NATIONAL  LIBRARY OF MEDICINE




         Bethesda, Maryland 
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V
INTRODUCTORY  LECTURE
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DELIVERED
BEFORE THE CLASS  OF MEDICAL  STUDENTS
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WILLAMETTE UNIVERSITY,
FOR THE SESSION OF 1807,
    ^  BY
    *» LIBRA-.

  HON. J. H. MITCHELL,
PROFESSOR OF MEDICAL JURISPRUDENCE.
SALEM, OREGON.
PRINTED AT THE AMERICAN UNIONIST BOOK AND JOB OFFICE.    * -V
              1867.
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i 
INTRODUOTORY  LECTURE
               Correspondence,
                   Salem, Ogn.. June 19.18*57.
  Prof. Mitchell—Dear Sir:  We, a committee
appointed in behalf of the class  in attendance up-
on the present course of  Medical Lectures of Wil-
lamette  University, would  respectfully request a
•copy of your lute Introductory Address for publi-
cation.          Very respectfully,
                       M. B. Lingo, M. I).,
                       W. A.  Cusick,
                       J. L. Martin-.
                                  Committee.

                   Salem, Ogn., June 20, 1867.
  M. B. Lingo, M. D.. W.  A. Cisick and J.  L. Mar-
vin-- Gentlemen : Your note of the 19lh inst., in be-
half of the class of medical  students of Willamette
University, requesting for  publication a  copy of
my Introductory Lecture,  delivered before that
department, preparatory  to a course of lectures on
Medical Jurisprudence, is received,   This compli-
ment is quite unexpected  and  gratefully appre-
ciated.  Had I supposed the  lecture would ever
find its way  to the press,  I should have given more
special attention  to its preparation.  I cheerfully
comply, however, with your request, and herewith
place at your disposal the manuscript.
         I am, very truly,  your ob't serv't,
                            J. II. MlTCUELI-

     Introductory—" Medical Mal-praxis."
  Gentlemen, students of the  Medical Department of
the Willamette University: The instruction that you
have already received from the various lectures to
which you have listened,  and the progress you have
made in the various sciences  connected  with the
honorable profession  to which  you aspire, have
doubtless,,ere this, impressed upon your minds Ihe
important fact that that person whose business it is
to deal with the physical infirmities of man  with
the diseases and accidents  incident  to the human
race—occupies a position in life of great responsi-
bility. You have doubtless long since conceived
a just appreciation of the  great importance, and.
I might say, the almost imperative  necessity, of
understanding completely, in outline and detail,
a profession which makes  you,  in one sense, the
conservators and guardians of the health and even
the life of the citizen.  The knowledge you have
already acquired of the delicate, and, 1  may say,
mysterious organism of the human frame—of the
numerous and finely wrought component paits of
that organism- of the relation these bear the one
to the other and each to all;—the varied and al-
most innumerable diseases and accidents to which
each individual part of this complicated machine
we call  man is liable, and  the no less numerous
tests by which we are able to diagnose or determ-
ine these  with scientific skill and  almost complete
certainty, together with the still greater number of
remedies  with which  you are to  deal, from which
you are to select, and by which you are to allevi-
ate, heal and finally cure, must have convinced yon,
as reasonable, intelligent men, aspiring to a pro-
ficiency in your profession, and to a creditable and
honorable position among your fellow members,
that  without careful, persevering, earnest effort,
with a life regulated by strictly temperate  habits,
you never, no, never can be  permitted to realize
the fruits of your aspirations.  And having been
entrusted with the responsible duty of attempting
your instruction in one department connected with
your profession, and which is  of most vital import-
ance to you—a position, by the way, which I accept
with fear and trembling, and a just appreciation of
the magnitude of the responsibility it  imposes—
the very first idea that I would  desire to have
impressed upon your minds, if such is not already
the case, is the  vast importance of  setting your
mark high at the very outset, and then of working
with an indefatigable will and unwavering purpose
until that mark is reached.   And I will here state
that it is  just as  easy, all things  considered, to be
a proficient in any business or profession as to  be
a bungler or a quack-, and infinitely more respect-
able in the eyes of the community and gratifying
to one's self.  And I will here venture the convic-
tion, which  fully impresses itself upon  my mind,
that be who, without first making himself thorough- 
ly acquainted with bis profession in all its diversi-
fed departments and intricate channels, undertakes
to set himseVnp as a doctor of medicine, and thus
tampers with  that  be does not understand, and
whir.b affects  the property, health,  liberty and
even lives of individuals, is no less dangerous to
rommunily, nor yet  less morally criminal, than is
the secret and murderous highwayman, whose path- j
v.ay is stained wiili the blood of his innocent vic-
tims.   I know there are very many that we recog-
nise as good men, of fair  and  not unfrequently
superior ability, engaged in the practice of medi-
cine, that have  never been inside a lecture room or
spanned a scalpel, and who have about as much
theoretical or practical knowledge of  the anatomi-
cal structure of the human frame, and of the nature
ef the diseases to which it  is liable, as I have of
the thoughts  that  are at  this  moment pressing
through the mind of the Emperor Napoleon. They
are doubtless,  many of them,  morally good and
well meauing men, desiring that which is right, and
even  4orng that which is  right according to the
knowledge they  possess;  but  then  the great
fact is apparent that they are engaged in a profes-
sion that, most emphatically above  all other pro-
fessions known among  na'-n, require; skill and
Bcience as  essential to a proper discharge of its du-
ties.  And in your profession, as in all others, but
especially  in  the  practice  of medicine, is it true,
that a  complete understanding  of all its different
branches and departments is almost absolutely es-
sential  to a correct understanding of any one.  And
what President Wythe told you in one of his earli
ct lectures on  the eye—that a man to  be a good
eve  doctor  must, understand  anatomy, surgery,
pathology and  the practice of medicine--is a fact
no less important to be observed than it  is true.
Nor is the illustration to be confined alone to that
particular department of the profession.  All its
different branches are so intimately connected and
interwoven together, and  so dependent in their
svmpathies one upon the  other are  the different
•parts of the human system that a complete knowl-
edge of any one presupposes a like knowledge of
all the  rest; and this is a principle that holds good
in all professions.  You frequently hear it said that
a certain lawyer is a good chancellor, another is a
good criminal lawyer, a third is a real estate lawyer,
while a fourth is said to excel as an advocate ; and
 not unfrequently is it the case that we find men in
 that profession devoting their attention almost ex-
 clusively to one or the other of these branches of
 U--\\ jurisprudence, and what is yet true, excelling
in them ; but then the important fact is no less true.
that in order to excel in any of these branches or
departments of  the profession, the  lawyer must
have the  capital  stock  wherewith  to operate,
that  capital is a thorough knowledge sTlcUprofi-
ciency in the various 'branches  and departments
extending through the entire  area of legal juris-
prudence. And that lawyer is no better prepared to
properly defend  the prisoner at  the  bar, charged
with crime, without this general knowledge, than is
the physician qualified to treat for a disease of the
eye without understanding the anatomical struc-
ture of the human frame, the diseases to which it
is subject, the means of discovering them, and the
proper remedies to be applied in each individual
case.
  It is a  rule in mathematics that  the greater  area
or circle always  includes the less, but the less the
greater never.  So in any profession, and especially
in that one to which  you  are  now giving your at-
tention.  It is made  up of numerous sections or
parts, true, each to some extent complete in itself,
but wliich, mortised and dovetailed together, form
one perfect whole, and a proper knowledge of thai
necessarily includes  at  least an equal  knowledge
of all  its sections or parts.  AVhilc  without  such
enlarged comprehension of  the whole subject, your
professional vision must,  as  a necessary  conse-
quence, be  obscured, your way dark, while your
progress will be attended with lack of confidence
upon your  part  as well as upon the part of those
who employ you; and although you  may struggle
manfully and work faithfully, your best efforts will
be enveloped in the mists of uncertainty and doubt.
And of all the various branches of your profession
none  perhaps is more interesting to investigate,
and at the same  time carries with'it  greater safe-
guards to fortify and protect you against responsi-
bility, legal and moral, while pursuing the line of
your  profession, than  that of ,; Medical Jsiispi'v-
denct."
  A«d that man who undertakes to stand up  as a
medical expert in a court of justice, where mighty
interests, involving not only property, but the lib-
erty, honor, integrity  and life of the  citizen, are
concerned, without a thorough knowledge of bis
subject,  is not only a  dangerous, polluting leper,
lying close at the very h*-art of the jurisprudence,
legal and medical, of our land, corroding and cor-
rupting  it,  but  he is in my  humble judgment  a
guilty criminal  himself in the eyes of God, and
should be so recognized and dealt with by the laws
of man. 
3-
  It is a deplorable sight, and criminal enough in
all  conscience, for an M. I), in name simply, with-
out the merit of that  professional knowledge nec-
essary to a proper discharge of bis duties, to stand
bemcen-life and deatn  at the bedside of sickness
and distress, as the sole earthly hope of the pallid
sufferer, but it is infinitely worse for such a man to
take his position in a  court of justice, where the
issues  are not unfrcquently not only honorable life
upon the one hand and  ignominious judicial death
upon the other, but guilt and innocence, honor and
dishonor, purity of blood aud deseent, and herdit-
ary shame, confusion and disgrace, and constitute
himself the expert upon whose testimony perchance
these momentous issues are to be determined. Let
the student, then, upon whose knowledge and skill
in  his profession so  much depends,  upon whom
may rest in after yeais, in the course  of your pro-
fessional life, the grave responsibility of standing
as  the arbiter between innocence  and  guilt, aud
life and death, approach that profession with sober
intentions, and a realizing sense  of the responsible
vocation that he is about to assume.   And compre-
hending this matter  at the very begiuning, as I
trust and feel that you will, you will each and all
form the fixed determination in your mind-; to spare
r.o  time, means,  energy,  study, or anything else
that will enable you to become masters of your
profession  in all its various branches and intricate,
mysterious departments.  Ibis much is due your-
selves as intelligent, honorable gentlemen.  It is
due your friends and teachers.  It is due this Fac-
ulty and this Institution.  It  is due the profession
in  which you aspire worthily to become respecta-
ble and honored members.  It is due the arts and
sciences in which you deal.   And above all those,
it is due to mankind, whose misfortunes of disease,
accident, folly aud crime shall all make up the cap-
ital stock, the materials upon which you shall op-
erate,  through which you shall live, aud from which
you shall either carve cut a  reputation  of useful-
ness, honor and distinction, or of wi rthlessness,
dishonor and contempt.
  The time has been, and to too great an extent is
it still  true; when  quacks and  upstarts  in all the
professions have brought odium and disgrace, not
only upon themselves, but the professions to which
they have  belonged—or rather with which they
have sought to act.  That time of day, however, is
fast passing  away—a new  era is  dawning—the
masses are becoming intelligent.  The school house
and the college have  given the mind of the body
politic, as well as the individual mind, a new im-
petus in the right direction.  The far reaching ray.-*
of science have dispelled the darkness of the past,
and are now penetrating the distant future and light-
ing up the way of humanity ; and the time soon vv.H
be when that man who, in the face of this blazing .-un
of science, undertakes  to play doctor without.first
thoroughly preparing himself for the high vocation,
will not only fail to male his daily  bread, but la-
will be shunned by the community with the same
instinctive dread with which the individual rcc i'<
from a poisonous- adder or a deadly  scorpion.
  Ignorance is  the stock  in trade upon which tIn-
various humbugs and isms of the day operate ; an J
just in proportion as you keep the masses ignorant,
in that degree are they  liable to be imposed upon
by pretentious  charlatans and  ignorant  quacks.
Subdue ignorance, however, enlighten the massed,
and just in the same ratio will conceited empiricism
lose its grasp and fail in the accomplishment of ila
purpose : and toward that time of  day, in the his-
tory of this country, do I understand the dial of
time to be rapidly advancing.  And I have thought
proper in this, my introductory lecture, to throw
out these desultory  observations, hoping, as I do,
that they may prove beneficial in operating to soiiw
extent upon your minds as a stimulus, to cause you-
to press forward with unabating vigor,  until yon
can boldly and fearlessly  cross professional sword*
with the ablest of your compeers in the profession,
withovi1 the mortification of defeat or the slightest
fear of your ability to cope.   And I know there \*
nothing that could give this  Faculty greater pleas-
ure than  to see this class of students—the first upon
the rolls of this institution- coming  forth from this
hall, not alone  with  the titular dignities in your
pockets, but with the more  worthy and enduriug
diploma of science, art. skill and full  professional
knowledge written upor. your memories :nd  chis-
elled  upon your minds.
  And. now, having said thus much, by way of in-
troduction, you  will permit me to stale further thav,
in what I shall say to you in the present course of
lectures,  I shall endeavor to  be plain, practical'
and  comprehensive as  I  may.   As my exclusive
purpose is toteacb,raidasyoMrs,without nny dotiH,
is to learn, let us try and understand each other at
the start; and should I appear plain and simple in
my illustrations  and manner of presenting subjects
—which shall  be my aim—you must excuse  tb*i
lack of flourish, as, in my judgment, tl emore plain
and practical we are in teaching, the more good v •
will be likely to accomplish.  My object, ?.-: I ha/ •
said, shall bo to instruct  the class so far  as my 
(1
knowledge and ability evtends, and not to attempt
an ostentatious parade of what little I may know
myself.   And should I at any time advance theories
or present practical illustrations at variance with
the views of any of the members of the Faculty. I
shall not only consider it a kindness to me, but an
act of justice to themselves  and  to  you, to state
wherein they differ, aud in this way we shall en-
deavor to get the truth before you.
  Medical Jurisprudence, in its technical significa-
tion, means :  "That science which applies the prin-
ciples  and practice of the different branches of
medicine to doubtful questions in courts of justice."
The mere announcement, therefore, of the definition
of  the terms " Medical  Jurisprudence," opens out
before us a scientific field of vast extent and almost-
limitless proportions,  through and over which we
may proceed in our explorations without being
wearied by the sameness of the scenery, or cramped
for room or materials  for investigation.  It is a
science which,  to be even tolerably well understood,
requires months and years  of careful investigation,
and patient, methodical study;  and he who  be-
comes a master in it, must be a  good lawyer and
vnR not lack  much of being a good physician and
surgeon.
   The multiplied diversity of the subjects included
in this separate branch of your profession, and all
equally  interesting aud instructive as they  are.
lenders it wholly impossibility for me, in the brief
space which  I am  able to devote during the pres-
ent course to touch even upon a moiety.  But, as
in all departments of education, so in  this-there
must be a commencement somewhere, aud  as in
many others, so also in this—it  makes but very
little difference which particular subject or branch
of this science  we first investigate.  It is a science
composed, so to speak,  of  very many little wheels
or circles,  all, to a very great extent,  complete in
themselves, but forming, when taken all together,
a complete and perfect science of principles.  When
 1 commenced  the study of law, I inquired of my
preceptor  what book of Blackstone's Commentaries
1 should read  first.   His answer was -and he was
an eminent  lawyer  •'It  is  wholly  immaterial
whether you commence with the first, second, third,
or fourth book.  Tho law,"'  said  be,  further. '• as
elucidated by  Mr. Blackstone in his four books, is
a perfect science of principles.  Each book, and in
fact each subject." said he, "is complete in itself;
and while, to be a good lawyer, it is indispensable
Ibat you should study and understand all, it is
quite immaterial where you  commence.''  So here
it is of no special importance what particular sub-
ject we first take up - whether it be insanity in any
of  its multifarious branches, pregnacy, rape, foeti-
cide, infanticide, impotency, poisons, wounds, med>-
ical malpractice, or what not. provided we got a
correct idea of that particular branch of the science
that our present time and opportunity will permit
us to  investigate, trusting, as we shall, to future
time and opportunity to enable us to master the
science in all its departments, however intricate it
may be or however much it may  draw upon  our
time and attention or weary our patience.
  Hence, in tho  remaining portion  of the present
lecture, I shall present briefly a few considerations
bearing upon the question of your  own responsi-
bility, civil and  criminal, as physicians and sur-
geons, for what is, termed in MedicalJurisprudence
medical malpractice.  And I will here state that the
law governing in these cases of  medical practice, is
quite different from what it would  be, were it  left
to me to establish and determine.   What I mean is
this:  That in our State—as well as in many of the
States of this Union -there is no standard fixed by
law to which a person shall  attain before  he shall
be  permitted to act in the capacity of physician or
surgeon.  No routine of study enjoined ; no litera-
ry or scientific qualifications essential ; no license
or diploma from any competent source demanded;
no  condition  imposed; no qualification required ;
nothing whatever in the shape of legal prohibition,
to  check  you or  me, except our own conscience.
from, at any time, whether we be actually qualified
or not, engaging in the practice of this profession ;
and, again, nothing to prevent us  from getting pa-
tients, except, perhaps, it be the educated intelli-
gence of the community in which we might happen
to locate.   This is the law as it exists to-day, and
under this rule must the civil and criminal liability
of the real physician and the ignorant empiric,  for
malpractic be determined.  In some countries, how-
ever, and  in former periodn. the rule has been car-
ried to the extreme in the other  direction.  In Eng-
laud, about two hundred years  ago, the distinction
between the regular and irregular piactitioner was
clearly and distinctly understood  and recognized
by the laws of that day.   And  to such an extent,
did this distinction govern, in defining and determ-
ining  the liability of each, that if a person died,
manifestly from  improper treatment, if that treat-
ment proceeded from a  regularly licensed  physi-
cian, it was adjudged and held  to be misadventure
or  excusable accident; whereas, in the case of a
like occurrence from the treatment of an unlicensed. 
or irregular practitioner, he  was held to be guilty
of at least manslaughter, and  in  peculiarly aggra-
vated cases,  murder.  This doctrine, however, of
-determining the question as  to  the  liability of a
practTtio-nvr, upon the solitary fact of his  being a
regular or irregular physician or surgeon, was, in
the days of  that learned jurist, Lord  Hale, for the
first time  seriously questioned ; and  to the extent
that the doctrine had then been carried almost all
eminent jurists since  that time have  concurred in,
saying it  was very properly questioned, and from
that day to the present the great  vyeight of author-
ity, both  in England aud America, is to the effect
that no such  distinction exists.  And as  long as
there is no check  in  the law  prohibiting men, un-
der  proper penalties, from  intruding  themselves
into the profession without proper qualification, it
is quite impossible that any such dntiticlion should
exist.
  There being no  distinction then in the eye  of the
law, as it exists to-day, in one sense, that is, so far
as  the right  to practice  is concerned, between the
regular and irregular practitioner, let us b  ok for a
moment at  the rules under  which the liability of
all is to be deicrmiued.  And just  at this  point  I
would attract your attention to this consideration.
which courts  have very properly not failed to ob-
serve in giving shape  aud sanction to the  law ap-
plicable in cases of malpractice, and that is, that
there are  in existence in this, as well as in all other
countries, various  systems or schools of practice.
First—We have the allopathic, which, in its  orig-
inal technical sense, as  1 understand it, is  "that
system of curing .diseases by. the production of a
condition of the system, either different from, oppo-
site to, or incompatible with that condition essen-
tial to the existence of the disease to be  cured.'-'
Then  we have the  homeopathic syotem, which is
the doctrine of curing diseases with  very minute
doses of medicine—which, in common ironical par-
lance, are called " little pills " and which  are sup-
posed to produce  in the patient  affectious similar
to those of the disease.  Then there is  the hydro-
pathic system, which seeks to cure by the  copious
and frequent use of  pure water externally a'id in-
ternally.
   There are also many others.  True, they may be
false, and very many of them are so  characterized
by men  of  ability and learuing,  whose opinions
are entitled to respect and weight; but then they
are all recognized  by the courts.  I do not mean by
this that they are  all recognized by  the courts as
being  correct, because this would be an absurdity :
but what I desire to be understood as saying, and
what I do say, is this: that the law  has  not pre-
scribed any particular system as the-true one, or
the one that shall  be followed by practitioners;
and therefore courts, in their administration of jus-
tice, recognize  the fact that all these various sys-
tems are in existence, that they are all being prac-
ticed, and that they all, to a greater or bss exteut,
have their adherents, as well among the masses of
the people as the professional community.
  Then, again, there are in existence, and in prac-
tice even by highly educated practitioner holding
to the same  general system of practice, different
methods of treatment in similar cares in. the surgi-
cal department of the profession.
  When, therefore,  a practitioner ot  medicine or
surgery is brought into a  court, of justice upon a
charge of ''medio d  malpractice,"  all these  ques-
tions, as to  the  various systems of practice and
modes of treatment may, in connection with many
others, very properly be considered in determining
the qi'.islion, as also the e.v'-nt of h*n liability.
  The first question then to be considered, when a
practitioner is sued for damages in a civil court, for
medical malpractice, is, what particular system of
practice does he adhere to ?  How did lie hold him-
self out to the community ?   Who, and what manner
of man. did he represent hims'df to be ?  This being
determined, the next inquiry is. did he exercise ordi-
nary care ? and did he bring to bear upon the case
ordinary skill ? lie is not to be held accountable for
the highest degree of skill, or for extraordinary care.
The law has. in its wisdom, made a suitable  allow-
ance for the  short-comings and imperfections of
poor,imperfect humanity.  The law, as well as com-
mon sense, alike, with the past history of man. teach
and recognize the great fact that there  is a  differ-
ence in the minds and  capabilities of men.   Evt n
as "one star differeth from another star in glory. '
so do the intellects of  nun differ in their suscepti-
bilities and  powers.  And because you or I. for
lack of  that superior genius possessed  by otheis,
mav fail to command  the highest  skill  known to
our profession, is no reason that we should—if we
h&\ e ordinary skill  and have acted in good faith,
with  reasonable, ordinary  care -be mulcted in
damages.  The law countenances no such absurdi-
ty as this.  While it  throws its arm of protection.
so far as it may, around the community to protect
them from the mate fides of premmptious empiri-
cism, it at the same  time  entertains a high  regard
for so honorable a profession as that to which you
aspire.  And its meritorious member, so long as 
ihey arc found acting with ordinary skill, in good
faith, and  with reasonable care, will  ever find  full
and complete protection, and vindication  without
stint beneath its ample and protecting folds.
  As the  law. therefore, prescribes  no particular
system, every physician is expected to practice ac-
cording to that system which he professes, and in
which he avows  himself to  the community to be
competent.  It is competent, therefore, for a phy-
sician, charged with malpractice, to show that his
treatment of the case was in accordance with the
sy.-tem he professed, and  which it was  known he
followed ; provided be adheres to any  one of the
different systems of practice that  are generally
known and recognized by the scientific world, and
not to some new, fanciful, and perhaps  dangerous
theory, of recent origin, and which is  not known
!-> the world or understood,  or  recognized by  men
( i science   Aud if he can show this, and it appears
that be has exercised ordinary care, he is not liable:
nnd  it would be  no answer, nor  would it be  per-
mitted by a  court, for the plaintiff in the action to
prove that the treatment of the case was in direct
conflict with that prescribed  by some other scltool
*f physicians, which it is admitted the defendant
never recognized or professed  to fellow.  For in-
stance : You bold, we  will say  for the illustration,
to the system of allopathy.  You are called to see
•a. patient laboring under a savere attack of fever.
You immediately  prescribe those  remedies  and
that general course of treatment which, in  your
judgment, and which, according to  your theory of
allopathic treatment, will produce in the -ysteinof
your patient a condition incompatible with  that
condition essential  to the existence of the particu-
lar fever.   At all events, you  fellow the rule of
your broks. You have proceeded, in all respects, in
accordance  with the school of practice to  which
you belong, and which you profess  to understand.
Hut, still,  for some reason, the fever rapidly grows,
gradually increases in its malignancy, and. in  a
brief space  of  time, your patient suddcv.Iy  dies.
The  father of the deceased immediately commences
& civil prosecution against yea, for  the purpose of
recovering damages for the  loss of services, com-
fort, society, Ae.. which he has sustained  by  rea-
son of bis child's death.  He ch ages, in his com-
plaint, that such death was  the result of a course
of treatment that was  radically  wrong ;  and, in
support of tb:> allegation, he calls upon the witness
stand a homeopathist.  And, in answer to the ques-
tion, as to whether your treatment was proper for
»ueh a fever, he answers at  once that it was  not.
And if asked why it  was not. he will answer that,
to attempt to produce such a condition of the hu-
man system as is wholly incompatible with tho ex
istence of the fever, is a piece of sheer folly; that,
it is an idea  long since exploded, and one-thaT'nO'
regular scientific  practitioner will entertain for  a
moment.  And if asked further what the treatment
of the case  should  have been,  lie will  proceed,
doubtless, to say that "like kills like," and that  a
course of treatment  just the reverse of that pur-
sued by you shoukl  have been prescribed,  which
would have tended to produce in the patient affec-
tions similar to those of the fever.
  Now. you can see at a glance, that it would be a
most dangerous principle  in legal jurisprudence
that would  allow  you to be condemned  upon  a
species of evidence such as this.   And it would be
an egregious error in any court that would charge
a jury in such a case that, if they believed from
all  ihe testimony that your treatment  was all
wrong, and  that it should have been according to
Iho other system, that tbey  sbcald then find for tho
plaintiff.  Upon the contrary, the charge in such  a
care unquestionably  should be, in substance and
effect, this:  What  system of practice  did the de-
fendant adhere to?   Is that system one among the
many that is recognized by  the scientific world t
Was the treatment in accordance with that system?
and did he exercise ordinary  care ?  If so,  tho ver-
dict should be for the defendant, although  the jury
might be fully convinced thut death, in this partic-
ular case, was the sesult of the treatment.
  Iu  determining  the question,  however,  as to-
what is ordinary skill, courts will take into consid-
eration the advanced state ef the profession,  in the
particular system brought  in question, at the time
of the alleged malpractice,  as it is  very  manifest
that what would amount toordinary skill in almost
any seience  or profession a  century ago would fall
very far short of coming up to that standard  at the
present day.   While  it  is trae, therefor,  that  the
law  draws no distinction in this State between  the
regular and irregular practitioner—between  the
ignorant charlatau and the thoroughly educated
physician—by saying that the one may engage in
practice and the other shall not, still, when a man
sets himself op us a practitioner  in any system of
practice, and advertises, and  holds himself out to
the community and the world, as  a person compe-
tent to deal with the  physical accidents and infirm-
ities of the race, be must, when occasion requires
his  services,  and he voluntarily  undertakes  the
case, be able to bring to his aid a: least ordinary 
1
 •drill in the particular system in which he attempts I
 to practice,  Otherwise,  if injury  follows, he is
 guilty of medical  malpractice, and he  must suffer
-the consequences.   I  mean  civilly, by responding
 in daniages to such an amount as a  jury may esti-
 mate the injury sustained—even although  that be
 to the value of an arm, a  leg. an eye, or even life
 itself.
    The plaintiff, in  an  action against a practitioner
 for malpractice, must be  able to prove—because
 the onus of proof in such cases is always upon the
 plaintiff—that  the defendant has  set aside the es-
 tablished principles, and neglected  to  employ
 means which are, by medical writers and qualified
 practitioners, universally  held  to be necessary in
 the particular case under  consideration, or  that he
 has employed means in the  treatment  of the case
 which are, by competent medical writers and prac-
 titioners, universally  held to be improper and dan-
 gerous.  This is a  rule, however, as I have already
 stated, that must be considered  with reference to
 the particular system which he professes to follow.
 For the  law has,  .through judicial sanction, very
 wisely established  the doctrine that, if  a man  em-
 ploys, for instance, an homeopathist, knowing  him
 to be such, and lie is injured through malpractice,
 lie will  not be permitted  to show, as a foundation
 for damages, that  the treatment was not in  accord-
 ance with the universally established treatment in
 a like case of the  allopathists, or any  uthc-. 0r in
 fact all  other systems, and rice versa.
    But the same degree of want of skill and reason-
 able care which will subject a practitioner  to a
 civil liability for damages, will not subject him to
 an indictment for  a felony or a misdemeanor.  The
 law in this regard is tenderly careful of the profes-
 sion, and it  requires a case showing, not only a
 want of ordinary skill and reasonable  care, but of
 •either gro3S ignorance or  gross  negligence.  And
 in this respect, also, has the Jurisprudence of this
 country and England undergone a radical change
 since the times of  Lord Coke, whose Institutes were
 written over two  hundred years ago.   During his
 day, the records  of the  English  criminal courts
 show at least quite numerous instances of  practi-
 tioners having  been, for  malpractice,  condemned
 and executed for  manslaughter—manslaughter, at
 that day in England, being a capital offence.  The
 law, however,  as  I have  already intimated, of the
 present day in the United States -except in certain
 States where it is regulated by statute (and  it is
 also the same in England)—is this : That, in order
 to subject a practitioner to a criminal  prosecution
for malpractice, it  must be made to appear, either
tbatfce was grossly ignorant, or, that not being so
grossly ignorant, be was guilty of gross negl i^eiice.
And I will here state that  this general doctrine of
the common law has  been incorporated into the
criminal code of Oregon.  Section 5G7 of the code
of Criminal Procedure, page  528 of the General
Laws of Oregon, as  compiled  and  annotated  by
Judge M. P. Deady, provides as follows :
  '•If any person shall, in the commission of an un-
lawful act, or a lawful act, without due caution or
circumspection,  involuntarily  kill  another, such
person shall be deemed guiliy  of manslaughter."
  Again:  Section  519. on page 5:50, of the  same
code, reads as follows :
  "The killing of a human being is excusable when
committed  -
  •1st.  By  accident  or misfortune, in lawfully
correcting a child or servant, or in doing any other
lawful act hy lawful means, with usual and ordin-
ary caution, and without any unlawful intent.''
  And again, section 510 of same provides that —
  ;' If any physician, while in a state of intoxica-
tion, shall, without a design to effect death, admin-
ister any poison, drug, or medicine,  or do any otk-
er act  to another person which  shall produce the
death of such other, such pby.-ieiui shall be  deemed
guilty of manslaughter.''
  These wholesome statutory provisions are, how-
ever, in the  main,  merely declaratory of what tho
law had long since become by  the  many  uniform
decisions from the  judicial bench.
  If, therefore, a person is employed to  act in  a
given case,  either as  a physician  or  surgeon—
whether he be a regular practitioner or not—if he
acts honestly  and soberly, uses his best skill to
cure, is not grossly ignorant, or  has not been guilty
of gross negligence, he is not criminally responsi-
ble,  no matter whaitthe result of the treatment may
be.  You will perceive, therefore, that, while dam-
ages may be recovered against a practitioner for
mere want of medical skill, he cannot, for  the same
reason, be held criminally liable in a prosecution.
And even under the Knglish laws of  three centuries
ago, which recognized the distinction between the
regular and irregular practitioner, and which pro-
hibited a person  from practicing  without a pre-
scribed diploma,  while a  person thus  prohibited
might  be subjected to a penalty in a quasi crim-
inal prosecution,  he  was not answerable crimin-
ally for murder or manslaughter on thai acconnl
alone.
   A practitioner, however, at the present day- -
whether he be regularly educated or not—may be
criminally liable  for  malpractice; but  whether he
is or not, in  any given case, must  depend entirely 
upon the questions, as to whether he acted under
the influence of intoxicating liquors, was grossly
ignorant of the case, oracted in a grossly negligent
manner, with careless indifference and inattention
to, and manifest disregard of human life.  A  phy-
sician may do the very act which results directly
in the death of the patient; but still the law, in its
charity for tho imperfections  of  man, even in his
highest and  best sphere of science and skill, and in
its  commendable regard for the protection  of a
profession that has cast its untold benefits to the
human race broadcast throughout the  length  and
breadth  of  the habitable globe,  will  not  adjudge
such a m in a criminal, unless it appears that he
was so grossly ignorant, or acted with such mani-
fest disregard of human life as to raise the impli-
cation of what is known as legal malice. For, from
such gross ignorance, intoxication, or want of care,
the law  ever  has implied, and justly  too, and  I
trust ever will imply, malice,  and hold the party
thus in default answerable, as  a dang'uous enemy
to human life, and a criminal deserving of condem-
nation,  equally with  that despicable  misanthrope
or careless ruffian who. regardless of consequences,
with universal hate burning in his bosom, or hear!
benumbed with cold  indifference to thr* rights of
life and limb, fires  a gun  into the crowded street
or throws a deadly missile  from the.  tower's top
upon the sea of humanity beneath.
  Let ine suggest,  then, the propriety, as well a*
the great necessity, of tborougly a.-.ju iintin:r your-
selves with  the true relation you will  sustain to
society, when  you  shall  enter upou your field of
practice.  Strive to understand weli  your duties
and your grave  responsibilities.  If you do  not.
then each step you take is a step in the dark—over
a pathway dotted with pitfalls innumerable, of civil
and criminal responsibility, and into those, sooner
or later, you will surely  fall—a legitimate victim
to your want of professional knowledge.
  Your  profession is one  that  has  come  down
through  the past  ages of the world, leaving in its
train a silvery stream of light that has shed its heal-
ing rays upon the human race ; a profession  that
has assailed, modified, and even conquered many of
the "thousand natural shocks  that flesh is heir to.'J^
How many of the most dangerous  of contagious
diseases known to the whole catalogue are to-day
held spell-bound and harmless in the hands of vic-
torious medical science.   And how many  others.
that once devastated earth with their  pitiless  hail
of death, are  to-day  shorn of their malignani. pow-
er, and now only remain  as harmless  serpents.
whose fangs have been drawn, and whose poisons
have lost their power to infect.  Second,  therefore,
to none, in character and importance—except that
one which deals  with  our spiritual infirmities--
stands the medical profession.  It has engaged the
life-servic?s of many of the most eminent scientific
men that have ever lived.   And. to aspire to a high
rank in that profession, is to aspire to one among
the most honorable  positions  that man can claim
or earth can give.  And when you have attained
to such a position  in  your profession,  you  will
have reached an eminence that will enable you to
survey, at a glance,  the entire field of duty and re-
sponsibility.  You will then, like the skillful mar-
iner that stands at the helm of bis  vessel, guiding
a-?d directing her free  from the rocks and  shoals,
be enabled to direct your professional bark across
the rough waves of active life, in such  a manner as
to ensure  your safety against the rocks and quick-
sands of both civil aud criminal responsibility.
   Let  me  say.  then, in conclusion, that the  only
safe means to be adopted by  the medical  practi-
tioner, as  a security against personal liability, is to
educate himself thoroughly  in every  department
connected with his  profession.  Be temperate in
your habits, and proceed, in every practical step of
your profession, with care and caution ; and I  ven-
ture the prediction  that you  will  never have the
humiliation of being prosecuted even, much  less
of being compelled  to pay damages on account of
medical malpractice.
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         1




I 
Introductory Lecture.  Mitchell, J. H.
   Salem, Oregon: American Unionist Book
   and Job Office, 1867.
National Library of Medicine
Bethesda, MD
Condition On Receipt:  The paper covered pamphlet was
torn, dirty, discolored, stained, acidic, weak and
brittle.  The front cover and several pages had
losses.  The inks tested appeared stable in water.
Treatment:  The volume was microfilmed.  The volume
was collated and disbound.   The  inks were  tested  for
solubility.  The head,  tail  and  pages were dry cleaned
and washed and  then buffered (deacidified) with
magnesium bicarbonate solution.  Tears were mended
where necessary with Japanese  paper and  rice starch
paste.  The pages were  encapsulated in polyester
film.  The volume was pamphlet bound in  full cloth.  A
leather label was stamped in gold  foil.
Northeast Document Conservation  Center
November 1989
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