It is a well settled doctrine that where one occupies a position which naturally gives him the confidence of another, or which in any way gives him an influence, or an undue advantage over the other, transactions between them require something more to give them validity than is necessary in other cases. The mere fact of the existence of such a relationship as naturally creates influence over the mind will lead the courts to infer the probability of undue influence having been exerted. Confidence has been held to imply the opportunity for influence, and when established, dispenses with any more direct proof of influence. In such cases the onus is cast upon the person occupying such a relationship to establish the perfect fairness and equity of the transaction. He must shew that the other acted after full and sufficient deliberation and with all the information that it was material for him to have, in order to guide his conduct, and that he had either independent and disinterested advice, or as ample protection as such advice could have given him (368). Rhodes v. Bates (369) lays it down that the donor must have had competent and independent advice.

The relation between a medical man and his patient is one in which the probability of undue influence is inferred; "139" and so in dealings with their patients the acts of physicians are watched with great jealousy; not because the Court blames and discountenances the influence flowing from such relation, but because it holds that this influence should be exerted for the benefit of the person subject to it, and not for the advantage of the person possessing it (370). The discontinuance of the relationship is only material if the influence has ceased with the relation; and the relation does not necessarily cease because the patient has not medicine actually administered to him at the time (371).

Where a surgeon and apothecary obtained from a patient, eighty-five years old, an agreement to pay him £25,000, in consideration of past medical services, duly charged and paid for, and the promise of future medical and surgical assistance until death without charge, and kept the matter concealed until after the death of the patient, the Court, on the prayer of the patient’s executor, ordered the medical man to give up the agreement to be cancelled. So, when an octogenarian patient conveyed by deed of gift a property worth £1,000 to his physician, who was also his intimate friend, and the son of his benefactor, the Court set aside the deed for fraud. (In this case the consideration named in this deed was not the true one.) And even where a patient gave to his surgeon an annuity of £100 for the surgeon’s life, in consideration that he would live with him and give him the benefit of his professional assistance during his (the donor’s) life, it being shown that the surgeon had been told by an eminent physician, just before the deeds were drawn, that the patient could not recover or live long, and that the surgeon himself, about the same time, had said the patient could not live more than a month or so; the Court held the instruments could not be "140" maintained (372). A patient, aged, feeble, deaf and of very weak mind, bestowed all his estate on the attending physician, who lived with him, and had controlling influence over him, for an extremely trifling compensation. The transaction was set aside, the Court saying: “Owing to the relation which the parties sustained towards each other, the deed was presumptively the result of undue influence, and therefore prima facie void for that reason. It has been repeatedly declared by learned chancellors that the mere relation of patient and medical adviser was sufficient to avoid the contracts of the former made with the latter during the continuance of such relation” (373).

A security given by an old man for £262 10s. to a dentist, in consideration of his old teeth being kept in order and new ones being supplied during the remainder of his life, had to be given up (374). And if a man pays an exorbitant bill to a doctor, the Court will grant him relief; and it will be no answer to his asking his money back to say that he intended to be liberal, unless such intentions can be clearly shown (375). Even a sale to a patient by the medical man under whose care he is will be set aside if at an exorbitant price, and the purchaser has had no independent advice (376).

But where the evidence showed that the patient’s own attorney prepared the papers, that he had independent advice, and understood what he was doing, and exercised his free will, and that the medical man had long attended him, the Court refused to set aside the deed, although the patient was eighty years of age (377). And although a "141" gift made to a physician may be voidable, because of his standing in a confidential relation to the donor, a patient, yet, if after the confidential relation has ceased to exist, the donor intentionally elects to abide by the gift, and does, in fact, abide by it, it cannot be impeached after his death, even if it is not proved that the patient was aware that the gift was voidable at his election (378).

There is, of course, nothing in the relation of medical attendant and patient which can prevent the one from entering into a contract with the other, where the transaction proceeds openly and fairly, and the relation of physician and patient has, in reality, no bearing upon it (379). In the case of a sale by a patient to a physician, where there was no proof of inadequacy of price, the transaction was sustained (380).

A strong case must be made to set aside a will on the ground of undue influence. Influence is not sufficient: there must be such a degree of influence as deprives the testator of the proper mastery over his faculties (381). To invalidate a will, on the ground of undue influence, it must be shown that it was practised with respect to the will itself, or so con­temp­or­an­eous­ly with the will, or connected with it, as by almost necessary presumption to affect it; and flattery and obsequiousness, however degrading, will not constitute such an undue influence as will affect the acts of a capable testatrix (382). Many wills made in favour of medical men by their patients have been sustained, although disputed, and that even in cases where the patients have been aged, infirm women, with impaired minds (383). "142"

A physician, however, may fail to obtain the benefits which a grateful patient has wished him to have under a will, if—as was done in one case—after a long attendance on a patient, he thinks fit, when she is almost on her deathbed, to prepare and procure the execution of a will by which he becomes the principal object of her bounty, to the exclusion of her near relatives; and to do this without the intervention of any solicitor or other person competent to give her advice, and to guard her against undue influence; for in such a case the interests of the public require that his conduct should be regarded by Courts of Justice with the utmost jealousy (384). In another case, it was said that although there is no rule of law which forbids a man to bequeath his property to his medical attendant, yet it is not a favourable circumstance for one in such a confidential position, with respect to a patient labouring under a severe disease, to take a large benefit under such patient’s will, more particularly, if it be executed in secrecy and the whole transaction assumes the character of a clandestine proceeding, and in such a case the onus will lie very heavily upon the party benefited to maintain the validity of the will (385).

Clairvoyant physicians may also get into trouble. An action was brought against one to set aside a marriage and a conveyance of property worth $25,000. The patient was old, feeble, deaf, childish and a firm spiritualist. The clairvoyant was a woman who pretended to be very modest and bashful and able to cure the deafness. After a course of treatment, mainly by manipulation, she told the old man that the spirits said that they must be married within two weeks, or something dreadful “would step in between them.” "143" By mis­rep­re­sen­ta­tions concerning her character and her friends she won the old man and his property. After the honeymoon the patient came to his senses, and prayed to get back his liberty and possessions, because of the fraud used. The Court granted his prayer (386).

To promise a cure is unprofessional, and to obtain money on the faith of such a promise is sometimes dangerous. Brown falsely represented himself to A., an ignorant negro, to be a practising physician, and that he had restored sight to the blind. He persuaded A. that his (A.’s) house was infected with poison, and that it was in the bed occupied by his granddaughter, that she was poisoned, and that he could remove the poison if he was paid for so doing. A. gave him $22 to remove it. The Court held that Brown had been guilty of obtaining money under false pretences (387).

A physician should take all possible care to prevent the spread of smallpox or any other contagious disease, and use all such precautionary measures as may appear desirable. So, where the paper upon the walls of a room in which there had been smallpox patients had become so soiled and smeared with the smallpox virus as to make its removal necessary, a physician or other attendant may order the paper to be torn down; and the landlord cannot successfully maintain an action against the physician for doing this (388).

Apparently a surgeon may retain the limbs he cuts off a patient, upon the ground that parts of the body when severed become dead, and at common law there is no property in a dead human body. The point was once contested in Washington (389). "144"

A surgeon who attends a duel, although to save by his skill if possible the lives therein imperilled, will be held guilty of aiding and abetting the principal offender in the event of death ensuing (390).

If a medical practitioner wilfully injures a patient he is liable to be indicted for an assault, and if death ensue from the injuries so inflicted he may be indicted for murder. And this is so even though the patient might have submitted at the time from the supposition that the treatment was for his good. Having or attempting to have carnal connection with a female patient under pretence of treating her medically is an assault (391). Making a female patient strip naked, under pretence that the defendant, a medical practitioner, cannot otherwise judge of her illness, if he himself takes off her clothes, contrary to her wishes, is an assault. In this case the jury found that the defendant had stripped the girl wantonly, and not from any belief that it was necessary (392).

Where a physician takes an unprofessional unmarried man with him to attend a case of confinement, and no real necessity exists for the latter’s assistance or presence, both are liable for damages; and it makes no difference that the patient, or her husband, supposed at the time that the intruder was a medical man, and therefore submitted without objection to his presence; or that the intruder accompanied the physician reluctantly on a dark and stormy night to carry a lantern or umbrella, and some instruments, and that there was only one room in the house. The Court remarked: “Dr. De May therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house of the plaintiff, when it was apparent that he could hear at least, "145" if not see, all that was said and done, and, as the jury must have found under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of the third party. It would be shocking to our sense of right, justice and propriety even to doubt that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one, and no one had a right to intrude unless invited, or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it and to abstain from its violation. The fact that at the time she consented to the presence of Scattergood, supposing him to be a physician, does not preclude her from maintaining an action, and recovering substantial damages upon afterward ascertaining his true character. In obtaining admission at such a time and under such circumstances, without fully disclosing his true character, both parties were guilty of deceit, and the wrong thus done entitles the injured party to recover the damages afterward sustained, from shame and mortification, upon discovering the true character of the defendants.” The action was brought by the wife (393).

If physicians, who have certified to the insanity of a person, have not made the enquiry and examination which the statute requires, or if their evidence and certificate in any respect of form or substance are not sufficient to justify a commitment to an asylum, the authorities should not commit, and if they do it is their fault and not that of the physicians, provided the latter have stated facts and opinions truly and have acted with due professional care and skill (394). "146"

If a medical man takes upon himself the responsibility of imprisoning a person on the ground of insanity, upon mere statements made to him by others, he will be liable to an action, and also for an assault, unless he can indeed show that the party imprisoned was insane at the time (395). He is not liable for an assault if he has signed a certificate under the Lunacy Acts and has done nothing more towards causing the confinement of the alleged lunatic (396). A medical man or other person may justify an assault where it is committed for the purpose of putting a restraint upon a dangerous lunatic in such a state that it is likely he may do mischief to some one (397).

In Ontario, except under order of the Lieutenant-Governor, no one can be admitted into a lunatic asylum without the certificate of three medical men, each attested by the signatures of two subscribing witnesses. Their certificates must state a personal and separate examination, and that after due enquiry the patient was found insane; and the physicians must also specify the facts upon which they formed their opinion of the insanity. In England, except in the case of paupers, two certificates are required (398).

The practice of abortion is forbidden by the oath of Hippocrates. The act is recognized as a crime in almost every code of medical ethics: its known commission has always been followed by ignominious expulsion from medical fellowship and fraternity. At Common Law a child en ventre sa mere is not considered a person the killing of whom is murder; but if one, intending to procure abortion, causes a child to be born so soon that it cannot live, and "147" it dies in consequence, it is murder (399). And it is murder if one, attempting to procure abortion, either by means of drugs or instruments, cause the death of the woman (400).

In most civilized countries it is now either a felony, or grave misdemeanor, to attempt to procure the miscarriage of a woman by any means; or to supply or procure any thing knowing that it is intended to be unlawfully used or employed to procure a miscarriage (401). In some States the crime of abortion may be committed at any stage of pregnancy (402). The thing prescribed must be noxious in its nature, but it is not necessary to prove that it will produce miscarriage (403).

The burden of shewing that the use of instruments to produce abortion was necessary to save the life of the woman is on the accused (404).

It is an indictable offence for a physician, or any one else, unlawfully and injuriously to carry along or to expose in a public highway, on which persons are passing, and near to the habitations of others, any person infected with the small-pox, or any contagious disorder; and it is for the accused to shew that the object of the carrying or exposure was lawful (405).

In England, since 1840, it has been an indictable offence to innoculate for the small-pox (406). So, too, it has been in Canada for a number of years (407). "148"

It has been held in the State of Alabama, that where a special prohibitory Act does not except the practising physician from its operation, he is liable if he administers intoxicating bitters to his patient, but not for using liquors necessary in compounding medicine manufactured and sold by him. The application of any other rule, it was said by the Court, would be fraught with difficulty, if not im­prac­ti­ca­bil­ity. So, too, in Kansas (408).

Any registered practitioner who has been convicted of felony shall forfeit his right to registration, and the Medical Council may cause his name to be erased from the register; and if any one who has been convicted of felony presents himself for registration the registrar may refuse registration. But one’s name cannot legally be removed from the register without notice and an opportunity of being heard (409).

A person who has met with personal injuries must exercise the same degree of care in the employment of a physician and surgeon, and in procuring and submitting to proper medical treatment, as a prudent and reasonable man would in any other matter; for those persons liable for the original injury will not be responsible for the further damage arising from the improper selection of a physician (410).

If a family doctor, or the surgeon of a company or society, on leaving home, recommends in case of need, some other physician, who is not, however, in any sense in his employment, it does not make him in any way liable for injuries arising from the latter’s want of skill (411).