Review Author(s): Ruth Roemer Review by: Ruth Roemer Source: Journal of Public Health Policy, Vol. 15, No. 3 (Autumn, 1994), pp. 371-374 Published by: Palgrave Macmillan Journals Stable URL: http://www.jstor.org/stable/3342915 Accessed: 16-01-2016 17:14 UTC

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programsfor the Palestinianpeople in the West Bank and Gaza for the past I 5 years,theirconductof researchin this impressiveeffortis equallyinspiredand inspiring.They havegot theirprioritiesright:the ending of militaryoccupationand the developmentof a democratic freegovernmentare pre-conditionsfor the realizationof theirmodel. ANITA

PEPPER

AND

MAX

PEPPER

James C. Mohr. Doctors and the Law: Medical Jurisprudencein Nineteenth CenturyAmerica.New York: Oxford UniversityPress, I993.

XV+3I9 pp. $30.00.

Fromthe perspectiveof the rapidlydevelopingfieldof healthlaw and medicalethicsin the UnitedStates,it is fascinatingto readthis scholarly account of the struggleto create the disciplineof medical jurisprudencein nineteenth-centuryAmerica. One can read Mohr's well written and well documentedbook as legal analysis,social history, or as a plain detectivestory unravellingthe plots of famous (or infamous)cases of poisoningand murder. The book beginswith an accountof the state of medicaljurisprudence in the United Statesafterthe AmericanRevolution-its legacy from the English system and departuresfrom it to create new approachesto medical-legalquestions.Philadelphiaand New York,the centersof medicaleducationin the new republic,becamethe places where new efforts to improve medical jurisprudencewere made. These concernedexperttestimonyin court cases, mentalcompetence and the definitionof insanity,protectionof individualliberty,and the functionsof coroners. As for any new field of scientificendeavor,medicaljurisprudence encounteredobstaclesto its development,both as a course of study in medical schools and as a service in society to protect the public health. But it also had its champions,and Mohr presentsinsightful and engagingbiographiesof the advocatesof the professionalfieldof medicaljurisprudence. Particularemphasisis given to the role of medicalschools in offering lectures on medical jurisprudence,defined by Amon Eaton, a

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lawyer who came from Williams College in I82I to teach at Berkshire Medical College in Pittsfield, Massachusetts, as "Medical Skill applied in aid of the Judiciary."Mohr points out that Eaton "taught his students what many modern Americans might consider to be a surprisingly liberal or tolerant interpretation of most subjects." For example, Eaton opposed the view generally argued by defense attorneys and accepted by most judges and juries of the time that in cases of rape no woman who became pregnant could claim to have been raped, for she must have consented. Eaton insisted that pregnancy was not dependent on volition and women pregnant as a result of rape were even more tragic victims than those who escaped pregnancy. On infanticide, Eaton urged his students to give the woman in difficult circumstances the benefit of every possible doubt in order to avoid condemning desperate women. Eaton had a broad vision of the responsibility of physicians for public health, their duty to investigate every cause of disease in the neighborhood, to examine slaughter houses and sinks, to detect poisons in liquors, to inform employers of an epidemic, to quell false alarms, and to expel quacks from the neighborhood. Eaton saw local physicians as quasi-public agents to protect the public health. In the period I820 to i850, interest in medical jurisprudenceincreased in the medical community, both within and outside medical schools. Wide-ranging subjects were explored-fraud in concealing medical information in connection with insurance; inclusion of the deaf, dumb, and insane in the state census; causes of death in murder trials and toxicological investigations; and issues of human gestation in inheritance cases. The medico-legal issues that concerned mid-nineteenth-centuryadvocates of medical jurisprudence have a surprisingly contemporary ring. Very important was the issue of mental illness as a public health problem and the need to rescue the mentally ill from the back rooms of families into asylums for treatment. In this connection, Mohr points out that the asylum movement was an early example of state medicine. If asylums had functioned as envisioned at that time, they would have had the advantages of state support and the resources of psychiatrists and lawyers to solve problems of commitment and release. Early medical jurisprudencewas also concerned with issues related

This content downloaded from 128.6.218.72 on Sat, 16 Jan 2016 17:14:29 UTC All use subject to JSTOR Terms and Conditions

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to sexuality and procreation.Under the old English common law, rapewas verydifficultto proveand requiredproof of emissionby the attackerand resistanceby the woman. Americanopinionrejectedthis view and regardedrape as "an uncivilizedact of aggression." Despite these and other importantcontributionsto the development of what we now call broadly"healthlaw," the field of medical jurisprudencedeclined in the mid-nineteenthcentury.Mohr attributes this decline,in large measure,to lack of governmentalfinancial supportfor this work-for expertwitnessesand coroners,who were political ratherthan medical officers.After a penetratingreview of the struggle for independentexpert witnesses and a good medicolegal examinersystem,Mohr concludes: The creationof inherentlyuseful new servicesand theoretically good new ideashaveno doubt beennecessaryto professionaldevelopment,but they havenot beensufficientin themselves.In the end, Americanprofessionshave made major advancesonly in those areaswhere someone has been willing to pay for their inherentlyuseful new servicesor theoreticallygood ideas. Perhapsmost intriguingfor the modernreaderis Mohr'saccount of the increasingrecourseof people to malpracticesuits and his explanationof this trend,in retrospect,"as a reasonableresponseto the marketplaceprofessionalismwhich was then emergingin the United States."He explainswhy the most prestigiousphysiciansdid not welcome the increasein the numberof malpracticecases as a methodof drivingout charlatansfrom medicineand how the malpracticecrisis of the mid-nineteenthcenturywidened the gap between physicians and lawyers. He points out how the replacementof politically appointed coronersby trainedmedicalexaminersrelievedthe majority of physiciansof the burdenof uncompensatedtestimony. In additionto these meatyanalysesof the originof medico-legalissuesthat continueto plagueAmericansocietytoday,Mohr is a raconteur par excellenceof detectivestoriesin criminalcases of poisoning, murder,and conflictingexperttestimony. Mohr'sthoughtfulpostscripton the rise and fall of medicaljurisprudencein the nineteenthcentury-its accomplishmentsand failures -has importantsignificancefor the solution of continuingmedicallegal public health problems today. While medical jurisprudence

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failedto developas an influential,civic-minded,governmentallysupporteddiscipline,it has its vigorousdescendantin the growingfield of publichealthlaw and ethics. RUTH

ROEMER

Ruth Macklin.Enemiesof Patients:How Doctors are Losingtheir Powerand Patientsare LosingtheirRights.New York:OxfordUniversityPress,1993. viii+250 pp. $25.00. This is not just another text on medical ethics. Professor Macklin analyzes the problem that the doctor-patient relationship has changed (which we all know) and not for the better. She starts nicely: for the most part, doctors and nurses are advocates for patients. Doctors, nurses and patients are allies in the struggle against disease and injury. Her title is the text in summary.While health care professionals are working for and with patients, "outside" forces may interfere with this work. The interference may be from competition for resources. It may be from public health needs. However, it may be because the hospital wishes to protect its good name or avoid liability. What Professor Macklin has done is report numerous dilemmas where the doctor-patient relationship has been damaged and harm done the patient. She presents these stories in detail, tries to clarify the dilemmas, debates them from different points of view, different biases, and describes what one would hope for an outcome. The stories are well written and many are poignant and frightening. I found myself entering into the stories and arguing the points. Sometimes I felt like part of the solution; sometimes part of the problem. Her lists of possibilities are extensive and she is clearly not one for demanding only one answer for a question. Her chapters list the dilemmas, e.g. the DNR order, the challenges of risk management, the rights of mothers and fetuses, patients who are their own worst enemies, doctors who feel threatened by some patients. She presents a good sense of the emotions, the psychology of the various actors, their biases. Throughout the text is the overall dilemma, the rights of the patients versus what is best for them. For example, is it better to

This content downloaded from 128.6.218.72 on Sat, 16 Jan 2016 17:14:29 UTC All use subject to JSTOR Terms and Conditions