It was now Barstow's turn to present evidence in defense of Dr. Cooper. Five lay persons and ten physicians were called for that purpose. We shall quote segments of their testimony that make points in Cooper's favor.
Barstow's objective during the questioning of the next few witnesses was to convince the jury that Mrs. Hodges had in fact made a quite satisfactory recovery from the cesarean section. We previously referred to the testimony of Mrs. Margaret Karr regarding Mrs. Hodges' health after the operation. When called to testify, Mrs. Karr gave a full account of Mrs. Hodges' change of outlook following her subversion by Wooster. We shall now hear from several other witnesses regarding the health of Mrs. Hodges since the cesarean operation.
Testimony by Dr. Martha A. Thurston
As we have already related, Dr. Thurston brought Mrs. Hodges to Cooper who operated on her for stenosis at the vaginal orifice. Soon after the operation Mrs. Hodges became pregnant. Dr. Thurston followed the case with interest and, as the referring physician, was rather disappointed that Dr. Cooper had not invited her to at least observe the cesarean section. Nevertheless, there were no hard feelings and Dr. Thurston called on Mrs. Hodges after the cesarean "as a friend."
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Barstow. Did you see her after the performance of the Caesarian operation? Thurston. Yes, sir. I saw her while she was in bed, before she had recovered from her labor, before the wound had perfectly healed. Q. What did she say at that time? Q. When did you see her again after that and what did she say? Q. Describe to the jury the appearance of Mrs. Hodges at that time, so
that the jury may be enabled to form a correct opinion as to the state
of her health at that time. Q. How far did she go to take her meals? |
Testimony by Mrs. Catherine Roper
As matron of Cooper's Pacific Clinical Infirmary, Mrs. Roper was well acquainted with Mrs. Hodges and followed her progress from the time of her operation at the Infirmary for vaginal stenosis. She was on friendly terms with the patient who sent for her after the cesarean section. Mr. Stanly, one of the plaintiffs' attorneys, conducted the following interrogation:
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Stanly. Do you remember (Mrs. Hodges) coming to the Infirmary after her confinement? Roper. Yes sir, but I first saw her at her own house after her confinement. Q. Did you visit her while she was sick in bed? Q. Was this before the child was taken out? Q. How long after the operation was it before you visited her? Q. How was she then. Q. What did she say? Q. When did you see her again? Q. Did she walk out? Q. Do you know whether she was engaged in teaching at that time? Q. When did you see her the next time? Q. In this interview did she say anything about Dr. Cooper? Stanly (sarcastically). Of course not. Please say that exactly over again, and slowly, so that I can write down the whole of it. McDougal (Cooper's attorney). She'll repeat it with pleasure. Stanly. Well, don't superintend the counsel on both sides, and answer for the witnesses too. McDougal. I was telling you how accommodating our witness would be. Stanly. I thought you promised to behave yourself the balance of the trial. Go on, or repeat that last exclamation of yours, Mrs. Roper, if you please. Roper. It was not what I said; it was what Mrs. Hodges said. When the Doctor came into the room she lifted up her hands and said: "O! you dear, good man! How I do love you, for you saved my life." (Loud laughter outside and within the bar. The court commanded silence.) Q. Was anything said concerning the operation that was performed? Stanly. Of course not. Roper (continuing). The Doctor left the room and went down stairs. When the Doctor had gone out, Mrs. Hodges said: "O! I couldn't express my feelings; I felt like following and embracing him." She said that the Doctor had saved her from a separation from her husband; that but for the Doctor she should have had to have gone to New York, so that the whole city would not know that she was mal-formed. "Dr. Cooper," said she, "has saved my life, and I shall never be able to repay him for what he has done for me.": I give you the language in which she expressed herself. |
The guileless and explicit testimony of the gossipy Mrs. Roper must have shaken the confidence of Mrs. Hodges' attorneys in the poor woman's claims of disability. In a crude effort to discredit Mrs. Roper by implying a liaison with Dr. Cooper, Stanly put the following questions to Dr. Wooster when he later returned to the stand:
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Stanly. I want to ask about Mrs. Roper. Have you known her? Wooster. I know the woman by sight. I have seen her often. Q. Is she a married woman? (Note: Mrs. Roper had already responded fully
and satisfactorily during her testimony to detailed questions regarding
her marital and family status.) Q. Where have you seen her? Fair. She is frequently present at his operations. Barstow. We protest against this attempt to injure the character of Mrs. Roper. Wooster. I know nothing against the woman's character at all. I only say that I never saw her husband, or heard that she had one. |
Hoping that he had planted suspicions regarding Mrs. Roper's morals in the minds of the jurors, Stanly changed the subject.
Testimony by Mrs. Barbara Kriemer
Mrs.Kriemer and her husband, Jacob, were the proprietors of the neighborhood grocery store where Mrs. Hodges frequently shopped. She and Mrs. Kriemer became friends and Mrs. Hodges employed her to stay with her throughout her labor. As we have seen, Mrs. Kriemer was an unwilling assistant during the cesarean operation. After the operation, Mrs. Kriemer continued to be sociable and was even a confidante of Mrs. Hodges. The following selections from Mrs. Kriemer's testimony were chosen because of their relevance to Mrs. Hodges' health following the cesarean.
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Heslep. How long was she confined to her bed (after the cesarean)? Barbara Kriemer. She was in bed about a month after the operation before she set up. She had the operation on the 10th of November, and she was down to dinner on Christmas. Q. You have been asked about her health since you were there. Are you
any judge as to whether a person is in good or bad health? Q. Have you any other sign of Mrs. Hodges' health except her looks and
general appearance? Q. Have you had any experience in determining as to whether a person
is in good or bad health? Q. Was there not a large lump where she was cut? Q. Were there no lumps or rough surfaces? Q. When did you see these wounds last? Q. What is her appearance in regard to health since the operation? Judge Hager. Did you know Mrs. Hodges before she was confined? Judge Hager. What was her appearance then, as to health, compared to what it is now, or at the time you last saw her? A. She was not then as fat and hearty as she is now. Now she is perfect well. She looks fatter since her confinement. . . Q. Did you call upon her at any time when she informed you about her sleeping with her husband? A. About three months ago she come down to my house and she say she was in the family way again. She say she felt very sorry, and she didn't know what she could do. After that she told me she took some medicine. Q. What kind of medicine? Q. Did she tell you what she took the powder for? Q. Have what? Heslep. O, the jury understand. A Juryman. We understand. |
Testimony by Jacob Kriemer
The residence of Mr. and Mrs. Kriemer was located "about thirty feet" from that of Mrs. Hodges. Thus the Kriemers had a well-positioned observation post and they enjoyed a neighborly informality of relationship with Mrs. Hodges that enabled them to provide the Jury with intimate details of her condition.
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Barstow. Have you been in the habit of seeing Mrs. Hodges frequently during the past two years? Jacob Kriemer. Yes, sir. Q. Were you at her house at the time she was ill? Q. Did you see the wound upon her person? Q. Was it grown together? Q. Did you observe whether there was anything rough in the appearance
of it? Q. Have you been in the habit of seeing Mrs. Hodges since that time?
Q. What has been her appearance as to health? Q. Did she ever tell you about her being too fat? Q. Was your wife present at that time? Q. Have you seen her since? Q. How often do you see her pass your house? Q. How does she appear? Q. All the times you have seen her, did you notice how she was traveling?
Q. Have you seen her on foot within the last 2 or 3 months? |
The testimony of Dr. Thurston, Mrs. Roper and Mr. and Mrs. Kriemer essentially dissolved the plaintiffs' claim that Mrs. Hodges was disabled by hysteria or other alleged sequelae of the cesarean section. She was not only reliably observed to be well nourished and physically active, but her pelvic organs had so far recovered from the operation that within a few months thereafter she was again pregnant. Mrs. Hodges had a stillborn baby on 14 April 1858, just five months after the cesarean. The yellow powder in a pint of gin must have had the desired effect although Mrs. Kriemer's recollection as to the date Mrs. Hodges took the potion seems to have been about six months off the mark.
Ludwig A. Emge, "San Francisco's first successful cesarean section." Western Journal of Surgery, Obstetrics and Gynecology. Part 2. 1938 Mar; 46 (3): 169.
To counter the testimony of the plaintiffs' expert witnesses who condemned Cooper's cesarean section out of hand, Barstow called to the stand his own corps of experts who emphasized the principle, already stated by Dr. Nuttal, that a surgeon could not render a valid opinion in a case without personally examining the patient.
Testimony by Dr. R. Beverly Cole
Dr. Cole, Surgeon General of the Vigilance Committee and adversary of Toland in the McGown trial of the previous year, was a Cooper supporter and on frigid terms with the Pathological Clique. He doubtless welcomed the opportunity to discomfit the medical establishment by his testimony in this trial:
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Barstow. Will you state, Doctor, whether in your judgment a surgeon can determine the operation which ought or ought not to be performed in any case of importance, without seeing the patient? Cole. I should judge not - not unless you might say he might approximate an opinion, all the circumstances of the case being present. Without every circumstance, and even the minutiae of the case be detailed, it would be impossible for him to give an intelligible opinion. Q. In a case stated thus (Wooster's case report was read to the witness),
can you determine from this, what operation ought or ought not to be performed.?
Q. State whether you have seen Mrs. Hodges repeatedly. Q. What was her appearance as to health in that intercourse. Q. Where have you seen her? |
At this juncture, counsel for the plaintiffs conducted a cross-examination and asked the now familiar "tricky" questions about pelvic measurements, the smallest dimension compatible with normal delivery, etc. Counsel began his interrogation with a sly "friendly" question intended to disarm the witness:
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Heslep. I recognize in the witness before me a good anatomist. Cole. Thank you. Q. Now you and I will get along together. Judge Hager. Well, proceed together in some form. Heslep. You stated that you could not form an intelligent opinion as
to what ought or ought not to be done, from the statement of the case
given. Q. Did you not give an opinion as to the King case without seeing it? A. No, sir. Q. Did you see him the day he died? A. No, sir. I saw him however when he was ill, and after he was dead. |
Heslep was frustrated at being unable to trap Cole in an inconsistency with respect to the treatment of James King of William, and was wary of the self-confident doctor because of his reputation as a truculent witness in the McGowan case. Therefore, Heslep changed course and put to Cole for analysis some complex clinical scenarios designed to elicit from him an inadvertent response at odds with his initial position on the necessity to see a patient before deciding on treatment. Failing again, Heslep played his trump card, a futile attempt to insinuate bias by identifying Cole as an employee of Cooper and implicated with him in a questionable enterprise.
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Heslep. Are you employed now in the Infirmary of Dr. Cooper? Cole. I lecture there, sir. Q. You are building up a Medical Institute there, are you not? Q. You hope to be one of the professors. Dr. Cooper is the chief man,
isn't he? Q. What are your relations now? Q. Not in a professorship? |
(Witness excused.)
We must forgive Dr. Cole for his evasive answer to the final question posed to him by Mr. Heslep. On 22 September 1858, exactly two months prior to the beginning of the malpractice trial of Dr. Cooper, the Board of Trustees of the University of the Pacific in Santa Clara established a Medical Department in response to a petition submitted by Drs. E. S. Cooper, Isaac Rowell, James Morison and R. Beverly Cole. On the same date, the University appointed each of these petitioners to a professorship in the new Medical Department. Dr. Cole was named Professor of Obstetrics, Diseases of Women and Children and Physiology and Dr. Cooper was appointed Professor of Anatomy and Surgery. The founding of Cooper's long-envisioned medical school had quietly taken place even as his trial for malpractice was pending on the docket of the Fourth District Court in San Francisco.
Testimony of Dr. Isaac Rowell
Unknown to the court at the time of the trial Dr. Rowell had become Professor of Materia Medica in the new Medical Department of the University of the Pacific. There was something else about Dr. Rowell unknown to the attorneys for the plaintiffs. Immediately after Rowell's swearing in to testify for the defense, someone whispered to Mr. Heslep that the doctor was reputed to be an atheist. If this allegation were true, his oath which called upon a Supreme Being to aid the witness in telling the truth ("so help me God") would be null and void. Heslep at once seized the opportunity to embarrass the defense and possibly disqualify Rowell as a witness:
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Heslep. I wish to question this witness in regard to his views in regard to the obligations involved by the administration of an oath. McDougal. What is the object? Heslep. It is to determine the competency of the witness. McDougal. Well, we object. The laws of this State do not require of a witness that he shall belong to a church before he can go on the stand. Stanly. Now, who's said anything about a church, General McDougal? Heslep. The object of the enquiry is to ascertain whether the witness believes in future rewards and punishments, and that he will be held accountable hereafter for perjury committed in this life. In other words it goes to determine the degree of conscience that controls the infant witness. Now we may suppose that in a case of this character, the witness in his statements does or does not regard a future accountability. Barstow. (Interrupting.) I object to any statements of this kind. I object to any such an assault on the character of this witness. |
After extensive legal sparring and repeated objections from the defense, Dr. Rowell finally conceded that, although he belonged to no church, he believed in one God; and that, although he did not believe in happiness beyond this life, he prayed for it. At this point Judge Hager intervened mildly but for some unaccountable reason allowed the plaintiffs' attorneys to continue harassing Rowell about theological issues until they literally tired of the game. As they suspected, Rowell's testimony would be adverse to their case.
In accordance with his strategy, Barstow again called attention to the principle that a surgeon must see the patient before deciding on treatment in a complex case:
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Barstow: (Wooster's history of the Hodges case was read to Dr. Rowell.) Will you say whether, upon that statement of the case, a surgeon could determine what operation ought or ought not to be performed for delivery without being present and seeing the patient? Rowell. I should think that it would be a question of great magnitude, and one in which any one might doubt what it was best to do, not being present. Q. Would not surgeons differ in such a case? Q. Then take the case as given. What opinion could you give under such
a statement? |
With such testimony as the above from Rowell and other witnesses, Barstow undermined the plaintiffs' experts who, without seeing the patient, had contended dogmatically that the cesarean section was completely unjustified. The plaintiffs' attorneys were now in a perfect frenzy to counteract the contrary statements of Barstow's witnesses, but without success. The outlook for Cooper, so bleak at the outset of the trial, was beginning to look more hopeful.
Furthermore, Wooster's credibility was seriously in doubt. The following testimony by Rowell (also confirmed by other witnesses) contradicts statements made by Wooseter under oath at the beginning of the trial, and stamps him as a perjurer "of the blackest dye."
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Barstow. Do you recollect any conversation with Dr. Wooster in November or December last (1857) about an operation for cesarean section? Judge Hager. Did you hear him speak with regard to that operation, as to whether it was performed on his patient or not? Rowell. He spoke of the woman as his patient - "my patient," he said. He said that he had a difficult case, and that his time was entirely occupied with that case. Barstow. Did he state whether Dr. Cooper performed the operation or not? Heslep. Stop! we object to that question? Judge Hager. Did Dr. Wooster speak in regard to the propriety of the operation, whether it was right or wrong? Rowell. He did say that he approved it. Barstow. Did he say whether it was advisable or necessary, or well performed, or skillfully performed, and a great triumph in surgery, or words to that effect? Did he converse about the operation and where did the conversation take place? A. (The conversation took place upon the sidewalk where) we met, and after the usual salutation about business, etc., I asked him where he had been. He said that he had been engaged in a very responsible and a very tedious case, and he went on to relate what it was. He said: "We had finally to resort to the Caesarian section." That was the first intimation I had had that it had been performed in town. The question very naturally arose on my part, as to why he performed the operation. He said, in the course of that conversation, that the operation was necessary, and that I would have seen that it was necessary, or that I would have decided that it was necessary, if I had been present. He said that the operation was "inevitable" - I think that that was about the language he used. He said that the operation was well performed, and then bid fair to result favorably. Q. When was this? Q. Did you have any other conversation with him at any other time, on the same subject, or did he afterwards speak to you about it? A. It was a subject of frequent conversation for some weeks after the patient was convalescent. I cannot give the precise dates. I recollect of his speaking of the operation as "a great triumph in surgery," as "a big thing for our climate," and as "a big feather in our cap." Q. He spoke then of himself and Dr. Cooper? Q. Have you had any other conversations since that time, Doctor? |