1 CANADIAN MEDICAL HISTORIANS HAVE DRAWN SUBSTANTIAL ATTENTION to the efforts of 19th-century physicians to employ the law and the state to protect the profession’s interests. Historians of medicine, for instance, have explored how “regular” doctors pushed out competing kinds of practitioners, often through claims of professionalism and superior education as well as licensing requirements enforced by statute.1 Scholars have paid little attention, however, to how patients used the law of medical malpractice against doctors in Canada in response to poor treatment.2 In the Osgoode Hall Law Journal I recently provided a survey of when and why malpractice emerged as an issue in English Canada.3 I suggest that the medical profession considered malpractice to be an “American problem” until the last third of the 19th century, when doctors began to rail against a perceived increase in litigation. Physicians claimed that lawsuits damaged reputations and forced them to spend lavishly on defending themselves with little chance of recovering their legal costs from most plaintiffs. Doctors blamed lawyers for drumming up spurious lawsuits, and argued that jurors tended to side with plaintiffs. Other factors encouraged litigation beyond those identified by doctors. Medical professionals in rural areas sometimes avoided lengthy travel, leading to allegations of malpractice when patient health declined despite calls for attendance. Some physicians may also have encouraged lawsuits against local competitors. Late-19th-century claims to professionalism played a role as did patient expectations for better outcomes, especially in orthopaedics – the specialty that comprised many of the reported instances of malpractice in the period.

2 This article supports the claims made in my Osgoode Hall Law Journal article about the causes of the growing concern with malpractice by examining a New Brunswick case: Key v. Thomson. This case study also illustrates how individuals navigated legal processes and demonstrates the complexity and nuances of some malpractice disputes.4 In addition, an examination of this litigation augments the work of historians of medicine who have undermined an older literature that celebrated heroic doctors. Even recent scholarship on the history of the medical profession tends to highlight the willingness of doctors to undertake difficult travel to assist patients in rural areas.5 But malpractice cases demonstrate that house calls could be delayed or intermittent for various reasons despite the risks posed to patient health.

3 Key v. Thomson makes an excellent subject for a contextualized case study because archival records contained at the Charlotte County Archives in St. Andrews, New Brunswick, provide a rare view into the operation of a 19th-century malpractice trial. The archive possesses the extensive papers of one of the lawyers involved, Benjamin Robert Stevenson, which includes over 500 pages of trial transcripts, correspondence, financial data, and legal documents related to Key v.Thomson. These documents, combined with newspaper and journal articles as well as reported appellate decisions, permit a detailed recreation of this malpractice case. This article begins by describing how the patient, John Key, became injured and the treatment he received. It then examines his efforts to sue his doctor and considers what this litigation shows us about late-19th-century malpractice law as well as the attitude of the medical profession to efforts by patient-plaintiffs to use the law to keep doctors accountable.

4 In December 1865 John Brenton Key was a robust and healthy man in his late 30s. He was married to Eliza, and had a young family.6 He and Eliza had come to North America from Tavistock in Devonshire, England, in 1863 with their eldest daughter (also named Eliza). He worked as the mining engineer of a small copper mine opened in L’Etete, Charlotte County, in the 1860s.7 Charlotte County is nestled in the southwestern corner of New Brunswick, with Maine to the west, and the Bay of Fundy to the south.8 Key’s position paid him approximately £400 per year, and provided him and his family the use of a house rent-free.9

5 On the morning of 23 December 1865, he travelled by horse and sleigh to the town of St. George on a business trip. He consumed some alcohol while in St. George, two to three drinks he claimed, prior to heading back home, although he asserted he was not drunk. He left St. George at 5:00 pm under a bright moon wearing a cap, mittens, and an overcoat, and tucked under a buffalo robe. Key had a substantial trip ahead of him – approximately ten miles – on a very cold and windy night. A report on mining operations in the county described the road linking St. George to L’Etete as lightly travelled and “tolerable, but like all in Charlotte County, rather hilly and rocky.”10 Having come from southern England, Key perhaps failed to appreciate the dangers of winter travel. Approximately four miles into his journey, Key stopped and tried to stand in his sleigh. His legs were numb and he tumbled to the ground. His horse then ran off. Key tried to follow his ride, but he fell repeatedly and lost his cap and his mittens. He became lost and soon grew fearful as he realized that the moon would set by midnight, meaning he might be stranded all night in the dark and cold. He began to perspire despite the low temperature as he searched for help. Realizing that his limbs were at risk of freezing, he rubbed his hands with snow and struck his hands and feet to encourage circulation. He wandered about for four or five hours before he came to the house of William Gamble. Gamble, however, refused Key entry. Key moved on to the home of James Murphy, who offered him shelter for the night. Key was in a bad state by the time he entered Murphy’s home. He knew his hands had become very cold (they sounded like “hard substances when they were knocked together,” although he thought his feet were fine. His hands were placed in cold water to allow for gradual thawing. Scales of ice appeared on his hands while in the water, and blood flowed from under his fingernails. His boots were removed, and Key realized that his feet also suffered from frostbite. His feet were placed in cold water, and blood flowed from the ends of his toes. His feet and hands were then wrapped in warm flannels. Key tried to sleep but his hands and feet swelled, and he began to suffer substantial pain.11

6 On the morning of 24 December Key’s brother, Joseph, arrived at Murphy’s home. Murphy sent word to St. George to ask for the attendance of Dr. Robert Thomson. Dr. Thomson was a very experienced physician, having practiced for almost 40 years. Born in Ireland in 1803, he had received a medical degree from the University of Edinburgh in 1826. His family was prominent in Charlotte County. His brother, Samuel, was the Anglican rector for St. George. Another brother, Skeffington, became rector of St. Stephen.12 The St. Andrews Standard described Dr. Thomson as “universally esteemed as a gentleman and a physician.”13 Like many doctors in the mid-19th century, Dr. Thomson developed business interests beyond his medical practice. He served for many years as a member of the New Brunswick legislative assembly. Thomson did well for himself financially; the Canada Medical Journal described him in 1869 as “independent in circumstances,”14 and probate records reveal that Dr. Thomson possessed an estate valued at $50,000 at his death.15 As his interest in politics and business increased, Dr. Thomson spent less time practicing medicine. In 1868 he said that he had practiced for 40 years, but for the previous eight or ten years he had “not been doing much except casually.”16

7 Dr. Thomson examined Key and determined that he suffered from severe frostbite. The affected parts of Key’s hands and feet were discoloured and covered with blisters. Dr. Thomson ordered the blisters drained and the application of poultices made of ingredients including flour, hop yeast, and charcoal. Key asked Dr. Thomson to evaluate the extent of his injuries and his chances of recovery. What Dr. Thomson said in response was contested at trial. Key claimed Dr. Thomson said he “would not lose a joint, and would be all right in about six weeks.” Dr. Thomson denied this, suggesting that he instead told Key he “would be well enough yet.”17

8 Key returned to his home on Christmas Day, but his health worsened and he suffered from intense pain. His blisters refilled with fluid and his nails fell off. He frequently sent word to Dr. Thomson asking him to visit. Dr. Thomson promised to come, but he instead sent orders for the application of poultices with new ingredients such as turpentine, alcohol, and lime-water. These poultices caused unbearable pain. “I was nearly mad,” Key reported.18 Dr. Thomson finally visited Key on 6 January – 13 days after his initial visit. He left some medicine, applied a white powder, and ordered the continued use of poultices.19

9 Key requested frequently that Dr. Thomson visit him, sending for him up to eight times before Dr. Thomson finally appeared again, 12 days later, on 18 January. This time he returned with another physician, his nephew Dr. Robert C. Thomson from St. Stephen. The doctors determined that Key’s fingers and toes were dead. Lines of demarcation between living and dead tissues had appeared, his hands and toes had created a stench, and some areas of the flesh had receded thus exposing bone.20 The doctors had forgotten to bring medical instruments, so they cut off Key’s fingers and toes with a pocketknife sharpened with a whetstone. Key later recalled the doctors sharpening the knife at his bedside “just the same as a butcher would sharpen his knife to slaughter with.”21 The doctors left the bones on Key’s fingers protruding, as Dr. Thomson believed that a full and final amputation should be delayed for about ten days to allow for the granulation tissue to form and to make flaps to cover the exposed bones. He promised to return on 28 January. Key continued to suffer great pain, and he was alarmed at the deteriorating condition of his feet and hands. The protruding bones turned black, as did flesh on his hands and feet. He thus appealed another three times for Dr. Thomson to return. When Dr. Thomson did not appear, Key finally sent for other medical help. Two experienced physicians arrived: Dr. Samuel Tilley Gove and Dr. Luther P. Babb. Dr. Gove had practiced in St. Andrews for a quarter century after having trained in London, England, and then practicing in Sussex and Gagetown. Dr. Babb was an American physician from the community of Eastport, Maine.22 They amputated Key’s hands between the wrists and the knuckles and his feet at the instep. Dr. Gove suggested using chloroform, but Key said he was an Englishman and he could take it.23 The operation took 80 minutes, and Key reported suffering a “great deal.”24

10 Key’s injuries meant that he lost his position with the copper mine. His employer stopped paying his salary in February 1866. By late May 1866, Key tried to collect an unpaid debt so that he could go to Boston to get artificial hands.25 He also decided to sue Dr. Thomson for malpractice, demanding $40,000 in compensation. The case went to trial in August 1867 in St. Andrews. This started what became an expensive four-year legal odyssey. Both sides drew on substantial legal expertise. Key employed lawyers David Shank Kerr and George Skeffington Grimmer. Kerr had been born in Parrsboro, Nova Scotia, in 1809. After becoming an attorney in Nova Scotia in 1835 he moved to New Brunswick, where he became an attorney in 1835 and a barrister in 1837. He focused on his practice, only dabbling in electoral politics. According to Greg Marquis, Kerr was “a lawyer’s lawyer, devoted to the promotion of the bar as an independent, learned and honourable profession.”26 Grimmer was a local lawyer. Born in St. Stephen in 1826, he studied law in St. Andrews with James W. Chandler and in Saint John with Kerr. He became an attorney in 1847 and a barrister in 1849, and practiced in Charlotte County. A 19th-century commentator described him in modest terms as having “a fair share of legal business” in Charlotte County, as “well read in his profession,” and as possessing “a highly creditable standing among the fraternity in this section of the province.”27

11 Dr. Thomson employed an even more impressive legal team consisting of Benjamin Robert Stevenson and the doctor’s nephew, Samuel Robert Thomson. Stevenson was the most junior of all the lawyers involved. Born in St. Andrews in 1835, he received a BA from the University of New Brunswick in 1854 and then became a lawyer. He established a successful practice in his hometown and went on win a seat in the provincial legislature, eventually becoming speaker of the assembly.28 The most prominent lawyer involved in the case in 1867 was Samuel Thomson. Born in 1825 in St. Stephen, Thomson became an attorney in 1846 and joined the bar in 1848. He practiced most of his career in Saint John, where he became a prominent barrister, eventually representing the defendants in the Caraquet Riot cases and serving as one of the counsel at the 1877 Halifax Fisheries Commission. A 19th-century commentator suggested that “hardly an important cause has been tried in the Province of New Brunswick for years in which he was not engaged on one side or the other” and that “he stood, with scarcely a rival, at the head of the New Brunswick bar.”29 According to one observer of the 1867 trial, the lawyers exhibited substantial skill in arguing the case. “Much ability was displayed by the counsel on both sides,” concluded the Saint Croix Courier.30

12 John Campbell Allen presided over the August 1867 jury trial. Born in Kingsclear Parish, New Brunswick, in 1817, Allen became an attorney in 1838, was called to the bar in 1840, and set up a practice in Fredericton. In 1856, Allen joined the House of Assembly, serving as speaker, solicitor general, and attorney general. He remained in the assembly until his appointment to the Supreme Court of New Brunswick in 1865. At the time, he was deemed New Brunswick’s “most credible judicial candidate, irrespective of political consideration”31 although one contemporary regarded him as merely a “fair lawyer.”32 He was relatively new to the bench and some years away from full-time legal practice when he heard the litigation involving Key and Dr. Thomson.

13 The case, according to the St. Andrews Standard, excited “a great deal of interest.” The newspaper noted the voluminous testimony at trial (which took place over six days), including conflicting medical testimony, meaning that it was “no easy matter to arrive at a correct opinion.”33 Key alleged malpractice on the part of Dr. Thomson. Dr. Thomson’s lawyers referenced the test for medical malpractice outlined in Francis Hilliard’s The Law of Torts or Private Wrongs: “In general a physician or surgeon is responsible only for ordinary or reasonable care and skill, and the exercise of his best judgment in matters of doubt; not for want of the highest degree of skill.” There was no guarantee to provide a cure: “The implied contract of a surgeon is not to cure, but to possess and employ, in the treatment of a case, such reasonable skill and diligence as are ordinarily exercised in his profession, by thoroughly educated surgeons.”34

14 Key described how the accident happened, the treatment he received, the pain he suffered, and his efforts to get Dr. Thomson to visit him more regularly. Some witnesses gave evidence to show that Key had been sober the day of the incident to rebut the defendant’s effort to blame Key for his condition. Dr. Gove, Dr. Robert K. Ross, and Dr. William Tell Black testified on Key’s behalf, while Dr. Babb supplied an affidavit. Dr. Ross was a new physician, having practiced for about 18 months. Dr. Black was born in St. Martins, New Brunswick, and had served in the medical staff of the northern army in the American Civil War. He had only recently established a practice in New Brunswick.35 These doctors suggested that Key’s limbs might have been saved with better and more attentive treatment. Dr. Black, Dr. Gove, and Dr. Ross also testified that the lengthy use of poultices with the ingredients prescribed by Dr. Thomson might have encouraged mortification, and suggested that a doctor treating such injuries needed to visit frequently to watch the patient’s progress. For example, Dr. Black noted that it was up to the discretion of doctors how often to visit patients, but “I would have seen the patient every two days at least” to “watch the changes during the inflammatory state.”36 Similarly, Dr. Gove said it was his practice to visit every two or three days in such cases, but admitted that he visited less often if he had to travel a great distance.37

15 The common law did not prescribe how often a doctor should visit a patient, nor did the medical profession. The first code of ethics adopted by the Canadian Medical Association in 1868, however, indicated that doctors had a duty to visit often: “Frequent visits to the sick are in general requisite, since they enable the physician to arrive at a more perfect knowledge of the disease – to meet promptly every change which may occur, and also tend to preserve the confidence of the patient.”38 Dr. Thomson rebutted such an assumption by claiming that his extensive experience with frostbite cases meant that he did not need to attend to Key very often, so long as he received word on any changes in Key’s condition. In his view, there was little that could have been done for Key until the line of demarcation formed allowing for a full amputation. He also asserted that he had the discretion to decide how often to visit (even if he had promised to attend), especially when he had more pressing cases needing his attention.39 That may have been true, although one wonders if the winter season and the distance Dr. Thomson had to travel also contributed to his reluctance to visit. Doctors serving rural areas in the 19th century often suffered hardship making house calls. According to his biographer, Ontario doctor James Langstaff dealt with bitter cold winds and broken carriages. Sometimes Dr. Langstaff was unable to return home after a house call, so he would let himself into an open house to sleep by the fire. Such experiences were not unusual; they reflected the “constant danger in solitary travel by horse and the battle with the painful cold of the Canadian elements.”40 There is also evidence in other legal cases of a reluctance of doctors in rural areas to undertake lengthy travel to visit patients. For example, in Field v. Rutherford et al. a patient with a dislocated shoulder alleged malpractice because his physician had not travelled five miles to check on him and adjust his sling.41 In another case, Michael Ellard sued after a doctor had been called for but refused to attend his ailing wife. The doctor had instead sent medicines.42

16 Dr. Thomson defended other aspects of his treatment of Key. He argued that the contents of the poultices were acceptable, and emphasized that he sent medicines. He denied telling Key that he would not lose a joint, instead asserting that he told Key that he “would be well enough yet” to help keep up Key’s spirits. He indicated this statement was consistent with his approach of being positive, if dishonest, with patients: “I think it good treatment not to tell patient what you think of him.”43 Dr. Thomson claimed at trial that he had, in fact, known in December that Key would lose his fingers and toes, although he had not been able to tell at that time the extent to which his feet could be saved. Dr. Thomson’s lack of candour with Key was not unusual in the period. In fact, a long tradition existed in western medicine of lying to patients on the ground that the truth might worsen the condition of the patient.44 The 1868 Code of Ethics approved of white lies to patients. The code provided that a physician “should studiously avoid making gloomy prognostications.” A doctor should only “on proper occasions” give the “friends of the patient timely notice of danger when it really occurs; and even to the patient himself, if absolutely necessary.” Why the reluctance to tell patients the truth? The code indicated that physicians “should be the minister of hope and comfort to the sick,” and thus every doctor had a “sacred duty” to “avoid all things which have a tendency to discourage the patient and depress his spirits.”45 Dr. Thomson’s practice of refusing to tell patients the truth about their condition was a long-standing policy. Dr. Gove stated at trial that he had consulted with Dr. Thomson numerous times over the previous 28 years, and he “never knew him give in the presence of patient an adverse opinion.”46

17 Defence witnesses suggested that Key had brought the accident on himself by getting drunk in St. George, and that Key had received acceptable care. Several physicians gave evidence approving of Dr. Thomson’s treatment. They (and Dr. Thomson) also blamed the application of warm flannels as an important cause of the mortification. This claim stemmed from the fact that the standard medical treatment for frostbite at the time was to slowly rewarm affected areas, either by using a friction massage of ice or snow, or by immersing frozen tissues in cold water. Any effort to rapidly warm tissues was judged dangerous.47 The defence also offered as evidence a private statement by Dr. Thomson to William Gamble at his December visit to the effect that Key would lose his hands and feet. Justice Allen rejected this evidence when the plaintiff’s lawyer objected. Justice Allen also rejected the evidence offered by James Milberry, who testified about his own experience with frostbite in 1864. Milberry indicated that he had been visited only once in three weeks, yet had largely recovered.48 The defence also called other doctors to give evidence, including Dr. Neville Parker of St. Andrews, who approved of the use of the poultices and the delay in amputation. The defence tried as well to offer the evidence of Dr. James Rouse on the state of the plaintiff’s feet, but Justice Allen rejected this testimony when the defendant’s counsel declined to state the purpose for offering this evidence. Unfortunately for Dr. Thomson, almost all the doctors the defence called undermined him in an important way: they acknowledged they would have visited Key more frequently. Dr. Parker indicated he would have visited every four days.49 Dr. Rouse stated “I don’t think I should allow 13 days to elapse between visits in such a case.”50 A young doctor, Dr. Thomas Dick, told the court that he would have wanted to see the patient every three or four days.51

18 In his charge to the jury, Justice Allen reviewed the evidence and suggested that Dr. Thomson should have seen Key more regularly.52 The jury then gave a verdict for the plaintiff for the astronomical sum of $25,000. It is unclear how the jury came to this figure. In his closing argument, Kerr had asked for £10,000 (one pound was equivalent to approximately four dollars) by suggesting that Key’s family had been left destitute and that Key could expect to live another 30 years. Therefore, if the jurors believed he should receive £300 per year, they should award £9,000. Kerr also called for the jury to award a substantial sum on the grounds of fraud and malice.53 After the verdict, Justice Allen posed several questions to the jurors, eliciting responses showing that the jurors believed Key would have lost a portion of his fingers regardless of the quality of the treatment, but that Dr. Thomson might have preserved more of his hands.54

19 The size of the award attracted attention. The St. Andrews Standard declared that $25,000 was the “largest award we learn ever given against a medical man in the British Provinces.” Dr. Thomson must have been shocked. He was a well-established leader in his community who had been sued by a recent immigrant, and yet a jury of local men had tagged him with an immense damage award. Perhaps the jury factored in Key’s professional accomplishments. The St. Andrews Standard noted that Key was a “man of extensive information,” and was “thoroughly versed in his profession of Assayist chemist and mineralogist.”55 We have no evidence of Dr. Thomson’s income in the 1860s, but $25,000 was many times the annual income of most physicians. Historians of medicine generally agree that the necessity of house calls, modest incomes of patients, and delinquent accounts meant that most physicians made only a comfortable income. For example, a young William Osler made less than $2,000 per year in the late 1870s in Montreal. Even the relatively prosperous Ontario doctor James Langstaff is estimated to have only billed about $3,000 in 1880.56

20 Dr. Thomson decided to appeal the jury’s decision. New Brunswick did not have a separate Court of Appeal; instead, all the judges of the Supreme Court sat together to hear appeals (they sat “en banco”). In such situations, the trial judge often sat with the other judges but did not vote on the disposition of the case.57 The Supreme Court decided to quash the decision of the jury and to order a new trial. New Brunswick’s leading judge, William Johnstone Ritchie, delivered the appeal judgement.58 Chief Justice Ritchie’s decision focused on two issues: whether Justice Allen had erred in rejecting evidence offered on behalf of Dr. Thomson and whether the damage award was excessive. The first evidence question concerned Justice Allen’s rejection of the testimony offered by William Gamble that Dr. Thomson had said that Key would lose his hands and feet. Chief Justice Ritchie discussed the effect of rejecting this evidence, while allowing the plaintiff to report that Dr. Thomson had assured him he would heal: it led “the jury’s minds to the conclusion that in the defendant’s opinion the injury, originally, was not of so serious a character as to jeopardize the plaintiff’s limbs,” and that “their loss was, therefore, not the natural result of the original injury, under judicious and proper treatment, but the effect of the defendant’s inattention.” Justice Ritchie suggested this was highly prejudicial to Dr. Thomson since it was “evidence of the opinion of the medical man, who first saw the case, and when there could have been no mismanagement, that there was nothing in the injury as then presented, from which the loss of limb need be apprehended.” Moreover, this evidence was given by “no other than the defendant himself.” Excluding his statement to Gamble meant that the “burthen of getting rid of his own opinion, and shewing the case incurable, was cast on the defendant.” Chief Justice Ritchie also took note of Dr. Thomson’s explanation that it was his practice to take a “hopeful and cheering view” with patients. Whether it was ethical to lie to a patient did not concern the court. Instead, Justice Ritchie concluded that Justice Allen should have allowed Gamble’s evidence because a “fair and just inference can only be drawn from the whole.” After all, Chief Justice Ritchie concluded, Dr. Thomson had no reason to lie to Gamble, though “he may have thought it for the plaintiff’s benefit to mislead him.”59

21 Chief Justice Ritchie also concluded that Justice Allen should have allowed other evidence in support of Dr. Thomson. This included the testimony of James Milberry, the man who had recovered from frostbite despite only receiving one visit from a physician in three weeks. The only evidence issue raised on appeal with which Chief Justice Ritchie agreed with Justice Allen was the decision to reject the evidence of Dr. Rouse. Chief Justice Ritchie noted that it was within the discretion of the trial judge to require counsel to state the purpose of offered evidence, and to reject it if counsel refused to state the reason.60

22 The appeal court also found the $25,000 damage award excessive. Justice Ritchie expressed reluctance to intervene on the issue of damages, since doing so would trench upon the right of the jury to determine the amount of damages in such cases. Nevertheless, Justice Ritchie felt this was “a case which imperatively calls us to exercise the controlling power of the Court.” He believed that the evidence presented at trial showed that the freezing would have permanently damaged Key’s hands and feet. The jury in fact had come to the same conclusion. However, the jury believed better treatment would have produced a better result. This made Justice Ritchie decide that “we cannot avoid the conclusion that $25,000 was an excessive amount of damages.” This amount “carried internal evidence of intemperance in the minds of the jury” – that the jurors were “carried away by their feelings, rather than guided by their judgment.”61

23 The appeal decision highlighted Justice Allen’s challenges in applying evidence rules in complex malpractice cases. Poorly founded decisions about whether to include or exclude evidence inflated the cost of the litigation and helped ensure that the case would drag out for years. The mistakes by Justice Allen (and subsequent trial judges in this litigation, as discussed below) lend credence to legal historian David Bell’s suggestion that the New Brunswick Supreme Court “suffered lapses in technical craft” during this period caused by, in part, a tendency to appoint former politicians as patronage appointments to the bench.62

24 A year passed before the case again went back to trial in Saint Andrews – in August 1868 – before another relatively inexperienced judge, Justice John Wesley Weldon. Justice Weldon had become an attorney in 1825 and joined the New Brunswick bar in 1827. He devoted much of his time, however, to politics. He joined the House of Assembly in 1827 and was re-elected several times, before suffering a defeat in 1850. Thereafter, he focused on his legal career until he received an appointment to the Supreme Court in 1865.63

25 The second round of Key v. Thomson tasked Justice Weldon with overseeing an even more complex and lengthy trial. The trial lasted almost a month, from 4 August to 28 August.64 The large award in the first trial likely motivated both parties to prepare more fully for the second. Dr. Thomson this time employed New Brunswick Attorney General Andrew Rainsford Wetmore to help defend him. Born in Fredericton in 1820, Wetmore became an attorney in 1841 and a barrister in 1843, and developed a reputation as “one of the finest trial lawyers in the province.”65 He won a seat in the New Brunswick in 1865, and became premier and attorney general in 1867, but continued to practice law while holding elected office. In the first trial, Key had called 11 witnesses (in addition to himself) and Dr. Thomson 12 (in addition to himself). This increased to 18 and 18, respectively, in the second trial. The witnesses making their second appearances largely gave the same testimony. New witnesses for Key included his wife Eliza (whose absence in the first trial Justice Allen had noted as strange in his instructions to the jury). Dr. Thomson brought in several new doctors to testify including one of New Brunswick’s most distinguished physicians, Dr. William Bayard. Bayard had trained in New York and, like Dr. Thomson, at the University of Edinburgh. He served as the coroner of Saint John for 30 years, chaired the board of commissioners for the Saint John Public Hospital, and chaired the board of health for the city and county of Saint John. He served as president of the New Brunswick Medical Society from 1867 to 1871 (and would serve as president at three other times by the end of the century), and became president of the Canadian Medical Association in 1894. Bayard wrote frequently about medical issues and contributed work to a number of medical journals.66 Bayard deemed Dr. Thomson’s treatment proper, asserted that doctors should decide how often to visit patients, and said the loss of Key’s hands and feet stemmed from the original injury. Despite the efforts of both sides, the jury in the second trial could not agree. A hung jury meant that the case, if Key so chose, could go back to court a third time.67

26 Dr. Bayard’s role in the litigation may have helped the case attract attention beyond New Brunswick. In early 1869, the Canada Medical Journal of Montreal published an anonymous article on the case. The author’s intimate knowledge of the evidence given at trial (as well as the writing style of the piece) suggests Dr. Bayard wrote the article. In discussing Key v. Thomson, the author of the Canada Medical Journal article stated many of the worries Canadian doctors would voice with increasing regularity in the 1870s and 1880s. This author, for example, suggested that many malpractice cases were unfounded. Medical practitioners were “often the victim of vexatious and vindictive law proceedings.” A doctor’s best efforts might fail, and then he falls “into the hands of those prompted by greed and malice.”68

27 The author also expressed complaints about lawyers and their fees, warning that if a neighbouring physician was consulted who gave an “unguarded opinion adverse to the treatment,” a greedy lawyer would soon launch a speculative lawsuit. The lawyer “enters into speculation, – for speculation it often is, – by which the medical practitioner, innocent or guilty, is to be mulcted in costs.” The author noted the large expenses doctors might incur defending against malpractice claims, even if they eventually won the case. Dr. Thomson had faced two trials and yet the “unfortunate Doctor is saddled with the expenses of his defence” and would “probably be obliged to run the gauntlet of another trial.”69 Such concerns with legal costs and unscrupulous lawyers were not uncommon in New Brunswick, as Greg Marquis has shown. For example, in 1867 George Day, the editor of the Saint John True Humorist, remarked on the ability of lawyers to drain their clients’ savings: “Every lawyer’s office we regard as a huge trap, into which many an unconscious man is lured to certain ruin. He enters with a pocket full of gold and a suit of good clothes but, if he is fortunate enough to come forth alive, it is with not a penny to jingle upon a tombstone, nor a rag to cover his nakedness.”70

28 The Canada Medical Journal author also lamented another common annoyance – the willingness of some doctors to give evidence against other physicians: “Medical men in the witness-box are so often found to differ upon points, where difference of opinion should not exist.” The article did not deny that doctors should be held responsible for malpractice, or that it was “sometimes the duty of one medical man, to express in court disapproval of the treatment followed by another,” but that to “justify it, the maltreatment should be clear, and he should be morally certain that his opinions are correct.” Unfortunately, in Dr. Thomson’s case “we find medical men arrayed on either side, differing widely in opinion.” The author took particular aim at some of the doctors who gave evidence for Key, for example, complaining about Dr. Gove giving an opinion respecting a surgical operation at which he was not present. The author advised Dr. Gove “should he ever again appear in the witness-box, to study his subject, and exercise more caution.” The danger was that ill-thought-out testimony had weight with jurors “incapable of reasoning upon medical subjects.”71

29 The author’s concern with jurors was also a common complaint. Doctors were not alone in expressing reservations about juries in this period. Juries seemed less necessary as a bulwark against state oppression after responsible government. In addition, critics of juries alleged that the jury system provided too much local discretion at a time when judges and lawyers believed that the justice system had to be rational and certain. And jurors faced complaints that they tended to side against defendants with deep pockets in civil suits.72 Critics of jurors in malpractice cases also alleged that jurors lacked the expertise necessary to weigh medical testimony. The Canada Medical Journal author asserted that jurors were unsuited to evaluating medical testimony: “When medical men in the witness-box differ in opinion, jurors as a rule are unable to say who is right.”73

30 The coverage in the Canada Medical Journal resulted in news of the case spreading to England, where the Medical Times and Gazette of London published an article on the case. It lamented patients suing physicians even though “the plaintiffs had not a leg to stand upon,” which put “the unfortunate Practitioner to expense, trouble, and anxiety.” The article went on to state “One of the very worst instances of this comes to us from New Brunswick” (referring to Key v. Thomson). Despite relying only on the Canada Medical Journal for its article, the Medical Times and Gazette declared that Dr. Thomson should have been “triumphantly acquitted” and went on to declare “A more disgraceful case it has seldom fallen to our lot to comment upon” and that the journal would “make his case public – and pity him.”74

31 The case, now described as a “celebrated case” by the St. Andrews Standard, went back to court for a third time.75 The trial was again lengthy – it started on 17 August 1869 and ran until 3 September. Justice Charles Fisher presided. The appeal of the first trial had shown the importance of the judge applying evidence rules correctly. Unfortunately, Justice Fisher, like Justice Allen, was relatively new to the bench and much of his professional life had been in politics and not law. Born in 1808 in Fredericton, Fisher received a BA in 1830, and became an attorney in 1831 and a barrister two years later. Fisher began his political career almost immediately after joining the bar, entering the assembly in 1837. During the 1850s, Fisher worked on a consolidation and codification of New Brunswick statutes, and in 1854 he became the first premier under responsible government. His tenure as premier ended in 1861, and in October 1868 he received an appointment to the Supreme Court of New Brunswick, meaning that he had been a judge less than a year when he presided over Key v. Thomson. His long political career may have contributed to one contemporary suggesting he would attain only a mediocre reputation as a judge.76

32 Both Key and Dr. Thomson again lined up scientific witnesses. Dr. Gove, Dr. Black, and Dr. Ross gave evidence for Key, now represented only by Grimmer. They continued to criticize Dr. Thomson’s use of poultices, and indicated Key’s injuries required Dr. Thomson to visit more frequently.77 Dr. Thomson had several doctors testify, including Dr. Bayard, to the quality of his treatment. Dr. Thomson’s lawyer, Wetmore, urged the jurors to reach a verdict on the evidence rather than any feeling of sympathy they might have for Key.78 The jury nevertheless decided in favour of Key, and awarded $9,000 in damages – less than the award at the first trial, but still a very large sum compared to other 19th-century malpractice cases.79

33 The Canada Medical Journal, in another anonymous article probably written by Dr. Bayard, expressed frustration at this result. The article’s author again attacked the doctors who gave evidence for the plaintiff, noting that Dr. Gove was a practitioner with many years of experience, yet had claimed that the application of warm flannels was acceptable and that the use of charcoal in a poultice would increase inflammation. The author suggested that Dr. Gove’s claims were “possibly excusable, if made by a student of two months standing,” but “almost criminal when made by one whose experience should have taught him better.” The author declared that jurors could not appreciate such mistakes in medical testimony, and Dr. Gove’s erroneous statements seem to have carried “influence with those incapable of judging, or unwilling to be guided by the weight of evidence.”80

34 The criticism of doctors who gave evidence for patient-plaintiffs was not unusual in the latter decades of the 19th century. At a time when doctors operated as small business operators, competition could motivate doctors to give evidence against a fellow physician as a means of damaging their reputation. As noted earlier, medical historians have written extensively about the efforts of “regular” doctors during the 19th century to elbow out competitors. This literature has perhaps tended to discourage close attention to the need for regular doctors to compete at a time when the annual incomes of physicians tended to be modest. The leaders of the profession certainly frowned upon efforts by regular doctors to criticize each other or to poach patients. The Canadian Medical Association made this clear in its 1868 Code of Ethics. The code included a chapter dealing with the duties of physicians to each other. The code prescribed that a physician interacting with a patient under the care of another practitioner should “observe the strictest caution and reserve. No meddling inquiries should be made – no disingenuous hints given relative to the nature and treatment of his disorder, nor any course of conduct pursued that may directly or indirectly tend to diminish the trust reposed in the physician employed.”81 The code also included warnings that doctors should not take over other physicians’ patients. If a doctor did assume care, “no unjust, illiberal insinuations” should be made about the treatment provided by the original doctor. This was important since patients often became dissatisfied “when they do not experience immediate relief,” even though many illnesses were protracted and the failure to achieve a good outcome “affords no evidence of a lack of professional knowledge and skill.”82 These passages support the conclusion of C.D. Naylor that the Code of Ethics was an effort to “weld the regulars together, create attitudes and patterns of doctorly deportment that would demarcate the professional from those in other walks of life, and encourage laymen to accord the profession special status.”83 Malpractice suits in which doctors gave evidence in support of patient-plaintiffs undermined this effort.

35 Dr. Thomson and an author in the Canada Medical Journal again levelled harsh criticism against the jurors. Dr. Thomson alleged they were biased against him, even suggesting privately that some jurors may have been bought off. He told Stevenson that he hoped any subsequent trial would be held in Saint John since there it was possible to get jurors “free from being either bribed or tampered with.”84 The Canada Medical Journal author blasted the jury for finding that a person’s extremities could be frozen for hours and “yet the unfortunate surgeon in charge of such a case, must and shall save the parts, or pay the penalty,” notwithstanding the “most positive assurance by competent medical witnesses that, under such circumstances, the possibility of saving the parts is very doubtful.” The jury had ordered damages sufficient to keep Key “in comfort and idleness the remainder of his life.” In doing so, the jurors had “done not a little towards destroying confidence in that old institution ‘trial by jury’.”85

36 The author concluded by making a claim often repeated by medical periodicals in the late 19th century: that jurors (and the public) failed to appreciate the selfless actions of physicians. He noted that Dr. Thomson had been a “leading and laborious practitioner” in Charlotte County for upwards of forty years.” During his career, he had “doubtless had many a hard, dreary and perilous ride, to answer the calls and minister to the suffering of those who (now in his declining years, when they can no longer make use of him) refuse him that justice to which all are entitled.” The “severe lesson” to take from this, concluded the author, was that that doctors should expect nothing but “hard work, and hard knocks.”86

37 Dr. William Bayard also publicly criticized the decision of the jury in the third trial. In an address to the New Brunswick Medical Society in Saint John in July 1870 on the subject of frostbite treatment (subsequently published in the Canada Medical Journal), Bayard used the legal system’s treatment of Dr. Thomson to warn doctors of the threat of malpractice lawsuits. “Professional standing, character, or rectitude of conduct,” he claimed, would not exonerate a doctor facing a malpractice claim. In fact, “judging from past experience innocent or guilty he must pay the penalty.” Dr. Bayard reviewed Key’s injuries and suggested that his badly frozen extremities had been heated too quickly, thus ensuring the loss of hands and feet. Yet the court in the third trial ordered him to pay damages. Dr. Bayard placed part of the blame for this on the doctors who had given evidence for Key – in particular, Dr. Black and Dr. Gove. Dr. Bayard mocked their testimony that the poultices ordered by Dr. Thomson caused the poor medical result: “I will not stop to combat such opinions, but simply state that assertions like these, made in a witness-box, tend to degrade our profession.” Such testimony meant that jurors faced conflicting medical testimony. Jurors thus “lose confidence in medical testimony, and decide the case upon other merits.” Dr. Bayard proposed that the solution was for allegations of malpractice to be evaluated solely by medical experts – “by men capable of pronouncing upon his guilt or innocence.”87

38 Dr. Thomson decided to appeal again to the full bench of New Brunswick Supreme Court. Dr. Thomson had Samuel Thomson handle the appeal (Attorney General Wetmore had joined the Supreme Court, though since he had acted on behalf of Dr. Thomson he took no part in the judgment). The defence argued that Justice Fisher had erred in his decisions regarding the admissibility of evidence, that the jury had come to a verdict against the evidence, and that the damages were excessive. The appeal court’s decision would turn on the evidence issue, particularly the scientific evidence presented by the plaintiff’s medical witnesses. The defence argued that Justice Fisher had allowed the doctors giving testimony for the plaintiff to offer definitive conclusions regarding the cause of Key’s injuries, thus usurping the role of the jury. Chief Justice Ritchie described the rule applicable in such situations: when “scientific men are called as witnesses they cannot give their opinions as to the general merits of the case, but only their opinions on some question of science raised by the facts proved.” Ritchie reported that the appeal court had reviewed over 250 pages of notes taken by Justice Fisher at trial, and the appeal judges “regret to have discovered in many instances clear departures from the prescribed rule, both in the questions proposed and the answers given.” Chief Justice Ritchie quoted several objectionable exchanges between the plaintiff’s lawyer and doctors. For example, Dr. Black was asked: “From the evidence, to what would you ascribe the loss of the plaintiff’s limbs?” This elicited Dr. Black to say: “I would ascribe it, first, to frost-bite; second, to neglect in attendance; third, to want of proper treatment.” Chief Justice Ritchie was unimpressed: “Nothing could be more objectionable than this answer.”88 The jury could not be trusted to come to its own conclusions given this testimony. The evidence problem meant that the appeal court would have ordered a new trial.

39 However, a substantial complication had emerged: Dr. Thomson had died at his home in October 1870.89 Chief Justice Ritchie noted that granting a new trial might only “defeat the ends of justice”90 so the court refrained from ordering a new trial until the next sitting of the Supreme Court to allow the plaintiff to make any application as to the terms on which a new trial should be granted. The plaintiff’s lawyer then obtained an order that second verdict should stand as security for another verdict if the case went back to trial. This order was then appealed to the full bench of the Supreme Court. Samuel Thomson argued that the court could not impose terms on the representatives of the deceased defendant since the plaintiff had put himself in a precarious position by introducing improper evidence at the third trial. Chief Justice Ritchie, however, allowed for a new trial and ordered the representatives of the late Dr. Thomson to enter a bond, undertaking, or agreement that the previous verdict would stand as security for the result of the new trial.91

40 The court battle had lasted four years, and about six years had elapsed since Key had been frostbitten. According to an author in the Canada Medical Journal, Dr. Thomson had spent almost $4,000 in legal bills by the end of the third trial (but before the second and third appellate level rulings).92 Dr. Thomson’s representatives likely weighed whether to settle. The ordering of the bond meant that a sizeable portion of Dr. Thomson’s estate was tied up, and there was a real risk that a jury in a fourth trial might again find in favour of Key. Another trial would also result in more legal expenses. In addition, there was less need to protect the professional reputation of the now-deceased doctor. The case may thus have been settled.93 Little is known about what happened to Key after the litigation. He resided in St. Andrews, and, despite his injuries, he and Eliza continued to add to their family. By 1871, he had two sons – John (age 5) and Henry (age 1) – and two daughters Eliza (age 10) and Elizabeth (age 4). He remained in St. Andrews until his death in 1904.94

41 Contextualized studies of malpractice litigation can shed considerable light on the history of medicine and legal history. Historians of medicine have undermined an older literature that tended to celebrate heroic doctors. However, scholarship on the history of the medical profession still tends to suggest the willingness of doctors to go to great lengths to make house calls. But malpractice cases like Key v. Thomson show that the frequency of house calls might be affected by weather, poor road conditions, workload, fatigue, illness, inclination, or a sense that poor patients might not be able to pay. The result was that patients could be left alone and fearful. One can imagine Key’s anxiety mounting as the condition of his hands and feet worsened – as tissue died and rotted. He literally watched (and smelt) his ability to support his family disintegrate while waiting for Dr. Thomson to appear.

42 Key v. Thomson also nicely illustrates many of the medical profession’s concerns about malpractice litigation in this period. Doctors complained about unscrupulous lawyers, ignorant or malicious jurors, and dishonest former patients. They worried about the damage malpractice suits could do to their professional reputations. They expressed their disapproval about the cost of defending themselves. Many doctors responded by calling for unity and they criticized fellow physicians who gave evidence for patient-plaintiffs. As time went on, medical professionals would take important steps to protect themselves. For example, they successfully lobbied provincial legislatures to pass special limitation periods in malpractice suits that required patients to launch suits alleging malpractice within a specific period.95 And, at the turn of the century, a small number of doctors would form the Canadian Medical Protective Association, an organization created to pool financial resources to help doctors defend themselves in malpractice suits.