By late February 1858 Mrs. Hodges had completely recovered from the cesarean operation. She was enjoying good health and had a cordial relationship with Dr. Cooper to whom she was effusively grateful. According to Cooper's notes: [1]
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(It was at about this time) that Wooster went to her and represented that his conscience troubled him because of the great injury he had been accessory to inflicting upon her (by the cesarean operation), and said he could not rest satisfied until he had confessed to her. This is her story. She was loathe to believe his confession. But then what could it mean? He was a good friend of herself and of Dr. Cooper and what would he do it for unless it was to relieve his troubled conscience. Not a word was said against Dr. Cooper that day excepting such remark as that it was a pity he was so fond of operating he might otherwise be so useful, etc., and . . . stated that Dr. Cooper wanted to operate upon his own child's throat when it was not necessary. All of which astonished the lady and her husband beyond measure as they had never heard anything like it before. At this juncture some parties gave money to (support) the Pacific Medical and Surgical Journal conducted by Trask and Wooster which had been sustained alone up to that time through the liberality of Drs. Cooper and Rowell, and that Journal was at once prostituted to the purpose of publishing false and defamatory accusations against Dr. Cooper. Likewise at the same period a report of the caesarian section case teeming with falsehoods was published by Dr. Wooster in the same Journal. |
On future visits to Mrs. Hodges, Wooster further "confessed" that her operation was unnecessary and insinuated that she could have had a living child if she had been properly managed. He examined her on several occasions during this period and informed her that she had adhesions between her womb and bladder and between bladder and abdominal wall. He advised her that such adhesions might at some time be responsible for a disturbance of the nervous system referred to in that day as "hysteria," and a not uncommon affliction of women. Being of a suggestible and emotional nature, Mrs. Hodges began at once to complain of tiredness, abdominal pains and was easily moved to tears and irrational behavior, whereas before she had appeared to be in remarkably good health.
The following is an example of the change which occurred in Mrs. Hodges. Just prior to the first "confessional" visit of Dr. Wooster one of Mrs. Hodges' friends, a Mrs. Margaret Karr with whom she had formerly boarded, called on her and was pleased to find her in good health and spirits. Mrs. Hodges expressed herself as very much pleased with Dr. Cooper and grateful for his surgical skill. Following the visit of Dr. Wooster Mrs. Karr returned to find her friend disheartened, low spirited in regard to her health, and very dissatisfied with Dr. Cooper. She now thought she had been dealt with very unjustly by him. She said that Dr. Wooster and some other physicians had told her she was made a dupe of by Dr. Cooper. She wept and vowed she would make him pay dearly for operating on her. Not long thereafter she and her husband filed a suit against Cooper for malpractice, claiming damages of $25,000. There can be no doubt that Wooster incited her to this action. [2]
Cooper claimed, and not without grounds, that Mrs. Hodges was henceforth the pawn of a conspiratorial faction of older San Francisco physicians united by their dislike for him and by their determination to drive him out of practice. He was certain they recruited Wooster to their cause by convincing him that the cesarean section, in which he had initially flaunted his role, was a gross error, and that his publishing enterprise would be better supported under other auspices than Cooper's. We shall never know the actual reasons for Wooster's sudden desertion to the anti-Cooper forces and his subsequent relentless hounding of Cooper in the pages of the Journal. Since money was involved in his case and that of Mrs. Hodges, perhaps avarice played a role in both.
It was in the Fall of 1858 that Mr. and Mrs. Hodges filed against Dr. Cooper probably the first malpractice suit against a medical man ever tried in San Francisco. They claimed damages for a cesarean section, the first successful operation of the kind in California. [3] Their Complaint bristled with charges that only Wooster could have instigated: [4]
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The Complaint (The Plaintiffs), Elkanah H. Hodges and Mary E. P. Hodges, complain of the Defendant (Elias S. Cooper) and allege. . . that Mary E. P. Hodges, (being pregnant, engaged the Defendant as her accoucher to afford and render such aid, assistance, relief and professional attention as she might need and as her case required). . . That, under the direction, management and control of the Defendant, the Plaintiff's labors of parturition were unnecessarily protracted to the space of sixty hours and upwards, the life of her child destroyed, and finally on or about the 10th day of November 1857 at about 10 o'clock P. M., the Defendant performed upon the Plaintiff, the operation technically known as a "Caesarian section." That the aforesaid operation . . . is a highly dangerous operation - the patient scarcely ever surviving it - and in the Plaintiff's case unnecessary, uncalled for, unwarrantable, and in every way reprehensible - there being no reason why the child should not have been delivered through the ordinary natural passage - and the Plaintiff thereby saved an almost ineffable amount of suffering. That, from facts and circumstances which have come to their knowledge, the Plaintiffs are led to believe and do believe, and therefore charge the fact to be - That the Defendant, in neglecting the Plaintiff, Mary E. P. Hodges, as aforesaid, and in performing upon her the operation of "Caesarian section" was actuated by wicked and corrupt motives, and that his negligence, omissions, acts, conduct and treatment of Mary E. P. Hodges, as herein above set forth, were and are wrongful, willful and malicious and without any justifiable cause whatever. That the operation of "Caesarian section" was very unskillfully performed by the Defendant. That in performing it, the bladder of the Plaintiff was incised and wounded, and in the healing of wounds made by the operation, the bladder, womb and intestines of the Plaintiff became, and now are, so blended, attached and connected together and with the abdomen, that they must always be in an unnatural position, and occasion the Plaintiff, Mary E. P. Hodges, much pain, discomfort, and suffering. That by reason of the premises and matters herein set forth . . .the Plaintiffs have been greatly wronged, outraged and injured, and have sustained great damages; namely, damages to the amount and value of twenty-five thousand dollars, which sum with costs, Plaintiffs claim to recover of the Defendant in an action, and therefore bring suit. . . |
Defendant's Answer to the Complaint
The following is a summary of Dr. Cooper's response to the allegations contained in the Plaintiffs' Complaint: [5]
(1) It was the particular and distinct agreement and undertaking between Plaintiffs and the Defendant that he would not take charge of the Plaintiff Mary Hodges as her accoucher, but that he would only take charge and care of her in the event she should require the aid of a surgeon in the labors of parturition.
(2) Defendant denies that he took the direction, management or control of the case of said Mary except as a surgeon or that the labors of parturition were protracted and the life of the child destroyed by reason of any want of proper care or skill on his part while engaged by the Plaintiffs in the capacity of a surgeon.
(3) Defendant admits the performance by him and Dr. Wooster of the operation known as the "Caesarian section," as is alleged, except that the same was done by the advice and with the assistance and approval of Dr. Wooster.
(4) Defendant denies that said operation was unskillfully performed or that wounds of the bladder, womb or intestines are now so blended, attached or connected together, or with the abdomen, that they must always be in an unnatural position, or occasion to said Mary much pain, discomfort or suffering as is alleged.
(5) Further answering, this Defendant says that during the protracted labors of said Mary, the urine was suffered to accumulate in her bladder by Dr. Wooster, who had charge of said case as the attending accoucher, and who made the diagnosis previous to said operation, and stated to and assured this Defendant that the urine had been drawn off. That said Defendant acted upon said statement, information and diagnosis of said Wooster, and said accumulation of urine was not known to or discovered by this Defendant until during the performance of said operation when it became and was necessary to puncture the bladder, and it was done; but this Defendant denies that such puncture was either dangerous or uncommon, or that any injurious effects resulted therefrom.
(6) The Defendant further denies that the said Mary has by reason of any negligence, unskillfulness, unwarrantable or unjustifiable treatment, as alleged, suffered any anguish, grief, pain or any injury of any kind whatsoever. Wherefore in consideration of the premises, the Complaint should be dismissed.
Here in this response to the complaint Cooper publicly and for the first time reveals Wooster's responsibility for the massive urinary retention which was the primary factor in the decision to perform a cesarean. Wooster, in his Journal article condemning Cooper for the operation, deceitfully made no mention of a distended bladder.
The trial opened on 22 November 1858 in the Fourth District Court of San Francisco before Judge John S. Hager, and closed some two and a half weeks later in early December. During this seventeen-day period, nine days were devoted to the questioning of a seemingly endless parade of professional and lay witnesses, and to other aspects of the trial. The proceedings were taken down verbatim in shorthand and, when the sessions extended into the evening as they sometimes did, the Court Reporter continued his recording by candlelight.
For their attorney, the Hodges first applied to Mr. J. S. Manchester who acted on their behalf for a brief period during which he learned that eighteen or twenty medical men were at the bottom of the prosecution, leading him to withdraw in disgust. Next the Hodges approached the eminent Colonel Baker who declined to represent them when he learned the nature of the case. Finally, unable to obtain an advocate from among the honorable barristers of the city, they retained as their chief attorney the notorious Judge A. M. Heslep. He was assisted by Ed. Stanly, Esq., a lawyer destitute of all claims to the title of gentleman. These are Cooper's observations about the plaintiffs' attorneys and are to be found in his notes. [6]
For his advocates Cooper engaged three attorneys: "General" McDougall and Mr. Sharp (of the firm of McDougall and Sharp) and George Barstow.
James A. McDougall, Esq., (1817-1867) was one of the most learned and successful attorneys in the State and an admirable choice by Cooper to manage his defense. He was born in the State of New York in Albany County and received his basic education in the local Grammar School. At an early age he found a job on the laying of the first railroad in the State of New York - the track connecting Albany and Schenectady. Out of that experience grew his life-long interest in railroads and his later advocacy of the first transcontinental line.
Upon completion of the Albany line he decided to read for the law and with characteristic determination soon mastered the elements of the profession. In 1837, at the age of twenty he migrated to Pike County on the Illinois frontier in the farthest southwest corner of the State. There his natural talents enjoyed full rein and in 1842 he was elected Attorney General of Illinois, and reelected in 1844.
In 1849 he organized and led an expedition cross-country from Illinois to California. He promptly opened a law office in San Francisco and from the outset was recognized as a man with a future. After winning a number of important cases in court, he stood at the head of the California bar. Preeminence in the law soon led to political preferment. He was elected Attorney General of California on the Democratic ticket in 1850, and Representative to Congress in 1853. He declined to run for reelection to the Congress in 1955. Instead, he returned to the practice of law in San Francisco and to his avocation - championing construction of the western sector of the transcontinental railroad. During this period of temporary retirement from national politics, McDougall was engaged by Cooper to represent him in the Hodges suit.
In 1861 "the General," as he was called by his legal colleagues in deference to his service as Attorney General, returned to politics and was again elected to the Congress, this time as Senator from California. [7]
George Barstow, Esq.(c. 1825-1883) was a native of New Hampshire. Although a junior member of Cooper's team, he conducted a major portion of the cross-examination for the defense. As a young man, his short stature and hardy physique earned him the sobriquet of "Little Ironsides." After education in the law and travels in Europe, he moved to Massachusetts. There he ran unsuccessfully as a Democrat for the state legislature and for Congress. He wrote a highly regarded History of New Hampshire which was published in 1852.
Barstow migrated to California in 1858 and shortly after his arrival was recommended to Cooper. Although the Hodges' lawsuit must have been among the first of Barstow's appearances in a California court, Cooper was so impressed with his forensic skills and breadth of learning. that he arranged Barstow's appointment as Professor of Forensic Medicine on the faculty of the new medical school then being organized. In recognition of Barstow's scholarly interests, he was chosen to give the Introductory Address when the school was inaugurated. Barstow served with distinction on the faculty until the school was temporarily suspended in 1864. [8]
Barstow had more success in politics in California than he did in Massachusetts. As a Republican, he was elected Speaker of the 13th California State Assembly in 1862, the year in which Republican Governor Leland Stanford took office. Barstow was intensely patriotic and unreservedly opposed to slavery. When the California Assembly convened on January 6th he spoke earnestly of the menace to the Union of the black clouds of civil war that had gathered over the country since the first gun of the insurrection was fired against Fort Sumter on 12 April 1861. [9] [10]
During the trial neither Cooper nor Mrs. Hodges took the stand, and Mrs. Hodges never appeared in court.