Annual Oration 1892
Frank Winthrop Draper, M.D.
In the discharge of the distinguished duty which places me in your presence at this time, I ask your indulgent attention to a study of the relations which, as physicians, we hold toward the Commonwealth.
Our obligations to the State derive added significance from the circumstances attending the incorporation of the Society of which we are the Fellows. It was at the time when the national government was in revolutionary instability and our own Commonwealth was in its infancy, that a few medical men, chiefly resident in Boston, saw the desirability of an association that should bring qualified practitioners into closer relations for their own benefit and for the good of the public. Their purpose was to make a “body politic and corporate” which should establish “a just discrimination” between educated practitioners and ignorant pretenders in medicine, a purpose that had in view the welfare of the community in its broadest sense. They therefore asked the General Court to give permanent expression to this object by granting the name of the Commonwealth to the new guild, and by bestowing corporate privileges that should correspond therewith. That request was granted and we are the Massachusetts Medical Society, broader than medical sectarianism, abhorring exclusiveness, loyal ever to the State’s highest interests, proud of the charter, which, bearing the historic names of John Hancock and Sam Adams in attestation of its validity, the State bestowed upon us in 1781, the first document of the kind granted under the constitution. The Commonwealth thus became our alma mater. Besides giving her name to our newly created body, she endowed us with valuable rights; and she bestowed other encouraging assistance and recognition. If she did not actually rock the infant “body corporate” in the “cradle of liberty,” she added a flavor of legality and dignity to our first proceedings by loaning the “county court-house in Boston,” as the place of meeting for Dr. Holyoke and his thirty fellow-founders, and placed us under new obligations of gratitude later by permitting meetings of the Society in the State-house and in other public buildings belonging to the State.
Such was the beneficent and disinterested aim of our fathers in founding this association; such the gracious and helpful attitude of the Commonwealth in aiding that foundation. It is becoming in us, the heirs and beneficiaries of the endowment thus established, to ask how the aim of its creators has been fulfilled during all the years of the century now drawing to its close; to what degree the prosperity of the State has been advanced by the Fellows of this organization; and what are our present duties to the public in the discharge of the trust which our organic charter imposes. The little company of physicians which assembled in the county court-room near Scollay Square, in November, 1781, has by normal growth become a multitude so large that it requires am entire block of buildings to supply the needs of its anniversary meetings, outgrowing all less adequate accommodations. Keeping pace with the progress which has made our Commonwealth a leader in all things that promote the highest civilization, our organization holds, and has long held the highest rank as the representative of the best type of scientific and practical medicine.
Massachusetts, in founding its constitutional government in 1780, established three coordinate, yet independent, departments; and ordained that the legislative, the executive and the judicial functions should be forever distinct. This three-fold distribution of organic powers and duties in the State invites consideration of our relations, as physicians, to each of the fundamental departments, and leads us to ask what has been accomplished, and what remains to be done in directions wherein the Commonwealth and the medical profession are mutually concerned.
I. To what extent, then, in the first place, has the State, through its General Court, as its legislative department, enacted laws that are of particular interest to the members of our profession as a class? An inspection of the public statutes will be rewarded with the discovery of the fact that when we compare the legal privileges and obligations which to day apply to Massachusetts physicians, the obligations far exceed the privileges. The State exacts more than it gives. When we have mentioned exemption from jury and militia duty, some preferment of the claims of physicians against insolvent estates, the rarely used permission to dissect dead bodies, and the happily infrequent opportunity of attending a judicial hanging, we have included all the essential benefits which the Commonwealth bestows on medical practitioners. It is not a long list of special indulgences, or a very valuable one.
The critical student of the public statutes who searches for any evidence therein that the Commonwealth through its legislature has ever set up any standard of education or skill on the part of medical men, will find little in existing laws to reward him for his inquiry. There is no attempt in the statutes to classify or to define “physicians,” to declare by legislative act who may practise medicine and who shall not. Massachusetts has ever been hospitable to all sorts and conditions of men, and she welcomes with a reckless graciousness any who choose to pass her open door. She knows no sects, no schools, no differences among physicians; all doctors are alike to her, and, according to the assembled wisdom of her law-givers, they can safely be left to take care of themselves according to the principles of the common law.
This attitude of Massachusetts, allowing unrestricted freedom in the practice of physic, has exposed the State to much criticism. It has given rise to the impression that her present policy of non-interference with medicine has always prevailed, and that she is now simply carrying forward a traditional rule of conduct in obstinate indifference to the lessons of experience learned in other and younger communities. This inference is incorrect. Long before any of the modern devices for statutory regulation of medical practice were announced, long before many of the Commonwealths which are now taunting us bad been staked out in the primeval wildernesses of the West and Northwest, Massachusetts saw the need of controlling the pretensions and active arrogance of charlatanry within her borders and the clear duty of bestowing her recognition upon reliable men and women.
We need not look beyond the words of our own charter of incorporation to find full evidence that long ago the State discriminated sharply between those who merited confidence and those who deserved to be restrained. The whole document, from its preamble to its conclusion, is filled with the flavor of this wholesome feeling. But that which applies itself chiefly to our purpose in this regard is the remarkable sentence which, like a strong back-bone, is built solidly into the very middle of the charter:
“And whereas it is clearly of importance, that a just discrimination should be made between such as are duly educated and properly qualified for the duties of their profession, and those who may ignorantly and wickedly administer Medicine, whereby the health and lives of many valuable individuals may be endangered, or perhaps lost to the community:
“Be it therefore enacted by the authority aforesaid, That the president and fellows of said society, or other such of their officers or fellows as they shall appoint, shall have full power and authority to examine all candidates for the practice of physic and surgery, who shall offer themselves for examination, respecting their skill in their profession.”
This placed a premium on proper qualifications and proved fitness. It established a standard and made our society the keeper of that standard, and if with the recently accepted Bill of Rights in popular remembrance, it did not forbid the practice of medicine by those who neglected or failed to become licentiates under this charter, it nevertheless gave the community, what it had not had before, a chance to have its medical practitioners classified according to their worth and learning. It was a most responsible function to place upon this young organization, but the trust was adequately fulfilled then and is to-day being fulfilled; and the men and women who possess the letters testimonial of the censors of the Massachusetts Medical Society attesting their demonstrated and approved knowledge and fitness need no further passport to the full confidence of the people and no better certificate to distinguish them from those who “ignorantly and wickedly administer medicine.”
But broad as our charter was, in its permissive provisions, it was not in the least useful as prohibitive legislation. We might admit all duly qualified practitioners to our ranks, we had no control over the disqualified pretender who cared little for the privileges which the Massachusetts Medical Society offered. This weak negative side in the then current statutes came at length to be seen, and in 1818 a law was passed which was designed to remedy this defect. It is of interest to us that the State continued to turn to this Society to aid in the fulfilment of its purpose. The statute provided that every person practicing physic or surgery in Massachusetts, without a medical degree from some college or university, or without being licensed by some medical society, or college of physicians, or by three Fellows of the Massachusetts Medical Society to be designated in each county by the Councillors, should not have “the benefit of law for the recovery of any debt, or fees, accruing for his professional services”; and every licensed practitioner was required to deposit a copy of his license with the clerk of the town where he resided. Just a year later, the general court modified its predecessor’s work and enacted that no person entering the practice of physic or surgery after a specified date should be entitled to the benefit of law for the recovery of any debt or fee for his professional services unless, previously to rendering those services, he had been licensed by the regularly appointed censors of the Massachusetts Medical Society or had been graduated a Doctor of Medicine in Harvard University.
This law, it will be observed, distinctly recognized the principle of the regulation of medical practice, and this was the only good purpose which it served. It had two ludicrously weak features; it did not provide any punishment for failure or neglect to procure the required license, and while it presumptively made the way of the irregular practitioner a difficult one in the matter of collecting his fees, it left him perfectly free to do what no reputable physician ever does, it left him free to take his pay in advance. Nevertheless, the law was so satisfactory and acceptable in its working, that it was re-affirmed in all its main features in the Revised Statutes of 1836, seventeen years later, this Society being still designated by name as the authority to manage the machinery of examination and licensing; but there was this important modification — the courts were no longer closed to unlicensed physicians. This anomalous statute (vox et preterea nihil) remained in force without amendment until 1859, when it dropped out of sight in the general revision of the laws made by the legislature of that year. Since its disappearance from the statute book there has been nothing unlawful in “ignorantly and wickedly administering medicine” to the people of Massachusetts in violation of any statute; the principles of the common law are the only safeguard.
Meanwhile, during this period of thirty years, a wave of legislative virtue has swept over the land with reference to the regulation of medical practice. One State after another has passed restrictive laws of greater or less stringency but with the single aim of discouraging quackery. How effective these laws have been in accomplishing their purpose, or how zealously they are executed, in the various communities, we are not now concerned in determining; the suggestive fact is that Massachusetts stands almost alone in her attitude of toleration. Of one result of this state of affairs we are all clearly aware. The action of neighboring States, near and more distant, in requiring irregular practitioners to move on and to stand not upon the order of their going, has brought to our too hospitable territory a horde of medical pretenders who have not been slow in discovering the advantages of an asylum here. It is safe to state that never in the history of the Commonwealth has such a wide variety been offered to her people in the matter of choosing a medical counsellor in time of sickness, and that never has the class of charlatans been so numerous or so haughty.
And what a motley company they are, these disreputable parasites upon the medical profession! They offer to the student of anthropology a great diversity of types, ranging all the way from the long-haired male Indian doctor to the short-haired female Christian scientist; creatures with “natural” and supernatural powers, extraordinary owners of superior intellects who find no difficulty in the problem of curing the incurable; bio-chemists, nature-pathists, mesmerists, vivopaths, psychopaths, botanic healers, magnetic healers, — a great procession of social pests with labels designed to captivate the unwary and the credulous.
But these people who boldly affect superiority by announcing themselves openly as irregular practitioners, and by assuming an eccentric or distinctive title in proof of it, are not the worst representatives of their class. The charlatans who are most harmful are those who deliberately and fraudulently take on the simple designation of “physician,” and so far as any outward sign is concerned are not to be distinguished by the public from the best and noblest members of our profession.
Then, there is another form of fraud which manifests itself in the shape of “medical institutes.” These are evidently business enterprises simply, and the management being in the hands of several persons, who are always announced as distinguished, successful and trustworthy exponents of medical science, the victims of disease read the obvious lesson that in a multitude of such counsellors there must be safety.
But, however, we may classify and differentiate these people, they all have certain characteristics in common; there is nothing beneficent in their motives or actions; they are to the last degree mercenary; they are busy obtaining money under false pretences; they add nothing to the common stock of knowledge; they defile the columns of the daily press and of the religious weekly journals with disgustingly suggestive notices of their pretensions and insinuating invitations to walk into their parlors. Through their advertisements, they make open solicitations to the victims of lustful practices to add crime to imprudence, and they cover with the thinnest disguise their public and defiant announcements that they will commit unlawful acts and will take all risks of detection and exposure. They deface all accessible surfaces with their bold and lying promises, and offend good morals by their too open allusions to unmentionable subjects. Like juggling fiends, they take advantage of every form of human misery to raise hope where hope is vain, and they wickedly and cruelly draw the last possible dollar from their credulous victims, who get small comfort from the fact that payment has been made in advance for the wretched disappointment of unfulfilled agreements. If in such a case death comes to the relief of these double sufferers, the ignorance of the only physician recognized by the statutes in such a relationship is attested by the manner in which the required certificate of the cause of the death is executed, sometimes unintelligibly, sometimes fraudulently, covering a crime under the name of an innocent disease, and always raising a doubt and question of the value of such data for the purpose of vital statistics.
Can it be possible that Massachusetts, which has long defended its claim to the possession of superior wisdom in the care of all matters pertaining to public health and public morality, is willing to tolerate this state of affairs indefinitely? Is not her indifference reprehensible? And have not we, as physicians, remained far too quiescent under these growing evils? Have we not evaded a duty while we maintained a neutrality? Ought we not now to speak out boldly and persistently until some effective measure has been adopted to control and suppress the fungous growth of quackery? It is to legislation, supported by an enlightened public sentiment, and rendered fruitful by an energetic enforcement, that we must look for the real remedy, legislation that shall be practical without being cumbrous or needlessly burdensome. This is not the occasion for outlining the details of such legislation; whether the statute should supply a method of registration administered by some already established board, like the State Board of Health; or should require examination and license through the agency of a purely medical board; or should be framed upon the model of the English law which forbids the false and fraudulent use of any name, title or description, implying that its user is a physician or surgeon, when he has not been educated or licensed as such, — all these matters may safely be left to legislative wisdom. But the main point is that the Commonwealth should afford its citizens some guarantee that the persons who are permitted to practise medicine are trustworthy by virtue of education. Above all, let it be understood and insisted upon that this guarantee, with its attendant conditions and penalties, is not a matter into which sectarian medicine enters in any degree. Let there be an avoidance of all differences relating to schools of practice. Let not the smoldering embers of medical contention be drawn out of the ashes and fanned into life for the gratification of controversialists. Let it be remembered that this is not a question of therapeutics or of medical ethics, but a question of medical education, with the fundamental purpose of excluding from medical practice those who are unfit for it through ignorance or wickedness.
But, some will say, how does this matter concern the Massachusetts Medical Society, as a society? Why need this organization trouble itself to take any part in securing legislation against quackery? Are we not in the possession of an indefeasible charter, with ample protection of our rights and privileges as physicians? Does not the public recognize in this association a body of medical men and women offering ample evidence of the trustworthiness and intelligent skill that are desired? If any educated physician in Massachusetts wishes to acquire the benefits of this recognition, by entering this fellowship, is not the way easy and the method simple? Why need we, an old and honored body of regular physicians, fret about quackery? Do not the charlatans give us new and profitable business by their blunders? Why should we meddle with the inherent right of every individual to choose his adviser in case of injury or sickness? Will not the prudent man make seasonable inquiry and select the best; and cannot we wisely leave this decision without dictation, sure that in the long run the fittest will survive? Why need we ask to have new burdens and restrictions placed upon us?
From the point of view of expediency and propriety, as they apply to this Society, this course of reasoning is clearly correct. This organization will do well to maintain its independent attitude. It has no wish for a renewal of the legislation which formerly made it the sole censor of medical practice in this State. It is content to attend to its own affairs. It has no ambition to pose as a monopolist in medicine. It sets an example in medical tone, and in its traditions and present aim, cordially favors the highest attainable development in medical education and medical practice, but it has seen the mischief and disappointment which have attended attempts made, in its name, to influence and procure medical legislation. But this view does not absolve us, its individual members, from grave responsibility regarding questions of public welfare. We are citizens of the Commonwealth as well as physicians; and, as citizens, jealous of the good name of Massachusetts, ashamed of her false position in the matter now under discussion, we have the right and the duty to protest that some remedy should be applied to eradicate the evils which I have tried to describe. We ought to do all in our power to secure some practical process of sifting which shall afford to the people an assurance that the State is unwilling to trust the lives and health of her inhabitants to charlatans and adventurers. We ought to insist, and insist again, that it is not for ourselves, or to promote our own interests, that we wish the State to interfere, but that it is in behalf of the thousands in her population who, through lack of knowledge or discrimination, become the victims of chicanery and fraud. We ought to demand that protection for the classes of people that do not and cannot protect themselves. If professedly intelligent and cultured persons choose to demonstrate their wisdom in a peculiar fashion, by amusing themselves with the mind-cure, and Christian science, and hypnotism, and other genteel fads, it should be with the distinct condition that it is without the State’s approval of their folly. The strong desire shown by a certain class of individuals in this community to imitate and emulate their prototypes in ancient Athens in eagerness “to hear and to tell some new thing” needs checking when human life is in the balance as the material upon which the novelty is to be tried as a experiment.
Is it not extraordinary that Massachusetts has always been so ready to legislate in an endless variety of other directions affecting the life and well-being of her population, and is reluctant to interfere with uneducated and unfit practitioners of medicine? The general court has provided for the inspection of nearly everything that enters into domestic administration, and has ordained proper penalties for frauds and adulterations; we have ample protection in the matter of milk and vinegar, chocolate and nails, gas and leather, confections and drugs; but none against the charlatans. Massachusetts licenses her auctioneers and her pedlers, her pilots and publicans, her pawn brokers and her warehouse-men, her dentists and her druggists; she places even clergymen and lawyers under regulations, but no difference exists in her esteem between the educated physician and the fraudulent healer which an adjacent State has spewed out upon our soil. We have statutes for the protection of lobsters and smelts, rabbits and partridges; but for sick people, the State offers no defence against quackery.
Let not medical men say that it is useless to seek a remedy from the legislature, that charlatanism has become too firmly rooted here to be eradicated by any means, however drastic. Repeatedly it has been demonstrated that measures of reform have been success fully accomplished with the aid of our profession in shaping and guiding legislation. Take a single illustration, the evolution of the methods prescribed for the commitment and treatment of the insane. As late as 1827, an act was passed by the Massachusetts Legislature which included every excited lunatic with “rogues, vagabonds, common beggars, and other idle, disorderly and lewd persons,” and provided for his incarceration in a jail or house of correction until he was “restored to his right mind.” This barbarity continued until the State, in 1832, heeding the representations of physicians, established the first lunatic hospital at Worcester. For many years after this, the process of commitment continued to be a purely legal one, without any required medical examination. But the protests of physicians again prevailed. In 1844, the legislature passed an act which recognized, for the first time, that insanity was a disease, whose diagnosis required medical knowledge, rather than legal acuteness. In 1862, it was enacted that for the commitment of an insane person to a lunatic hospital, “the evidence and certificate of at least two respectable physicians” should be required as a preliminary to establish the fact of insanity. Some modifications have been made in the amount and character of the medical evidence in these cases, but the recognition of the true nature of insanity and of the propriety of placing its humane treatment in the hands of physicians, rather than in those of the keepers of jails, was due to the labors of such men as Bell, Wyman, Ray and Jarvis. This result shows the effects which medical men may accomplish at the State-house if only their efforts are rightly directed and persistently exercised. Other examples of this force might be cited. The statutes relating to the public health, to the registration of vital statistics, to compulsory vaccination, to the use of subjects for anatomical study, to the investigation of deaths by violence, are all memorials of the intelligent zeal of medical men in shaping and obtaining wise legislation. What physicians have accomplished in the past is an augury and proof of what they may now accomplish in the attainment of statutory regulation of medical practice. And not in this direction alone. There are other matters wherein wholesome laws are needed. I have only to suggest the desirability of legislation for the more effectual prevention of the spread of contagious diseases, including syphilis; for less barbarous methods in the punishment of convicted murderers; for better dwellings for the poor; for medical inspection of schools; for the compulsory establishment of a local health-board in every town; for reform in the methods of using medical experts. In these, and other similar directions, the educated physicians of Massachusetts have it in their power to bring about salutary changes. It is a power that is not sufficiently appreciated by us, its possessors. It is a power which may find its correct exercise in various ways; in the open and candid expression of opinion as we meet our acquaintances and clients; or in properly formulated memorials to the general court; or in attendance and spoken testimony at hearings before legislative committees; or even in service in the law-making body itself. It is to the credit of our Society that its members have shown their willingness to interrupt their professional labors and to respond to the call of their neighbors to represent them in the legislature. It is an honorable service, and nearly every session has found, included in its rolls, the names of reputable physicians, members of this Society, who have given intelligent and faithful attention to legislative problems, the satisfactory solution of which has been largely due to their wise counsel and to the experienced judgment derived from their medical training.
II. But the true test of the value of laws lies in their faithful execution and judicious application. Let us inquire, now, concerning the relationship of our profession to the Commonwealth’s executive department.
In two instances, Massachusetts has selected its supreme executive magistrate, the governor, from the medical profession and from the fellowship of this Society. Dr. John Brooks was elected governor in 1816, and continued in office, by annual re-election, until 1823. He was succeeded by Dr. William Eustis, who died in office in 1825.
The second office in the gift of the people, that of lieutenant-governor, has been held by three members of this Society, David Cobb, Henry Halsey Childs and Elisha Huntington.
The executive council of the Commonwealth has had many medical representatives in its membership in the course of its history. They have done excellent service in advancing the interests of our profession whenever occasion offered. This was especially the case in 1877, when the assistance of the late Dr. William Cogswell was of great value in the reform of the methods for conducting investigations of deaths by violence.
In municipal administration, our profession has shown its adaptability for public affairs in numerous instances. Repeatedly, medical men have demonstrated their acceptability in the office of mayor and in various subordinate positions in city and town government.
So, too, we may recall the admirable services of our brethren in the conduct of school-administration and in the interests of free education under the fostering care of the Commonwealth.
Again, in the management of the public institutions belonging to the State, medical men have found a congenial field for the exercise of their wise judgment and executive ability. Ever since the establishment of the first lunatic hospital by the State in 1832, at Worcester, the boards of trustees of these and similar foundations have welcomed the acquisition and assistance of physicians as an essential element of their success. If one desires a demonstration, let him compare the State Almshouse at Tewksbury, as it is to-day, with its scandalous condition before 1876; its discipline, its fine hospital service, its freedom from abuses, are in marked contrast with the methods and results which characterized its management before a physician took charge of it under the authority of the legislature.
Why should not the executive efficiency of men trained as physicians be utilized still further in our public institutions? Doctors of medicine who can manage great hospitals, can govern penal reformatories; and convicts, as well as lunatics, would be none the worse if their full sanitary supervision were in the hands of specially-trained officials. Who can doubt that the discipline of a convict prison would be improved if it were manifest that judicious care were taken to maintain the health of the inmates by the humane and practical methods of medical resident officers?
There is one chapter of the Massachusetts laws whose administration has always been an agreeable duty for the members of our profession. The statutes relating to the public health have been especially interesting to medical men, and the intelligent practical application of them has always had its best agents among physicians. Ever since the Board of Health of Boston, ninety years ago this summer, fitted up an observation hospital on Noddle’s Island and invited Dr. Benjamin Waterhouse and other physicians to demonstrate upon the patients therein the immunity from small-pox infection which Jenner’s recently discovered operation of vaccination bestowed, Massachusetts has found among her physicians the most zealous advocates of sanitary legislation, and the most faithful servants in executing her enactments. To the public, this paradox has always been a mystery. Why medical practitioners should desire earnestly to hinder or control the spread of disease, when their livelihood and material prosperity depend on its presence and their reputation for skill and success is directly related to its prevalence, is a problem which the ordinary intellect is unable to solve. The reason is that the vulgar apprehension has not grasped the difference between a vocation and a trade. The enterprising tradesman is not accustomed to place obstacles in the way of the successful development of his business, and he cannot understand why physicians do not follow his example. But we are not engaged in the pursuit of a trade, and our methods are on a higher plane than those of mercantile or of mechanic industries. We look to the welfare of humanity as our first and fundamental object and the practitioner who forgets this and seeks primarily the gains which are the objective reward of business methods is not true to the high purposes of his profession. The majority of physicians follow the more unselfish course and are therefore ready always to aid and to adopt measures which will protect the people from preventable suffering. It is, therefore, not surprising that they are earnest allies of the State in the administration of sanitary laws.
And what a comprehensive array of enactments affecting the public health, the statute-books of Massachusetts present! The silence and indifference of the State with regard to curative medicine is in the sharpest possible contrast with the number and variety of laws relating to preventive medicine. Recall the almost bewildering array of laws which are at this moment in force, designed to promote health and resist the encroachments of disease. The board of health of your city or your town has the power, under the statutes, reinforced by decisions of the Supreme Court, to interfere with personal and property rights in the most arbitrary fashion, if only the interference is in the name of the public health.
But the cynic will ask, of what use is all this cumbrous, and complicated sanitary machinery? Of what value has it been to the State? Do not epidemic diseases prevail just as they did before all this legislation was piled up for our admiration? Has not pandemic influenza stalked defiantly around the world again and again in the last three years, without the least hindrance from any source? Do not scarlatina and diphtheria enter our households and take possession in spite of all precautions, official and pergonal, devised to bar them out? Do not the children die by hundreds in August, and the grand-parents perish by the score in March, just as they did a century ago? Has tuberculosis been controlled?
To all such pessimistic questioning, ample answer has been made in the impressive address to which you listened three years ago, and in the thoughtful essay of last evening. It is unnecessary for me to add to their authoritative statements. But it is not improper to remind the sceptic that the general mortality-rate has been made to diminish; that the average duration of life has been appreciably increased; that in communities which use vaccination with reasonable fidelity, small-pox is rare enough to be a luxury. Is it of no consequence, moreover, that dwelling-house architecture has followed the admonitions of physicians and sanitarians and that ventilation and drainage are no longer left to chance? Is it of no importance that the water-supplies of the State are more carefully protected from pollution than ever before, and that every new supply is critically tested in all its relations, physical, chemical and biological, before it is accepted? These are some of the queries that are suggested by doubts of the unbeliever in sanitary teachings and practice. To you, who have always been in harmony with the progressive spirit in Massachusetts which is embodied in her health laws, obstructive criticism will appear unworthy of serious reply. Preventive medicine looks to the future hopefully. Many of its problems will be solved by the trained bacteriologist whose greatest achievements are still before him. And in all measures — scientific, practical, administrative — the Commonwealth, in the future as in the past, will look to us and our successors as its best allies and most efficient agents for the protection of the people from harmful influences affecting life and health.
There is one other department of the State’s affairs to which I wish to refer briefly, because in its administration our profession has been conspicuous. I allude to that chapter of the Public Statutes entitled “Of Medical Examiners.” The Massachusetts law relating to inquests is no longer on trial as a questionable innovation; it has passed the experimental stage and is now as permanent as any part of the judicial system of the Commonwealth. The practical experience of fifteen years has demonstrated that the legislature of 1877 enacted a law of exceptional value, thoroughly adapted to fulfil the purposes for which it was designed. And the reason for this is easy to comprehend. When the general court determined that the venerable but discredited and abused system of investigating violent deaths by means of coroners and their juries had outlived its usefulness in Massachusetts, it was under obligation to substitute a legal mechanism that should be simple, practicable, economical and trustworthy. And this it did with such consummate success as to challenge admiration. It provided a procedure that accomplished the desired end promptly and without friction. It differentiated the purely medical elements of the inquiry from those which were essentially judicial. It created a medical officer whose sole function should be to determine, in any case of mysterious or violent death, the anatomical proofs of unlawful acts entering into the cause of death; and it made his conclusions upon this purely medical question the basis for further inquest-proceedings by judges trained in the methods of taking and sifting evidence and required to solve the problem of accountability in the case. The initial stage, then, of the inquest is always the medical determination of the cause and manner of the death, and for this determination the law provides ample resources.
That the Massachusetts method of conducting these inquiries is acceptable is shown by the entire absence of real criticism, as well as by the cordial approval of jurists who have studied its details. It has commended itself to the authorities of other States, who find in it the indications of a great advance in comparison with the clumsy and inverted coroner system. It is quiet in its operation. It does not, by the exercise of noisy authority, upset and demoralize households overshadowed by recent grief. Its results are certain and tangible. It secures for use at trials for homicide the testimony of trained men well fitted by experience to be witnesses. It has absolutely eliminated all scandal and sensationalism from inquest proceedings. It has saved money to the county treasuries, at the same time affording better service to the people.
From this allusion to a special medico-legal function of great responsibility which our Fellows are discharging acceptably, the transition is easy to a consideration of the relationship which our profession, in general, bears to the third great department of the Commonwealth’s government, the judicial department.
III. To state the proposition broadly, the medical man finds himself in a court of justice under the same exigencies which occur to the ordinary citizen, service on the jury alone excepted. He is either a plantiff seeking reparation for alleged wrong, or a defendant meeting a charge of wrong doing, or a witness summoned to testify in an issue to which others are the parties. Although these are the three varieties of necessity which take him, as they take others, out of the routine of daily life, and subject him to novel experiences more or less unpleasant, he is conscious that his vocation as a physician places him in a peculiar attitude unlike that of the layman. And it is these peculiarities characterizing our position in court that I now ask you to consider with me.
As a plaintiff, the physician is a spectacle of extreme rarity. I think it can be claimed with confidence that medical men, whatever their other characteristics may be, are not noted for litigiousness. They are generally too busy to find in the behavior of their fellow-men the occasion for law-suits. Although there is a certain hyperesthesia which is said to apply to the profession in connection with the subject of medical etiquette, this never finds its way to the gales of the temple of justice; and in the ordinary affairs of life the doctor of medicine is seldom found on the hither side of the abbreviated Latinism which in the court docket stands as a low barrier over which the parties to a suit defy each other. The doctor in court as a plaintiff, then, need not detain us longer.
But with the doctor in court as a defendant, strenuously bending his energies and using his resources to resent an imputation upon his skill and care, the case presents a theme of serious interest, for it concerns the whole domain of our legal rights as medical practitioners. Most of the suits in which physicians are the defendants are actions instituted by former patients to recover damages for alleged malpractice. This fact suggests, at the very outset, some consideration of the obligations which the law imposes on physicians and surgeons in their treatment of the sick and injured persons who employ them.
To the medical man as he stands in the presence of a person who has summoned him for professional aid and counsel in time of suffering, the law says: “You were under no legal obligation to respond to the summons which called you to this bedside. But having responded, and having undertaken the care of this case, you have assumed certain obligations which the law fully recognizes, and which you cannot avoid, except at the risk of losing both money and reputation.
“Your obligation is that of an implied contract which, though less formal and specific than an express contract executed in writing, is not less binding in its nature.
“Under the obligations of this contract, you do not warrant or insure that all the results of your attendance shall be satisfactory, that there shall be a perfect recovery, or that your treatment shall effectually stand, in the way of unexpected complications.
“But you engage, under the law, to treat this case in such a way that any injury which the patient suffers, in its course or subsequently, cannot reasonably be traced to a neglect of competent and ordinary care and skill on your part as its proximate cause.”
Such are the principles established by the common law as the intangible environment of the medical or surgical attendant for his guide and control under the usual circumstances of his employment. They are the rules which underlie and govern those actions of tort, wherein the claim is set up that negligence and unskilfulness on the part of the medical attendant have caused injury and distress to his patient, and that money will be the proper remedy to heal the wrong imputed to him. And it is reassuring to record the fact that these rules and principles, however difficult they may seem to be as practical guides, have been in effect a shield rather than a menace to the interests of defendant physicians, and that the cases are few in number in which it can be said that unjust and unfounded verdicts have been returned by juries upon the issue of imputed negligence and unskilfulness.
But while this is true concerning the issue of suits for damages, it is also true that the law interposes no obstacle in the way of initiating such suits. Let us suppose that the medical attendant has done all that the law requires in the care of his case, that he has to the best of his ability used ordinary and reasonable skill and diligence and has avoided all measures that could be criticised as experimental, he may, nevertheless, through circumstances and conditions over which he has little control, find himself a defendant in an action of tort brought by his patient. Perhaps the dislocated shoulder which he reduced months ago, with proper attention to all surgical details, persists in giving pain and in refusing to resume its mobility. Perhaps the fractured femur is restored to duty with a permanent and irremediable though unavoidable shortening. Perhaps the broken forearm, when taken out of the splints, has an uncomely deformity in spite of the most assiduous care. In any of these events, whatever has happened out of the ordinary course, it is easiest to blame the attending physician for it; and the next step is equally easy, the initial step in the proceedings for what is called “getting satisfaction.” The story is an old and familiar one. Too often the motive that initiates the suit and urges it forward is a most unworthy one, and is scarcely to be distinguished from the wickedness of blackmail. Too often it is nurtured and stimulated by lawyers more hungry for plunder than ambitious for a good name. Too often it is encouraged by the unfriendly words and actions of professional rivals. Over these prosecutions, the physician is powerless to bring any control; however strong his defence may be, he cannot prevent a trial, with all its annoyances, risks and costs, except by adopting the course of paying money to settle the claim out of court, — a course which any self-respecting medical man will not adopt, though sorely tempted to escape thereby all the wretched miseries of a jury trial.
It has often been suggested that, in view of their liability to unwarranted claims for malpractice, medical men would do well to organize co-operative defence unions for their own protection. Such a suggestion has much to make it attractive, and it has actually borne fruit in England in a flourishing and fully equipped association prepared to assist its members when they are brought to bar as the victims of irritable, or avaricious, or depraved human nature. But while such a fellowship might serve to deter the unscrupulous from bringing suits against physicians, in such suits as are pressed to trial, the appearance of a medical defendant backed by the money and the sympathy of a numerous company of his professional brethren might have a reactionary effect upon jurymen, who are notoriously ready to render verdicts against corporations and corporate interests.
Let us turn, now, to a far more familiar relationship between medical men and the courts of law — that sustained by physicians as witnesses. Rightly considered, the function of a medical witness establishes one of the most honorable positions in the service of the Commonwealth which a member of the medical profession can discharge. That the function has been abused and has experienced a measure of disrepute, is quite true. That there are certain features of it which are deplorable and most unsatisfactory is also true. But it is like wise true that, with all the criticism and disparagement of which it has been made the subject, medical evidence will continue to be an indispensable element in judicial proceedings, and the medical witness, if he be properly equipped for his service, has it in his power on every occasion to command the respect of all who observe him, and to be, in the court of justice as in the sick-room, the representative of sound learning and of manly deportment.
It has been customary to classify medical witnesses as of two distinct varieties, according to the character of their testimony; they are regarded as ordinary witnesses if they testify to facts, and as expert witnesses if they express opinions or undertake to interpret facts. But if we recall the usual methods under which medical witnesses are employed, we shall see how artificial is such an attempt at classification. The truth is that nearly every piece of medical testimony is a composite of facts and opinions in which the facts largely predominate. But they are medical facts, the correct determination and statement of which require medical knowledge, skilled training, and a special aptitude. When the chemist exhibits to the jury the arsenical mirror which is the result of his analysis of suspected organs or remnants of food, he is submitting, not opinions, but incontrovertible facts. When Prof. Austin Flint testified that in his microscopic and chemical examination of the material found under the fingernails and on the clothing of a degraded criminal accused of the murder of a woman and the mutilation of her body, he detected crystals of tyrosine and other substances which must have come from no other part of the intestinal tract than that found cut open in the victim’s abdomen, he was giving an indisputable physiological demonstration of objective facts, which fastened the guilt of the homicide upon the prisoner. When Prof. Jeffries Wyman, in the memorable case which so engrossed public interest in this community in 1850, established by his evidence the identification of a mutilated human body, the work that he did was again a demonstration based upon accurately observed anatomical material.
The same principle is seen in the numerous civil suits growing out of imputed negligence, whereby accidental injuries result. The testimony of medical men connected with these cases is largely directed to the description of symptoms and conditions of a purely physical and objective character. Even in the comparatively rare cases in which a medical man is engaged to answer purely hypothetical questions, and to give his opinion upon assumed facts, of which he has no personal proof, the examination does not end with this exhibition of the expert’s technical office, but wanders away into the various regions of medical knowledge pertinent to the questions at issue.
The conclusion, then, which I wish to draw from these considerations is that all medical testimony is of the nature of skilled service, and deserves appreciation as such. It has been held repeatedly that knowledge, in science or art, is its possessor’s capital, accumulated through years of study and application; and that neither the Commonwealth nor any individual can make any lawful requisition upon that capital without substantial reimbursement. This is the well-recognized and universally applied rule governing the employment of medical experts, who go to court to state opinions with facts. Why should not the same rule attach to the service of surgeons and physicians who, heeding the peremptory summons, respond as witnesses to give evidence of clinical facts, of physical appearances, and all those other matters the correct observation and description of which require a definite amount of knowledge, the fruit of much patient study or long experience? The demand which in the name of the Commonwealth is made upon medical men, wasting their time in tiresome delay, interrupting their professional routine of duty, subjecting them to disagreeable and irritating experiences, extorting from them facts acquired under the confidential relations of the sickroom, is not one which, under prevailing conditions, is answered with cordiality. It is among the unpleasant incidents of professional life. It reminds us that of all departments of our practical work, the medico-legal service is the only one which we cannot evade, or transfer to others. The call of a judicial summons is imperative, and physical disability will alone excuse its neglect. When, therefore, we consider the nature of medical testimony, and the degree of technical knowledge required for its correct presentation, we do not exceed propriety if we ask that the State shall in some way provide fit methods for the adequate reward of such skilled service, rendered under compulsion.
One other feature of medical testimony solicits attention; it relates to the deportment of the witness in court. The ideal medical witness possesses these qualities: his demeanor is dignified and unconstrained; he has large stores of well-seasoned knowledge; he is quick in apprehension, firm and immovable in his convictions, but conservative and judicial in reaching them; he has a retentive memory, a reserved courage and an imperturbable temper; he is terse, direct, clear and concise in statement, and especially is an adept at translating every technical term into words and phrases clearly intelligible to every juryman; he abhors garrulity, flippancy and trickery; he aims to be candid, impartial, disinterested.
Sometimes, though very rarely, one sees a physician on the witness-stand who represents faithfully all these requirements: he is the object of our emulation and envy. Much more commonly, however, medical testimony illustrates characteristics quite in contrast with the ideal. The physician whose methods on the witness-stand we do not desire to copy, is garrulous, affected, pedantic, flippant, ready to engage in controversy, dogmatic, and above all saturated with partisanship. Of all these faults, the last is the most common and conspicuous and the one which has brought the greatest reproach on medical men as witnesses; it is this which has led judges on the bench to disparage and belittle medical experts; which has caused writers on jurisprudence to discredit their value; and which, in practice, has induced juries to ignore their testimony altogether in trying to reach a verdict. But while admitting that partisanship is a too common element of medical evidence, I insist that it is an evil for which medical men should not be held responsible. It is the unavoidable fruit of the conditions under which the modern practice of the law is pursued. The physician in the sick-room does not exhibit the disposition here depicted; but place him under the novel and subtle influences of the court-room and he becomes another creature. A case, for example, occurs which offers an opportunity for the use of a medical expert. You receive a polite invitation from the counsel, to serve him in that relation. You do not inquire very closely into the grounds that have determined the selection; you feel complimented, at all events, and you consent to be retained. Now, having fully committed yourself to the service of your employer, your independence is almost necessarily laid aside. You are expected in preparing for the trial to develop all the elements in the case favorable to your employer’s side only. The advocate consults with you, nourishing in you a controlling partiality, and doing all in his power to stimulate a cordial interest in his client’s cause. The witness thus approaches the trial, expert chiefly as a partisan medical advocate. Against the insidious influences which promote this surrender of mental equipoise, few physicians could successfully defend their judgment.
Then at the trial itself, still more compulsory influences encompass him. He now finds himself in the arena, marshalled with others to defend his own side, to defeat the opposing side. He is harassed by the technical limitations of the rules of evidence. Through the inability of lawyers to conduct acceptably an examination on medical subjects, he is made inadvertently to state views which, under other circumstances, he would not think of supporting. Professional pride compels him to defend stoutly his position, a retreat from the ground being deemed worse than the blunder which took him there.
Now, what can be done to modify, or, if need be, to revolutionize these unsatisfactory methods? As may readily be inferred from what has been presented, the first thing to be desired is the removal of the medical witness from the influences and temptations of partisanship; he must be lifted far above the plane of bias. To secure this end, the best way, because it is the most in accord with American notions of fairness, is that which would provide that the medical expert in any action at law, civil or criminal, should be the choice of the two parties interested in the litigation; or, in the event of their disagreement or neglect, the choice of the court. The advantages of such an innovation, both theoretical and practical, are too plain to be mistaken. Theoretically, such a plan would secure experts in fact as well as in name, since it would obviously be for the interest of all concerned that the best available medical judgment should be obtained upon technical questions involved in the issue on trial. Instead of the present deplorable exhibitions, so amusing to lawyers, so discreditable to our profession, so subversive of justice, we should see a true representative of medical science, appearing in court as the interpreter of the facts established in the evidence. We should see him, with the same judicial independence which the presiding justice himself must display, passing judgment, without fear or favor, on matters which legitimately fall to his office as an expert. There would be little danger that this altogether honorable function would fall into unworthy hands under such a system; the man chosen would, from the necessities of the case, be well known as the possessor of special knowledge fitting him to comprehend and to elucidate the points presented in the testimony. The man of pronounced and peculiar views, the man of hobbies, would not be sought; his judgment is already discounted.
In practice, the expert thus selected would make such investigations as the case demanded, would listen to all the testimony, and at the proper time would report his conclusions, either as oral evidence, or, preferably, in the form of a written statement. Here would occur an opportunity for professional distinction. The name of medical expert, instead of conveying with it a questionable flavor, would become a term of good repute, attracting rather than repelling the master-minds in our profession; while the many-sided questions presented in legal suits and actions would offer occasions for medico legal reports such as have made Germany and France confessedly the leaders in forensic medicine.
But at just this point, the typical barrister, with a gesture and in tones familiar to those of us who have ever served as witnesses, says: “Stop a moment! I object!” And when asked to state his objection, he replies: “I object because such a scheme would interfere with the constitutional right of the individual citizen to defend his life, person, property or character by producing ‘all proofs that may be favorable to him.’ I object because when I undertake to prosecute a suit at law or when I am engaged to defend a client, I wish to know precisely what the evidence favorable to my cause is to be; have no intention of remaining wholly ignorant of the medical conclusions up to the time of the expert’s appearance in court. I am in court theoretically to see that justice is administered; but I am there in reality to do what I can to win a verdict for my client, and I wish, in order to secure that end, to employ all lawful means, including medical evidence of my own choosing; and if this evidence is skilfully warped and stretched to meet well the exigencies of my claim, it will be so much the more useful and acceptable.” This is the lawyer’s view of the matter; and it is this spirit which has hitherto stood as an insuperable obstacle in the way of a much-needed reform. It is a purely selfish spirit held by a large part of the legal profession, but repudiated by a few conspicuous and honorable exceptions.
Meanwhile, we as physicians have a plain resource. When required to discharge the duty of medical witnesses, let us diligently aim to illustrate a high standard. Let us avoid well-recognized errors to the utmost of our ability. Let us decline to act simultaneously as medical advocates and medical witnesses. Let us endeavor to give our testimony with the same candor and the same independence which would characterize our statements if instead of the peculiar environment of a court of justice, we were in the presence of an audience of friendly, but critical, medical associates. Difficult as such a duty is, it is not impossible of performance.
IV. This review of the relationship which our profession holds toward the Commonwealth will be incomplete without some reference, in conclusion, to a still higher obligation resting on us. It is the obligation of loyal, patriotic citizenship, involving duties superior to any of those which I have undertaken to discuss. Men sometimes speak of their citizenship as a privilege, to be used or laid aside with easy indifference. Properly considered, it is much more than this: it is a living trust, a priceless heritage, involving duties as well as rights. In the presence of educated physicians, there is no need to emphasize this. They recognize their obligation and their opportunity, — their personal obligation of earnest loyalty, their opportunity, through the place they hold in the community and in the house hold, to raise the level of civic virtue by precept and example. To them, the service to the State which the best type of citizenship presents is not expressed in political zeal, in greed for office, or in an active partisanship which in medical men is always especially offensive and objectionable. It means, on the other hand, absolute independence of all machine methods in politics. It leaves practical politics to professional politicians, but it never fails or omits to register its convictions through the agency of the ballot. It is found in sympathy with all reasonable methods of moral and social reform, but avoids impracticable radicalism and sensationalism. It stands for popular education and defends the public schools from all assaults, overt or insidious, that would impair their usefulness and freedom. It insists on fidelity and honesty in official station. It aims to aid in shaping a healthy public opinion upon all matters pertaining to the welfare of society and the elevation of mankind. It protests against the fastidious indifference which too often marks the attitude of educated men toward civic affairs. When the nation’s life is assailed, it is found at the front represented by such men as Derby and Otis, and Sargent and Hooker, and Bell and Lyman, adding new lustre to the proud title of Massachusetts volunteers.
Fellows, these closing years of the nineteenth century are making an extraordinary record of progress in all that pertains to the science and the art of medicine. The brilliant, almost audacious, achievements of modern surgery and the beneficent triumphs of practical and preventive medicine inspire our admiration and stimulate our zeal. In the rapid movements of our noble profession along all the lines of advanced development, we find it difficult to keep our leaders in sight; star-eyed science certainly does not encourage loitering on the part of her votaries. But while we strive to keep in touch with this spirit of progress in all that belongs to our domain as physicians, let us not forget the claim which the Commonwealth may properly make upon us as citizens. Let us seek earnestly, each in his own community, to illustrate the highest ideals of loyalty and fidelity. So may we, in a double sense, as physicians and as citizens, discharge our duty to humanity.
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