Commonwealth v. Porn

• Citation: 82 N.E. 31,196 Mass. 326
• Parties: COMMONWEALTH v. PORN.
• Decision Date: 15 October 1907
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 326

82 N.E. 31

COMMONWEALTH v. PORN.

Supreme Judicial Court of Massachusetts, Worcester.

October 15, 1907

COUNSEL

George

S Taft, Dist. Atty., and Ernest I. Morgan, Asst. Dist. Atty for the Commonwealth.

Francis Bergstrom, for defendant.

OPINION

RUGG J.

This is a complaint charging that the defendant 'did practice medicine' and 'hold herself out as a practitioner of medicine,' contrary to Rev. Laws, c. 76,§ 8. After the case was before us in 195 Mass. 3, 81 N.E. 305, the defendant was again ----, 81 N.E. 305, the defendant was again statement of facts, the substance of which was that at the time mentioned in the complaint, and for some years prior the defendant held herself out as a midwife and practiced midwifery, but did not claim to be a general practitioner of medicine, nor was she lawfully authorized to practice medicine as provided by Rev. Laws, c. 76, § 3. She delivered many women in childbirth for compensation, and carried with her to her patients the usual obstetrical instruments, which she used rarely on occasions of emergency, but never if a physician could be called in time. She used six printed prescriptions or formulas in treating her patients, which contained directions for their application, and the purposes for which they were used, as follows: 'For vaginal douche,' 'For post partum hemorrhage,' 'To prevent purulent ophthalmia in the new-born,' 'For afterpains,' 'For uterine inertia,' and 'For painful hemorrhoids or piles.' She used no other prescriptions or formulas. She was a trained nurse of experience, and was a graduate of the 'Chicago Midwife Institute,' from which she received a diploma which stated that she had received theoretical and practical instruction in the art of midwifery for a period of six months, and was declared a graduated midwife. Upon these facts the superior court ruled that the jury would be authorized to find the defendant guilty, and the defendant's first exception relates to this ruling. When the facts are undisputed, it is generally a question of law whether they constitute a violation of the statute. Commonwealth v. Porn, 195 Mass. 443, 81 N.E. 305. Both medical and popular lexicographers define midwife as a female obstetrician, and midwifery as the practice of obstetrics. Rev. Laws, c. 76, § 7, mentions obstetrics as one of the subjects of examination for the purpose of testing an applicant's fitness to 'practice medicine.' This goes far toward showing that obstetrics is a branch of the practice of medicine. It requires no discussion to demonstrate that, when, in addition to ordinary assistance in the normal cases of childbirth, there is the occasional use of obstetrical instruments, and a habit of prescribing for the conditions described in the printed formulas which the defendant carried, such a course of conduct constitutes a practice of medicine in one of its branches. Although childbirth is not a disease, but a normal function of women, yet the practice of medicine does not appertain exclusively to disease, and obstetrics as matter of common knowledge has long been treated as a highly important branch of the science of medicine. In Higgins v. McCabe, 126 Mass. 13, 30 Am. Rep. 642, it is intimated that treatment of eyes of the infant (for which one of the prescriptions of the defendant was employed), is not within the duties of midwifery. In view of all the agreed facts, there was no error in submitting the case to the jury.

The defendant also offered expert evidence to prove that the practice of the defendant, as shown in the agreed facts, was not the practice of medicine in any of its branches, and that the conduct of the defendant was not holding herself out as a practitioner of medicine. This offer of evidence was excluded against the objection and exception of the defendant.

The former decision of this case said that expert medical evidence was admissible to...