Lecture Vi.

THE PHYSICIAN'S PROFESSIONAL RIGHTS AND DUTIES.

Gentlemen, so far I have explained the duties which the physician has in common with all other men, and which arise directly from the natural law independently of any civil legislation. The natural law requires the Doctor to respect the life of the unborn child, thus forbidding craniotomy and abortion. It also obliges him to protect his patients from the baneful effects of venereal excesses. Over these matters human law has no control, except that it may and ought to punish such overt acts as violate the rights of individuals, or seriously endanger the public welfare.

We shall now consider the physician's natural rights and duties in regard to matters which civil and criminal legislation justly undertake to regulate. One of the chief functions of civil authority is to provide for the observance of contracts. Now, the physician in his professional services acts under a double contract, a contract with the state and a contract with his individual patients. By accepting his diploma of M.D. from the college faculty, and indirectly from the civil authority, he makes at least an implicit contract with the state, by which he receives certain rights conditioned on his performance of certain duties. In offering his services to the public, he also makes an implicit contract with his patients by which he obliges himself to render them his professional services with ordinary skill and diligence on condition of receiving from them the usual compensation.

I. The chief rights conferred on him by the state are these:

1. Protection against all improper interference with his professional ministrations.

2. Protection for his professional career by the exclusion of unauthorized practitioners.

3. Immunity from responsibility for evil consequences that may result without his fault from his medical or surgical treatment of patients.

4. Enforcement of his right to receive due compensation for his professional services.

These rights are not granted him arbitrarily by the state; they are founded in natural justice, but made definite and enforced by human legislation. Take, for an example, his right to receive due compensation for his services. This right was not recognized by the old Roman law in the case of advocates and physicians, nor by the common law of England until the passing of the Medical Act in 1858. Surgeons and apothecaries could receive remuneration for their services, but not physicians. These were presumed to attend their patients for an honorarium or honorary, that is, a present given as a token of honor.

Certainly, if Doctors by common agreement waived their right to all compensation, or agreed to be satisfied with any gift the patient might choose to bestow, they would be entitled to honor for their generosity; but they are not obliged to such conduct on the principles of natural justice. For by nature all men are equal, and therefore one is not obliged, under ordinary circumstances, to work for the good of another. If he renders a service to a neighbor, equity or equality requires that the neighbor shall do a proportionate good to him in return. Thus the equality of men is the basis of their right to compensation for services rendered. The physician's right to his fee is therefore a natural right, and on his patient rests the natural duty of paying it. Not to pay the Doctor's bill is as unjust as any other manner of stealing.

As to the amount of compensation to which the Doctor is justly entitled, Ewell's "Medical Jurisprudence" remarks: "By the law of this country, all branches of the profession may recover at law a reasonable compensation for their services, the amount of which, unless settled by law, is a question for the jury; in settling which the eminence of the practitioner, the delicacy and difficulty of the operation or of the case, as well as the time and care expended, are to be considered. There is no limitation by the common law as to the amount of such fees, provided the charges are reasonable. The existence of an epidemic does not, however, authorize the charge of an exorbitant fee.

"A medical man can also recover for the services rendered by his assistants or students, even though the assistant is unregistered; it is not necessary that there should be any agreed specified price, but he will be allowed what is usual or reasonable.

"It is not the part of the physician's business, ordinarily, to supply the patient with drugs; if he does so he has a right to compensation therefor. If the agreement is "No cure, no pay," he cannot, however, even recover for medicines supplied, if the cure is not effected. His right to recover for professional services does not depend upon his effecting a cure, or upon his service being successful, unless there is a special agreement to that effect; but it does depend upon the skill, diligence, and attention bestowed" (pp. 3 and 4).

Further details on this point belong more properly to the lecturer on Medical Law. We are now concerned with the principles underlying special legislation. The main principle regulating all compensation is that there shall be a sort of equality between the services rendered and the fee paid for them. Ignorant people sometimes find fault with the amount charged as a Doctor's fee. There may, of course, be abuses by excess; but men have no right to complain that a Doctor will ask as much for a brief visit as a common laborer can earn in a day. This need not seem unfair if it be remembered that the physician had to prepare, during many years of primary, intermediate, and professional studies, before he could acquire the knowledge necessary to write a brief prescription. Besides, it may be that his few minutes' visit is the only one that day; and yet he has a right to live in decent comfort on his profession together with those who depend on him for support.

We must, however, remember, on the other hand, that excessive fees are nothing else than theft; for theft consists in getting possession of another's property without just title. The following rules of Dr. Ewell are sensible and fair:

"The number of visits required must depend upon the circumstances of each particular case, and the physician is regarded by the law as the best and proper judge of the necessity of frequent visits; and, in the absence of proof to the contrary, it will be presumed that all professional visits made were deemed necessary and were properly made.

"There must not be too many consultations. The physician called in for consultation or to perform an operation may recover his fees from the patient, notwithstanding that the attending physician summoned him for his own benefit, and had arranged with the patient that he himself would pay." (This, of course, does not mean that the practitioner has a right thus to shift the burden of pay from his own shoulders.) "Where a medical man has attended as a friend, he cannot charge for his visit. Where a tariff of fees has been prepared and agreed to by the physicians of any locality, they are bound by it legally as far as the public are concerned (that is to say, they cannot charge more than the tariff rates), and morally as far as they themselves are concerned" (p. 5).

In these rules Dr. Ewell regards chiefly what conduct the courts of justice will sustain. It is evident that the Doctor is never entitled to run up his bill without any benefit to his patient; where there is no service rendered at all, there can be no claim to compensation. Still it is not necessary that actual benefit has resulted to the patient; it suffices for the claim to the fee that measures have been taken with a view to such benefit. Even when no physical advantage can reasonably be hoped for from the visit, the consolation it affords the patient and his friends may render those who are to bear the expense fully willing that it should be often repeated and, of course, charged on the bill. Provided care be taken that they understand the situation, no injustice is done them. "Scienti et consentienti non fit injuria" is a good moral maxim.

II. We have said that the rights conferred on the physician by the state are conditioned on his performing certain duties. He owes the same duties to his patients in virtue of the contract, explicit or implicit, that he makes with them by taking the case in hand. Under ordinary circumstances, neither the state nor the patients can oblige him to exercise his profession at all; but, if once he has taken a case in hand, he can be justly held not to abandon it till he has given his patient a fair opportunity of providing another attendant; even the fear of contagion cannot release him from that serious obligation.

The duties arising from the physician's twofold contract, with the state and with his patients, are chiefly as follows:

1. He must acquire and maintain sufficient knowledge of his profession for all such cases as are likely to come in his way. No Doctor has the right to attempt the management of a case of which he has not at least ordinary knowledge. In matters of special difficulty, he is obliged to use special prudence or ask for special consultation. The courts justly hold him responsible for any serious injury resulting from gross ignorance; in such cases they will condemn him for malpractice. I would here remark that, in an age in which the science of medicine is making such rapid progress, every Doctor is in duty bound to keep up with the improvements made in general practice, and in his own specialty if he has one.

2. A second duty is that of proper diligence in treating every single case. Many a patient suffers injury to health or even loses his life in consequence of a Doctor's neglect. Gross negligence is an offence that makes him punishable by the court, if it results in serious injury. But even if such injury cannot be juridically proved, or has been accidentally averted, the moral wrong remains and is to be settled with the all-seeing Judge. Still, in ordinary ailments, no one is obliged to take more than ordinary trouble.

3. A third duty of the physician is to use only safe means in medical and surgical practice. He has no right to expose his patient to needless danger. What is to be thought of the use of such remedies as will either kill or cure? They cannot be used as long as safer remedies are available and capable of effecting a cure; for neither Doctor nor patient has a right to expose a human life to unnecessary risk. But when no safer remedies are going to effect a cure, then prudence itself dictates the employment of the only means to success. In such a case, however, the patient, or his parents or guardian, should, as a rule, be informed of the impending danger, so that they may give or refuse their consent if they please. For, next to God, the right to that life belongs to them rather than to the physician. The same duty of consulting their wishes exists when not life but the possible loss of a limb is at stake, or the bearing of uncommon sufferings. Moralists teach that a man is not obliged in conscience to submit to an extraordinarily painful or revolting operation even to save his life. Certainly, when the natural law leaves him at liberty, the physician cannot compel him to submit to his dictation; all he can do is to obtain his consent by moral persuasion.

4. As a consequence from the Doctor's duty to use only safe means it follows that he cannot experiment on his patients by the use of treatment of which he does not know the full power for good or evil. Nor is he excused from responsibility in this matter by the fact that the experiment thus made on one patient may be very useful to many others. His contract is with the one now under treatment, who is not willing, as a rule to be experimented upon for the benefit of others. And even if the patient should be willing, the Doctor cannot lawfully expose him to grievous danger unless it be the only hope of preserving his life. This follows from the principle explained before, that human life belongs chiefly to God and not to man exclusively.

5. There are various kinds of medical treatment to which we can scarcely have recourse without exposing ourselves to serious evil consequences. Such is the use of cocaine, morphine, and even in special cases of alcohol. The drugs in themselves are useful, but they often lead to evil results. Now in the use of all such drugs as are apt to be beneficial in one way and injurious in another, we must ever be guided by the rules formerly explained concerning evil indirectly willed, or rather permitted to result, while good results are directly willed or intended. If the Doctor is satisfied that a dose of morphine or an application of cocaine will do more good than harm, he can, of course, prescribe or apply it. Still in such matters he must remember that the good effect is but temporary, while its pernicious consequences, especially when habits are thus contracted, are likely to be permanent and cumulative. Besides, the good results affect the body only, the evil often affect body and soul. Many a wreck in health and morals has been caused by imprudent recourse to dangerous treatment, where a little more patience and wisdom would have been equally efficient in curing the bodily ailment, without any deleterious consequences. If once a patient becomes a slave to the morphine or cocaine habit, the only cure is to cut off all the supply of the drug either at once or, at any rate, by daily diminution. To leave him free control of the poison is to co-operate in his self-destruction.

6. The sixth duty of a Doctor is of a different kind. There exists a tacit or implicit contract between him and his patients that he shall keep their secrets of which he becomes possessed in his professional capacity. It is always wrong wantonly to betray the secrets of others; but the Doctor is bound by a special duty to keep his professional secrets; and it is doubly wrong and disgraceful in him to make them known. For instance, if he has treated a case of sickness brought on by sinful excesses of any kind, he is forbidden by the natural law to talk about it to such as have no special right to know the facts. Parents and guardians are usually entitled to be informed of their children's and their wards' wrong-doings, that they may take proper measures to prevent further evil. Besides, the Doctor is properly in their service; he is paid by them, and, therefore, his contract is with them rather than with the children. He can, therefore, prudently inform them of what is wrong, but he cannot inform others.

It is a debated question in Medical Jurisprudence whether the Doctor's professional knowledge of criminal acts should be privileged before the courts, so that he should not be forced to testify to a crime that he has learned from his patients while acting as their medical adviser. Dr. Ewell speaks thus on the subject (p. 2): "The medical witness should remember that, by the common law, a medical man has no privilege to avoid giving in evidence any statement made to him by a patient; but when called upon to do so in a court of justice, he is bound to disclose every communication, however private and confidential, which has been made to him by a patient while attending him in a professional capacity. By statute, however, in some of the United States, communications made by a patient to a physician when necessary to the treatment of a case are privileged; and the physician is either expressly forbidden or not obliged to reveal them. Such statutes exist in Arkansas, California, Indiana, Iowa, Ohio, Michigan, Minnesota, Missouri, Montana, New York, and Wisconsin. The seal upon the physician's lips is not even taken away by the patient's death. Such communications, however, must be of a lawful character and not against morality or public policy; hence, a consultation as to the means of procuring an abortion on another is not privileged, nor would be any similar conference held for the purpose of devising a crime or evading its consequences.

"A report of a medical official of an insurance company on the health of a party proposing to insure his life is not privileged from production; nor is the report of a surgeon of a railroad company as to the injuries sustained by a passenger in an accident, unless such report has been obtained with a view to impending litigation."

The practical rule for a Doctor's conscience on the subject of secrecy is, that he must keep his professional secrets with great fidelity, and not reveal them except in as far as he is compelled to do so by a court of justice acting within its legal power or competency. If so compelled, he can safely speak out; for his duty to his patient is understood to be dependent on his obedience to lawful authority.

As to the question of Jurisprudence whether the courts ought to treat the physician's official secrets as privileged, in the same way as they do a lawyer's secrets, this will depend on the further question whether the same reasons militate for the one as for the other. The lawyer's privilege is due to the anxiety of the state not to condemn an innocent man nor a guilty man beyond his deserts. To avert such evil, the accused party needs the assistance of a legal adviser who can guide him safely through the mazes and technicalities of the law, and, even should he be guilty, who can protect him against exaggerated charges and ward off unmerited degrees of punishment. Now, this can scarcely be accomplished unless the attorney for the defence learn from his client the entire truth of the facts. But the client could not safely give such information to his lawyer if the latter's professional secrets were not held sacred by the court of justice.

Can the same reasons or equivalent ones be urged in behalf of the physician? I do not see that they can. And I notice besides that, if he be excused from testifying against his patients, all their servants and attendants would seem to be entitled to the same privilege. Many persons, I think, labor here under a confusion of ideas; a Doctor is as sacredly bound to keep his patients' secrets as a lawyer is in regard to his clients, but it does not follow that the law cannot grant a privilege to the one and refuse the same to the other, for reasons which require it in the case of the lawyer and not in that of the Doctor.

III. Besides the rights and duties which arise for the physician from his contracts with the state and with his patients, there are other claims on his conscience, which proceed from his character as a man, a Christian, and a gentleman.

1. As a man, he is a member of the human family, not a stranger dwelling amid an alien race, but a brother among brothers. He cannot say, as did the first murderer, Cain, "Am I my brother's keeper?" But rather he must carry out the behest of the great Father of the human family: "God has given to each one care of his neighbor."

The maxim of Freemasons is that every member of that secret society must come to the assistance of every brother-mason in distress. But the law of nature and of nature's God is wider and nobler; it requires every man to assist every fellow-man in grievous need. The rich glutton at whose door lay Lazarus dying of want was bound, not by any human but by the higher law, to assist him; and it was for ignoring this duty that the soul was buried in hell, as the gentlest of teachers expresses it.

(a) As physicians, as men, you will have duties to the poor, who cannot pay you for your services; they are your fellow-men. Their bill will be paid in due time. He is their security who has said: "Whatsoever you have done to the least of these, you have done it unto Me." He may pay you in temporal blessings, or in still higher favors, if you do it for His sake; but pay He will, and that most liberally: "I will repay," says the Lord. The rule of charity for physicians is that they should willingly render to the poor for the love of God those professional services which they are wont to render to the rich for pecuniary compensation. While thus treating a poor patient they should be as careful and diligent as they would be for temporal reward; what is done for God should not be done in a slovenly fashion.

(b) In this connection of regard for the poor, allow me also to call your attention, gentlemen, to a point which students of medicine are apt to forget at times, and yet which both God and the world require you ever to bear in mind: it is the respect which every man owes to the mortal remains of a departed brother. I do not know that a people has ever been found, even among barbarians, who did not honor the bodies of their dead. For the good of humanity, dead bodies may at times be subjected to the dissecting-knife, but never to wanton indignities. Reason tells you to do by others as you wish to be done by, and Revelation adds its teaching about a future resurrection and glorification of that body of which the Apostle says that "it is sown in dishonor, but it shall rise in glory." Be men of science, but be not human ghouls. There is such a thing as retribution. But lately a former millionaire died in a poorhouse and left his body as a cadaver for medical students. We cannot afford to ignore the mysterious ways of Divine Justice. Ever handle human remains in a humane manner; and as soon as they have answered the purpose of science, see that they be decently interred, if possible.

2. There are other duties that you owe not as men but as Christians. All of us enjoy the blessings of Christian civilization, even those who are not Christians themselves. We are dealt with by others on Christian principles, and we ought to treat others in the same spirit. What duties does this impose?

(a) When your patients are in real danger of death, let them have a good chance to prepare properly for their all-important passage into eternity. Give them fair warning of their situation. Doctors and relations are often afraid of alarming the patients and thus injuring their health. But those who attend Catholic patients at least soon find out by experience that the graces and consolations of the Last Sacraments usually bring a peace of mind that benefits even the bodily health. In any case, the interests of the future life are too important to be ignored.

(b) For the same reason, the physician should not prescribe such doses of morphine or other anæsthetics as will render the patient unconscious at a time when he ought to be preparing to meet his Judge. This would be not kindness but cruelty. A little suffering more in this life may save much suffering in the next. If a Catholic priest, on being called to a patient's bedside, finds that the family's physician has been so inconsiderate, he cannot help protesting against employing such a man in Catholic families.

(c) If you attend a woman in childbirth, you may be asked by a Christian mother not to let her child die without Baptism. The vast majority of Christians believe that this sacrament is necessary to obtain supernatural happiness. The ceremony is easily performed: no harm can come of it, but immeasurable good for eternity. It should properly be performed by the clergy. But if this cannot be done, any man, woman, or child, even one not a Christian himself, can administer the sacrament. Every Doctor in a Christian land should understand how to do it, and do it with unerring accuracy. It were a disgrace for him to be ignorant of what even an ordinary child is expected to know. The ceremony is so simple; and yet, being an institution of Christ, no man can modify it to suit his notions; if what is done is not just what Christ appointed to be done, it will be of no avail. Notice, therefore, carefully every detail. You will take a little water, say a cupful, real water--cold or lukewarm, that matters not--you will slowly pour it on the head of the child, and, while you do so, you will say, "I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost." That is all. Notice, you must say the words while the water is being poured on the child. For "I baptize" means "I wash"; pour, therefore, or wash while you say, "I wash." Should you hereafter wish to refresh your memories on this matter, you can do so by consulting the "Century Dictionary," which explains Baptism, and in particular Catholic Baptism, as "consisting essentially in the application of water to the person baptized by one having the intention of conferring the sacrament, and who pronounces at the same time the words, 'I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost.'" If a cup of water given to the thirsty brings a blessing, how much more the giving of the water of salvation! Should it happen that the child is in danger of dying before delivery, it should be baptized in the womb provided it be at all possible to cause the water to reach or wash its body, projected upon it by any instrument whatever; but the water should flow over the body, not merely over the cyst enclosing it, for the cyst is no part of the child. Even if but an arm or other minor portion of the body is washed, the baptism is probably valid. If any doubt about the valid administration is left, the infant after delivery should be carefully baptized under condition, as it is called; that is, with the condition added that, if the former ceremony was validly conferred, there is no intention of giving a second baptism. For that would not be right; since the sacrament cannot be validly received more than once; it is a sacred initiation, but it were mockery to initiate one that is already initiated.

Should a physician be present when a pregnant woman has recently expired, and the child may still be living in the womb, it will be an easy and important task to perform the Cesarean section as soon as possible, and baptize the little one before it dies. In all this there is no money, but what is far more precious, the securing of eternal happiness. I add with great pleasure that many physicians are wont to comply with all these instructions most carefully, and even to instruct midwives and nurses in the best manner of rendering such services.

3. Lastly, we must consider the duties which a Doctor owes to others and to himself as a gentleman. It may not be easy to define what is meant by "a gentleman," and yet to some extent we all know it; we recognize a gentleman when we meet one, we pay him sincere homage in our hearts. We readily allow him to influence us and to guide us. We esteem him instinctively as a superior being, as we distinguish a precious stone from a common pebble; so we value a gentleman for precious qualities exhibited in the beauty of his conduct. His conduct ever exhibits two characteristic marks: a proper degree of dignity or respect for self, and a proper degree of politeness or respect for others. Self-respect will not allow him to do anything which is considered vulgar, unmannerly, gross, rude, or selfish; he will avoid the two extremes, of self-neglect on the one hand and self-display on the other. His respect for others will make him treat all around him so as to make them feel comfortable in his presence; he will avoid whatever gives pain or causes embarrassment to even the lowest member of society.

Gentlemanliness has much to do with every one's success in life, and in particular with a Doctor's success. It is especially when sick that we are sensitive to everything displeasing in the conduct of others. It is not then the bold thinker or the extensive reader that is the acceptable visitor to the sick-room; but the gentlemanly consoler who always says the right thing at the right time, whose very eye expresses and whose countenance reflects the thought and sentiment most appropriate on the occasion.

There are most able physicians who are not gentlemen, and there are in the medical profession gentlemen who are rather poor physicians; but as a rule, I believe, the gentleman will thrive where the genius will starve. It is more or less the same in other professions. I know learned lawyers to-day who are far from prosperous, while men ten times their inferiors in learning are getting rich. I remember a most skilful physician, now no more on earth, who was a very genius in the science of medicine; but he was so filthy in his habits, he would so unceremoniously chew tobacco at all times, that many dreaded his visits, and would sooner have a man of less ability but gentler manners as their family physician.

Gentlemen, habits good and bad cannot be put on and off like a dress-coat; they are lasting qualities, the growth of years, the result of constant practice and self-denial or self-neglect. And, as I wish you success in life, allow me to conclude this lecture by recommending to you the assiduous cultivation of gentlemanly habits. Cultivate them now, while you are preparing for future labors. You wrong yourselves, and you insult your companions and your professors, when you neglect in their presence the conventionalities of polite society.

Uniting the external decorum of a gentleman with a thorough knowledge of your profession, and with what is still more important, the virtues of a conscientious man and a sincere Christian; ever true to the sound principles of morality which I have endeavored to explain and to inculcate in these lectures: you will be an honor to yourselves, an ornament to your noble profession, the glory and joy of your Alma Mater, a blessing to the community in which Providence will cast your lot as the dispensers of health and happiness and length of days to your fellow-men.