R. Vashon Rogers

The law has nothing to do with the merits of particular systems or schools of medicine. Their relative merits may become the subject of inquiry when the skill or ability of a practitioner, in any given case, is to be passed upon as a matter of fact. But the law does not and cannot supply any positive rules for the interpretation of medical science. It is not one of those certain or exact sciences in which truths become established and fixed, but it is essentially progressive in its nature. No one system of practice has been uniformly followed, but physicians, from the days of Hippocrates, have been divided into opposing sects and schools. The sects of the dogmatists and the empirics divided the ancient world for centuries until the rise of the methodics, who in their turn gave way to innumerable sects. Theories of practice believed to be infallible in one age have been utterly rejected in another. For thirteen centuries Europe yielded to the authority of Galen. He was implicitly followed, his practice strictly pursued. Everything that seemed to conflict with his precepts was rejected; and yet, in the revolutions of medical opinion, the works of this undoubtedly great man were publicly burned by Paracelsus and his disciples; and for centuries following the medical world was divided between the Galenists and the chemists, until a complete ascendancy over both was obtained by the vitalists. This state of things has been occasioned by the circumstance that medical practitioners have often been more given to the formation of theories upon the nature of "43" disease and the mode of its treatment, than to that careful observation and patient accumulation of facts by which, in other sciences, the phenomena of nature have been unravelled. *** It is not to be overlooked that as an art it has been characterised in a greater degree by fluctuations of opinion as to its principles and the mode of its practice than perhaps any other pursuit. That it has been distinguished by the constant promulgation and explosion of theories. That it has alternated between the advancement of new doctrines and the revival of old ones; and that its professors in every age have been noted for the tenacity with which they have clung to opinions, and the unanimity with which they have resisted the introduction of valuable discoveries. They still continue to disagree in respect to the treatment of diseases as old as the human race; and at the present day *** a radical and fundamental difference divides the allopathists from the followers of Hahnemann, to say nothing of those who believe in the sovereign instrumentality. *** The axiom that doctors differ is as true now as ever it was (90). Thus spake Daly, J.; the reporter observes in a note: “It may, perhaps, be safely questioned whether the sister sciences of law and theology present any such unity or certainty of opinion as might enable them to arraign the medical profession.”

In Great Britain and Ireland, since the passing of the Medical Act of 1858, every one registered under the provisions of that Act is entitled, according to his qualification, to practise medicine or surgery, or both (as the case may be), in any part of Her Majesty’s Dominions, and to recover on any court of law (should any patient neglect to pay) his reasonable charges for professional aid, advice and visits, and the costs of any medicine, or other medical or surgical appliances rendered or supplied by "44" him to his patient; but any one not so registered cannot recover any such charges in any court of law. Proof of registration is absolutely necessary for a recovery; but it will suffice if the registration has taken place before the trial (91).

And as to who may be registered; the Act says any one may be who is a fellow, member, licentiate, or extra licentiate, of the Royal College of Physicians of London, or of the Royal College of Physicians of Edinburgh, or of the King and Queen’s College of Ireland; or fellow, member, or licentiate in midwifery, of the Royal College of Surgeons of England, or fellow or licentiate of the Royal College of Surgeons of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow, or of the Society of Apothecaries, London, or of the Apothecaries Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any university of the United Kingdom, or licentiate in surgery of any university in Ireland; or doctor of medicine by doctorate granted prior to August, 1858, by the Archbishop of Canterbury; or doctor of medicine of any foreign or colonial college, after examination, or who satisfies the Council of Education and Registration that there is sufficient reason for admitting him to be registered (92).

In France, the medical profession is divided into two grades; in the higher grade are all doctors of medicine of the universities; those in the lower grade are officiers de santÉ. In Germany, the right to practise is conferred by a state licence granted on passing the staats-examen: the degree of doctor of medicine is almost always taken at some university after obtaining the state license. In Austria, the "45" right to practise is carried by the degree of doctor of medicine obtained from a university (93).

The legislature of every colony of Great Britain has full power to make laws for the purpose of enforcing the registration within its jurisdiction of medical practitioners, including those registered under the Imperial Act.

In Ontario, the medical profession is incorporated under the name and style of “The College of Physicians and Surgeons of Ontario,” and every person registered under the provisions of the Ontario Medical Act (94) is a member of the college. There is a “Council,” in part appointed by certain educational institutions, in part elected by practitioners. This council fixes the curriculum of studies, appoints examiners, and arranges the examinations of those desirous of admission to practise; it also arranges for the registration of those who pass the examinations, or had certain qualifications before July, 1870. Every one who passes the examinations and has complied with the rules and regulations of the council, and paid his fees, is entitled to registration, and by virtue thereof to practise medicine, surgery and midwifery in the Province. If registration is not granted to one he may compel it by a writ of mandamus (95).

Registration is essential to entitle a practitioner to recover any charges for medical or surgical advice, or for attendance, or for performance of any operation, or for any medicine he may have prescribed or supplied. (This last clause does not apply to any licensed chemist or druggist.) And if any one unregistered, for hire, gain or hope of reward, practises or professes to practise medicine, surgery or midwifery, or advertises to give advice therein, he is liable "46" to a fine of from $25 to $100. And any one not registered who takes or uses any name, title, addition or description implying or calculated to lead people to infer that he is registered, or that he is recognized by law as a physician, surgeon, accoucheur, or a licentiate in medicine, surgery or midwifery, is liable to the same penalty. Any person who wilfully or falsely pretends to be a physician, doctor of medicine, surgeon, or general practitioner, or assumes any title, addition or description, other than he actually possesses and is legally entitled to, is liable to a fine of from $10 to $50. But it is not punishable to practise for love or charity, and any one who has the degree of doctor of medicine may place the letters “M.D.” after his name, even though he is not a registered practitioner, if he do not act as such for hire or gain (96).

Where one partner was registered and the other was not, and there was painted on the sign after the name of the first “M.D., M. C. P. & S., Ont.,” and after the name of the other only “M.D.,” it was held that the use of the simple letters “M.D.,” in con­tra­dis­tinc­tion to the full titles of the partner on the same sign was not the use of a title “calculated to lead people to infer registration,” and that the unregistered partner was not guilty of an offence under the act (97).

In Ontario, provision is made for the registration of Homoeopathists as well as of regular practitioners, and for the Eclectics who were practising in the Province for six years before 1874.

A physician practising in another country, and performing medical services for a patient then residing there, may recover his fees in this Province not­with­stand­ing he is not "47" registered (98). A medical practitioner duly registered in England, under the Imperial Act, is entitled in Ontario to registration upon payment of fees without examination (99).

In the United States, the common law doctrine, which favours the right of every man to practise in any profession or business in which he is competent, prevails to a great extent; and medicine being regarded by it as an honorific profession, no apprenticeship was required, but the practitioner always prescribed at his peril. This was also the doctrine of the civil law, which drew no barriers around either law or medicine. Any one who pleased might practise them without any previous qualification; subject always to responsibility for injury inflicted upon others.

In the absence of any statutes, therefore, limiting the common law right to practise medicine inherent in every person, the term physician may there be applied to any one who publicly announces himself to be a practitioner of the art and undertakes to treat the sick, either for or without reward. The common law knows nothing of systems or schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical, Electrical, Thompsonian, Homoeopath, Reformed, Indian Doctor, Cancer Doctor, Indianopathist, Clairvoyant Doctor and regular physician are alike. The scales of justice are no more affected by the large doses of the allopathist than by the infinitesimal supplies of the homoeopathist. But the law will sometimes interfere where one not pretending to be a practising physician uses a peculiar system in his own family. A father, during the sickness of his children and wife, refused to provide any medical treatment, except that applied by himself, called the Baunscheidt system, which consists in pricking the skin of the patient in different parts of the body with an instrument armed with "48" a number of needles and operated by a spring, and then rubbing the parts affected with an irritating oil. The wife and three children had died within a month. The man practised the exanthematic treatment upon them, but did not even call in physicians who used that mode. The Superior Court of Pennsylvania deprived this believer in the Baunscheidt panacea of the custody of his surviving children (100).

Before the common law every one undertaking to treat the sick professionally, and as the exercise of his vocation, is legally a physician. He has the rights of one, and when he assumes those rights the law lays upon him the heavy burdens and res­pons­i­bil­i­ties of the profession. It is, of course, far otherwise if any statute prescribes particular qualifications for the practice of the profession and one undertakes to discharge its duties without such qualifications. Then he is doubly a wrong-doer; first, as against the statute; and, second, as against the public, who have a right to demand in him the ordinary proficiency of his profession (101).

In Arkansas, California, Connecticut, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and Vermont, there appear to be no statutory requirements regulating the practice of physicians or surgeons. In Virginia, the practitioner only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine, Minnesota, Ohio and Wisconsin, a practitioner must either have a license from a medical board or society, constituted according to the law of the respective States, or else be a graduate of a medical college. In South Carolina and the District of Columbia, he must be licensed by the medical board; so, too, in Delaware. But this rule in Delaware does not apply to those who practise exclusively the "49" Thompsonian or botanic, or homoeopathic systems; or practise gratuitously or for what is willingly given them.

In New York State, early in the century, it was enacted that no one practising physic or surgery, without a license, could collect any debts incurred by such practice, and it was a penal offence so to practise. In 1830, the unauthorized practice of physic or surgery was made a misdemeanor punishable by fine or imprisonment, or both. Shortly afterwards the offence was made penal instead of criminal, and it was declared the provisions should not extend to any one using or applying for the benefit of any sick person any roots, barks, or herbs, the growth or produce of the United States. In 1844, all laws limiting the right to practise medicine or surgery were repealed; free trade in physic prevailed; all examinations, certificates and licenses were declared unnecessary; the repealing Act expressly permitted any person to practise physic subject to punishment, as for a misdemeanor, if he should be convicted of gross ignorance, malpractice, or immoral conduct. However, a change came, and, in 1874, the legislature declared that it was “a misdemeanor for any person to practise medicine or surgery in the State of New York, unless authorized so to do by a license or diploma from some chartered school, State board of medical examiners, or medical society,” or to practise under cover of a medical diploma illegally obtained. The penalty for the first offence is a fine of not more than $200; for a subsequent offence a fine of from $100 to $500, or imprisonment for not less than thirty days, or both (102). In 1880, it was further enacted that no person shall “practise physic or surgery within the State unless he is twenty-one years of age, and has been heretofore authorized so to do pursuant to the laws in force at the time of his authorization, or is hereafter authorized so to do, either by license from the regents of the University of the State "50" of New York, a diploma of an incorporated medical college within the State, or of one without the State approved of by some proper medical faculty within the State.” Every physician or surgeon, except those who had been practising ten years before 1880 (and a few others), had to register with the clerk of the county, where he practised, his name, residence, place of birth, together with his authority to practise.

After the repeal of the old Medical Acts, and before the enactment of the law of 1874, the New York Court of Common Pleas had to define who was a physician or doctor, and it said the words simply meant, “a person who made it his business to practise physic; and it was wholly immaterial to what school of medicine he belonged, or whether he belonged to any. The legal signification of the term doctor means simply a practitioner of physic. The system pursued is immaterial. The law has nothing to do with the merits of particular systems.” The point came up in considering a case where an agreement of employment between an opera director and a vocalist provided for the forfeiture of a month’s salary in case the latter should fail to attend at any stated performance, except in the case of sickness, certified to by a doctor to be appointed by the director. The director appointed Dr. Quin, an homoeopathist. Signor Corsi, the baritone, had a bad cold and a sore throat, but would not consult Dr. Quin, and proffered a certificate of an allopathist of his own choosing. This Max Maretzek would not take, and he refused to pay Corsi his salary. The singer sued, but the Court held that the provision was binding upon the artist, although the director had appointed a person in the practice of what is known as the homoeopathic system of medicine. *** The Court considered it was error to attempt in the then present state of medical science to recognize as a matter of law any one system of practice, or to declare that the "51" practitioner who follows a particular system is a doctor, and that one who pursues a different method is not (103).

It has been held, however, that where a “regular physician” is spoken of, an allopathic is meant (104).

In Iowa, the Court said, “As yet there is no particular system of medicine established or favoured by the laws of Iowa, and as no system is upheld none is prohibited. The regular, the botanic, the homoeopathic, the hydropathic and other modes are alike unprohibited. Though the regular system has been advancing as a science for centuries, aided by research and experiment, by experience and skill, still the law regards it with no partiality or distinguishing favour, nor is it recognized as the exclusive standard or test by which the other systems are to be adjudged” (105).

Notwithstanding the New York law of 1874, one can undertake to effect cures by manipulation without possessing a diploma. He may even maintain an action for the compensation agreed upon, although not a graduate and having no license to practise. A man professed to cure by rubbing, kneading and pressing the body. The court considered his system was rather one of nursing than of either medicine or surgery, and that it could not result in any injury to the person practised upon than that of possible financial loss (106). Yet, in Maine, where a license is required, even a “medical clairvoyant” was held to come within the statute, and it was decided that he could not render his professional services without having the legal permission. In England, an unregistered person sued to recover his charges for galvanic operations, and for materials and electric fluid used therein. The jury decided in favour of the galvanizer, and the court "52" would not disturb the verdict, as the work was done before the Act of 1858 came into operation, but expressed a strong opinion that if the work had not been done when it was, it would have been impossible to hold that the case did not fall within the statute (107).

A physician must practise according to the principles of his school. There are distinct and different schools of practice; allopathic or old school, homoeopathic, Thompsonian, hydropathic or water cure; and if a physician of one of those schools is called in, his treatment is to be tested by the general doctrines of his school, not by those of other schools. It is presumed that patient and physician both understand this (108).

A person professing to follow one system of medical treatment cannot be expected by his employer to practise another. While the regular physician is expected to follow the rules of the old school in the art of curing, the botanic physician must be equally expected to adhere to his adopted method. While on the part of every medical practitioner the law implies an undertaking that he will use an ordinary degree of care and skill in medical operations, and he is unquestionably liable for gross carelessness or unskilfulness in the management of his patients, still the person who employs a botanic practitioner has no right to expect the same kind of treatment or the same kind of medicine that a regular physician would administer. The law does not require a man to accomplish more than he undertakes, nor in a different manner from what he professes. So, if one is employed as a botanic physician, and performs his services with ordinary care and skill, in accordance with the system he professes to follow, that will be regarded as a legal defence to a suit for malpractice. It would show a full "53" compliance with his profession and undertaking, and if injury resulted to the plaintiff he could blame no one but himself (109).

If a patient has not been deluded by any but himself, and voluntarily employs in one art a man who openly exercises another, his folly has no claim to indulgence. The old Mahomedan case, cited by Puffendorf with approbation, is very much to the point. A man who had a disorder in his eyes called on a farrier for a remedy. This worthy gave him a remedy commonly used by his quadrupedal patients. The man lost his sight, and brought an action against the farrier for damages; but the Judge said that no action would lie, for, if the complainant had not himself been an ass, he would never have employed a horse doctor. But when a case, the converse of this, came up, the Court remarked that, “stock and the human family are animals with many similitudes and some variances; so that, although it be admitted that one acquainted with the mode of treating diseases of the human family should not be relied on to select from the materia medica substances apt for the treatment of stock, still we think it clear that one having a scientific knowledge of the diseases of men must be presumed to have so much knowledge of the diseases of a mule as to enable him to determine whether a disease with which the animal is afflicted be of recent or long standing. An expert in the diseases of man is necessarily an expert in the diseases of animals, so as to make his opinion competent evidence upon a matter in reference to which he will swear that his scientific knowledge has enabled him to form an opinion.” And so a physician was allowed to give his opinion as to whether the disease with which a mule was afflicted was, or was not, of long standing, as he considered himself competent so to do from his knowledge "54" of the diseases to which human flesh is heir, although he knew nothing in particular about the diseases of stock (110).

As one who employs a homoeopathic or botanic physician knowingly cannot object to his bill because he was not treated in the way usual among orthodox practitioners; so, on the other hand, if a physician of one school is employed by one who has a penchant for that particular system, and treats his patient according to a different system, he cannot recover for his services if he fail to benefit the patient (111).

Proof that one practises physic is prima facie evidence of his professional character; and if one holds himself out as a physician and surgeon, and acts as such, the law will hold him liable as such (112).

A physician who merely casually makes up a prescription for a friend when meeting him upon the street, cannot be called his medical attendant; that term means one to whose care a sick person has been confided (113).