Davis, 43 Am. & Eng. R. R. Cases, 459.
[170] Bronson _v._ Hoffman, 7 Hun, 674; Williams _v._ Glenny, 16 N. Y.,
389, and see Ordronaux on “Juris. of Med.,” _supra_, p. 46; but see
also Danzinger _v._ Hoyt, 46 Hun, 270.
[171] And it has been held that a decedent’s estate is liable for
fees of expert, who by direction of probate court examined widow and
testified as to her pregnancy. This notice was put upon the ground
that his testimony was necessary for the information of the court in
a matter before it affecting the disposition of the estate. Rollwager
_v._ Powell, 8 Hun, 10.
[172] Crain _v._ Baudouin, _supra_; Shelton _v._ Johnson, 40 Iowa, 84;
Garry _v._ Stadlen, 67 Wis., 512.
[173] And a physician may recover the value of services rendered by
his students. People _v._ Monroe, 4 Wend. (N. Y.), 200; Jay Co. _v._
Brewington, 74 Ind., 7. And the physician in attendance is not liable
to the physician thus called. Guerard _v._ Jenkins, 1 Strobh., 171.
[174] Deway _v._ Roberts, 46 Michigan, 160.
[175] MacPherson _v._ Chedell, 24 Wend., 15; Adams _v._ Stevens, 26
Wend., 451; Story on Bailments, § 37.
[176] Duly licensed physicians are presumed to be experts as to the
value of other physicians’ services. Beekman _v._ Platner, 15 Barb.,
550.
[177] Bellinger _v._ Craigue, 31 Barb., 534; Gates _v._ Preston, 41 N.
Y., 113; Blair _v._ Bartlett, 75 N. Y., 15. The general rule is that
in an action arising on contract damages arising for a tort cannot be
set up as a counter-claim. It follows from this that in an action of a
physician for services, damages for malpractice could not be recouped
or counter-claimed ordinarily. The way in which that rule is avoided,
and the safer method, is for the defendant to plead that it was part
of the contract of the physician (which it undoubtedly is), to perform
his services in a faithful and skilful manner, and that he committed a
breach of it, thus charging the damages which flowed from his acts as
a breach of contract, not as a cause of action in tort for malpractice
or negligence. If that is done the counter-claim arising in malpractice
can probably be pleaded in an action for services, and possibly
a counter-claim in excess of the amount claimed by the physician
recovered as an affirmative judgment against him. On the other hand, in
an action for malpractice brought by the patient against a physician,
which is generally in form an action for a tortious act, or neglect,
the physician cannot plead the performance of services and the
non-payment of his bill as a counter-claim or recoupment, because that
arises on a contract. If there is any exception to this rule it will be
found to grow out of the language of sections 549 and 550 of the Code
of Civil Procedure of the State of New York, and of similar enactments
in other States, which permit counter-claims arising out of the same
subject-matter as the cause of action, to be pleaded in that action. In
New York State, however, any effect of that kind is negatived by the
general provision that the actions must not only arise out of the same
subject-matter but be of the same kind and class.
[178] The degree of care and skill required to be shown to entitle
the physician or surgeon to recover compensation for his services has
already been stated to be simply such care and skill as are possessed
by the majority of other professional men of the same school of
practice at the time, or what is known as ordinary care and skill.
[179] Foster _v._ Coleman, 1 E. D. Smith, 85; Larue _v._ Rowland, 7
Barb., 107; Clarke _v._ Smith, 46 Barb., 30; Knight _v._ Cunningham, 6
Hun, 100; Bay _v._ Cook, 22 N. J. L., 343.
[180] The writer is indebted for many valuable suggestions concerning
this subject to Ansley Wilcox, Esq., of the Buffalo, N. Y., Bar, and
his admirable lectures on Medical Jurisprudence before the Medical
Department of the University of Buffalo.
[181] The conservatism of lawyers is proverbial. It is hard to convince
them that forms that have been long in use and have been found to serve
a useful purpose in the past, are not applicable to new conditions as
they arise; for instance, that the methods of procuring the attendance
and of examining ordinary witnesses do not fit the necessities of
expert testimony. But the question as to the defects of the system as
it now exists has been brought to public attention in the journals of
the day, in papers read before medical societies and bar associations,
and in arguments in legislative bodies, and it is hoped and believed
that ere long a reform, something of the character indicated, may be
brought about in this very important matter.
[182] It has been a matter of great discussion whether an expert is
compellable to testify on matters of opinion, without compensation,
the weight of the decisions being that he is not bound to do so. 1
Greenleaf on Evidence, § 310; 1 Warwick Law Assizes, 158; Parkinson
_v._ Atkinson, 31 L. J. (n. s.) C. P., 199; Webb _v._ Page, 1 E. &
K., 25; People _v._ Montgomery, 13 Abb. Pr., n. s., 207; _Ex parte_
Roelker, 1 Sprague, 276; Buchanan _v._ The State, 59 Ind., 1; Dills
_v._ The State, Id., 15; U. S. _v._ Howe, 12 Cent. L. J., 193;
_contra_, 6 Central Law Journal, 11; _Ex parte_ Dement, 53 Ala., 389;
Sumner _v._ The State, 5 Tex., 21; 6 Southern Law Review, 706.; and
see generally Wharton on Evidence, sec. 380, note 66, sec. 456; Lawson
on Expert and Opinion Evidence; Rogers on Expert Testimony. As to the
compensation being paid before the testimony is given, see Wharton on
Evidence, secs. 456, 380; People _v._ Montgomery, 13 Abb. Pr., n. s.,
207.
It is proper, although not necessary, that upon cross-examination
the witness should be asked as to his fee; that is, as to whether he
expects to receive any additional fee besides that of an ordinary
witness, and it has been held that where the expert witness testified
that he was to receive a fee which was contingent upon the case, he was
disqualified from testifying. Pollock _v._ Gregory, 9 Bosworth, N. Y.
Superior Ct. Rep., 121-124.
[183] This latter case holds that a second expert may be called to
testify after the first has been thus challenged, to support his
capacity and skill. The contrary rule, however, obtains in Alabama
(Tellis _v._ Kidd., 12 Ala., 643; Pugh _v._ State, 44 Ala., 33).
Neither can an expert be contradicted by books of science; that is, by
books of science introduced in evidence as such (Wharton on Evidence,
666, 721). This is so because the rule is well established that books,
although of great authority in themselves, may not, even if proven
to be such, be placed in evidence. They may, however, be read to
the witness, and so be placed upon the record, passage by passage,
and the witness may be asked whether he agrees with that doctrine,
not, however, as part of his direct examination, but as part of his
cross-examination.
A medical expert is sometimes confronted upon the witness-stand by long
quotations from well known medical text-books, and he is asked whether
the doctrines, opinions, etc., there laid down are sound. Especially is
this done when such doctrines and opinions are in apparent discord with
his evidence as he gives it. In such cases as this, however honest,
however intelligent and non-partisan the witness may be (except as
any opinion on one side or the other of a disputed question may be
considered partisan), he is placed in a very difficult position. If
the citations and questions are from well-known authors, and he is
a modest man, as most men of learning are, it will be difficult for
him to deny that such authorities as these have great weight, even
more weight than his experience, skill, and knowledge entitle him to
claim. On the other hand, if he takes the bold course and sticks to his
opinion, he is cried down the winds by counsel in summing him up, as a
man of gall, boldness, audacity and egotism. His course is difficult
whichever way he turns, but modesty as well as honesty is usually the
best policy. Perhaps the best thing for such a witness to do under
such circumstances is to do as once did the great mental alienist Dr.
John P. Gray, when, having given an opinion on a question of insanity,
he was cross-examined as to the different theories from time to time
prevalent as to what insanity was, and having stated what theories
were then the accepted ones, he was confronted by counsel on his
cross-examination with the question: “What do you think of Dr. John P.
Gray as an authority on that question?” and then with his own writings,
quite extensive, of many years before, in which he had advocated
theories apparently different from those which he had professed
upon the witness-stand. Placed in this position, the distinguished
gentleman simply replied: “It is true I cherished those theories at
that time, but I lived to learn better,” thus substantially disarming
any criticism that could be made of him in his capacity as a witness in
that case.
[184] For general rules for the conduct of expert witnesses see _infra_.
[185] The principal classes of such subjects may, however, be briefly
stated as follows:
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