32

where the coroner has power to employ proper physicians and surgeons, the county commissioners, or other legislative body of the county, cannot control his choice by the employment of another physician, or the appointment of a medical adviser to the coroner. The employment of a physician to make a post-mortem examination at an inquest, being within the authority of a coroner, his contract therefor will bind his county to the payment of a reasonable compensation for services rendered.33

A county is responsible for what the services of a physician rendered at the instance of a coroner in making a post-mortem examination at an inquest are reasonably worth as a cost of administration of the criminal laws;34 though under some of the statutes the amount of compensation is to be determined by the county board like other claims against the county, the coroner not being authorized to bind the

examination on summons of a justice of the peace is entitled to compensation on the certificate of the justice, under statutory provision that, when a physician is required to attend an inquest held by a coroner, the coroner shall certify such services to the board of county commissioners, who shall order payment therefor; and that, when the coroner shall be absent or unable to attend, any justice of the peace of the proper county may hold an inquest. Stevens v. Harrison County, 46 Ind. 541.

32 Dearborn County v. Bond, 88 Ind. 102; Allegheny County v. Shaw, 34 Pa. 301.

Northampton County v. Innes, 26 Pa. 156; Pickett v. Erie County, 19 W. N. C. 60; Clark County v. Kerstan, 60 Ark. 508, 30 S. W. 1046; Jameson v. Bartholomew County, 64 Ind. 524; Dubois County v. Wertz, 112 Ind. 268, 13 N. E. 874; Lang v. Perry County, 121 Ind. 133, 22 N. E. 667; People ex rel. Sherman v. St. Lawrence County, 30 How. Pr. 173.

But a county cannot be held liable to pay the reasonable fees of a physician who makes a post-mortem examination at a coroner's inquest, under statutory provisions making counties of the state chargeable with certain costs and expenses specified, not including such physician's fees: in such case they are a charge against the state and not the county. Fears v. Nacogdoches County, 71 Tex. 337, 9 S. W. 265; Frio County v. Earnest (Tex.) 16 S. W. 1036.

for the free admission and relief of patients within a certain area upon production of a governor's letter, and of patients outside that area by the payment of a small weekly sum, is a public hospital within a proviso of a statute that, where an inquest is held on the body of a person who has died in a public hospital, the medical officer whose duty it may have been to attend the deceased as medical officer of the hospital shall not be entitled to fee or remuneration for making a post-mortem examination, and attending to give evidence; and a medical man practising in the neighborhood who held the appointment of honorary medical officer to such hospital, for which he received no remuneration, is the medical officer of a public hospital, whose duty it is to attend a person in such hospital, within the meaning of such proviso. Horner v. Lewis, 67 L. J. Q. B. N. S. 524, 78 L. T. N. S. 792, 62 J. P. 345.

St. Francis County v. Cummings, 55 Ark. 419, 18 S. W. 461; Marion County v. Chambers, 75 Ind. 409.

And this without reference to the amount of his professional income; and such income is immaterial in an action for recovery of compensation for such services. Marion County v. Chambers, 75 Ind. 409.

And physicians shown to be medical experts are competent to testify as to the value of the services of a surgeon rendered in making a post-mortem examination, though they had no knowlAnd a children's hospital supported edge of the price usually charged for by voluntary contributions, and founded making such examinations. Ibid.

county by a contract for a particular sum.35 And when such a board is given jurisdiction of a claim of a physician for services rendered in a post-mortem examination, a judgment of the board bars a suit against the county for such services; and it is not necessary to the jurisdiction that the claim should have been made in the form of a suit at law.36 A recovery for such compensation may be had at common law, however, and, as a general rule, under the statutes, in an action against the county.37 And the fact that a coroner's inquest was instigated for improper motives does not constitute a defense, in the absence of notice to the physician;38 nor is it a defense that the deceased died in another county;39 or that the physician was a resident of another county;40 or that the services of the physician were rendered in another county. And the fact that the physician employed by the coroner was also employed by the county to treat the county poor does not prevent his recovery for making a post-mortem

41

35 Jameson v. Bartholomew County, 64 Ind. 524. And see Jay County v. Gillum, 92 Ind. 511; Christie v. Sonoma County, 60 Cal. 165.

And the verification by a physician of his charge against a county for making a chemical analysis for the detection of poison, and a post-mortem examination and dissection of a body by order of the coroner and district attorney, and a certification thereof by the district attorney, in no way affect the rights of the board of supervisors in auditing the account, and fixing the amount to be received. People ex rel. Sherman v. St. Lawrence County, 30 How. Pr. 173.

Gaston v. Marion County, 3 Ind. 497. And the coroner, or a justice acting in his absence, is the proper officer or tribunal, under a provision that, when a coroner or jury deem it requisite, he may summon one or more physicians or surgeons to make a scientific examination, and shall allow a reasonable compensation, exclusively charged with the duty of fixing the compensation in question; and in case of refusal to act he may be compelled to do so by mandamus. Cushman v. Washington County, 45 Iowa, 255.

But where a physician makes a postmortem examination of a body by the direction of the coroner, under a statutory provision that the coroner or jury may, when deemed requisite, summon one or more physicians or surgeons to make a scientific examination, and allow a reasonable compensation, he is not bound by the allowance for his services made

by the board of supervisors, but may recover more by showing that his services were of greater value than the amount allowed, and may recover therefor in a direct action against the county. Moser v. Boone County, 91 Iowa, 359, 59 N. W. 39.

And where the coroner, or a justice of the peace in his stead, holding a postmortem examination, is exclusively charged with the duty of fixing the compensation of a physician employed, presentation of the physician's claim to the county board for allowance, and acceptance of the amount allowed, is not a bar or estoppel to a recovery for the whole amount. Sanford v. Lee County, 49 Iowa, 148.

"Com. v. Harman, 4 Pa. 269. And see Pueblo County v. Marshall, 11 Colo. 84, 16 Pac. 837; People ex rel. Cosford v. Niagara County, 38 N. Y. S. R. 964, 15 N. Y. Supp. 680.

Van Hoevenberg v. Hasbrouck, 45 Barb. 197, was decided under a previous New York statute, since repealed, under which a coroner had a right to employ a physician to attend at inquests; and any expense thus incurred was a proper charge against the county in the coroner's account.

88 Jameson v. Bartholomew County, 64 Ind. 524.

60.

"Pickett v. Erie County, 19 W. N. C.

40 Bartholomew County v. Jameson, 86 Ind. 154; Jameson v. Bartholomew County, 64 Ind. 524.

"Ibid.

examination of the body of a dead pauper, the making of post-mortem examinations being no part of his duty under his contract to treat the poor. 42

497. In reporting dangerous diseases and conditions. It is within the police power of the government to require physicians to report births, deaths, and other particulars coming to them through their professional engagements, to a proper officer or board, such a requirement being designed for the acquisition of information useful in the enactment of laws, and valuable to science and the medical profession. 43 And the government may also require physicians having patients afflicted with infectious diseases to report the fact to the proper board of health, with particulars as to name and residence of the patient, with a view to avoiding the spread of the contagion ;14 and power to pass ordinances making such requirements may properly be delegated to the common council of a city.45 Under such provisions the report must substantially conform to the provisions of the statute requiring it.16 But a statutory provision requiring physicians to keep a registry of special matters, and report the same to the department of health, does not require that the report shall be brought personally to the office of the health department; it is complied with if the report is sent by mail in due course.47

Such a provision is not unconstitutional in requiring physicians to perform a service without compensation. Com. v. McConnell, 25 Ky. L. Rep. 552, 76 S. W. 41.

And the constitutional requirement that the subject-matter of a statute must be indicated by its title is sufficiently complied with in an act entitled "An Act Providing for Registration of Marriages, Births, and Deaths," the subject-matter of which is the registry of marriages, births, and deaths, and a requirement that physicians attending at births shall make a registry thereof in the proper office. Ibid.

"State v. Wordin, 56 Conn. 216, 14 Atl. 801.

A legislative body of a state may properly require gratuitous services from one member of a community for the protection of the lives of all others.

45Ibid.

.44

When the method of

"People v. Brady, 90 Mich. 459, 51 N. W. 537.

"Health Department v. Owen, 42 Misc. 221, 85 N. Y. Supp. 397, Affirmed in 88 N. Y. Supp. 184.

The burden of proof rests with a physician, under such a statute, where it does not appear that the certificate was filed, to furnish evidence of its having been properly and duly mailed, if he would escape the penalty imposed for omission to comply with the law. But the positive statements of a physician that he mailed a certificate of birth to the health department within the required time is sufficient to sustain a verdict in his favor, though he cannot give the exact date of mailing. Health Department v. Owen, 88 N. Y. Supp. 184.

And the fact that a certificate of birth was not found among the records of the proper department at the time a search was made for it is not evidence that it was not received there by mail in due course in such a prosecution. Health Department v. Owen, 42 Misc. 221, 85 N. Y. Supp. 397.

49

procedure for violation of the statute is not provided for, that adopted in cases of fine and forfeitures generally, is proper.48 The indictment must state the facts, charging attendance and action as a physician at the time in question, as well as failure to report. And the question whether a contagious disease existed, and whether or not the physician failed to report it within a reasonable time, is one of fact for the jury.50 And the existence of a contagious disease may be established by circumstances and admissions as distinguished from direct investigation by skilled persons.51 A Christian Scientist who attempts to cure disease by prayer, and by putting all thoughts of disease out of the consciousness of the sick person, however, is not a physician within the meaning of a statute requiring all physicians to report cases of contagious diseases coming under their notice to the board of health.52

498. In examining and certifying as to mental or physical condition. -A common statutory provision authorizes the admission or confinement of persons in asylums, hospitals, or other public institutions, or the granting of permission to engage in callings or undertakings in which human life may depend upon the qualification of the applicant, upon the certificate of a designated number of physicians, that a mental or physical condition exists in such person which authorizes such admission, confinement, or undertaking; and the certificates of physicians appointed to examine persons under such statutes are privileged communications, and protected as such, where they discharge their duty with ordinary care and skill, rules of law with reference to the exercise of care and skill applying to them, as well as to

People v. Brady, 90 Mich. 459, 51 N. to visit a case of smallpox or other W. 537.

It is the duty of the district attorney, under a statute requiring him to prosecute for such penalties or forfeitures as shall have been incurred within his county, to prosecute a physician who fails to report to the health of ficer a case of a disease dangerous to the public health as required by law, and the prosecution brought by him is properly brought in his name, and not in the name of the state. Ibid.

"Com. v. McConnell, 25 Ky. L. Rep. 552, 76 S. W. 41.

People v. Brady, 90 Mich. 459, 51 N. W. 537; People v. Shurly, 124 Mich. 645, 83 N. W. 595; People v. Shurly, 131 Mich. 178, 91 N. W. 139.

disease dangerous to public health, to give notice thereof to the board of health, have determined that consumption is a contagious disease, they cannot be permitted to further determine that it is not to be classed with smallpox as dangerous to the public health; since, if the disease is contagious, the statute itself classifies it. People v. Shurly, 131 Mich. 178, 91 N. W. 139.

A delay of eight days by a physician in reporting the existence of a contagious disease, virulent and rapid in its action, is unreasonable, and will warrant his conviction under a statute imposing a penalty for failure to report. People v. Brady, 90 Mich. 459, 51 N. W. 537.

61Ibid.

But where the jury in a prosecution against a physician for violations of a statute requiring him, when called upon 204.

52 Kansas City v. Baird, 92 Mo. App.

physicians acting under private employment.58 Compensation for such services is usually provided for by the statute authorizing them, a usual requirement being that it be paid by the person benefited, or out of his estate.54 And a demand for compensation from some other source, with a refusal to issue a certificate unless it is paid, is a refusal to act, warranting enforcement of the performance of the physician's duty by mandamus.55

"Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338; Niven v. Boland, 177 Mass. 11, 52 L. R. A. 786, 58 N. E. 282.

The questions arising under such provisions are principally ones of malpractice. See infra, § 504.

"See Baldwin v. Kouns, 81 Ala. 273, 2 So. 638.

638.

Baldwin v. Kouns, 81 Ala. 272, 2 So.

And this is so though the party liable therefor had refused to pay fees, and declared his intention to contest the constitutionality of the law. Ibid.

VOL. III. MED. JUR.-32.