Part 1

Produced by Bryan Ness, Martin Pettit and the Online Distributed Proofreading Team at http://www.pgdp.net (This book was produced from scanned images of public domain material from the Google Print project.)

Medical Experts.

INVESTIGATION OF INSANITY BY JURIES.

Read before the Santa Clara Medical Society, SEPTEMBER 4, 1877.

_By W. S. THORNE, M. D._

SAN JOSE: "THE PIONEER" PRINT, COMMERCIAL BANK BUILDING. 1877.

Medical Experts.

_Mr. President and Gentlemen of the Santa Clara Medical Society:_

In the almost infinite variety of human affairs there are possibly none more complex than those which are involved in adjusting the legal relations of the insane. And, certainly, no duty which the medical man is called to perform so tries his patience or tests his knowledge and his experience as the character of medical witness in Judicial investigations.

The points to which I particularly desire to call your attention to-night are the following, to-wit:

First.--The present uncertain position occupied by medical experts in California Courts.

Second.--The provision in our civil code which enables a person, who has been declared insane before a commission of lunacy, to demand a Judicial investigation before a Jury.

My own limited capacity, Mr. President, and the presence here to-night of older and more experienced members of the profession admonish me that my theme is ill-chosen, and whilst I feel that my effort is properly prefaced by an apology, I am likewise impressed with the conviction, that it is my duty and privilege to raise my voice, feeble though it be, against abuses which are alike derogatory to our profession and an injustice to society.

It is a confession no less mortifying than true, that medical experts, in California Courts, have no legal rights, and their testimony elicits neither respectable consideration nor carries with it authoritative weight. I assume these premises to be true, and if there is a medical man within the sound of my voice, whose experience as a legal expert in this State has been more fortunate, I shall unhesitatingly pronounce his case anomalous. Admitting then my hypothesis, let us inquire, if so we may, wherein lie the evils of which we speak and if possible their remedy.

Any person holding a diploma from a reputable school of medicine and engaged in the active practice of his profession, is in law an expert. In this capacity he may be summoned at any moment to testify to questions of fact, hypothetical or theoretical. The questions thus propounded to the medical witness are frequently complex in their nature, involve a wide range of inquiry, and necessitate on his part a just discrimination, extensive knowledge and large experience. Again, medical science is ever varying; it may be likened to an uncertain stream that shifts its banks--restless and aggressive, the land-marks change, but the river's course is ever onward. Principles like the rocks left in its ancient bed, alone remain to mark its passage and reveal its work; accepted truths of to-day may be _un_truths to-morrow. Errors have been enunciated by Philosophers, have been sanctified by the Church, and promulgated by Priests, but have finally been overtaken by this same resistless stream of progress, and by it have been swept out of the world. Even so to-day our science is changing its foundation stones. Insanity is but just emerging from a complex labyrinth of metaphysical obscurities, and has taken its place in pathology as a physical disease. Physiological Chemistry has scarcely conned its alphabet, and its unknown literature, pregnant with marvelous truths has yet to unfold its treasures to us. Equally unexplored is the vast field embraced in the aetiology of diseases, the character of morbid germs and their mode of entry into the economy. Organic Chemistry is filling our libraries with its new facts and experiments. The imperative demand therefore of the medical expert is constant study. The exigencies of the position require, in justice to the profession, a thorough acquaintance with all that is old, and an equal familiarity with all that is new. The range of judicial inquiry often embraces the entire field of medical and surgical knowledge, as well as all their collateral branches. No obsolete theory, no unborn or possible fact is too remote for searching investigation. Hypothetical questions, ingeniously framed, which include complex and unusual possibilities or specious probabilities, invite the attention, and tax the knowledge, the memory and the judgment of the expert.

Again, medical men are frequently summoned as experts by opposing counsel, between whom there is known to exist personal animosities or professional jealousies. The usual result is anticipated by the legal gentlemen. The doctors contradict each other; the lawyers are delighted, the jury puzzled, and the Court is disgusted with medical testimony. An advocate will not infrequently subpoena his medical friends to testify in a given case. Testimony thus elicited is of necessity biased by the personal influence of the attorney and the _ex-parte_ statements of facts derived from the same source. The medical witness is thus led by a piece of legal _finesse_ to rebut the evidence of the experts on the other side, which he would have unhesitatingly endorsed in the consulting room. The doctor has perhaps satisfied a little ambitious egotism--he has assisted the attorney to win his cause; but he has done so at the sacrifice of personal dignity, professional unity, and the respect of both court and jury. _Biased_ expert testimony is a shame and a disgrace to our profession. It is infinitely baser and more ignoble than rank perjury, for perjury is often the child of fear, of hate, of avarice; but what language shall be found adequate to characterize a student of science, enlightened by education and refined by gentle associations, who can so far forget his duty to himself and society as to prostitute his knowledge to so ignoble a purpose? Again, medical men, after graduation, are prone to neglect the systematic reading of new books and journals. Their reading is desultory, and as the increasing demand of professional duties press them for time, they come to rely more and more upon their own experience, with an overweening confidence as to its entire accuracy. Now, no sane man doubts the value of _individual experience_. As well might you deny the value of a single dollar because it is only one. "I have been in practice twenty years," exclaims a neighbor, "and I speak from experience; I am right!" True to the extent of that one experience for twenty years; but suppose twenty other observers, who have systematically recorded their experience for the same length of time--who are at least your equals in the profession and vastly your superiors in their opportunities for observation--should have met with results adverse to your own, would you not pause ere you ventured to assert the accuracy of your knowledge under oath in a public tribunal? The experience of one man, though of incalculable value, is as naught to establish the truth or falsity of a principle; observations must be numerous and widespread, least the inductions therefrom lead to erroneous conclusions. The most successful ovariotomist is he who has never lost a case, but can it be truly said that he who has had but a single case, and saved it, is the man?

I will here venture the belief that the medical man whose testimony will carry with it the greatest weight, will be he, who, in addition to his own experience, can supplement it by the accumulated experience of many others, whatever be _his_ age or however limited _his_ experience. An eminent lawyer once remarked in my presence: "You doctors make bad witnesses. When asked by counsel, questions which no man can answer, why don't you confess your inability to do so?" I have often seen a medical witness floundering through an attempted definition of insanity--of mind and its relations to matter. Herbert Spencer begins his chapter on mind by declaring that we do not know, and probably never shall know, anything concerning mind. It is in nowise derogatory, therefore, to our intelligence, to admit the same unwelcome truth.

To recapitulate, then, the causes, as I understand them, of the merited discredit attending expert testimony in medico-judicial inquiries, are: _First_--A diploma and active practice constituting the only legal requirement for that position. _Second_--Inequality of professional acquirements; an inequality, I may remark, resulting from a difference of industrious habits in the later years of professional life. _Third_--Inharmony among professional men. These, I am persuaded, are the proximate causes of the ridicule and contempt with which medical testimony is at present received in California courts. The remedies for the evil may be briefly stated to consist in: _First_--A united profession, determined to elevate the standard of medical education. _Second_--The formation of local medical societies for the interchange of ideas and harmonious intercourse, and the promotion of mutual improvement in medical and collateral science. _Third_--The establishment in the medical department of the University of California of a Chair of State Medicine for the benefit of those who desire to fit themselves for service in medico-legal investigations.

In concluding this part of my subject I would venture to enjoin upon the medical witness that he should enter the court room as he would approach the bedside, a calm intelligence, untramelled by fear or prejudice, instigated by no ignoble purpose and inspired only with the desire to elucidate such questions as are propounded for his consideration, in a manner that shall accord with advanced science and the views of the most enlightened of his profession. The ancient injunction, "Thou shall not muzzle the ox that treadeth out the corn," appears to be pretty generally observed towards all kinds of animals, the world over, with the exception of medical experts, who do an amount of public treading at a rate of compensation inferior to that accorded to the time of a first-class shoemaker. With your permission I will relate an example illustrating the truth of this statement. A murder has been committed; the defense set up insanity, and a judicial investigation is had, to determine the _mental_ condition of the accused; six experts are summoned to assist in the trial; they are detained three days and a half; a bill for expert service is rendered the county, endorsed by the District Judge and the District Attorney, for an amount below the actual loss that each had sustained by absence from his practice, and the munificent sum allowed by the county for three and a half days service is fifteen dollars a piece. The legal obligations on the part of the expert to respond to the summons of the court is inexorable; but there is no corresponding obligation of the county to remunerate the expert beyond common witness fees of two dollars per diem. It would seem that the five dollars allowed in the case under consideration was a mere gratuity; and counsel on careful investigation have advised the experts that they can not recover the full amount of their claims.

Such, gentlemen, is the anomalous position of medical witnesses before the courts. Now, Mr. President, a physician's time is practically his capital, his stock in trade, if you please. Is not, therefore, this exercise of judicial authority, in effect, the appropriation of private property to public uses without just compensation?

If the courts of this county have the right to compel my attendance, as an expert, three days and a half at the rate of four dollars and twenty-eight cents per diem, it would have an equal right to extend that attendance to fifty days, or a year, at the rate of $1,562.20. Now if my income be $1,000 per month, the county of Santa Clara has the legal right to appropriate to public uses $10,438.60 of my money, my only redress being to supplicate the Legislature to restore, as a charity, what is mine by right.

The principle by which medical experts are forced to attend in courts of law is manifestly _unjust_, and demands immediate alteration by our next Legislature. The forced attendance of medical experts in courts of justice at a rate of compensation arbitrarily fixed, or withheld, is an abuse of power that finds no excuse in justice or necessity.

The citizen is thus virtually deprived of an inalienable right, for the security of which our forefathers yielded up their fortunes and their lives. Let the medical profession of the State of California see to it that the next Legislature pass an act empowering District Judges to allow extra compensation to medical experts summoned in criminal cases. The same provision can be made for the compensation of medical experts by the Legislature as provided in Section 271 of the Civil Code for the payment of short-hand reporters in criminal cases, which is as follows, to-wit: "In criminal cases, where the testimony has been taken down upon the order of the court, the compensation of the reporter must be fixed by the court, and paid out of the treasury of the county in which the case is tried, upon the order of, the court."

I now pass to the second part of my subject, relating to the trial of persons accused of insanity. Section 1763 of the "Code of Civil Procedure" of the State of California declares that "a person of unsound mind may be placed in an asylum for such persons, upon the order of the County Judge of the county in which he resides, as follows: First--The Judge must be satisfied by the oath of two respectable physicians that such person is of unsound mind, and unfit to be at large. Second--Before granting the order the Judge must examine the person himself, or if that be impracticable, cause him to be examined by an impartial person. Third--After the order is granted, the person alleged to be of unsound mind, his or her husband or wife, or relative to the third degree may demand an investigation before a jury, which must be conducted in all respects as under an inquisition of lunacy." Section 1766 declares "That any person who has been declared insane, or the guardian, or any relative of such person, within the third degree, or any friend, may apply by petition to the Probate Judge of the county in which he was declared insane, to have the fact of his restoration to capacity judicially determined. The petition shall be verified, and shall state such person is then sane. Upon receiving the petition the Judge must appoint a day for hearing, and, if the petitioner request it, shall order an investigation before a jury, which shall be summoned and impaneled in the same manner as juries are summoned and impaneled in other cases in the Probate Court. On trial the guardian or relative of the petitioner, and, in the discretion of the Judge, any other person may contest the right of the petitioner to the relief demanded. If it be found that the petitioner be of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardianship of such person, if such person be not a minor, shall cease." Such, Mr. President, are the latest enactments in this State respecting the examination and trial of persons alleged to be insane. The provisions to which I desire to direct your attention are those parts of Sections 1763 and 1766, which enable the person who has been adjudged insane, or any person within the discretion of the court, the husband or wife, the guardian, or any relative to the third degree, to petition the Probate Judge to order an investigation by a jury. Sir, I will premise my remarks on these provisions of our Civil Code by the enunciation of the following theorem: That if the provisions of our Code, relative to trial by jury of persons alleged to be insane, were hereafter to be applied in all cases, there would be no more commitments to our insane asylums in future, except raving maniacs, and the present inmates of those institutions, once restored to liberty, could never again be returned to them. Let us see if the facts will prove the theorem. About the year 1873, one A. B., an intemperate and wealthy citizen of this county, was thought to be insane, and a guardian was appointed to take charge of his estate.

At the solicitation of friends he was placed as a pay patient in St. Mary's Hospital, in San Francisco. He remained there several months. When it became impracticable to retain him longer in that institution he was brought to San Jose. Not long after this event he was examined before a commission of lunacy, consisting of the County Judge and two physicians. He was pronounced insane by this commission and was ordered to be taken to the asylum at Stockton. At the suggestion of his wife he was released after a few weeks confinement in that Institution, but was not discharged as cured. He returned to his home, and soon after made application to the Probate Judge for the discharge of the guardian upon the ground that he was competent to manage his own affairs. A lengthy trial was had and a large number of medical witnesses were called, who testified that the Plaintiff was insane. The application to remove the guardian was denied. A few days subsequent to this event the new law, (Section 1766, Civil Code,) went into effect which allows a person who has been adjudged insane to have his restoration to sanity determined by a jury. A jury was impaneled and by consent of all parties a (sham) verdict was rendered declaring him sane. About this time he made a deed of one-half of his property to his wife, in trust. Soon after this instrument was made, his conduct became so ungovernable, and as his family alleged, dangerous, that they made application to the County Judge to have him examined with a view of committing him to an Asylum. The examination was had before the County Judge and two Physicians, sitting as a court. The trial was lengthy and occupied several days. A large number of medical and lay witnesses were examined, and the result of the inquiry was a declaration of insanity, and the order that the accused be taken to Stockton. A short time before this trial took place, this gentleman made and executed a second deed of one-half of the remaining property, to his wife. Immediately after he had been declared insane by the last commission, and before he was taken to Stockton, a jury was demanded to determine the fact of his restoration to sanity. This trial was contested by the family, and a large number of medical witnesses were called, including his family physician and the Superintendent of the Asylum at Stockton. The testimony of the medical witnesses was unanimously in favor of his insanity. Numerous witnesses, among the laity, however, were not wanting whose opinions flatly contradicted those of learned gentlemen, and the jury returned a verdict of sanity. A few months subsequent to the latter decision, this unfortunate gentleman began an action in the District Court to have the second deed to his wife set aside, upon the ground that he was insane at the time of executing it. The judgment of the court was, that the deed be set aside upon the grounds as alleged in the complaint. Mr. President, we behold the transformation of the caterpillar into the butterfly and we marvel at the mysterious process of designing nature; but what a sluggard is nature when compared to the law! The law can metamorphose a human intellect from health to frenzy and from frenzy to health by the exercise of its resistless fiat. We read of the Arabian Knights and of Aladdin's Lamp, but the fantastic evolutions of this legal romance surpass them all. The same individual in the short space of two years, without apparent change in his mental state, so far as could be determined by physicians or friends, is thrice pronounced insane by as many commissions of lunacy, twice sane by two different juries and once insane by a District Judge, in order to annul a deed that was executed just prior to the verdict of a jury that declared him sane and therefore responsible for his acts.