Amundsen Liability - Physician Ocr PDF

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The Liability of the Physician in Classical Greek Legal Theory and Practice
Author(s): DARREL W. AMUNDSEN
Source: Journal of the History of Medicine and Allied Sciences, Vol. 32, No. 2 (APRIL
1977), pp. 172-203
Published by: Oxford University Press
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The Liability of the Physician in Classical
Greek Legal Theory and Practice
DARREL W. AMUNDSEN
CVaZOnts HEtreatise entitled Law in the Hippocratic Corpus!

opens with the assertion that “Medicine is the most dis-
ο Ἔ Ὁ tinguished ofall the arts, but owing to the ignorance of
those whopractise it and of those whorashly judge its
\Gein 6 practitioners, it is by far inferiortoall the otherarts. The
SSSCASS chief cause of this mistake is that for medicine alone, in
the city-states, no penalty has been defined except thatofill repute. Butill
repute does not damage those who are compoundedofit. . . . Although
manyare physicians in name, yet very feware so in reality.’ Sometimes on
the basis of this passage, but more frequently citing a statement in one of
the Tetralogies of Antiphon or in Plato’s Laws, historians conclude that
there were no legal mechanismsin classical Greece whereby the injured
patient or relatives of one who had died while under a physician’s care
could seek legal redress.? In support of this assumption, a fragment ofa
1. Both the author and date of this work are unknown. The only ancient author to mention its
existence is Erotian, a grammarian and physician wholived underthe reign of Nero. W.H.S.Jones,
the translator of Hippocrates for the Loeb Classical Library, finds a Stoic influence in the work but
offers no suggestion as to date: ‘The piece is too short for the historian to base any argument upon
general style or subject matter.’ Hippocrates, 4 vols. (London, 1923), 11, 257. See also L. Edelstein, “The
genuine works of Hippocrates,’ in Ancient medicine, ed. Owsei and C.Lillian Temkin,trans. C.Lillian
Temkin (Baltimore, 1967), p. 134.
2. To give a few examples: ‘In Greeceliability for malapraxis did not exist.’ H. Oppenheimer,
‘Liability for malapraxis in ancient law,’ Trans. med.-leg. Soc., 1910, 7, 104.°. . . it may be noted that in
ancient Greece there seems to have been noliability for malapraxis.’ J. Tweedy, “The deterrent in-
fluenceofsocial and legalrestrictions on the medical thought andpractice,’ Trans. med.-leg. Soc., 1911,
8, 3. ‘It is, to be sure, natural that society should wish to call the doctor to accountforhis actions and
notleave all responsibility to him alone. The ancients were well awareof this fact and marveled at the
freedom they had granted to physicians.’ L. Edelstein, “The distinctive Hellenism of Greek medicine,’
in Ancient Medicine (n. 1), p. 375. ‘In the lack of penalties for malpractice [in Greece] we notice an
important difference from the professional discipline of our own time. . . . [Plato and Antiphon]
show that physicians could by incompetenceor neglect kill their patients withoutsuffering legal con-
sequences.’ E. D. Phillips, Greek medicine (London, 1973), pp. 116, 191. On the other hand, without
quoting any sources, C. Sandulescu expresses the a priori assumption that ‘. . . we find in the [Hippo-
I wish to thank Dr. Gary B. Ferngren, Oregon State University, and Dr. William C. Gibson, Uni-
versity of British Columbia, for reading this paper in draft and for their helpful criticism.
[ 172 |
Amundsen : Liability of the Physician in Greece 173
comedy written by Philemon the Younger (third century B.c.) is some-
times quoted as further evidence: ‘Only physicians and lawyers can commit
murder without being put to death forit.’ This brings to mind the words
ofPliny the Elder(first century A.D.), perhaps the most frequently quoted
expression of this prejudice: “Additionally, there is no law that would
punish capital ignorance, no instance ofretribution. Physicians acquire
their knowledge from our dangers, making experimentsat the cost of our
lives. Only a physician can commit homicide with complete impunity.’
The motifofthe physician as an unpunished killer is a most commonsenti-
ment, and one which is widespread and shared by manydiversecultures.5
How valuableis a statementsuch as that ofPhilemonor Pliny in determin-
ing whether a physician was subject to court action for malpractice? Pliny’s
lines have been used as evidence for the absence of proceduresfor redress
under the Roman Empire but Roman law did have very specific, albeit
limited, provisions for seeking redress against the dolose, negligent, or
incompetent physician.6 How often does one encounter the sentimentthat
‘physicians bury their mistakes’? But one need only read the newspapersto
see how very frequently physicians are charged with malpractice in the
United States today. One can imagine whathistorians a thousand years
hence might deduce from the sentiment just quoted if record ofit should
survive to the exclusion oflegal material on malpractice. Thus, care must
be taken in the use ofour sourcesanditis essential in evaluating statements
of this nature to realize that there are problems that transcend time and
place which result from the peculiar relationship that the physician enjoys
with the law.
There is always present the stigma offailure attached to the physician
whosepatient dies or is unsuccessfully treated, and this can easily grow into
the attitude that the physician who does not accomplish the cure of his
patient failed because of malicious intent, negligence, or incompetence.
cratic] Corpus no discussion about the sanctioning of medical errors, although this kind of penalty
was undoubtedly known in the Greek community.’ ‘Primum non nocere: philological commentaries on
a medical aphorism,’ Acta Antiqua Hungarica, 1965, 3, 366. F. Kudlien goes to the extremeofinter-
preting the inclusion ofthe antidrug and antisurgery clauses in the so-called Hippocratic oath as being
at least partially motivated by the physician’s desire to use the oath as a means ofdefense in the event
that he was broughtto trial. ‘Medical ethics and popular ethics in Greece and Rome,’ Clio Medica,
1970, 5, 101.
3. The Greek text is found in J. M. Edmonds, The fragments of Attic comedy, 3 vols. in 4 (Leiden,
1961), IMA, 253.
4. Pliny the Elder Historia naturalis 29, 8, 18.
5. See F. Kudlien (n. 2), p. 97.
6. See D. W. Amundsen, ‘Theliability of the physician in Roman law,’ in International symposium
on society, medicine and law, ed. H. Karplus (Amsterdam, 1973), pp. 17-30.
174 Journalof the History ofMedicine : April 1977
Butthe law has not only to protect society from the dolose, incompetent,
or negligent physician, it also ought to protect the competent and con-
scientious physician from those members ofsociety who would attribute
malicious intent, negligence or incompetence to him wheneverheis not
effective. Problems, however, arise: Who is to judge the competence of
physicians? How are standards for competenceto beset and enforced? Is
the level ofproficiency ofthe physician who is most advancedin a particu-
lar specialty to be adopted as the standard with the result that a falling
short of that standard would constitute culpable ignorance on the part of
any other physician? These are areas with which modern courts grapple
and it should not comeas any surprise that we do notfind their solutions
enunciated either in Greek legal theory or practice.
Onthe mosttheoretical level of discussion, the acts of a physician that
can lead to a right oflegal redress are of two basic types:
1. A breach ofthe contractualrelationship that may exist between phy-
sician and patient.
2. Acts loosely defined as malpractice.
Malpractice, in turn, can be subdividedinto three general areas:
1. Willful malpractice—treatment undertaken with the intention of
causing injury to, or the death of, the patient. Although medical practice
provides unique opportunities for criminal acts, the physician is subject to
the same action that may be brought against any person for such acts.
2. Negligent malpractice—where there is no criminal intent, but by
gross negligence, or failure to render proper attention by commission or
Omission, a patient is injured orkilled.
3. Ignorant malpractice—where the physician’s lack of competence
proves harmful or fatal to a patient.”
Still on the theoretical level, the three categories of malpractice, when
subjected to considerations of intentional or unintentional actions (what
the Greeks called voluntary [éxoicva] or involuntary [axoteva] actions), can
be further classified as follows:
1. Willful malpractice—intentional (voluntary) action.
2. Negligent malpractice—intentional (voluntary) or unintentional(in-
voluntary) action.
3. Ignorant malpractice—unintentional (involuntary) action.
In legal theory and its application the Greeks were highly concerned
with the determination of intent. Plato’s attitude toward voluntary and
7. What may be intended to appearto be the result of negligence or ignorance can betheresult of
criminal intent.
involuntary wrongs wasthat legal distinctions were philosophically mis-
conceived. He held that all unjust acts were always done unwillingly.§
Plato’s attitude stems from the view that the corrective force oflaw ought
to be evidenced in its educative manifestation: that the law must convince
the malicious, ignorant, or negligent man of the injustice of his actions,
must remold his character, inculcate knowledge so that he will not con-
tinue ‘involuntarily’ to act unjustly. But, in his last dialogue, the Laws, the
most practical of Plato’s works from legal point of view, he recognizes
that voluntary and involuntary wrongdoing‘are treatedaslegally distinct
in every state by every legislator who haseverexisted.’? Plato then goes on
to discuss actions done in ignorance, involuntary by both Platonic and
legal definitions: “The lawgiver would do well to subdivide [ignorance]
into two [categories], counting ignorance in its simple form to be the
cause ofminorerrors, and in its double form—wherethefolly is due to the
man being gripped not only by ignorance, but also by a conceit of wis-
dom,!° as though hehadfull knowledge of things he does not know any-
thing aboutat all—counting this to be the cause of great and brutal error
whenit is joined with power and might. . . 11 Unfortunately, Plato does
not go further and produce any evidence that he had any explicit recogni-
tion of the distinction between ignorance and negligence as grounds for
liability.12 In this Plato is not alone.
Althoughthe notion ofnegligence as opposed to ignorance in questions
ofliability was addressed by somesources, it was not developed with any
degree of clarity and precision by the Greeksas it waslater by the Roman
jurists. One mistake scholars have frequently madeis to apply the defini-
tions of Roman law to Greek law. As Daube hassaid, ‘. . . while Greece
furnished the great ideas, it was the Romans who transmuted them into
something of practical value.’!3 The Romans had developed the distinc-
tions ofdolus, evil intent; culpa, including both negligence(neglegentia) and
incompetence (imperitia); and casus, accident. Dolus falls under intentional
action, culpa andcasus generally under unintentional action. A considerable
8. E.g., Plato Apology 25D-26a; Laws 860D-863A; Hippias minor 3724-3738. Somescholars con-
sider the Hippias minor not to have been written by Plato, but the passage here referred to is perhaps
the best statement of the Platonic conception of voluntary-involuntary actions.
g. Plato Laws 8618. It should be noted that philosophically Plato is not altering his position that the
distinction between voluntary and involuntary wrongs is meaningless. He is conceding that, in terms
of legal gradations of culpability, the distinction is necessary for determining punitive action.
10. Similarly in the Apology: ‘And is not thinking one knows what one does not know the most
reprehensible form of ignorance?’ (29A-B).
11. Plato Laws 863c.
12. See J. W. Jones, The law and legal theory of the Greeks (Oxford, 1956), p. 271.
13. D. Daube, Roman law: linguistic, social and philosophical aspects (Edinburgh, 1969), p. 129.
overlap exists between these areas and much ink wasspilled by Roman
jurists in wrestling with the intricacies ofthe application ofthese principles.
While some of the roots ofthese legal points and the awareness oftheir
rather complex ambiguities can be found in Greek legal theory and prac-
tice, their wholesale transfer in Roman form to Greek law has resulted in
some misinterpretation and obfuscation of Greek legal andethical theory,
particularly as formulated by Aristotle. Aristotle's scheme of ἀδικία Οἵ
adixnua (deliberate evildoing), duapria or dudprqua (harm resulting from ig-
norance) and arvxia or 4rbxqua (unintentional harm, accident)'4 seems,at
first glance, to be identical to the Roman dolus, culpa, and casus. Daube was,
to the best of my knowledge, the first to draw attention to somedistinct
problemsin reading Romanjudicial theory into Aristotle’s ethical arrange-
ments. To summarize Daube’s complaint simply, the major misinterpre-
tation is in equating dyapria or dudprqua with the Romanculpa,especially
when culpa is taken to mean negligence.15 Daube maintainsthat Aristotle’s
duapria Or dudprnua has nothing to do with negligence and holds that
‘Amongthereasons for the difference between the Greek schemeand the
Romanis this, that the former is primarily concerned with criminal law
trial, the latter with a claim for payment of damages.’!° Daube’s argument
is primarily semantic.!7 Butit is a helpful warning against the common
error ofblandly substituting culpa, with all ofits Roman legal ramifications,
for dyapria or dudprnua whenever they appear in Greek legal texts which
produces an interpretation of the original strikingly different from the
actual meaning. In the Nicomachean Ethics Aristotle seems to recognize, as
the result ofwhat we would term negligence and the Romans would have
called culpa, an injury that occurs not contrary to reasonable expectation but
when the act is done without evil intent.18 Theitalicized phrase is how
H. Rackham,the translator of the Nicomachean Ethics for the Loeb Classical
Library, renders ux} rapaddyws. Daube would havepreferred ‘not contrary
to expectation’ andsays in regard to Rackham’stranslation: “The standard
ofnegligence is here smuggledinto the very text, though even here with a
14. E.g., Aristotle Rhetoric 1374b and Nicomachean ethics 1135b. An interesting study of legal aspects
of Aristotle’s ethical system has been written by M. Hamburger, Morals and law: the growth of Aris-
totle’s legal theory, 2nd ed. (New York, 1971).
15. M. Hamburger’s statement that “auaprnua is the Roman culpa and our modern “‘negligence’’,’
(n. 14), p. 72, is an example of the type of transmutation about which Daube was concerned.
16. Daube, Roman law (n. 13), pp. 146-147.
17. J. Crook in his review of Daube’s book says that ‘it is perverse [of Daube] to refuse to allow
Aristotle to have understood’ the elementofcarelessness and negligence in dudptnua. Cl. Rev., 1970,
20, 363.
18. Aristotle Nicomachean ethics 113 5b.
certain restraint. . . .19 Crook’s reaction to this criticism bears quoting:
‘But [Daube]is notentitled so to insist [namely, that Rackhamis guilty of
smuggling in the conception of negligence here], for there is \éyos in
παρόλόγως ἀπά 1! could and sometimes does contain the implication that
there are things a man can reasonably be expected to take into reckoning
before he leaps.’2° So we have here the two extremes of Rackham who
would equate dyapria or dudprnua with negligence and of Daube who
would, when discussing this passage from Aristotle, expunge from them
any hint ofnegligence. I feel that a happy mean between the twopositions
is the most reasonablesolution, a conclusion reached by Jones: “By recog-
nizing that there might beliability for foreseeable harm without evil
intent, Aristotle opened the way for recognition of negligence standing
beside intention as a separate groundoflegal as well as moral culpability.
Butthere is no evidence that Greek law ever took advantage ofit so far as
to accept such an objective standard of conductas was later to be repre-
sented by the bonus paterfamilias of Roman and the reasonable man of
English law.’2! The standard of conduct represented by the bonus pater-
familias of Romanlaw is inherentin culpa as “Culpa generally involved the
failure to use a reasonable degreeofcare, non intellegere quod omnes intelle-
gunt; in other words, notacting as a reasonable man wouldact, failure to
exercise the samediligentia as the party did in his ownaffairs. The antonym
ofdiligentia is neglegentia, the original meaning of which was culpa in non
faciendo.’?2 The Greeksfell short of achieving such a definition,”? a con-
ception upon which some of the most elementary principles ofliability
both in tort and in delict are based in Roman andlater European law.
In determining degrees of culpability, Greek law did value highly con-
sideration ofintent. In its punitive function, Greek law regarded misdeeds
done unintentionally as worthy of mercy. This is such a commonplace in
Greekliterature that I shall mention only a few examples: Cleon, in his
19. Daube, Roman law (n. 13), p. 144.
20. Crook (n. 17), p. 363.
21. Jones, Law and legal theory (n. 12), p. 274.
22. Amundsen (n. 6), p. 21.
23. Weshall see later, when we apply the principles of Greek law to the medical profession, that
Aristotle camea little closer to formulating a definition of negligence consonant with Roman or
modern law than Daube, Crook,or Jones appear to recognize in Aristotle’s legal and ethical scheme
(though considerably less than what Hamburgerandothers haveread into Aristotle’s thought), when,
in the Nicomachean ethics (1114a), he asserted that an act was culpable ‘where ignoranceis held to be due
to negligence (4éXera), on the groundthat the offender need not be ignorantas he could have taken
the trouble to ascertain the facts.’ To be fair to Daube, whose knowledge and scholarly acumenI
greatly admire,I should note that he doeslater in his book acknowledge that Aristotle and Athenian
law in general did have somegrasp of the conceptualaspects of negligence as a groundforliability.
speech against the Mitylenians whom heconsiders to have been motivated
in their actions by malice, says that ‘mercy is only for unwilling offend-
ers. 24 ‘Involuntary acts deserve pity more than deliberately planned crimes
andacts ofwickedness. 25"... [T]he laws treatwillful andinsolent transgres-
sors as deserving more resentment and a heavier punishment than other
classes ofoffenders.6 ‘For [lawgivers] punish and exactredress from those
who doevil, except when it is done under compulsion or through igno-
rance for which the agent himself is not responsible.’27
The establishmentofintent on the part of the prosecution and the proof
of unintentional action on the part of the defendantare usually difficult.
This holds particularly true in the case of the physician charged with will-
ful malpractice. The most serious charge that can be brought against a
physician qua physician is that of intentional homicide. When entering
into a discussion of homicide in Greek law,it is essential to purge from
one’s mind the legal attitudes surrounding this offense in modern legal
theory, to start with a tabula rasa, for the Greek conception of the judicial
aspects of homicideis so strikingly different from our own.”®
There were two major categories of suits in classical Athens:
1. dixau—private suits, i.e., involving crimes against the individual.
2. ypapai—public suits, i.e., involving crimes against the state (against
the welfare ofcitizens in the aggregate).
It would not be atall illogical for us to assumethat a charge ofhomicide
would have been subject to a γραφή, a public suit. But, puzzling as it may
be, it was a matter for dixy, private suit. Commenting on this, A. R. W.
Harrison wrote: ‘Homicide, the crime par excellence in modern thought,
was neverthe subject of a ypagat Athens. It was thoughtofas solely a
matter between the victim (andhis family) and thekiller. . . 29 The roots
of this go back to the Homeric period where homicide was deemed a
‘simple wrong against the individual or the family; it was not looked
upon as morally reprehensible or as an offence against the common wel-
fare.’30 There has been considerable discussion ofthe developmentoflegal
24. Thucydides 2, 40.

25. Antiphon, 1, 27.
26. Demosthenes 21, 42.
27. Aristotle Nicomachean ethics 1113b. Cf. Aristotle Rhetoric 1374b.
28. For a definitive study of homicide in Greek law, see K. Latte, ‘Mord im griechischen Recht,’ in
Kleine Schriften (Munich, 1968), pp. 380-415. For classical Athens specifically, see D. M. MacDowell,
Athenian homicide law in the age of the orators (Manchester, 1963).
29. A. R. W. Harrison, The law of Athens, Vol. m: Procedure (Oxford, 1971), p. 77.
30. G. M. Calhoun, ‘The early history of crime and criminal law in Greece,’ Proc. Cl. Ass., 1921,
18, 91.
arbitration, as opposed to private vengeance, in private wrongs’in early
Greek history,>! a problem I need not address in this paper.It is sufficient
to say that during the Homeric period the principle of the lex talionis
(personal or family vengeance, vendetta, unrestrained by law) was em-
ployed in cases of homicide. Whether or not means of redress through
judiciallitigation existed at this period as an alternative is disputed. In any
event, sometime before theclassical period,3? the element of pollution,
defilement (piacua), began to enter into considerations of homicide. The
killer was held to be polluted evenifthe act causing the death was acciden-
tal or in any other way unintentional, and the presenceof the killer was
held to bring defilement upon the polis in any case of bloodshed. An
expiatory exile for one year was normally imposed for unintentional ho-
micide, and even if the death was caused by an animalor inanimate object
it was considered guilty and punishable by expulsion from Attica. This
was thought necessary not only owing to the danger of blood-pollution
but also because ofthe need to appease thespirit ofthe dead.34 The impor-
tance attachedtothis fear ofpollution is expressed succinctly by Antiphon
in discussing homicide: “We know well that . . . the whole city is defiled
by the criminal until he is broughtto justice.. . .25 He goes on to say that
the spirit of the dead will exact punishment(ows) from the prosecutorsif
they are unsuccessful in achieving the conviction of the man whois guilty
even of unintentional or accidental homicide. The prosecutors in cases of
homicide were not public officials; the duty of investigating, indicting,
bringing totrial, and prosecuting the alleged killer was incumbent upon
the kinsmen of the deceased.3° In Attic law, homicide ‘never came to be
“directly within the range of public coercion,” and . . . homicide actions
were notstrictly criminal but rather quasi-criminal.’3”
There was, of course, a distinction made between intentional and unin-
31. See, e.g., H. J. Wolff, ‘The origin of judicial litigation among the Greeks,’ Traditio, 1946, 4,
31-87.
32. Calhoun (n. 30), p. 95, considers it likely to have begun bytheeightl: century B.c.
33. Jones, Law and legal theory (n. 12), p. 254.
34. K. Freeman, ‘The mystery of the choreutes,’ in Studies in honour of Gilbert Norwood, ed. M.E.
White (Toronto, 1952), p. 90.
35. Antiphon First tetralogy a, 3. Cf., Second tetralogy c, 7.
36. Freeman (n. 34), p. 91: ‘... when there was a doubt regarding their obligation they could con-
sult the three exegetes, but the advice given concernedreligious duty and had nothing to do with the
cause of death or the assignmentofguilt.’ It should be further noted that‘the victim of homicide,if he
survived long enoughto do so, couldrelease the killer from all liability at law for the act. . . . In cases
of unpremeditated homicide, the relatives of the dead man could accept a composition payment
(alSeors) which would release the defendant from further penalty.’ Harrison (n. 29), pp. 77-78.
37. G. M. Calhoun, ‘The jurisprudence of the Greek city,’ Columbia law Rev., 1924, 24, 158.
180 Journal of the History ofMedicine : April 1977
tentional homicide, a gradation of degree of culpability and type of pun-
ishment.38 An Atheniancitizen, anticipating that he would be found guilty
of intentional homicide, could withdraw from thecase and gointo per-
petualexile; as previously mentioned, a one-year period ofexile was im-
posed for unintentional homicide.So far we have seen two categories
of homicide:
1. gdvos éxovovos—willful murder; the death penalty was imposed unless
the defendant, before the endofthetrial, admitted his guilt and went into
permanentexile.
2. φόνος axovovos—unintentionalkilling; the normal penalty was exile for
one year.
To these must be added:
3. pdvos Sixaros—where in this case the party admitted to the killing but
claimed that his act was lawful or justified.4° No penalty was imposed,*!
although there is some argument whether the defendant would be obli-
gated to undergoreligious purification («éSapais).42 When the death pen-
alty was imposed, it would serve the function of punishing the guilty
party, pacifying the spirit of the dead (wow), and appeasing the gods.
Where the guilty party would be exiled for one year, as in the case of
unintentional homicide, the exile itself was due to the row# of the spirit of
the dead, but the man also was obliged to undergo xéGapors. In justifiable
homicidethespirit ofthe dead did not deserve and could not expect row4.9
Cases ofwillful murder weretried in the Areopagos; unintentional kill-
ing in the Palladion;justifiable homicide in the Delphinion. Obviously a
man would not be charged by another with committing justifiable homi-
cide, but the accused could petition to be tried in the Delphinion with the
hope of being acquitted on the groundthat his act was justifiable.*+ Per-
38. Jones, Law andlegal theory (n. 12), p. 259: ‘From the lawsascribed to Draco it would seem that
the Athenians by the end of the seventh century had cometo recognize the distinction between in-
tentional and unintentional homicide.’
39. D. Daube, Roman law (n. 13), p. 165: “There is not a single case in the whole of Greekliterature
—amyth, saga, history—or, for that matter in the Bible, of a man whokilled without intent being put
to death.’
40. Aristotle Athenian constitution LV, 3.
41. MacDowell, Athenian homicide law (n. 28), p. 128. Strangely enough, Jones, Law and legal
theory (n. 12), p. 255, feels that a one-year exile was also imposedfor justifiable homicide, on the ap-
parent assumptionthatit still had brought pollution on the polis through bloodshed.I have been able
to find no evidence for that.
42. See, for a discussion of the problem, R. J. Bonner and G. Smith, The administration ofjustice
Jrom Homer to Aristotle, 2 vols. (Chicago, 1938), 1, 204-207.
43. Ibid., 1, 204.
44. MacDowell, Athenian homicide law (n. 28), pp. 71-73, maintains that, in a case where the de-
fendant might wish to plead justifiable homicide, the choice was his.
Amundsen : Liability in the Physician of Greece 181
haps, in instances were a person killed another under conditionsspecified
as justifiable, he wouldbe tried there as a matter of course. This, I assume,
would not preclude the possibility of an individual charged with an act
committed under circumstances analogousto those designated asjustifiable
petitioning for trial in the Delphinion.
Aristotle gives as examples ofjustifiable homicide a case where a man
has killed an adulterer taken in flagrante delicto, or where a man in warhas
killed a fellow citizen in ignorance, or where a manhas caused a death in an
athletic contest.45 These are the only three specifically mentioned circum-
stances to come underthe jurisdiction of the Delphinion, but these are
merely examples that Aristotle chose to give. Demosthenes cites a law of
Solon that madejustifiable the killing ofa burglar by night.*6 Plato further
holds as justifiable the killing of a robber; the killing by a kinsman of a
man whoforcibly violates a free woman or boy;thekilling in defense of
one’s father, mother, children, or relatives.47 Plato elsewhere mentions
twoofthe kinds ofjustifiable homicidethat Aristotle lists and then goes on
to say: ‘Andalso with all physicians, if the patient dies against the will of
the physician, the physician will be held to be purein the eyesofthe law.’4
This is the important passage referred to at the beginningofthis paper. All
the kinds ofjustifiable homicide cited by Aristotle and Demosthenes are
also given by Plato with the additionsI have already mentioned. But there
are someinteresting distinctions made in Plato’s system. He lists eight
different instances in which the death of a manis considered justifiable:
The killing of:
1. a thief by night.
2. a burglar.
3. one whoforcibly violates a free woman or boy.
4. the adulterer caught in flagrante delicto.
45. Athenian constitution Lv, 3. Jones, Law and legal theory (n. 12), p. 259, surely errs when he says
that the case of death caused in an athletic contest was tried in the Palladion.
46. Demosthenes 23, 113.
47. Plato Laws 8748-c. The Laws was Plato’s last dialogue, one in which Socrates was not a par-
ticipant. The speakers are a Cretan, a Spartan, and an anonymous Athenian. The Cretan is a member
of a commission charged with making laws for a new Cretan city and has asked the advice of his two
traveling companions. G. R. Morrow says that ‘Outright invention plays almost no part at all in his
work . .. we have seen that his creations are developments ofbeliefs and practices already in existence.’
Plato’s Cretan city: a historical interpretation of the laws (Princeton, 1960), p. 591. M. Rostovtzeff, A
history of the ancient world, 2 vols. (Oxford, 1929), 1, 337-338, has even gone so far as to say that
Plato’s Lawsis a collection and codification of the whole of Greek law. But it is important to heed G.
M.Calhoun’s caveat that ‘In the Lawsit is often difficult to determine when Plato is copying existing
legal rules and practices and whenheis suggesting innovations.’ “The materials for a study of Greek
law,’ Calif. law Rev., 1924, 12, 474. |
48. Plato Laws 865a-B.
5. an assailant in defense ofkin.
Plato groups these together into one category andlabels the person kill-
ing them as‘pure in the eyes of the law’ (xadapoi év 7G vouw);*? that is, not
compelled to undergo purification. The three cases mentioned addition-
ally, but in an earlier passage,*° are these:
Thekilling of:
6. a friend in a contest or public games.
7. a friend in waror in someaction of training for war.
These two must be purified according to the Delphic rite by theritual
of xdapors. It is then that Plato adds, almost as an afterthought:
8. the death ofthe patient, if he dies against the physician’s will.
Here the physician is deemed “pure in the eyes of the law’ just as were
those in 1 through 5. These eight lend themselves to further distinctions:
1 through 5. These are, in the propersense of the word, ‘slayers,’ φονεῖς,
whoacted from intent, voluntarily, with the end in mindeitherofinjuring
or killing. But the circumstances under which they killed, the fact that
those whom they killed were reprehensible, deserving death by virtue of
their offense, render them ‘slayers who are pure in the eyes of the law’
(φονεῖς καθαροὶ ἐν τῷ νόμῳ).
In cases 6 and7 the slayers acted under different motivations. These are
instances of death caused by accident®! (athletic contests, military exercises,
and in war) and, in war, the death might be due to ignorance, as Aristotle
indicated (namely, mistaking a friend for an enemy). Thesestill are ‘slay-
ers, goveis, and, since those who died did not deserve death, purification,
xd8apo.s, was considered necessary.
The physician, on the other hand, differs from both of the above cate-
gories. Since his role is to save the patient, and it is specified here that the
patient must have died against the will ofthe physician,heis nota ‘slayer,’
goveis. Since the physician, at least in theory, was not responsible for the
death of an innocent man either by ignoranceor accident, as was the case
with 6 and7,heis “pure in the eyes of the law.’ Later weshall return to the
problemsposed by Plato’s assertion of the physician’s impunity in a case
wherethe patient dies against the will of the physician.
Wehavealready discussed the interpretive problems involved in the
Greek conception of involuntary as opposed to voluntary action and the
49. Ibid., 874B-C.

50. Ibid., 865A-B.
51. Theaccidentcould, of course, be due to negligence, although Plato does not bring this into his
account.
concomitant confusion of negligence/ignorance and accident. The situa-
tion becomes even more tenuous when weattempt to discern how the
Greeks might haveapplied these nebulous and uncertain distinctionsto the
medical profession.
What degree of proficiency was popularly or philosophically expected
of the Greek physician? There was, of course, no system of medical licen-
sure. L. Cohn-Haft does not find that remarkable but holds that the ap-
prentice system for medical training was essentially self-policing.** Plato
seemed to feel that any regulations governing the practice of medicine
imposed by legal authorities or directly by the people would have been
detrimental to the flexibility that a physician needed in his diagnosis and
treatment.>3 Both Plato and Aristotle frequently used the legislator-physi-
cian simile and onecan findit occasionally in the orators.54 Not only was
the good legislator compared in his care of the state to the competent
physician in his treatmentofhis patients, butalso the evil legislator was
held as analogous to the incompetent, careless, or dolose physician in the
harm doneto those whom he was supposedto help. Both Plato and Aris-
totle have a good deal to say aboutthe qualifications of a competent phy-
sician. In the Statesman Plato writes that ‘regardless ofhow they cure us...
wecall themphysicians, so long as theyexercise authority by art or science.55
But what does he mean by‘exercise authority by art or science’? In the
Phaedrus he elaborates on this, saying thatit is not only the knowledge of
how to apply various drugs, etc., that makes a man a physician but also
he must know the circumstances under which they are to be applied.°®
Aristotle echoes Plato in this regard: ‘Even in medicine, thoughit is easy
to know what honey, wine and hellebore, cautery and surgery are, to
know how and to whom and whento apply them soas to effect a cure is
no less an undertaking than to be a physician.’5” In the Magna Moralia,
Aristotle expresses a similar sentiment with some minor differences. All
these things a physician knows: diet, drugs, surgery, and cautery; for with-
out these medical knowledge would not be complete. He gives, as exam-
ples of the drugs a physician must know,both hellebore and elaterium.*®
These are potent and dangerous drugsthat only a man with medical com-
52. L. Cohn-Haft, The public physicians of ancient Greece (Northampton, 1956), p. 18.
53. E.g., Plato Statesman 295B-299E.
$4. E.g., Isocrates 8, 39-40; Aeschines 3, 225; Pseudo-Demosthenes 26, 25-26.
$5. Plato Statesman 2938.
56. Plato Phaedrus 268a-C.
57. Aristotle Nicomachean ethics 11374.
58. Aristotle Magna moralia 1199.
184 Journal of the History of Medicine : April 1977
petence could use safely andefficaciously. This is an important point and
weshall return to it shortly. Aristotle gives a further definition of compe-
tence in the medical practitioner: “The physician will not seek to heal by
every expedient; but, if he omits noneof the available means, we shall say
that he adequately possesses the science.’5? In the Republic Plato distin-
guishes between the inferior physician whose competence extends only to
diet and regimen and the more courageous (év8pesrepos—literally, ‘more
manly’) physician whois capable of prescribing drugs properly.6° Addi-
tionally, for Plato the best physician is he whotreats the whole, notjust the
specific ailment, andhe attributes the failing of ‘so-called physicians’ to
this error.*! In the samevein Aristotle held that accomplished (xaptevres)
physicians devote muchattention to the study of anatomyif they wish to
heal the eye or any otherpart of the body®andfurther will deal with the
universal, with theory.® If they have subtle and inquiring minds, physi-
cians will have something to say about natural science and claim to derive
their principles from it.°4 He contrasts the physicians who rely on experi-
ence with those who work only from theory and concedes that those who
base their practice on experience succeed more often than those who have
theory without experience. Yet he asserts that men of theory are wiser
than men of experience because the former know the cause where the
latter do not.® Aristotle also felt that in medicine physicians mighterr
both in reasoning andin perception whenactually engagingin treatment®6
and that sometimes they prescribe the wrong drugs.‘7 Realizing that
physicians make mistakes,°8 Plato also recognized that the elements of
chance (rixn) and luck (karpés)®° exercised considerable control over the
physician's affairs’? and that a physician might have done what washelpful
or harmful without knowingthe effect ofhis action.7! To Plato the excel-
lent (axpos) physician knows the difference between the possibilities and
the impossibilities ofhis art. But the excellent physician, if he made a mis-
$9. Aristotle Topica 101b.

60. Plato Republic 459c.
61. Plato Charmides 156B-pD and Timaeus 88a.
62. Aristotle Nicomachean ethics 1102Aa.
63. Ibid., 1180b.
64. Aristotle On respiration 480b.
65. Aristotle Metaphysics 981a.
66. Aristotle Eudemian ethics 1226a.
67. Aristotle Physics 199a.
68. Plato Republic 3408.
69. xacpds means ‘the right time, the right place, seasonably, etc.’
70. Plato Laws 709A-B.
71. Plato Charmides 164B-c.
take, was equal to correcting his error.”2 Although the incompetent physi-
cian might harm a patient owing to ignorance,Plato also recognized that
the competent physician had tremendouspotential for good and evil by
virtue of his medical knowledge. In the Republic he has Socrates ask the
question “Whothenis the mostable to benefit friends whenthey areill and
harm enemiesin respect to disease and health?’ The answer unhesitatingly
given was ‘the physician.” Aristotle was also cognizantofthis reality:
"... when people suspect even the physicians ofbeing in the confidence of
their enemies and of trying to do away with them for gain, they prefer to
treat themselves “by the book”’.’4 He considersthe result of this suspicion
as not goodandillustrates this by saying that even physicians, whenill,call
in other physicians to treat them,’> but he acknowledges that ‘some people
appear to be their own best physicians, although they could not do any
good to someoneelse.’76 Granting that there are some people who appear
capable of treating themselves, Aristotle addressed himself to the problem
of who should judge a physician’s competence, and answers the question
thus: °. . . it might be held that the best man to judge which physician has
given the right treatmentis the man whois himselfcapable oftreating and
curing thepatient ofhis present ailment, namely the man whois himself a
physician. . . so a court of physicians must judge the work of a physician.
... But “physician” meansboth the ordinary practitioner (équ0vpyés ) and
the master of the craft (4pxrexrowxds) and, thirdly, the man who,as part
of his general education, has studied medicine (ὁ πεπαιδευμένος περὶ τὴν
τέχνην); for in almostall the arts there are some students of this type, and
weassign the right ofjudgement as much to those generally educated in
the field as to the experts.’7” Stressing the principle thatit is essential for
one ‘to know that one does not know,’ Plato has Socrates assert that it
takes a physician to judge a physician’s work.78 In the Statesman the par-
ticipants discuss what the consequences would beif “weall thought[thus]
about . . . physicians: “We are most miserably treated by them. For they
72. Plato Republic 3608.

73. Ibid., 332D.
74. Aristotle Politics 1287a. On Aristotle’s view of medicineas a potential for help as well as harm,
see H. H. Joachim, Aristotle: the Nicomachean ethics (Oxford, 1951), p. 109.
75. Aristotle Politics 12872.
76. Aristotle Nicomachean ethics 1180b.
77. Aristotle Politics 1282a.
78. Plato Charmides 170B-D. As is so often the case in the Platonic dialogues, owing to the subtlety
of argument inherent in the Socratic method, it is difficult to determine with complete certainty
whether a particular statementis held to be true in an absolute sense or simply maintained for the
sake of argument.
save whom they wish to save and they maltreat whom they wish to mal-
treat, cutting us up and burning us and ordering us to pay them asif they
were exacting tribute. They spendlittle or nothing ofthis on their patients
but they themselves and their families use most of it. And in the end,
bribed by the patient’s relatives or by some of his enemies, they kill
him.” ’79 He then postulates the establishment ofa board comprisedeither
ofall the people or only of the rich, regardless of their qualifications, who
would offer opinions on how drugs and surgical or medical instruments
ought to be applied to patients. Whatever they should decide would then
be inscribed on stone and then anyone who wished could charge a physi-
cian with deviating from the prescribed practice. The physician found
guilty of violating the rules would then suffer the most extreme penalties.
Theconclusionis reached that this would result in the utter destruction of
the medical art.8°
So it is only the man who has the knowledge of a physician whois
qualified to judge a physician qua physician andit is only he whopossesses
this knowledge who is considered qualified to practice medicinein its
sundry fields. That possessing professional status had attachedto it certain
responsibilities andliabilities, at least in Plato's scheme,is illustrated bythis
passage from the Laws: ‘Ifa mansells a slave whois suffering from phthisis
or stone or stranguary or epilepsy or from any other complaint, either
mental or physical, that most men would fail to notice . . . if the purchaser
is a physician or a trainer, he will not be able to gain restitution in such a
case... . Now ifany professional personsells any suchslave to a lay person,
the buyer will claim restitution within six months, except only in the case
of epilepsy, where he will have twelve months. The action will be tried
before a panel of physicians nominated and chosen by both parties in-
volved. The party who loses his case will pay double the price of the
slave.’®! But this is not the only instance where the professional had to
carry the legal burden of his professed ability. It should be recalled that
knowledge of drugs and how, to whom, and when to apply them was
considered by Plato as a distinguishing feature in separating the inferior
from the superior physician. Aristotle gave hellebore and elaterium as
79. Plato Statesman 297E-299E.
80. In the dialogue bearing his name, Gorgias, illustrating the persuasive powers of a sophist, says
that ‘if a sophist and a physician were to enter any city whatsoever and had to compete there before
the assembly or some other meeting for appointmentas [public] physician, you would find that the
physician would appearpretty insignificant, but the sophist would get the job if he wantedit.’ Plato
Gorgias 456B-c. This contrary to fact supposition should indicate that there were, in fact, serious
efforts to judge candidatesfor the office of public physician on their standards of medical knowledge.
81. Plato Laws 916A-B.
examples of the types of drugs a physician must know.So the ability to
administer drugs safely and efficaciously becomes a majorcriterion in
determining whether a manis truly a competent physician, whetherheis,
in the strict sense of the word,a physician at all. That this knowledge was
expected ofthe man whobydefinition was a physician is further evidenced
in Plato’s statementthat ‘. . . the physician’s drugs, when prepared with
various colors and perfumes, seem different to us although they are the
same. But to the physician whois considering only their medicinal value
they seem the sameand heis not confused by the additions.’®? Although
the true physician was not to be confused by drugs, the man who did not
have a physician’s knowledge was quite properly confused. The confusion
wasnotstrictly semantic, butthere are distinct terminological problemsin
Greek in respect to drugs and poison that have their correlate in the lay-
man’s confusion, uncertainty, and fear. The Greek word for a drug is
¢épyaxov; the word for poison is also ¢éppaxov.83 Undoubtedly the aver-
age Greek could conceive of ¢épyaxov in three different ways: a drug that
is never harmful; a drug thatis always harmful orfatal; a drug thatis help-
ful ifused properly or harmfulorfatal ifused improperly. Since one ofthe
marks of the physician is having the acquired ability to makethese deter-
minations, Plato in the Laws specifies that ‘whoever administers a drug to
any person with a view toward injury notfatal to the victim... if the
agent happensto be a physician andifhe is convicted ofpoisoning,heshall
be punished by death. Ifheis a layman, the courtwill assess in his case the
penalty or fine.’84 This harsh a penalty for a physician who caused inten-
tional injury by drugs should indicate howseriously Plato took the profes-
sional responsibility of the physician.
When a person was charged with killing another by poison, he was
tried in the Areopagosfor intentional homicide.®5 There can be no doubt
that the person giving the drug that caused the death wouldbetried there
and would be subject to the death penalty if found guilty of intentional
82. Plato Cratylus 394A-B.
83. I have found only one instance in Greek nonmedical literature where a semantic distinction is
attempted and thatis in the pseudo-Aristotelean Problems, written perhapsas late as the fifth or sixth
centuries A.D., where the statement is made that ‘those things that produce death, even if given in
small quantities, are not called drugs (pépyaxa), but poisons’ (Oavarnddpa,literally, ‘things that
cause death’) (865a). The Latin word venenum carries the same ambiguity. The Roman jurist Marcia-
nus (third century A.D.) is quoted in the Digesta Justiniani (48, 8, 3, 2) as having made the following
distinction: ‘Moreover, the use of the word “hurtful” in connection with “‘venena’’ proves that some
“venena’’ are not hurtful. So the word “‘venena’’ has a neutral meaning andsignifies both that whichis
employed for curing as well as that which is employed for killing; it also signifies a love potion.’
84. Plato Laws 933D.
85. Aristotle Athenian constitution Lv, 3; Demosthenes 23, 22.
poisoning. But what ofvicariousliability? Andocides wrote: ‘And thereis
this law, just as fair now as it wasbefore, that there is to be no distinction
between the principal whoplansa crime andthe agent whocarriesit out.’®°
But Aristotle specified that a person who planned a murder was to be
tried in the Palladion,8” which gave a lesser penalty than the Areopagos.
How would this apply to the man whoprepared a drug/poison and gave
it to another to administer, who in essence planned the death of another
but was not himself the direct agent? J. H. Lipsius held that dots in the
clause cal φαρμάκων, ἐὰν ἀποκτείνῃ δούς .... (thatis, if one kills, having given
poison), in the Athenian Constitution, wouldlimit the charge to the indi-
vidual who administered it with his own hand.®* This, at first glance,
seems to be consonant with the Athenian attitude toward vicariousliabil-
ity. But there are some important conceptual distinctions between the
mechanisms involved in determining the liability of the planner of a
poisoning and the planner of a murderby violence, and the responsibility
of the direct agent in these two cases. If a person develops an insidious
design, arrangingin detail the circumstances most amenable to the success-
ful murder of another, for example, the ambush andviolentkilling of a
man,and persuades or pays anotherto kill the victim with a knife or sword,
or any otherinstrument, the immediate agent who commitstheact, al-
though he may have acted from another’s design, acts intentionally, has
full cognizance both of what heis doing and the effect of his action when
he embarks upon andcarries outthe act, assuming that the agentis sane.
But in the case where the murder is accomplished by means of poison,
there is a very real possibility that the immediate agent could be in com-
plete ignoranceofthe effect ofhis act, whereas the individual who provided
the poison can be logically assumed to have acted knowingly and from
intent, just as the individual who planned a violent murder. The former
could, if he wereclever, arrange for an agent who would have no knowl-
edge of the effect whereasthe latter could only employ an agent who
would be aware of the effect. To say that a man innocently acting as the
direct agentin a case ofpoisoning had a greater degree ofguilt than the per-
son whoobtainedorprepared the drug andinstigated the murder would be
tantamountto maintaining that the knife or the sword employed in a case
ofviolent murderhad greater guilt than the person whointentionally and
knowingly employedit. In regard to Lipsius’s interpretation ofdois, it is
86. Andocedes On the mysteries 94.
87. Aristotle Athenian constitution LVM,3.
88. J. H. Lipsius, Das attiche Recht und Rechtsverfahren (Leipzig, 1905), p. 124.
worth pointing out that the participle of didwy can be translated ‘give,
provide,yield.’ Now Aristotle speaks of women whodealt in drugs and
love potions®? and Demosthenes mentions a dapyaxis?? who was put to
death for providing drugs/potions.°! The chain of responsibility becomes
more complex when oneconsiders the different possibilities in which at
least one of the participants acts with intent:
1. The immediate agentis ignorantofthe effect ofhis action when heis
employed by the person who obtained or prepared the drug with the in-
tent of causing death.
2. The immediate agentshares the intent with the person who obtained
or prepared the drug.
3. The immediateagent, acting with intent, administers a drug obtained
from a person who wasboth ignorantofthe intentofthe individual andof
the effect of the drug.
4. The immediate agent, acting with intent, administers a drug obtained
from a person who was ignorant of the intent of the person seeking the
drug but was aware ofthe effect of the drug.
In all of the above,the role of the physician could be suspect and could
result in his being charged and punishedjust as the gapyaxis mentioned by
Demosthenes. The physician who furnished a drug used for poisoning was
subject to capital punishment in Roman law”and the concept of vicarious
liability in Greek law allowsfor a similar application.
In any case of homicide, intent must be determined, but, in the case of
death by poisoning, intent and knowledge becomeinseparable. Aristotle
declared a man whoacts outof ignoranceofthe circumstances of the deed
and of those affected by it to be an involuntary agent whoseactis conse-
quently pitied and forgiven.?? He then gives various examples, one of
which is that a man might kill another by giving him medicine with the
intention of saving hislife.°4 Or there can be other motivations prompting
the act that produces an undesirable effect not intended or reasonably
anticipated, as illustrated by a passage in the Magna Moralia, where a
woman gave a man love potion that killed him. She was putontrial in
the Areopagos on the chargeofpoisoning and was acquitted on the ground
that she had acted in ignorance of the consequenceofheract. Although
89. Aristotle Historia animalium $72<.
go. Often translated as ‘sorceress’ but noteits relationship with ddpuaxor.
91. Demosthenes 23, 79-80. She definitely was not the direct agent.
92. See Amundsen (n.6), p. 21.
93. Aristotle Nicomachean ethics 1110b-c.
94. Ibid., 11118.
she had caused the man’s death, it was recognized that she had been moti-
vated by love and hadfailed to achieve her loving purpose.®> But what of
the physician who supposedly hasacted out of laudable intentions, namely
to cure the patient? If the opposite effect can be proved to have been the
direct result of the drug employed, can the physician qua physician be
held, equally with the woman who administered the love potion or the
layman whogavethe sick man medicine, to be justifiably ignorantof the
effect of his therapy? Aristotle said that lawgivers punish and exact redress
from those who commit evil acts except whenit is done under compulsion
or through ignorance for which the agentis not personally responsible.%
He develops this point further to show instances wherethe offenderis held
to be responsible for his own ignorance,the ignoranceitselfbeing grounds
for punishment when it is due to negligence because the offender had not
taken the troubleto learn the facts.9”7 Wereturn to Aristotle's statement
that an act which results in an effect not contrary to reasonable expectation,
ifit is done withoutevilintent,is a culpable error,since an erroris culpable
when the source of a person’s ignorance lies within himself.°® These are
general statements ofresponsibility. What is meant by the clause translated
‘contrary to reasonable expectation’? Whose reasonable expectation? I
suspect it would be ‘reasonable expectation’ not in an absolute sense but
only when tempered by considerations of the type of action vis-a-vis the
type of individual committing the deed. The woman hopingto gain or
regain a man’s love by giving him a love potion sees an effect contrary to
her reasonable expectation. Similarly, the layman giving an ill person
medicine with the hope thatit will help findshis actions resulting in some-
thing quite contrary to his reasonable expectation. But if the man happens
to be a physician, it is obvious, from what Aristotle has said about the
knowledge a man must have to be counted a physician, that Aristotle
would imposea higher standard ofaccountability, a different set ofcriteria
regarding what is and whatis not ‘contrary to reasonable expectation.’
In the case of poisoning resulting even in mereinjury, Plato has said that
the professional responsibility attached to the physician would make him
subject to the death penalty if it was proved that the poisoning was inten-
tional.°? But howis intent to be proved in Plato’s and Aristotle’s system?
Wehave seen that for both Plato and Aristotle knowledge of drugs and
95. Aristotle Magna moralia 1188b.
96. Aristotle Nicomachean ethics 1113b—c.
97. Ibid.
98. Ibid., 1135b.
99. Plato Laws 933D.
how to apply them, to whom, and when, was a mark that would distin-
guish the inferior physician (who should only engage in advice on diet and
regimen) from the qualified physician who is worthy to bear the name.
Kudlien feels that Plato’s stipulation of capital punishmentfor the physi-
cian whointentionally injured another man by drugs is evidence of the
popular prejudice against the physician creeping into Plato’s jurispruden-
tial scheme.'° Kudlien’s own prejudiceis evident in the way he paraphrases
Plato’s law: “When a man whois trained in medicine, gives a pharmakon
by which any damage whatsoever is caused, he must be punished by
capital punishment.'!°! Note that Kudlien chose notto includehere Plato’s
stipulation that it must be proved that the physician acted from intent to
do injury. He does, however, go on to say: ‘In Plato's eyes, it seemsto be
ratherself-evident that a physician knowsexactly all the possible effects of
drugs in all possible cases, simply because heis an “epistemon.”’ In conse-
quence, when a person is harmed by a drug given by a certain physician,
the latter must!92 have caused him harm of his ownfree will, and with full
intention ... ; hence, the rigorous plea for capital punishment, in such a
case. It seemsto be entirely beyond Plato’s thought that the physician con-
cerned couldactually have made a mistake, or that the drug’s effect was an
unexpected one.’ Kudlien then admits thatthis is an oversimplification and
then proceedsto assert the existence of a strong, underlying prejudice on
Plato’s part, a suspicion of physicians similar to that of Philemon and
Pliny. But, as has been demonstrated, Plato’s attitude was not nearly as
extreme as Kudlien would haveus believe. Plato obviously did not both
idolize physicians in respect to their competenceand,as a result, unreason-
ably suspect them of misusing their unlimited knowledge. Rather, Plato
maintained that there were standards ofknowledge that should be applied
to the medical profession andthat they, as professionals, must bear the legal
responsibilities for their knowledge. But Plato recognized that physicians
do make mistakes and that chance and luck play an importantrole in a
physician’s treatmentof his patients. Plato also madeit clear that physi-
cians should judge the work ofother physicians and Aristotle agreed with
him, broadening the definition to include the cultivated layman trained in
medical theory. Aristotle had given hellebore and elaterium as examples
of the types of drugs a physician must know. These two drugs were
recognized as being dangerous to use except under the supervision of a
100. Kudlien (n. 2), pp. 99-100.

101. Ibid., p. 100.
102. Kudlien’sitalics.
192 Journalof the History of Medicine : April 1977
competent physician. All things considered, in a case where a physician
had prescribed or administered a drug that any true physician and culti-
vated layman would know to be harmful underthespecific circumstances
of the case, I suspect that Plato, and Aristotle as well, would have held that
the physician musteither be considered as having acted from intent orto
be guilty of culpable error, resulting from ignorance for which the physi-
cian himself wasresponsible, an ignorance stemming from the physician’s
negligence in not having acquired the necessary knowledgeorin not hav-
ing properly ascertainedthefacts. In Plato’s dictum that a physician is not
to be held accountable if his patient dies against the physician’s will,it is
also reasonable to apply the same standards.
The motif of the physician as killer has already been mentioned as a
commonplace. There is undoubtedly somejustification for that sentiment.
Afterall, there are and always have been some physicians who are unscru-
pulous and the physician-patientrelationship is one that provides a plethora
of opportunities for misconduct on the part of the physician. History
aboundsinillustrations ofphysicians who havelent their professional hand
to intrigue and assassinationat the highest levels ofgovernment,and there
mustcertainly have beencases where, rightly or wrongly,at lowerlevels
ofsociety, a physician was charged with intentional murder. Ofcourse we
are nottalking here about the physician who might be charged with the
commissionofa crime asa private individual, for example the violentkill-
ing of a man in anger,or of the physician whokills an adulterer detected
in flagrante delicto, but of the physician qua physician whois thought to
have killed a patient with premeditation. There is nothing in Athenian law
that would preclude the possibility of a physician so suspected being in-
dicted andtried in the Areopagosfor intentional homicide.It would, how-
ever, be incumbent upon the prosecutor to prove intent and that, of
course, is always a difficult problem, particularly in the case of a physician
qua physician. There are no recorded cases of a physician beingtried for
intentional homicide in Greek law. But the evidence for Greek law is so
fragmentary that it would be a very weak argumentum silentio to advance
in favor of the physician’s impunity.
I shall mention as an aside onearea in which the physician qua physician
could willfully kill a man with complete impunity. Thatis at the request of
the patient who wished to end his misery or of a man who, for any reason
other than illness, wished to terminate hislife. In the former this could
sometimes be accomplished bythe physician’s simply withdrawing himself
from treating the patient further if continued medical care would only
prolong the patient’s life without hope of recovery. Thus the author of
The Art in the Hippocratic Corpus suggests!3 and Plato ‘vigorously op-
posed any attempt by the physician to prolonghis patient’s life... . He
admits no exceptions.’1°4 As the physician’s role here is passive, one can
argue that this has nothing to do with intentional homicide. But wherethe
physician either supplies or administers a poison to a person athis request,
whether the personis incurablyill or simply wishes to endhislife for any
reason, the physician is then an active participant. Thereis a passage in the
so-called Hippocratic oath forbidding the physician to administer poison.
This passage and the oath as a whole havebeen discussed at great length by
manyscholars. It is for me beyond doubtthatthe oath is uncharacteristic of
the ethics of physiciansin classical antiquity, regardless of its origins and
the motivations behind its composition. Literature aboundsin references
to the physician supplying a suicide with poison, and Theophrastus!%
praised the physician Alexias for inventing a drug for inducing a sweet and
painless death.!°6 Suicide certainly was not a matter in which thestate
intervened,either in Greek or Romanlaw,andtheclosest that I have come
to finding even theslightest objection to it on moral grounds, aside from
Pythagoreanism, Christianity, and other cults outside the mainstream of
classical thought,is in the Phaedo ofPlato!°” where one ofthe participants
says, Why, my dear Socrates, do they say thatit is not lawful for a man
to take his own life?’ The word ‘lawful’ hereis a translation of the Greek
beucrév, close in meaningto the Latinfas, divine law, moral right.
Weturn now tothepreviously cited passage from Antiphon, mentioned
by modern scholars more than any other in defense ofthe assertion that a
physician was free from punishment for malpractice in classical Greece.
This frequently quoted passage reads: ‘Even if his death were due to the
physician (εἰ δέ τοι καὶ ὑπὸ τοῦ ἰατροῦ ἀπέθανεν), although it was not, the
physician is not his slayer, for the law absolves him.’!°8 Antiphon wasthe
earliest of the Attic orators. And it is from the Attic orators that the vast
majority of the source material for Greek law comes. But circumspection
must be used in drawing definite conclusions from such material. As Cal-
houn points out, “The speeches [of the Attic orators] are admittedly ex
parte statementsoflitigants or counsel, made with intent to influence a
103. The art 3.
104. D. Gourevitch, ‘Suicide amongthe sick in classical antiquity,’ Bull. Hist. Med., 1969, 43, 501.
105. Theophrastus Enquiry into plants xvi,8.
106. See Gourevitch (n. 104), p. 508.
107. Plato Phaedo 618.
108. Antiphon Third tetralogy c, 5.
court in its decision, and too often filled with sentiment and sophistry . . .
[if] the speeches are used with proper caution, their importance can
scarcely be overstated.’19? Six of Antiphon’s speeches are extant, all con-
cerned with homicide. Three ofthese are the Tetralogies.11° The Tetralogies
are unique in the forensic literature that has survived from this period in
that they were not composed for use in courtin realtrials but rather they
are model speeches designedforuse in forensic instruction. Each Tetralogy
consists offour speeches (thus the name), two for the prosecution and two
for the defense. K. J. Maidment, the translator of Antiphon for the Loeb
Classical Library, in his introduction to the Tetralogies wrote: *. . . the
purposeofthe authoris to show howfarit is possible to establish the guilt
or innocence of the accused by meansofpurely general reasoning; heis
concerned with what Aristotle calls riores &rexvor, “artificial proofs,’ as
distinct from micres drexvor, proofs based on evidence . . . he concentrates
... upon logical subtleties anda priori inferences.’111 Wearetold further by
Maidment that where Antiphon, in the Tetralogies, deviated from specific
laws, he was working from universal principles which provide the basis
for law.'!2 It has also been asserted that the Tetralogies ‘rely on argument
from probability.’!!3 So we are dealing here with an academic exercise,
one that substitutes logical subtleties for established statutes, designed to
push argumentto its maximum limit on bothsides of an issue. The issue
involved in the Third Tetralogy is of a hypothetical man charged with
homicide whopleadsself-defense. The circumstancessurroundingthekill-
ing were these: the victim, an older man, while drinking, assaulted a
younger man who beat him severely. The injured party’s relatives ob-
tained the services of a physician. The man died nevertheless. The first
speech ofthe prosecution argues for the conviction ofthe defendant on the
charge of murder. In the first speech of the defendantit is maintained that
if the man had died immediately from the blows he had received, the
defendantstill had acted only in self-defense; “but, in fact, he died several
dayslater, after being placed in the care of an incompetent physician. He
died on account of the incompetenceof the physician and notbecause of
109. Calhoun (n. 47), pp. 470-471.
110. The authorship of the Tetralogies is in question. See especially K. J. Dover, ‘The chronology of
Antiphon’s speeches,’ Cl. Q., 1950, 44, 56.
111. Minor Attic orators, 2 vols. (London, 1941), 1, 34. There has been considerable doubt raised
about how much,if anything,the author of the Tetralogies knew about Athenian law.See,e.g., W.
Dittenberger, ‘Antiphons Tetralogien und das attiche Criminalrecht,’ Hermes, 1896, 31, 271-277;
Hermes 1897, 32, 1-41; idem, ‘Zu Antiphons Tetralogien,’ Hermes, 1905, 40, 450-470.
112. Minor Attic orators (n. 111), 1, 37-38.
113. G. Kennedy, Theart ofpersuasion in Greece (Princeton, 1963), p. 130.
the blows that he had endured. The other physicians warned him that,if
he followed this particular treatment, he would die even though he could
otherwise be cured.’!14 In the second speech ofthe prosecution the counter-
argumentthat I have quoted aboveis presented, namely,that although the
man had notdied becauseofthe physician,even ifhe had,the law absolves
the physician. To give a touch ofrealism to the Tetralogy, Antiphon has
the defendant withdraw into perpetual exile after the prosecution’s second
speech so the final speech for the defense is delivered by friends of the
defendant. Once again the claim is madethat the physician was to blame:
‘It was not because of the blows, but due to the physician that the man
died, as the witnesses testify.'115 The point has become mootandis not
pressed, and the remainder of the speech simply reiterates briefly the
arguments previously advanced by the defendant in support ofa plea of
self-defense.
Does this passage offer evidence for the thesis so frequently advanced
that no liability was attached to the Greek physician? I think not. Nor does
Kudlien, but he seems to base his conclusions simply ona priori assump-
tions rather than on evidence in this matter.
Aristotle has told us that certain acts of homicide arejustifiable and are
to be tried in the Delphinion. He does not say that in certain kinds of
justifiable homicide res ipsa loquitur and need not or cannot betried. When
Plato mentionsotheracts ofjustifiable homicide in the Laws, since he is not
speaking of Athenian law specifically, he, of course, does not mention the
Delphinion. But let us consider the case ofa man who kills a comrade in a
military training exercise, or the man whokills a thief. Athenian law does
notspecify that these individuals cannot be charged with intentional homi-
cide but merely that the persons so charged may plead justifiable homi-
cide and thus have their cases tried in the Delphinion. Assuming that the
law referred to by Antiphon that would absolve the physician and that
Plato's similar statement reflected a real judicial policy current then in
Athens, would it be procedurally different from the other cases involving
justifiable homicide? Could the physician claim theright to trial in the
Delphinion? Wewill have to return to these questions shortly. Whetheror
not Antiphon’s statement was based upona priori reasoning or upon real
114. Antiphon Third tetralogy b, 4. “The other physicians warned him that, if he followed this
particular treatment, he would die even though he could otherwise be cured.’ I assume that the him
and the three he’s all refer to the patient. The statement does not seem to imply that other physicians
advised the physician in question that if he followed the methods he was employing his patient
would die.
115. Antiphon Third tetralogy d, 8.
legislation is not particularly important. And,if such a law did actually
exist, whetherit was based on precedentorabstract, jurisprudential princi-
ple is not of great consequence.It is, however, vital to bear in mind the
Greek attitude toward homicide and the procedural mechanisms involved
in the indictment of a man for homicide. Since the onus rested upon the
relatives of the deceased to bring charges, it wasalso their responsibility to
determine whetheror not charges were warranted.I think thatit is reason-
able to assume that even in a case wheretherelatives of the deceased were
confident that the homicide was justifiable, for example, a death that oc-
curred in an athletic contest, they might feel incumbent upon them the
obligation to have the party responsible for the death cleared formally in
court so as to avoid the possibility of incurring the wrath of the spirit of
the dead. But would this same duty exist in the case ofthe physician whose
patient died? Observea vital difference. Plato, in specifying the eight dif-
ferent kinds ofjustifiable homicide, made a definite distinction between
the first seven and the eighth involving the physician. In the first seven
there was no doubt as to the responsibility for the death, the question
‘Whocaused the death?’ did not need to be asked. Butthis did not apply
to the physician in the same way. The comments ofBonner and Smith on
the passages from Plato and Antiphon express a commonand understand-
able attitude: ‘It is reasonable to suppose that the physician may be elimi-
nated [from thestigmaofpollution and consequent ceremonial purifica-
tion]. He had donenothingto further the death of the patient, and,in fact,
he has presumably done everything in his power to save the patient’s
life.’116 Now this statementis rather naive from a legal point ofview; it
presents a view antithetical to the one that holds the physician to be an
unpunished killer. This latter prejudice can arise from two distinctly dif-
ferent attitudes. Those who hold the medical profession in contempt may
believe that all or most practitioners are unscrupulous men, greedy for
money and honor, beguiling the naive, deceiving the innocent and cheat-
ing the unwary;ergo,evil ifcompetent, but, in the opinion ofsuch people,
usually incompetent as well. On the other hand, those who excessively
venerate the medical art, attaching an unrealistic aura to its practitioners,
credulously attributing to them the powerto cure by medicineor surgery
nearly all the physical and psychic ills of man, may, when the physician
fails, attribute to him evil intent and/ornegligence,for surely, ifthe physi-
cian had so willed, the patient would have been cured. Or the physician
116. Bonner and Smith, The administration ofjustice (n. 42), 0, 204.
whofailed might be viewed as grossly incompetent in comparison with
the ideal posited by the patient. Even in the ancient world, where, from
the vantage point of modern medicine,the healing art had many obvious
deficiencies, there were frequent attestations of a high degree offaith in
membersof the medical profession. Theattitude ofthe individual, perhaps
toward the medical profession as a whole and certainly toward the specific
physician as well as the type ofillness or wound involved, would have an
effect on resolving the question of whetherornot to indict the physician.
To return to the questions posed above: Wouldthe case against a physi-
cian be procedurally different from the other cases involving justifiable
homicide? Could the physician claim the right to trial in the Delphinion?
Thefirst seven categories ofjustifiable homicide in Plato's scheme involved
individuals who, if accused ofmurder, would say,in the case of 1 through
5, for example, “Yes, I did kill him for he deserved to die. I caught him in
the act of adultery with my wife.’ Or, with 6 and 7, the defendant would
claim, “Yes, I was responsible for his death, but I killed out of ignorance;
e.g., I exerted too much force in wrestling or I struck him with a discus.’
Butthe physician qua physician,if charged with homicide, is not going to
counter, “Yes, I killed him, and I did so intentionally, for my patient
deserved to die.’ Nor would helikely say, “Yes, I did kill him, but outof
ignorance’; or, “Yes, I am responsible for mypatient’s death owing to my
own negligence.’ The physician’s claim would be, ‘No, I am not respon-
sible for his death. I did everything in my powerto save him.’
The passage from Bonner and Smith quoted above'!” goes on to say:
“Yet the Athenians thoughtnecessary to protect [the physician] by law from
the possibility ofbeing attacked as a homicide.118 The passage seems quite spe-
cific. He is not a goveds.’ They are surely wrong.If this law did exist, it was
predicated upon the sameprinciples as those motivating thejudicial classi-
fication ofcertain other actions as justifiable homicide. It can be objected
that the physician’s case is vitally different from that of the seven other
categories. But the concern ofthe city was with pollution and therelatives
with appeasing thespirit of the dead and these elements tend to obfuscate
the principles inherent in homicide distinctions in modern law. Every
death, except those resulting strictly from natural causes, hadto belegally
settled and it came underthe purview ofthe Delphinion to determine what
wasin fact a justifiable death. This surely did not in any way precludethe
very real possibility of a person whoserelative had died under medical
117. Ibid.
118. Italics are mine.
treatment indicting the physician. The motivations behind such an indict-
ment might vary considerably, but the onus would rest upon the prosecu-
tor to prove that the physician was slayer, a govels, and the physician
probably could demandtrial in the Delphinion with the hope of proving
that he was nota slayer, but that the death was bothlegally and religiously
justifiable.
Where would the Greeks draw the distinctions between intentional,
negligent, or ignorant homicide in respect to the physician qua physician,
ifthey did attempt to makesuch distinctions? Could the prosecutor seek to
prove that the death of the patient was a result of the negligence or in-
competence of the physician? MacDowell simply states that ‘If a patient
died while underthe care ofa doctor, the doctor wasnotliable to punish-
ment.'1!9 Addressing himself to Antiphon’s phrase, ef 5& tou kai ὑπὸ τοῦ
ἰατροῦ ἀπέθανεν, κτλ. (απeven if his death was due to the physician,etc.,),
MacDowell says, ‘Antiphon’s use ofi7é here indicates that the doctor was
still absolved evenif he caused the patient’s death by negligence.’!2°
Given the nature of the Tetralogies, we shall never know whetherthis
law did in fact exist in Athens. But, for the sake ofdiscussion, let us assume
that it did. I have attempted to show that such a law waspredicated upon
the sameprinciples that had motivated the designation of certain types of
deathsasjustifiable, and came underthejurisdiction ofthe Delphinion. On
the basis ofour discussion of the Greek attitude toward drugs and poisons,
wecan add to thatassertion the qualification that ifa physician was charged
with causing death by drugs or poison, he would, eo ipso, be tried in the
Areopagos. But what ofAntiphon’s physician? The argumentson the part
of both the prosecution and the defense with regard to the physician are
simply assertions offact as opposedtoassertions oflaw, and thereis no real
attempt to delve into the circumstances. The prosecutor’s pronouncement
that the law would absolve the physician if he had actually been at fault
does notresult in the defense’s agreeing or disagreeing. Instead the defense
repeats the charge that the physician contributed to the death and supports
the charge by claiming that there are witnessesto testify to the physician’s
improper treatment. But the pointis not pressed in this hypotheticalcase.I
rather suspect that Antiphon’s ‘law’ which would absolve the physician
was in fact merely the right to plead that the death wasjustifiable, and so
demandtrial in the Delphinion. The prosecution’s use of it was a simple
enunciation of the basic legal fact that the guilt of the physician, beit
119. MacDowell, Athenian homicide law (n. 28), p. 74.
120. Ibid., p. 75.
intentional or caused by negligence or incompetence, is extremelydifficult
to prove unless res ipsa loquitur, especially given the limited pathological
knowledge and techniquesavailable at that time. Otherwise it was a matter
of one medical opinion versus another. This would particularly hold true
in the case of the man severely beaten or wounded who might have been
saved if different treatment had been employed, a rather hopeless legal
case unless the physician’s methods were blatantly improper.
Would therelatives of the deceased have any other recourse, for exam-
ple, to sue for damages? Thereis no evidence either way,butI findit logical
to assumethat if physician was charged with responsibility for the death
ofthe patient and was found guilty, he would suffer the prescribed penalty
for intentional homicideor for unintentional homicide ifhe was proved to
have acted out of culpable ignorance rather than intent. In the event
that he was acquitted, there is no indication that the relatives of the de-
ceased could then sue for damagessince the judicial proof ofresponsibility
would still be necessary, the absence of which proof would already have
caused his acquittal on the charge of homicide. This is very different from
the modern procedure where there wouldbelittle concern with attempt-
ing to saddle the physician with a charge of homicideif his negligent or
ignorant malpractice were only contributory. Any suit would concentrate
on damagesunless there was evidence of intent. But in Athenian law the
focalpointwas homicide, the question ofwhocausedthe death and whether
it was intentional, and this was motivated by religious as well as legal
concerns.
Wehaveyetto deal with injury to a patient. Thereis Plato’s suggestion
in the Laws that the physician qua physician who intentionally injures
another man by drugsshould beputto death. There is no way ofknowing
whether or not this was the law in Athens. However, there were various
legal actions that an injured man could bring against the one who had
caused him damage, but the evidence that we haveall involves willful
assault. Cases of assault were of two kinds: ypad) tBpews was a public
indictment for wanton outrage where the complainant felt that he had
been subjected to malicious and brutal indignities. If found guilty, the
defendant was forced to pay a fineto the state or, in extreme cases was
even put to death. A dln alxelas could be brought if the complainant
wishedto limit his action to a chargeofsimple assault. If found guilty, the
defendant paid pecuniary compensation to theplaintiff. If a patient felt
that he had been physically mistreated by a physician, for instance in the
indiscriminate use of cautery or surgery, either of these avenues of redress
200 Journal of the History of Medicine : April 1977
would in theory have been open to him,as long as the action was viewed
as having been done withintentto cause injury. Ifthe physician was found
guilty of acting from intent in causing the injury, whether there would
have been additional punishment for him because ofhis professional re-
sponsibility, as Plato suggests there should be in the case of poisoning, we
simply cannot know.I suspect that this may well be an innovation on
Plato’s part, but motivated by a concern deeply rooted in ancient thought
that there is a supernatural, or at least a hidden, power in drugs. This often
resulted in the concomitant respect/fear conflict toward those who know
how to use drugs both for good andfor evil. It is interesting to note that
Plato’s law appears within the larger context of a discussion ofthe legal
regulations of magic.
With respect to unintentional injury, we can apply Aristotle’s standards
ofculpable ignoranceherejust as we did in the discussion ofhomicide. But
whether anything comparable to modern processes under tort may have
existed is very questionable. The dixa: xara twos are somewhat analogous
but the similarities are only slight, at least insofar as they could perhaps
have been applied to the physician. Whether a patient could sue his physi-
cians on the groundofa violation ofprofessional responsibility would be
only conjecture on our part. Athenian law did not make thedistinctions
later made by Roman law as to contract and mandate with the resultant
differentiation oflegal actions for redress. If the legal relationship between
the artist or teacher and those who hire their services presents an analog for
that ofphysician andpatient in Athens, the patient could,at least in theory,
bring 4 δίκη συνθηκῶν παραβάσεως Οτ 4 δίκη βλάβης {οτ pecuniary compensa-
ποπ.121 I would findit inconceivable that physicians were notsubjects of
suits for damages in Athenian courts; there are simply too many circum-
stances in the physician-patient relationship where reasonable doubt of
competence, negligence, and intent can arise. But the evidence that has
survived on the procedures governing compensation for damageto the
person in Athenian law is very incomplete. However, what does sur-
vive shows that it was quite unsophisticated compared to Roman and
modern law.
Daube’s observation bears repeating: “Among the reasons for the dif-
ference between the Greek scheme and the Romanis this, that the former
is primarily concerned with criminal‘? law trial, the latter with a claim
121. See Ludovic Beauchet, Histoire du droit privé de la république athénienne, 4 vols. (Amsterdam,
1969), IV, 225.
122.I.e., homicide. Daube is using the term in the modern sensesince, as we have seen, in Athenian
law homicide procedure lay within the scope of private as opposed to public offence.
for payment of damages.’!23 Whereas the information that we have onthe
liability of the physician in Romanlawis gleaned mostly from theintrica-
cies of the provisions for damage compensation, in Greek law thelittle
source material relevant to the physician is almost exclusively bound up in
the complexities of Athenian procedures for homicide. Even in Roman
law, although the concern was primarily with damages, since ‘there is no
valuation placed onscars or deformity because a free body has no pecuni-
ary value,’!?4 the liability for damage that could apply to the physician
involved injury to slaves, upon whom real pecuniary value could be
placed, both in respect to the whole and the part. On the other hand, in
Athenian law there is no evidence that a master could even bringa dixn BA4Bns
for damages against the killer or injurer ofhis slave.!25 While there are
frequent references in Athenian law to setting damagepenalties for specific
injuries to a freeman,little is known ofthe particulars that could be applied
to cases ofinjury resulting from a physician’s malpractice.
Ontheliability of the physician in classical Greek law more questions
must, of necessity, be left unanswered than can be answered with any
degree ofcertainty. It does seem reasonably certain, however, that the
physician qua physician could be charged with homicide. Whether he
would beaccused ofintentional homicide would dependontheindividual
bringing the charge. If so charged, the physician probably could claim the
rightto trial in the Delphinion (not, of course, on the groundofjustifiable
homicide, but that the death itself was justifiable, not requiring either
purification or penalty) unless he were accused ofpoisoning,in which case
he wouldbetried in the Areopagos. Given the nature ofAthenian attitudes
toward homicide,if the death of a patient appeared to the relatives of the
deceased to have resulted from the incompetence or negligence of the
physician, they may havefelt obligated to obtain guidance from the exe-
getes on the question of whetheror not the physician should be charged.
The nature of the ailment would have been of paramount importance.
In Antiphon’s hypothetical case the deceased had been beaten, and the
interest of relatives was in the conviction of the human agent actively
responsible for imposing the injuries. Without the injuries the deceased
would not have required treatment. From the prosecution's vantage point
the physician’s role, even if his treatment were ineffective or perhaps even
ultimately detrimental, was at the most only contributory to the actions of
123. Daube, Roman law (n. 13), pp. 146-147.

124. Gaius, in Digesta 9, 3, 7.
125. A. R. W. Harrison, The law ofAthens, Vol. 1: Thefamily and property (Oxford, 1968), p. 169.
the human agent against whom the spirit of the dead demandedretribu-
tion. In an instance where the injuries imposed at least appeared to be
relatively minor and the injured patient received medical treatment that
appeared to cause the patient’s condition to worsen and to bring abouthis
death, the relatives of the deceased may well have felt incumbent upon
themselvesthe responsibility of charging the physician in order to appease
the spirit of the dead.
Very different is the case where a patient is treated for an illness. Here
there is no human agent whocould be considered responsible for produc-
ing the condition that necessitated medical treatment.'¢ If the patient died
of natural causes there would be no responsibility on his relatives to ap-
pease his spirit. If the death seemed to them to have been caused by bla-
tantly improper treatment, they might have felt bound to charge the phy-
sician if for no other reason than to ensure that they fulfilled their duty to
the spirit of the dead.
It is well known that Greek physicians hesitated to take on cases that
they considered as hopeless.!2”7 Prognosticating was a highly valuedart in
Hippocratic medicinefor a variety ofreasons: it won the physician respect,
secured the confidence ofboth present andpotential patients, and provided
the physician with a basis for deciding whether or not to treat the pa-
tient.128 The Greek physician was highly concerned with enhancing and
preserving his reputation. In the absence of medical licensure, where any-
one who wished to call himself'a physician could do so and undertake the
treatment of patients, the physician’s reputation was his only credential.
But an additional motivation behind the use of forecasting was to avoid
blame.*. . . you will be blameless ifyou learn anddeclare beforehand those
whowill die and those who will get better.’129 The concern with incurring
blameis foundin other contexts in the Hippocratic Corpus. Whenpatients
die because they did not follow the physician’s orders, the physician is
126. Unless the relatives suspected that the condition had been caused by poison in whichcase their
primary concern in appeasing thespirit of the dead would have been in gaining for him retribution
against the first link in the chain of causation, namely the human agent whose role would have been
analogous to that of an assailant. The problem of the possible vicarious liability of the physician in
poisoning has been discussed above.
127. E.g., in The art 3, medicine’s three functions are defined: to do away with the sufferings of the
ill, to lessen the violence of their ailments, and to refuse to treat those who are overmastered by their
diseases. This treatise has been thoughtto be the writing of a sophist; Edelstein’s arguments in favor of
a physician’s authorship are convincing. See ‘The Hippocratic physician,’ in Ancient medicine (n. 1),
p. 101.
128. E.g., Precepts 9; Prognostics 1; Decorum 11 and 17.
129. Prognostics 1: . . . robs ἀποθανευμένους τε καὶ σωθησομένους προγινώσκων τε καὶ προλέγων
ἀναίτιος ἂν εἴη. Cf. Decorum 17: . . . kal ob gol rov ψόγον περιάψει.
blamed.13° “What they have done neverresults in a confession, but the
blameis thrownagainst the physician.151 The author of The Sacred Disease
writes that some physiciansattribute epilepsy to a divine origin so that
they can claim the glory if the patient recovers but if the patient dies a
sure excuse is available: the defense that they are not to blame, but that
the godsare.19? |
Passages suchas thesejust cited should be viewedin the larger context of
the Greek physician’s conception ofhis professional responsibility, namely
his responsibility to his art, his techne. Preiser, in a paper on the Greek
physician’s conception ofhis professional responsibility,briefly discusses
the passages usually cited in support of the theory that the Greek physician
was immune from punishment for malpractice.!4 Commenting on a
passage from Ancient Medicine concerned with the physician’s incurring
blame,135 he writes, *. . . ist es sehr unwahrscheinlich, daB an eine rechtliche
Regelung gedacht ist. Nach dem augenblicklichen Stand unserer Kennt-
nisse miissen wir also davon ausgehen, daB es entsprechende gesetzliche
Bestimmungennicht gegebenhat, sondern da8 der Arztstraffrei blieb.’!76
Preiser then provides a brief and interesting discussion of the problem of
professional responsibility for the Hippocratic physician within the techne
of medicine. It is undoubtedly true that the physician’s concern with his
reputation and overall professional responsibility to his techne provided
him with much of the motivation behind his concern with incurring
blame. But if my assessment of the physician’s liability in Greek law is
correct, it adds a new dimension and significance to the passages in the Hip-
pocratic Corpus where the importance of avoiding accusationsis stressed.
Western Washington State College
Bellingham
130. The art 7.

131. Decorum 14: ... 7G 5e lntp@ rhv alrinv προσῆψαν.
132. The sacred disease 2:... rpépacis obdéy αἴτιοί εἶσιν. ...
133. Gert Preiser, ‘Uber die Sorgfaltspflicht der Arzte von Kos,’ Med.-Hist. J., 1970, 5, 1-9.
134. Ibid., pp. 2-4, on the passages from Antiphon, Plato (Laws), Philemon the Younger, and Law
(from the Hippocratic Corpus).
135. Hippocrates Ancient medicine 9.
136. Preiser (n. 133), p. 5.

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OXFORD JOURNALS

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CVaZOnts HEtreatise entitled Law in the Hippocratic Corpus!

24. Thucydides 2, 40.

49. Ibid., 874B-C.

$9. Aristotle Topica 101b.

72. Plato Republic 3608.

100. Kudlien (n. 2), pp. 99-100.

123. Daube, Roman law (n. 13), pp. 146-147.

130. The art 7.

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