Whitaker, W. H.

English

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THEAIERICAN LAW REGISTER.AUGUST 1880.TIE LAW OF SLANDER AS APPLICABLE TOPHYSICIANS.TnERE is, perhaps, no class of professional men more subject toabuse, and, it is believed, more powerless to obtain redress thanphysicians. About clergymen, the law has thrown its protectingarm and public opinion has been wont to overlook, if not to pardontheir short-comings. The clergyma n is a sort of privileged person,whoso character is tried before and whose conluct is regulated byeclesiatical tribunals to which the courts of law have relegated it.Lawver, can take care of themsoives.For alleged professional misconduct, incapacity or ignorance, forrumored unskilful treatment of diseases, physicians who choosemay have recourse to legal proceedings. But to cowhide the editorrt sue the newspaper for the circulation of a libel, may be said ineither case to be social suicide. The physician must grin andbear it. But if he braves public opinion and asserts his rights, ifhe endeavors to obtain satisfaction at law, the chances are, to saythe least uncertain. It is doubtful, as the law now stands, whatcharges of misconduct in a physician in a single instance are action-able. One court (Camp v. M1artin, 23 Conn. 86) has held thatwords spoken of a physician, charging him merely with ignoranceor misconduct in the treatment of a particular case were not action-able. per se. The words were, "If Dr. C. had continued to treather, she would have been in her grave befbre this time. His treat-ment of her was rascally."VOL. XXVIII.-59 (465)466 THE LAW OF SI NDERAnother court (Secor v. Harri', 18 Barb. 425) has adopted acontrary view in a similar case, where the words were: "Dr. S.killed my children. He gave them teaspoon doses of calomel: itkilled them; they died right off, the same day." This last is no doubta more aggravated case, but it is difficult to understand the groundsupon which the principle was distinguished in the two cases. Thecourt said in the last instance that in the rendition of its judgment itwas borne out by the authorities, while in the first case, the courtwas equally confident after having examined the authorities thatnone could be found, analogous to the case at bar, to justify auaction for damages per se. Both, however, united on one case(Sumner v. Utley, 7 Conn. 257), as being in point, and it is amus-ing to observe what different constructions the two opposing tribu-nals gave to a case which must certainly have decided one way orthe other. The Connecticut court said it thought that the casereferred to so far from-varying the rule as they had given it, in-tended to sanction it, and quoted at length from C. J. HOSMER, asfollows: "I readily admit that falsehood may be spoken of a phy-sician's practice in a particular case, ascribing to him only suchwant of information and good management as is compatible with gen-eral knowledge and skill in his profession, and that when such acase arises, unless some special damage exists, his character will beconsidered as unhurt and no damages will be presumed. But onthe other hand, it is indisputable that a calumnious report in a par-ticular case may imply gross ignorance and unskilfalness, and dohim irreparable damage. A physician may mistake the symptomsof a patient, or may misjudge as to the nature of his disease and evenas to the power of the medicine, and yet his error may be of thatpardonable kind that will do him no essential prejudice, because itis rather a proof of human imperfection than of culpable ignoranceor unskilfulness. On the contrary, a single act of his, may evi-dence gross ignorance and such a deficiency of skill as will not failto injure his reputation and deprive him of general confidence."Now the New York court on the other hand, said that the doc-trine laid down in the cases of Poe v. Mondford, Cro. Eliz. 620,and Foot v. Brown, 8 Johns. 64, both of which were adopted asauthorities by the Connecticut court, had been repudiated. In theformer, defendant charged plaintiff with having killed a patientwith physic, and it was held, that the words were not actionableper 8e, and that the law only gave an action for words affecting aAS APPLICABLE TO PHYSICIANS. 467man's credit in his profession, as charging him with ignorance orwant of skill in general. In the latter the words were spoken ofan attorney: "F. knows nothing about the suit, he will lead youon until he has undone you;" and it was held on the authority ofthe former that no special damage being shown, the action wouldnot lie. Rejecting these two cases as unauthoritative. the New Yorkcourt also quoted from the case of Sumner v. Utley, supra, asfollows: "As a general principle it can never be admitted that thepractice of a physician in a particular case may be calumniatedwith impunity unless special damage is shown. By confining theslander to particulars, a man may thus be ruined in detail. Acalumniator might follow the track of the plaintiff and begin byfalsely ascribing to the physician the killing of three persons bymismanagement, and then the mistaking of an artery for a vein,and thus might proceed to misrepresent every single case of hispractice until his reputation should be blasted beyond remedy.Instead of murdering character by one stroke, the victim would besuccessively cut in pieces, and the only difference would be in themanner of effecting the same result."It is good to beat your adversary with his own weapons, andwhile the case of Sumner v. Utley, decided in effect that slander-ous words spoken of a physician were actionable per se, the courtin (amp v. Martin, supra, notwithstanding, drew a favorable conclu-sion for holding that in its case slanderous words were not actionableper se. It is true that the case of Sumner v. Utley was somewhatstronger than either of the other two, and may have furnishedgrounds for the distinction that was drawn between gross ignorancein a single instance, and gross ignorance generally in the treatmentof diseases, but there seems to us to be little, if any, differencebetween a case where the words were that a doctor killed hispatient, and one where they alleged that if he had continued totreat the patient she would have been dead by this time, so far asthe presumption of incapacity is concerned. In Sumner v. Utleythe words imputed gross ignorance generally and particulariy.The defendant said of the physician: "He has killed three andought to be hung-damn him. They all died through his misman-agement. I have understood that he left an after-birth, and theman that would do that ought to be hung;" and on anotheroccasion, addressing himself to Mrs. IT., who had employed plaintiffas her physician, said: " ie was the means of her sickness byTHE "LAW OF SLANDERcutting an artery in her head-damn, him; you ought not to payhim a cent; if Mr. H. had taken him up for it, it would havecost him $400. Itought to be put in the newspapers." The rulemay be said to be as Chief Justice HoSMER put it, though it doesnot appear to be very clear: "This then is the correct principle,that the misrepresentation of a physcian's practice in a particularcase, if it does not warrant the presumption of damage is notactionable, unless special damages are averred and proved; but iffrom the nature of the calumny damages are inferable, the wordsare actionable."The question still remains, when do the misrepresentations of aphysician's practice in a particular case warrant the presumptionof damage? It is allowed -that slanderous words alleging grossignorance generally, or such ignorance or thorough incapacity asunfits him for the proper exercise of his profession, are actionableper 8e. To say of a physician that "He is a quack ;" (Pickfordv. Gutch, Dorchester Assizes, 1787); or "He is an empiric and amountebank ;" (Vin. Abr. Act. for Words, S. a. 12); or "He is aquack; if he shows you a diploma it is a forgery ;" (Moises v.Thornton, 8 Term Rep. 303) ;" or "He is no doctor; he boughthis diploma for $50 ;" (Bergold v. Puokta, 2 Thomp. & C. (N. Y.)532); or " Heis a drunken fool and an ass and never was a scholar;"(Cawdry v. Tetley, Godb. 441); or "He has killed six children inone year :" (Carroll v. White, 33 Barb. 615) ; or "It is a worldof blood that he has to answer for in this town through his ignor-ance. He was the death of J. P. He killed his patient withphysic;" (Tutty v. Alewin, 11 Mod. 221); or "I wonder you hadhim to attend you. Do you know him. He is not an apothecary;he has not passed any examination. He is a bad character; noneof the medical men here will meet him. Several have died thathe has attended to, and there have been inquests held upon them ;"(Southee v. Denny, 1 Ex. 196.) In all these cases it has been heldthat damages are inferable without proof; but to say of a physician,"He is so steady drunk that he cannot get business any more;"(1 Ohio 83 n.); or "He is a two-penny bleeder ;" (Foster v. Small,3 Whart. 138); or to charge an allopathic physician with havingmet homceopathists in consultation, and that in the opinion of theprofession it was improper to do so and against etiquette, andfurther, that in the opinion of the profession it was disgraceful tomeet a homceopathic in consultation (Clay v. Roberts, 8 L. T. N.AS AP'LICABLE TO PHYSICIANS.S. 397); or to charge him with adultery not necessarily touchinghim in his profession without showing that it was connected withhis profession (A~yre v. Craven, 2 Ad. & E. 2), have been held notactionable per se.While the authorities are generally agreed as to charges of grossignorance or incapacity in the exercise of the duties of the physi-cian, it is not easy to determine what words are actionable in them-selves in special instances. In analogous, and even in preciselysimilar, cases, the courts are divided. Where the words were:" He killed my child; it was the saline injection that did it ;" (Ed-8all v. .Russell, 4 M. & G. 1090); or, " He has killed my child bygiving it too much calomel," (Johnson v. Robertson, 8 Porter 486),they have been held actionable per se. And, on the contrary, thewords, "He has killed his patient with physic," (Poe v. Mondford,supra), or "In my opinion, the bitters A fixed for B, were thecause of his death," (Jones v. Div'er, 22 Ind. 184), or "He gave mychild too much mercury, or he made the medicines wrong throughjealousy, because I would not allow him to use his own judgment,"(Edsall v. Russell, supra), have been held not actionable in them-selves.In the examination of these cases, it will be found that where thephysician is charged with killing his patient, the words have beenheld actionable on account of the imputation of crime which theyimport, and the only case in which such language has been held nctactionable, is that of Poe v. Afondford, of an early origin. Thiscase was rejected by the court in Seeor v. Barris, on the groundthat it was decided at a time when the doctrine of mitior sensusprevailed. And as for the case of Jones v. Diver, the court heldthat the words were not actionable, because they did not import acharge of murder; that if the defendant had said that "the bittersDr. D. gave John Smith, caused his death; there was enoughpoison in them to kill ten men," he would have been held guiltyof the charge, and the words would have then been actionable.How such words necessarily import the crime of murder or man-slaughter, in the absence of any expression of intention, is notquite clear. This was not the ground of the decision in a case of anon-professional, charged with having destroyed the life of a patientby mistaken, but well-meant, efforts to save his life: March v. Da6.vison, 9 Paige (N. Y.) 580. But even if the words do not importthe charge of crime or of gross incapacity generally, there seems to

The Law of Slander as Appicable to Physicians

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The Law of Slander as Appicable to Physicians

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