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1552

Medico-Legal
Bulletin

Examination of Patient in Malpractice Suit.

The action for damages for personal injuries is filled with rules for pleading and

rounded with more none of these rules is sur

amination of the injured party.

than that as to the personal exBy this we mean the right of either party in the action to display the juries to the jury or to medical experts whatifk Bel5the jury as to the facts. This testimony is what is called demonstrative evidence. It may often be the best means, the defendant possesses for showing the falsity of the charge against him, while for the plaintiff it may be a most useful piece of ammunition for exaggeration by his counsel in influencing the minds of the jury. This evidence is especially valuable in the action for damages for personal injuries. The malpractice action, being an action of that nature, the use of evidence of this kind may be of peculiar value to one or the other of the parties, and especially to the physician.

Many cases of alleged malpractice are based on injuries which are fictitious and to show the real condition of the plaintiff an examination by qualified experts or inspection or a showing of the injured part of the body before the jury is the only means available to the physician with which he can defend the false charge made against him. To deny him the right to such evidence may mean his defeat, while to allow him the right to introduce testimony of this character can never do more than show the real facts in the case. If it is allowed, this testimony will in many cases defeat the plaintiff's action, particularly where the physician has to compel submission to the examination by order of court, for in that event the patient is anxious to have no showing of his real condition, so that he can uphold his blackmailing scheme; but he prefers to object to the examination and does not permit it until he is forced to submit himself by the order of the court.

The occasion for the use of the physical examination or showing in malpractice actions can arise in many ways. The patient may want to exhibit his own injured person to the jury or have his own expert physicians examine him, who in turn

testify as to what he has suffered at the hands of the physician to influence the jury in his behalf; or the physician may desire the patient to exhibit his injured person to the jury or present himself to his experts for examination for the purpose of determining the real nature of the injury and to explain to the jury the defendant's position in regard to it. If the patient consents to the examination or exhibition of himself at the defendant's request, there is no necessity of appealing to the court for an order requiring him to appear. It is only when the plaintiff refuses to consent to this examination or exhibition that the physician can get it, if at all, by order of the court.

This subject has received considerable attention by the various judicial sovereigns over this country and England, and no little confusion has resulted from the many decisions handed down. The courts have taken different positions in regard to the propriety of allowing the admission of such testimony as this. Some have held that physical examination is improper in any event; others permit the plaintiff to exhibit his injury to the jury, while others order the plaintiff, at the instance of the defendant, to submit himself to examination or to exhibit himself before the jury.

We must look to the common law of England for any principle or right, in the absence of a statute on the subject in the states, upon which the physical examination of the plaintiff can be refused by him or ordered or refused by the trial court. The first and primary end of all human laws is to maintain and regulate the absolute rights of individuals. These rights are few and simple and the ones with which we are concerned are those known as rights of personal liberty and security. These rights consist in each individual's "legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation," and the right of complete immunity; the right to be let alone. No right is held more sacred, or is more carefully guarded by the common law,, than this right to the possession and control of one's own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

In Blackstone's time the English courts were permitted, in their discretion, to try a case by "inspection, or examination." This was proper when for the greater expedition of a cause, in some point or issue which may be the principal question in the case or one arising collaterally out of it, but is obviously the object of the senses, "the judges of the court, upon the testimony of their own sense, shall decide the point in dispute." No jury was called for the decision of such a question. Facts settled in this manner were those of the age of a minor; whether one is

the party he claims to be; whether or no an individual is an idiot; whether the crime of mayhem as alleged is true in fact. For the purpose of determining the latter fact the court could call in surgeons to assist it in its inspection. This practice has long ceased, however.

Other uses of inspection or examination were made in the early days in the ecclesiastical courts of England, in the trial of divorce cases where the grounds of the divorce were such that the public, as well as the parties, had an interest in upholding or annulling the marriage contract. This practice came from the civil or canon law as administered in these ecclesiastical courts.

The common law of England allowed no such practices in civil actions, with the single exception that to protect the rightful succession to the property of a deceased person against fraudulent claims of illegitimate children, certain examining and restraining writs were allowed by the court. This practice has been made use of in recent years in that country in cases of that class, but in no others.

In the personal action, however, the common law courts of England seem never to have issued a writ compelling the plaintiff to submit his body for inspection. By the English Common Law Procedure Act of 1854, enlarging the powers which the courts had before, they are authorized, on the application of either party, to make an order "for the inspection by the jury, or by himself or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute." No mention is made in this act of the right to inspection of the person, so we are compelled to believe that no such inspection, without consent, was allowed by the common law of England. If it were, we would surely find some, if not frequent, use of the writ. The common law court could not go so far as to order inspection of documents until the statute expressly authorized it, unless the document was pleaded on, much less then could it order an examination of that which is most sacredly guarded by the law.

We have now considered the position which the right to inspection of the person occupies in the common law courts of England and find that it has never been considered as occupying any position whatever, in the absence of a statute authorizing the writ. Our courts, acting independently of any statute on the subject, are bound by the constitution and common law precedents. If the constitution does not stand in the way and there are not precedents to follow, the court in a particular case is

warranted in deciding the new question as the justice of the case demands, provided no recognized rights of the person or property are invaded. This seems to be the situation in regard to the inspection of the person. There is no common law precedent and the constitution of the United States or that of any of the separate states does not prevent the granting of the writ of inspection. The only difficulty in the way is the absolute right to be let alone, which is violated when the writ is issued. There must be some legal cause for this violation or the order of the court is void. Some irreparable wrong must be done to the opposing party as a result of a refusal to grant this order, or the ends of justice must require this invasion of an absolute right.

The first case we have been able to find in the United States in which this writ was granted in an action for a personal injury is that of Walsh v. Sayre, in New York, decided in 1868, and reported in 52 How. Pract., 334. In that case the plaintiff brought suit against the defendant a surgeon, for an alleged unskillful operation on the plaintift. The plaintiff refused to allow defendant or his experts to examine the affected part, so defendant made application to the court for an order requiring the plaintiff to submit to a physical examination. The court granted the order because the evidence was necessary to settle the question of fact. Subsequent cases in New York take a different view of the power to grant the order and hoid that the defendant has no right to demand a physical examination and that the existence of the power "is not indispensable to the due administration of justice," and "its exercise, depending on the discretion of the judge, would be subject to great abuse." In McQuigan v. Delaware, &c., Co., 129 N. Y., 50, the court denied the application of the defendant for an examination of plaintiff's injuries, and said: "We think the assumption by the court of this jurisdiction, in the absence of statutory authority, woula be an arbitrary extension of its powers (since the common law did not recognize the existence of the power.)"

The Supreme court of Missouri, in 1873, in Loyd v. Hannibal, &c., Rd., 53 Mo., 509, took the same view of this power to grant personal inspection as the later New York courts; but since then, in 1888, the court, in Owens v. K. C., &c. Ry., 95 Mo., 169, has held that the power to grant the order is one of discretion in the trial court, and that the order will not be disturbed unless an abuse is shown. The Supreme court of Illinois in 1882 took a similar view to that expressed in the early Missouri case, and this view seems to be the one entertained by

that court today, though its decisions are leaning more and more toward leaving the granting of the power to the discretion of the trial court. In the United States courts the rule is that the power to grant physical examination in a personal injury action does not exist at all and the defendant has no right to ask for the examination.

With these few exceptions the state courts are generally taking a different view of the power to grant this order of physical examination, and in a proper case the practice now is to grant the order upon the application of the defendant. The granting of the order is left entirely to the sound discretion of the court, for the defendant cannot in any case demand the examination as a matter of right.

A leading case favorable to the granting of this order is that of Alabama Great Southern Ry. v. Hill, 90 Ala., 71, where the plaintiff was injured in a railway accident. She claimed that her injuries were "internal and permanent in their nature, and very grievous, painful and dangerous." Her physician had several times made examination of her person and was ready to testify in her behalf as to the results of his investigation. Prior to the trial, on the day the trial was entered upon, and again pending the trial, after the plaintiff and her physician had testified, the defendant moved the court for an order requiring plaintiff to submit to a physical examination by a reputable physician, to be appointed and controlled by the court. He also presented affidavits of three physicians that the proposed examination would not injure plaintiff, while plaintiff presented two affidavits that it would be dangerous to her health and feelings. On this showing the trial court refused to grant the order each time the motion was made. The Supreme court considered all the facts and held that the lower court erred in denying the order. It said the "delicacy and refinement of feeling, though, of course, entitling her to the most considerate and tender treatment consistent with the rights of others, cannot be permitted to stand between the defendant and a legitimate defense against her claim. When it becomes a question of possible violence to the refined and delicate feelings of the plaintiff on the one hand and possible injustice to the defendant on the other, the law cannot hesitate; justice must be done." A serious doubt was raised by the conclusions of the plaintiff's physician and those of the other physicians who were examined as to what the facts really were, so that to a satisfactory solution of that doubt the examination moved for was essential to do justice. "The result of such examination by skilled and disin

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