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THE LEGAL RELATIONS
PHYSICIANS AND SURGEONS
THEIR ACQUIREMENT OF THE RIGHT TO PRACTISE MEDICINE AND
AND THEIR LIABILITY FOR MALPRACTICE.
TRACY C. BECKER, A.B., LL.B. Counsellor-at-Law; Professor of Criminal Law and Medical Jurisprudence, Law Den
partment, University of Buffalo, etc.
LEGAL STATUS OF PHYSICIANS.
OF THE RIGHT TO PRACTISE MEDICINE AND SURGERY.
LEGAL DEFINITION AND HISTORY OF THE TERMS
PHYSICIAN AND SURGEON.
At common law the right to administer drugs or medicines or to perform surgical operations was free to all. And such was the rule of the Roman civil law. But the importance of prescribing certain educational qualifications for those who made such practices their means of gaining a livelihood soon became apparent, and as early as the year 1422, during the reign of Henry the Fifth in England, an act of Parliament was adopted forbidding any one, under a penalty of both fine and imprisonment, from “using the mysterie of fysyck unless he hath studied it in some university and is at least a batchellor of science.”
As a result of this and other statutory regulations, a class of professional men arose, who were called "physicians,” because they professed to have the qualifications required by such legal regulations wisely to prescribe drugs and medicines for the cure of diseases. A chirurgeon or surgeon-Latin, chirurgus; Greek, zetpoupyos, compounded of zelp, the hand, and éppelv, to work--as the derivation of the word shows, was one who professed to cure disease or injuries by manual treatment and appliances.
It would be more interesting than profitable to trace the history of these terms, and of the professions of medicine and surgery from the early times, when the clergy administered healing to the body as well as to the soul, when barbers were generally surgeons, and blood-letting by the knife-blade and the use of leeches caused the common application of the term " leech” to those who practised surgery.
Definition. For the purposes of this treatise, however, it will be sufficient to define the term “physician," as meaning any one who professes to have the qualifications required by law to practise the administration of drugs and medicines, and the term “surgeon," as meaning any one who professes to have the like qualifications to perform surgical operations, for the cure of the sick or injured.
For a list of the early statutes of England relating to the practice of medicine the reader may consult Ordronaux’ “Jurisprudence of Medicine," p. 5, note 2.
The present statutory regulations throughout the United States and in England and Canada are more particularly referred to and synopsized hereafter in this volume.'
1 Vol. I., pp. 135 et seq.
ACQUIREMENT OF LEGAL RIGHT TO PRACTISE MEDICINE
Now Generally Regulated by Statute.-In nearly all of the United States, as well as in England, France, Germany, and other civilized and intelligent communities, the legal right to practise the administration of drugs and medicines, or to perform operations in surgery for the purpose of curing diseases or injuries, has for many years been the object of statutory legislation. The necessity and propriety of regulating by law such practices is generally conceded; it is manifest to all that a person engaging in the practice of medicine or surgery as a profession is holding himself out to the world, and especially to his patients, as one qualified by education and experience to possess more than ordinary skill and ability to deal with the great problems of health and life. He professes to the world that he is competent and qualified to enter into the closest and most confidential relations with the sick and afflicted, and that he is a fit and proper person to be permitted freely, and at all hours and all seasons, to enter the home, the family circle, and the private chamber of persons suffering from disease or injury. All this he professes and does upon his own account, and for his own-profit.
Statutory Regulation of the Right to Practise, Constitutional.—The exercise by the States of these statutory powers is upheld as a valid exercise of the “police power,” to protect the health of the community. When the constitutionality of such enactments has been questioned, it has been alleged that the statutes under question unjustly discriminated in favor of one class of citizens and against another class; and that they deprived those already engaged in the practice of medicine or surgery of “their property without due process of law.” State v. Pennoyer, 18 Atl. Rep., 878; ex parte Spinney,