APPENDIX C. REPORT OF COMMITTEE ON JURISPRUDENCE AND LAW REFORM. To the Georgia Bar Association : The Committee on Jurisprudence and Law Reform submits the following Report: At the session of the Association in 1899 was presented a Memorial from the Medical Association of Georgia accompanied by a paper which had been read before the last named Association by Dr. James B. Baird of Atlanta. The memorial and the paper were presented by Dr. Baird in person. After some discussion as to what action this Association should take, the subject was finally referred to a special committee, of which Hon. Geo. Hillyer was chairman, with instruction that the committee should act on its own responsibility without authority to commit this Association; and the Committee on Jurisprudence and Law Reform was instructed to make a full report to the Association at this session of 1900. The object of the Memorial was to obtain the indorsement of the Bar Association to proposed legislation, (1) providing for the compensation of expert witnesses in civil and criminal cases, and (2) making communications of physicians with their patients privileged, and inadmissible in evidence in civil The views of the Medical Association were afterwards embodied in two bills introduced into the General Assembly in 1899, which received the support of the special committee of the Bar Association, were favorably reported by the Judiciary Committee of the House, and met the usual fate of not being reached before adjournment. These bills are attached to this report, and are considered by your committee as embodying the legislation desired by the Medical Association. I. COMPENSATION OF EXPERT WITNESSES. 1. The bill for the compensation of expert witnesses applies only to scientific experts. There is no good reason for this. The blacksmith who by years of experience has become an experti horse-shoeing; the farmer who has become expert on questions as to the best time for planting particular crops in particular localities, or as to the amount of labor which should be done by a given number of men in a given time; the stockman who knows the fine points of a horse; the expert cotton classer; all these, who have acquired their knowledge as part of their stock in trade, are as equitably entitled to compensation for their opinions as are the surgeon, the chemist, the engineer, or the electrician. When we begin to legislate on this subject, we should not unjustly discriminate; and unless we do, we are apt to clog the wheels of justice. 2. Every witness is now entitled to his per diem of seventyfive cents, and this amount is paid alike to him whose time is worth a few cents a day and to him whose time is worth many dollars a day. Every citizen must expect to bear willingly his part of the burden of public service, and this duty is nowhere higher then in promoting the ascertainment of truth in judicial proceedings. If there is to be discrimination in the pay of witnesses, should it not rather be based on the value of their time than the nature of the testimony? Why should the expert who is possessed of scientific knowledge be entitled to withhold it for pecuniary gain, when the ordinary citizen who has become possessed of material facts. is compelled to divulge them on demand? 3. The learned professions have no claim to be exempt from this public burden. Referring only to what is most familiar to us, members of the bar are required "never to reject, for a consideration personal to themselves, the cause of the defenceless or oppressed" (Code, sec. 4427, par, 6); to defend without compensation paupers charged with crime who may be assigned to us by the court; and perform a like service in unrepresented divorce cases, etc., etc. Lawyers have many special privileges to offset these burdens; but the special privileges and exemptions of physicians are greater. 4. New legislation on these lines is to be avoided except when there is an evil to be remedied. This cause seems to be here lacking. Your committee is not informed that physicians are so frequently called upon as involuntary experts that they are entitled to relief by special legislation. 5. The Bar Association should not cheapen its action and its influence by giving its indorsement to any measure which does not (1) concern the bar itself or the practice of its profession, or (2) tend to benefit the general public and promote the general welfare. This legislation cannot be assigned to either head. It concerns only the pecuniary advantage of a class. II. AS TO PRIVILEGED COMMUNICATIONS. The second bill makes inadmissible during the life of the patient, and no longer, the testimony of a physician as to any information acquired by communication with or examination of him, or otherwise, while attending him professionally, if the information be necessary to proper treatment; and it applies to all civil cases except suits for personal injury or malpractice. 1. Much criticism could be made on particular features of the bill. Why confine it to certain cases? If the patient be entitled to a concealment of the truth in these cases, is he not equally entitled to it in all? Is the right to the judicial ascertainment of the truth possessed by the State, and by the litigant in personal injury and malpractice cases, so much higher than the same right of the private litigant in other cases? Why confine it to the life of the patient? If he be entitled to preserve his reputation and his property by concealment of the truth, should not his surviving family be permitted to similarly keep his memory untarnished and his estate undiminished? But as our objection goes to the merits special demurrer is unnecessary. 2. We repeat our observations in considering the Expert Witness bill, that the alleged evil sought to be remedied by this bill does not seem to be so extensive as to call for special legislation. 3. This Association should not, in our opinion, recommend the incorporation into our law of any further obstacles to the judicial ascertainment of the truth. As we Southerners are so thoroughly imbued with the doctrine of States' rights and other permanent and unchanging political principles imbibed with our mother's milk that many of us have never stopped to give them a moment's thoughtful consideration and dissection, so are we Anglo-Saxons similarly unanalytical in our consideration of many of the principles and provisions of our common and statute law. Thus accustomed are we to the doctrine that no man shall be compelled to testify in his own criminal case, or to answer any question which may tend to criminate or disgrace him or his family; that confessions are inadmissible where induced by the slightest hope or fear; to the restrictions on proof of admissions made by agents and representatives; and to the mass of the rules of evidence intended to limit the means for the ascertainment of truth within narrow bounds. This committee is not prepared to assail any of these rules or principles, but it is prepared to oppose the erection of further barriers until the necessity for them be clearly shown -so clearly that he who runs may read. No man is really wronged (though he may be deprived of what he should not retain) by the ascertainment of the truth at the instance of the commonwealth or of his neighbor who has a dispute with |