pecuniary loss only.95 The question of damages in such cases being one for the jury, a verdict will not be disturbed unless the damages are such as to indicate that the jury acted from prejudice or corruption, or were misled as to the measure of damages. 96

520. Application of rules as to former recovery.-Under the rule that a matter cannot be twice litigated, a judgment on the merits in a previous action against a surgeon for malpractice bars a defense for malpractice in an action by the physician for his fee.97 And a judgment in favor of a physician and surgeon for his professional services, rendered by a court of competent jurisdiction in an action in which the defendant appeared and answered, setting up a defense of malpractice, which he maintained at the trial, is a bar to an action by that defendant against the physician and surgeon for malpractice in rendering such services.98 So, in an action against two surgeons for malpractice, an answer by one of them that on a trial on the merits he had obtained judgment for his services in the matter in question is a good defense; and a reply that the action for malprac

element, but must be considered by the jury as a matter of aggravation in the general estimate.

Braunberger v. Cleis (Pa.) 4 Am. L. Reg. N. S. 587; Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683.

And where the statute entitles the widow alone to damages for the death of her husband by negligence or default of another, a direction to the jury in an action against a physician for causing the death of a man by malpractice, to give damages to recompense the estate, is erroneous; since it, in effect, directs the giving of damages for the injury sustained in his death by his children, as well as his widow. Gores v. Graff, 77 Wis. 174, 46 N. W. 48.

"Kelsey v. Hay, 84 Ind. 189; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478.

spine, and pelvic organs, causing great pain and suffering, and resulting in the probable shortening of the patient's life, is not excessive. Longan v. Weltmer (Mo.) 64 L. R. A. 969, 79 S. W. 655.

"Haynes v. Ordway, 58 N. H. 167; Edwards v. Stewart, 15 Barb. 67.

But a judgment in favor of a physician for services confessed by his patient as a condition imposed by the chancellor granting an injunction to prevent the prosecution of an action to recover compensation therefor, pending one against the physician for malprac tice, will not, upon reversal of the injunction order, operate as an estoppel against an action for malpractice. Sale v. Eichberg, 105 Tenn. 333, 52 L. R. A. 894, 59 S. W. 1020.

Blair v. Bartlett, 75 N. Y. 150, 31 Am. Rep. 455; Gates v. Preston, 41 N. Y. 113; Bellinger v. Craigue, 31 Barb. 534; Howell v. Goodrich, 69 Ill. 556; Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308; Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564.

A verdict which would not be set aside as excessive in an action for malpractice, if confined to actual damages, will not be set aside on the ground that the court erred in submitting to the jury the question of exemplary damages, where the record does not show that the It is optional with a person sued by objection thereto was made in the court a physician for services, whether he will below. Brooke v. Clark, 57 Tex. 105. set up a claim for malpractice in that And a verdict of $7,500 in an action suit, or sue upon it in another action for malpractice in which treatment was brought by himself, though, if he choose by a magnetic healer, consisting of ma- to set it up, and that issue is adjudicatnipulation which resulted in rupturing ed against him, he cannot again litigate the ligaments connecting the spine and it. Goble v. Dillon, 86 Ind. 327, 44 Am. hip bone, permanently injuring the back, Rep. 308.

tice was pending when the other was commenced is not good." But when a judgment was by default, and no defense whatever was made, the majority of the cases would seem to hold that the question of malpractice or diligence and skill was not involved, and that the patient had not impaired his right of action by failing to appear in the suit against him, such a judgment being no bar;100 though some of the New York cases, followed, perhaps, in New Jersey, Arkansas, and other states, seem to hold the rule that a recovery by a physician is a bar to the patient's action in the nature of an estoppel, whether the action was a litigated one or not; adopting the theory that the question of the care and skill of the physician was necessarily adjudicated, whether there was a defense or not.101

III. CRIMINAL LIABILITY.

521. General rules.-A mere mistake of judgment by a physician in the selection and application of remedies and appliances does not render him criminally liable for the result.1 And it has been held that, if a person prescribes for, or gives medicine to, another, acting with an honest expectation and intention of curing him, he is not

"Ibid.

But a former recovery in favor of a physician in an action for his services is not a bar in favor of another physician employed by the patient at the same time, in a joint action against them by the patient for malpractice. Ibid.

And a separate answer by one of two physicians sued jointly in tort for malpractice alleging that the other had recovered a valid judgment for his services, does not show a release of the one pleading, though the judgment was sufficient to estop the suit against the defendant who obtained it. Ibid.

100 Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564; Jordahl v. Berry, 72 Minn. 119, 45 L. R. A. 541, 71 Am. St. Rep. 469, 70 N. W. 10; Goble v. Dillon, 86 Ind. 327, 44 Am. Rep. 308; Sykes v. Bonner, 1 Cin. Sup. Ct. Rep. 464; Ressequie v. Byers, 52 Wis. 650, 38 Am. Rep. 775, 9 N. W. 779.

101 Gates v. Preston, 41 N. Y. 113; Bellinger v. Craigue, 31 Barb. 534; Blair v. Bartlett, 75 N. Y. 150, 31 Am. Rep. 455; Schopen v. Baldwin, 83 Hun, 234, 31 N. Y. Supp. 581. And see Ely v. Wilbur, 49 N. J. L. 685, 60 Am. Rep. 668, 10 Atl. 358, 441; Dale v. Donald

son Lumber Co. 48 Ark. 188, 3 Am. St. Rep. 224, 2 S. W. 703; Sale v. Eichberg, 105 Tenn. 333, 52 L. R. A. 894, 59 S. W. 1020.

'State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5; State v. Reynolds, 42 Kan. 320, 16 Am. St. Rep. 483, 22 Pac. 410; Rex v. Webb, 1 Moody & R. 405, 2 Lewin, C. C. 196; Rex v. Van Butchell, 3 Car. & P. 629; Reg. v. Macleod, 12 Cox, C. C. 534; Reg. v. Noakes, 4 Fost & F. 920; Rex v. Williamson, 3 Car. & P. 635. And see State v. Reynolds, 42 Kan. 320, 16 Am. St. Rep. 483, 22 Pac. 410.

A person acting as a medical man, whether licensed or unlicensed, is not criminally responsible for the death of a patient occasioned by his treatment, unless his conduct was characterized either by gross ignorance of his art or gross inattention to his patient's safety. Rex v. Long, 4 Car. & P. 398.

And where it appears that the cork was found broken and half out of a bottle of prussic acid, so that it was impossible to say how much of the poison might have escaped, or that the liquid might not have dropped faster than the accused supposed it would, it cannot be held that the giving of an overdose was such culpable negligence as would ren

criminally responsible for an unfavorable and unexpected result;2 and that the rule is the same whether or not he was ignorant of medical science; and that to render him criminally responsible it must appear that he was acting with a wicked or evil purpose, or that his neglect was wilful or felonious.5 But the prevailing rule would seem to be that a physician is criminally responsible as for homicide if death occurs, and as for an assault if not, for the results of gross ignorance of the art he assumed to practise, or of gross ignorance in the selection or application of remedies, or of gross negligence with reference thereto, whatever may have been his purpose. Within this rule, if his act was the result of foolhardy presumption or gross negligence, he is as responsible for the result as though he had done unlawful acts for independent reasons. And the rule is the same with reference to the use of dangerous applications or instruments."

der him criminally responsible for the result. Reg. v. Bull, 2 Fost. & F. 201. 2State v. Schulz, 55 Iowa, 628, 39 Am. Rep. 187, 8 N. W. 469; Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561; Robbins v. State, 8 Ohio St. 138. "Com. v. Thompson, 6 Mass. 134; Rice v. State, 8 Mo. 561; Robbins v. State, 8 Ohio St. 138; Rex v. Long, 4 Car. & P. 398.

And in a prosecution for manslaughter by reason of gross negligence and ignorance in surgical treatment, evidence as to former cases treated by the accused cannot be gone into by either side, though witnesses may be asked as to defendant's scientific skill. Reg. v. Whitehead, 3 Car. & K. 202.

'Caywood v. Com. 7 Ky. L. Rep. 224; Reg. v. Spencer, 10 Cox, C. C. 525.

State v. Power, 24 Wash. 34, 63 L. R. A. 902, 63 Pac. 1112.

An instruction, however, that the law imposes upon a physician the duty of directing sanitary conditions surrounding the patient, of prescribing the proper medicine and means and manner of taking it, and whatever other appliances and operations are necessary to restoration of health, is not subject to objection that it tells the jury that any negligent or improper treatment of the deceased as distinguished from want of skill or attention would be sufficient to convict. Ibid.

'State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Rex v. Spiller, 5 Car. & P. 333; Rex v. Long, 4 Car. & P. 432.

VOL. III. MED. JUR.-34.

Criminal negligence may consist of any negligent use of medicines in the use of which care is required, and of the properties of which the person using them is ignorant. Reg. v. Markuss, 4 Fost. & F. 356.

'Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Rice v. State, 8 Mo. 561; Rex v. Senior, 1 Moody, C. C. 346, 1 Lewin, C. C. 183, note.

But to render a physician criminally responsible for the result of his acts as such, it must be made to appear that there was such gross and culpable negligence as would tend to show an evil mind. Reg. v. Spencer, 10 Cox, C. C. 525.

And the actual condition of the individual's mind with regard to the consequences of his acts should be taken into consideration as distinguished from mere knowledge of present or past circumstances from which someone or everybody else might be led to anticipate or apprehend such consequences from the acts done. Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264.

Reg. v. Crook, 1 Fost. & F. 521; Rex v. Long, 4 Car. & P. 398.

And an allegation in an indictment against a person acting as a medical practitioner, charging that the death of a person was caused by a plaster made and applied by accused, is sufficiently proved by showing that three plasters were applied, two of them by accused, and that the third was made from materials furnished by him. Rex v. Spiller, 5 Car. & P. 333.

'Reg. v. Spilling, 2 Moody & R. 107.

And a person having no medical education who hazards the use of medicine of a dangerous tendency when medical assistance could be had does so at his own peril; and if it results in death he is guilty of manslaughter.10 The question in such a case is whether, with reference to the remedy, appliance, or instrument used, and the conduct displayed by the physician, he acted with a due degree of caution, or with gross and improper rashness, and want of caution;11 and this is one for the jury.12 Where an act of malpractice was knowingly and wilfully done for the purpose of accomplishing some unlawful object, though not death, and death ensued, it would be murder, and not merely manslaughter.18

So a false statement made to another by a person representing himself to be a physician possessing extraordinary and supernatural powers, that he had the power to cure him, and that he would exert that power to cure him, upon which he obtained money, is not only a future promise, but also a present false representation, for which he can be held criminally liable in a prosecution for obtaining money under false pretenses.14 And a male physician who so violates the

10 Rex v. Simpson, 1 Lewin, C. C. 172; Reg. v. Markuss, 4 Fost. & F. 356; Rex v. Webb, 1 Moody & R. 405, 2 Lewin, C. C. 196; Reg. v. Macleod, 12 Cox, C. C. 534; Reg. v. Bull, 2 Fost. & F. 201; Reg. v. Chamberlain, 10 Cox, C. C. 486; Tessymond's Case, 1 Lewin, C. C. 169; Rex v. Van Butchell, 3 Car. & P. 629.

And the fact that he may be liable for penalties does not affect his liability for manslaughter. Rex v. Van Butchell, 3 Car. & P. 629.

But where a person is injured on the head by blows which render a surgical operation apparently necessary, and he afterwards dies, the person giving the blows cannot escape criminal responsibility for the death upon the ground that it was caused by the surgical operation, and not by the blows, unless it clearly appears that improper treatment of the wound, and not the wound itself, was the sole cause of the death. Territory v. Yee Dann, 7 N. M. 439, 37 Pac. 1101.

"Rex v. Long, 4 Car. & P. 423. And see Reg. v. Crick, 1 Fost. & F. 519; Ferguson's Case, 1 Lewin, C. C. 181.

The prosecution on an indictment for manslaughter against a medical man for administering poison by mistake for some other drug is bound to show that the poison got into the mixture in consequence of his gross negligence. It is

not sufficient to show merely that he dispensed his own drugs, and supplied a mixture containing a large quantity of poison. Reg. v. Spencer, 10 Cox, C. C. 525.

And where it appears that medicine was prescribed for a child, and that the mother took the advice of the persou prescribing it, and that the child got much better, and that she then left off giving the medicine, after which the child died, a favorable view of the conduct of the accused should be recommended. Reg. v. Crick, 4 Fost. & F. 519.

"Reg. v. Whitehead, 3 Car. & K. 202; Reg. v. Markuss, 4 Fost. & F. 356.

18 State v. Wagner, 78 Mo. 644, 47 Am. Rep. 131. And see Dresback v. State, 38 Ohio St. 365.

But a homicide committed by poison heedlessly or negligently administered for no unlawful purpose will amount at most to manslaughter. State v. Wag ner, 78 Mo. 644, 47 Am. Rep. 131. "State v. Jules, 85 Md. 305, 36 Atl.

1027.

And evidence in a prosecution for obtaining money under false pretenses, against one who pretended to have extraordinary and supernatural powers to cure, that he pressed a paper upon which the patient had written his name and age against his forehead, and

rules of propriety by causing a female patient to submit, or unnecessarily expose, herself to him, pretending and causing her to believe that such submission or exposure is a necessary incident to the treatment for curative purposes which she solicits at his hands, that his conduct assumes the character of a trespass upon her person, is criminally liable as for an assault.15 And a woman claiming to be able to cure all diseases and troubles, including poverty, by sending her thoughts out to indefinite distances, and thus affecting the bodies of others, and that she could influence the physical condition of third persons through the mind of a second person, and offering through the mails to perform such services for hire, is guilty of the offense of making use of the mails in aid of fraud, where she knew she could not do what she promised to do, and made the promise for the purpose of getting money, without intending to perform.16

522. Consent as a defense.-Consent on the part of a patient is a defense in a criminal prosecution against a physician or surgeon for injuries alleged to have been caused by the physician, only where his acts were performed with due care and skill: it is no excuse for recklessness or want of skill.17

walked up and down the room, and told the contents of the paper, and announced that the patient suffered from stomach trouble and that he would cure him within six weeks, and directed a charm to be worn; and that after securing the patient's money, he left the city, -tends to prove that it was a false representation, and is therefore admissible. Ibid.

Bartell v. State, 106 Wis. 342, 82 N. W. 142; Rex v. Rosinski, 1 Moody, C. C.

19.

And evidence that a magnetic healer had cured others by his method of treatment is not competent in a prosecution against him by a patient for an assault and battery in improperly and unnecessarily requiring her to expose her person, the only question at issue being whether or not he acted in good faith. Bartell v. State, 106 Wis. 342, 82 N. W. 142.

upon the part of a male physician called upon to treat a female patient, to cause her to expose her body to his view for the purpose of such treatment, where he acts in good faith, and for the purpose of curing a disease with which she is supposed to be afflicted. Ibid.

18 United States v. Post, 128 Fed. 950. And the burden would rest with her to satisfy the jury, in an action against her for using the mails in aid of fraud, by showing that she possessed such power. Ibid.

And the testimony of witnesses in such a prosecution that they had been treated by her, and cured while at a great distance from her, is so contrary to the well-established rules of evidence and natural law that it may be disregarded and ignored, though it stands without contradiction. Ibid.

"State v. Gile, 8 Wash. 12, 35 Pac. 417; Com. v. Pierce, 138 Mass. 165, 52

But it is not an assault and battery Am. Rep. 264.