By statutes differing in the various States, workmen receive compensation from employers when injured in the pursuit of their employment. The Workmen's Compensation Law of the State of New York provides that the employer must furnish the medical, surgical or other treatment which "the nature of the injury or the process of recovery may require." The employee is not entitled to recover from the employer for expenditures for such services unless, after request, the employer has refused or failed to provide promptly such treatment ; nor is a claim of any attending physician valid unless within 20 days from the first treatment he furnish to the employer and to the industrial com missioner, on a prescribed form, a report of the injuries and treatment. The delay may be excused by the board. All fees are subject to regulation by the board and are limited to such charges as prevail in the community for similar treatment of injured persons of a like standard of living. Under this law a large portion of the cases treated is by physicians specializing in compensation work and in clinics of the insurance carriers. Physicians not on the preferred lists of the insurance companies continually ex perience difficulties over their bills.
The treatment of a patient obliges the physician to possess the ordinary knowledge of his profession and to exercise the ordinary skill. Failure to do so, including wilful neglect, renders him liable for malpractice. A mistake in judgment does not render him liable. Failure to take an X-ray, where the usual practice is to do so, has been construed by the courts as negligence. Wilful unlawful acts towards a patient constitute a second division of malpractice. A third includes acts forbidden by statute, such as the production of criminal abortion or the treatment of a patient while the physician is intoxicated.
Under the Hippocratic oath, physicians regard communications from patients as privileged. Under the English rule of law, the courts do not so recognize them, but in the United States communi cations are made privileged by statutes in the following States: Group I., in which the patient's consent is necessary for a dis closure : California, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, Nevada, New York, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wyoming. Group II., in which the patient waives privilege, if he offers himself or his physician as a witness: Colorado, Kansas, Oklahoma, Oregon. Group III.,
in which the presiding judge of a superior court may compel dis closure if he deems it necessary to a proper administration of justice : North Carolina. Group IV., in which the statutes are silent on the subject of waiver : Indiana, Kansas, Michigan, Wis consin. In the Federal courts, in trials at common law the laws of the respective States apply, except where otherwise provided; in a criminal prosecution the privilege secured by State statutes does not avail.
When a physician is called upon as a witness in court merely to relate facts which he has observed, including inferences and deductions which all men are accustomed to make, he is governed by the rules applicable to an ordinary witness. When called upon to explain or interpret facts by reason of his special knowledge, he becomes an expert witness. As an ordinary witness he is subject to subpoena. If the issue concerns a charity patient, the subpoena must be issued by the judge of the court, in some juris dictions. It is optional with the physician whether he act as an expert witness. In the latter capacity, by reason of his employ ment by a particular litigant, he is confronted with the possibility of bias which should be avoided. There is criticism of the choice of experts by litigants and resulting conflicting views. To an extent such conflict is due to the relative stability of law with its consequent lagging behind contemporary medical knowledge ; ex perts, especially alienists, thus frequently testifying from dif ferent points of view. General medicine, surgery, pathology and toxicology afford less basis for intelligent differences of opinion.
There is no right of property in a dead human body, but duties are imposed upon public officers and next of kin to protect the body from violation and to see that it is properly disposed of and subsequently protected. They may authorize a necropsy to the extent of ascertaining the cause of death. The coroner or other officer is authorized by statutory enactments, varying in detail in the different States, to order a necropsy and such further examination as may be required when, in the discharge of his official duties, it is deemed necessary in cases of sudden death or where there is suspicion that a crime has been committed. If a person dies in one locality and the body is transported to another, the officers where the body is located have jurisdiction.