Stanford University School of Medicine and the Predecessor Schools: An Historical Perspective: Part II: E.S. Cooper in San Francisco. Chapter 14. The Malpractice Trial

Stanford University School of Medicine and the Predecessor Schools: An Historical Perspective
Part II. E.S. Cooper in San Francisco

Chapter 14. The Malpractice Trial

By late February 1858 Mrs. Hodges had completely recovered from the cesarean operation. She was enjoying good health and had a cordial relationship with Dr. Cooper to whom she was effusively grateful. According to Cooper's notes:^[1]

(It was at about this time) that Wooster went to her and represented that his conscience troubled him because of the great injury he had been accessory to inflicting upon her (by the cesarean operation), and said he could not rest satisfied until he had confessed to her. This is her story. She was loathe to believe his confession. But then what could it mean? He was a good friend of herself and of Dr. Cooper and what would he do it for unless it was to relieve his troubled conscience. Not a word was said against Dr. Cooper that day excepting such remark as that it was a pity he was so fond of operating he might otherwise be so useful, etc., and . . . stated that Dr. Cooper wanted to operate upon his own child's throat when it was not necessary. All of which astonished the lady and her husband beyond measure as they had never heard anything like it before.

At this juncture some parties gave money to (support) the Pacific Medical and Surgical Journal conducted by Trask and Wooster which had been sustained alone up to that time through the liberality of Drs. Cooper and Rowell, and that Journal was at once prostituted to the purpose of publishing false and defamatory accusations against Dr. Cooper. Likewise at the same period a report of the caesarian section case teeming with falsehoods was published by Dr. Wooster in the same Journal.

On future visits to Mrs. Hodges, Wooster further "confessed" that her operation was unnecessary and insinuated that she could have had a living child if she had been properly managed. He examined her on several occasions during this period and informed her that she had adhesions between her womb and bladder and between bladder and abdominal wall. He advised her that such adhesions might at some time be responsible for a disturbance of the nervous system referred to in that day as "hysteria," and a not uncommon affliction of women. Being of a suggestible and emotional nature, Mrs. Hodges began at once to complain of tiredness, abdominal pains and was easily moved to tears and irrational behavior, whereas before she had appeared to be in remarkably good health.

The following is an example of the change which occurred in Mrs. Hodges. Just prior to the first "confessional" visit of Dr. Wooster one of Mrs. Hodges' friends, a Mrs. Margaret Karr with whom she had formerly boarded, called on her and was pleased to find her in good health and spirits. Mrs. Hodges expressed herself as very much pleased with Dr. Cooper and grateful for his surgical skill. Following the visit of Dr. Wooster Mrs. Karr returned to find her friend disheartened, low spirited in regard to her health, and very dissatisfied with Dr. Cooper. She now thought she had been dealt with very unjustly by him. She said that Dr. Wooster and some other physicians had told her she was made a dupe of by Dr. Cooper. She wept and vowed she would make him pay dearly for operating on her. Not long thereafter she and her husband filed a suit against Cooper for malpractice, claiming damages of $25,000. There can be no doubt that Wooster incited her to this action.^[2]

Cooper claimed, and not without grounds, that Mrs. Hodges was henceforth the pawn of a conspiratorial faction of older San Francisco physicians united by their dislike for him and by their determination to drive him out of practice. He was certain they recruited Wooster to their cause by convincing him that the cesarean section, in which he had initially flaunted his role, was a gross error, and that his publishing enterprise would be better supported under other auspices than Cooper's. We shall never know the actual reasons for Wooster's sudden desertion to the anti-Cooper forces and his subsequent relentless hounding of Cooper in the pages of the Journal. Since money was involved in his case and that of Mrs. Hodges, perhaps avarice played a role in both.

It was in the Fall of 1858 that Mr. and Mrs. Hodges filed against Dr. Cooper probably the first malpractice suit against a medical man ever tried in San Francisco. They claimed damages for a cesarean section, the first successful operation of the kind in California.^[3] Their Complaint bristled with charges that only Wooster could have instigated:^[4]

The Complaint

The above Plaintiffs[Elkanah H. Hodges and Mary E. P. Hodges], complain of the above Defendant[Elias S. Cooper] and allege -That ... Mary E. P. Hodges, then being pregnant ... and she being in need of the professional aid and attention of a skillful Surgeon and Accoucher, said Defendant, at the instance and request of Plaintiffs, then and there engaged and undertook to afford and render such aid, assistance, relief and professional attention as said Plaintiff, Mary E. P. Hodges might need, and as her case required .... That, under the direction, management and control of said Defendant, said Plaintiff's labors of parturition were unnecessarily protracted to the space of sixty hours and upwards, the life of her said child destroyed, and finally on or about the 10th day of said November at about 10 o'clock P.M., said Defendant performed upon said Plaintiff, Mary E. P. Hodges, the operation technically known as the "Caesarian section ...."

That the aforesaid operation, called the "Caesarian section," is a highly dangerous operation - the patient scarcely ever surviving it - and in said Plaintiff's case unnecessary, uncalled for, unwarrantable, and in every way reprehensible - there being no reason why the child should not have been delivered through the ordinary natural passage - and the Plaintiff thereby saved an almost ineffable amount of suffering.

That, from facts and circumstances which have come to their knowledge, Plaintiffs are led to believe and do believe, and therefore charge the fact to be - That said Defendant, in neglecting said Plaintiff, Mary E. P. Hodges as aforesaid, and in performing upon her the said operation of the "Caesarian section," was actuated by wicked and corrupt motives, and that his negligence, omissions, acts, conduct and treatment of said Plaintiff, Mary E. P. Hodges, as herein above set forth, were and are wrongful, willful and malicious, and without any justifiable cause whatever.

That said operation of the "Caesarian section" was very unskillfully performed by the Defendant upon Mary E. P. Hodges - That in performing it, the bladder of said Plaintiff was incised and wounded, and in the healing of the wounds, made by said operation, the bladder, womb and intestines of said Plaintiff became, and now are, so blended, attached and connected together and with the abdomen, that they must always be in an unnatural position, and occasion said Plaintiff, Mary E. P. Hodges, much pain, discomfort, and suffering.

. . . That by reason of the premises and matters herein set forth . . . Plaintiffs have been greatly wronged, outraged and injured, and have sustained great damages; namely, damages to the amount and value of twenty-five thousand dollars, which sum with costs, Plaintiffs claim to recover of said Defendant in an action, and therefore bring suit.

Defendant's Answer to the Complaint

The following is a summary of Dr. Cooper's response to the allegations contained in the Plaintiffs' Complaint:^[5]

It was the particular and distinct agreement and undertaking between Plaintiffs and the Defendant that he would not take charge of the Plaintiff Mary Hodges as her accoucher, but that he would only take charge and care of her in the event she should require the aid of a surgeon in the labors of parturition.
Defendant denies that he took the direction, management or control of the case of said Mary except as a surgeon or that the labors of parturition were protracted and the life of the child destroyed by reason of any want of proper care or skill on his part while engaged by the Plaintiffs in the capacity of a surgeon.
Defendant admits the performance by him and Dr. Wooster of the operation known as the "Caesarian section," as is alleged, except that the same was done by the advice and with the assistance and approval of Dr. Wooster.
Defendant denies that said operation was unskillfully performed or that wounds of the bladder, womb or intestines are now so blended, attached or connected together, or with the abdomen, that they must always be in an unnatural position, or occasion to said Mary much pain, discomfort or suffering as is alleged.
Further answering, this Defendant says that during the protracted labors of said Mary, the urine was suffered to accumulate in her bladder by Dr. Wooster, who had charge of said case as the attending accoucher, and who made the diagnosis previous to said operation, and stated to and assured this Defendant that the urine had been drawn off. That said Defendant acted upon said statement, information and diagnosis of said Wooster, and said accumulation of urine was not known to or discovered by this Defendant until during the performance of said operation when it became and was necessary to puncture the bladder, and it was done; but this Defendant denies that such puncture was either dangerous or uncommon, or that any injurious effects resulted therefrom.
The Defendant further denies that the said Mary has by reason of any negligence, unskillfulness, unwarrantable or unjustifiable treatment, as alleged, suffered any anguish, grief, pain or any injury of any kind whatsoever. Wherefore in consideration of the premises, the Complaint should be dismissed.

Here in this response to the complaint Cooper publicly and for the first time reveals Wooster's responsibility for the massive urinary retention which was the primary factor in the decision to perform a cesarean. Wooster, in his Journal article condemning Cooper for the operation, deceitfully made no mention of a distended bladder.

The trial opened on 22 November 1858 in the Fourth District Court of San Francisco before Judge John S. Hager, and closed some two and a half weeks later in early December. During this seventeen-day period, nine days were devoted to the questioning of a seemingly endless parade of professional and lay witnesses, and to other aspects of the trial. The proceedings were taken down verbatim in shorthand and, when the sessions extended into the evening as they sometimes did, the Court Reporter continued his recording by candlelight.

For their attorney, the Hodges first applied to Mr. J. S. Manchester who acted on their behalf for a brief period during which he learned that eighteen or twenty medical men were at the bottom of the prosecution, leading him to withdraw in disgust. Next the Hodges approached the eminent Colonel Baker who declined to represent them when he learned the nature of the case. Finally, unable to obtain an advocate from among the honorable barristers of the city, they retained as their chief attorney the notorious Judge A. M. Heslep. He was assisted by Ed. Stanly, Esq., a lawyer destitute of all claims to the title of gentleman. These are Cooper's observations about the plaintiffs' attorneys and are to be found in his notes.^[6]

For his advocates Cooper engaged three attorneys: "General" McDougall and Mr. Sharp (of the firm of McDougall and Sharp) and George Barstow.

James A. McDougall, Esq., (1817-1867) was one of the most learned and successful attorneys in the State and an admirable choice by Cooper to manage his defense. He was born in the State of New York in Albany County and received his basic education in the local Grammar School. At an early age he found a job on the laying of the first railroad in the State of New York - the track connecting Albany and Schenectady. Out of that experience grew his life-long interest in railroads and his later advocacy of the first transcontinental line.

Upon completion of the Albany line he decided to read for the law and with characteristic determination soon mastered the elements of the profession. In 1837, at the age of twenty he migrated to Pike County on the Illinois frontier in the farthest southwest corner of the State. There his natural talents enjoyed full rein and in 1842 he was elected Attorney General of Illinois, and reelected in 1844.

In 1849 he organized and led an expedition cross-country from Illinois to California. He promptly opened a law office in San Francisco and from the outset was recognized as a man with a future. After winning a number of important cases in court, he stood at the head of the California bar. Preeminence in the law soon led to political preferment. He was elected Attorney General of California on the Democratic ticket in 1850, and Representative to Congress in 1853. He declined to run for reelection to the Congress in 1955. Instead, he returned to the practice of law in San Francisco and to his avocation - championing construction of the western sector of the transcontinental railroad. During this period of temporary retirement from national politics, McDougall was engaged by Cooper to represent him in the Hodges suit.

In 1861 "the General," as he was called by his legal colleagues in deference to his service as Attorney General, returned to politics and was again elected to the Congress, this time as Senator from California.^[7]

George Barstow, Esq.(c. 1825-1883) was a native of New Hampshire. Although a junior member of Cooper's team, he conducted a major portion of the cross-examination for the defense. As a young man, his short stature and hardy physique earned him the sobriquet of "Little Ironsides." After education in the law and travels in Europe, he moved to Massachusetts. There he ran unsuccessfully as a Democrat for the state legislature and for Congress. He wrote a highly regarded History of New Hampshire which was published in 1852.

Barstow migrated to California in 1858 and shortly after his arrival was recommended to Cooper. Although the Hodges' lawsuit must have been among the first of Barstow's appearances in a California court, Cooper was so impressed with his forensic skills and breadth of learning. that he arranged Barstow's appointment as Professor of Forensic Medicine on the faculty of the new medical school then being organized. In recognition of Barstow's scholarly interests, he was chosen to give the Introductory Address when the school was inaugurated. Barstow served with distinction on the faculty until the school was temporarily suspended in 1864.^[8]

Barstow had more success in politics in California than he did in Massachusetts. As a Republican, he was elected Speaker of the 13th California State Assembly in 1862, the year in which Republican Governor Leland Stanford took office. Barstow was intensely patriotic and unreservedly opposed to slavery. When the California Assembly convened on January 6th he spoke earnestly of the menace to the Union of the black clouds of civil war that had gathered over the country since the first gun of the insurrection was fired against Fort Sumter on 12 April 1861.^[9]^[10]

During the trial neither Cooper nor Mrs. Hodges took the stand, and Mrs. Hodges never appeared in court.

Opening for the Plaintiffs by Mr. Heslep

The proceedings of the trial began with an Address for the Plaintiffs to the twelve Gentlemen of the Jury by Mr. Heslep in which he enlarged eloquently on the condemnation of Cooper's judgement, technique and integrity found in the Complaint. Surprisingly, and no doubt on recommendation of the cunning Wooster, he made a special point of ascribing the patient's preoperative urinary retention entirely to Cooper's neglect. He further stated that "the whole difficulty" could be attributed to Cooper's failure to assure evacuation of the bowels and bladder, resulting in such narrowing of the pelvic outlet as to make the labor complicated and dangerous. As for adhesions, he told the Jury, when they are the result of an unskillful operation as in this case, "hysteria must exist," rendering the life of the patient forever miserable and unhappy. As was foreshadowed in Wooster's Journal article on the cesarean, Heslep concluded his Address with a vicious attack on Cooper's character:^[11]

I here state the ground we shall assume from that important fact, - that this operation was performed willfully, wantonly and maliciously. It was performed for the purpose of making a reputation, or in the hope of so doing. It was unnecessary, improper, inhuman, brutal. It was the intention of the defendant to build up a reputation upon it, after the life of Mrs. Hodges had passed away. Dr. Cooper expected, as I believe, that Mrs. Hodges would die, and his object was to make capital out of having performed the Cesarean operation. Therefore it is, that in this aspect of the case, we have called the operation brutal, wanton and malicious. The facts carry us out in the deductions and conclusions which I have made. If the facts are as stated, then the damages cannot be measured, but you must assess them as the whole amount claimed, $25,000. There is no compensation for a life-time of misery.

Before continuing with the next phase of the trial, the calling of witnesses, let us reflect for a moment on the Complaint and on Judge Heslep's Address for the Plaintiffs. Although we have not presented these documents in full, it should be clear from the excerpts that they could not have been prepared except by a physician intimately familiar not only with the clinical aspects of the case but also with the distortions of events and decisions that would most discredit Cooper, and absolve Wooster of all responsibility. On the basis of this premise, we can reasonably conclude that Wooster drafted both documents and that he had now become the ringleader in a conspiracy to destroy Cooper by fair means or foul.

Prior to the trial, attorneys for the plaintiffs lined up eighteen witnesses. There were two women friends of Mrs. Hodges and sixteen prominent physicians including such now familiar figures as Ayres, Bertody, Bowie, Coit, Nuttal, Stout, and Toland. With this array of leading members of the San Francisco profession prepared to testify, all selected in the belief that their testimony would be favorable to the plaintiffs, there seemed to be little doubt, going in, that the Cooper forces would be easily routed.

Testimony by Dr. David Wooster

Wooster was the first witness to be called to the stand. Laying the groundwork for the plaintiffs' claims, Heslep methodically led Wooster through a full account of the Hodges' case (Wooster version, of course), details of which including the operative procedure we have previously covered. Wooster's testimony was intended to achieve several main objectives.

Foremost, Wooster sought to exonerate himself from any responsibility whatever for the patient's management. He emphasized that he was never in charge of the patient and that he merely served as a "watcher," "substitute," or "locum tenens" for Cooper who asked him to cover at nights because, according to Wooster, Cooper said that "if he was broken of his rest, he was subject of attacks in the head, of the nature of paralysis. He said that he would try and take as much care of the patient as he could in the day-time, and he requested me to make that condescension for a friend." Whatever Cooper may have expected of him, Wooster claimed that his only responsibility was to carry out Cooper's orders. He did not appear to have monitored the fetal heart rate or the urinary output, or to have administered any medicines except ergot and chloroform. There is no indication that he ever examined for fetal distress. He had only a general idea of when the baby died. Wooster's gross neglect of the patient during her labor is apparent in the following excerpts from his testimony as elicited by Heslep:^[12]

[Heslep]. I desire you Dr. to describe to the jury how far the labor had advanced at the time the operation was performed? In other words, state the situation of the head at the time the operation was performed?

[Wooster]. A space on the top of the child's head was presented, as large as the circle which might be described in the palm of my hand[visible just within the vaginal orifice]....

Q. Is there any particular name used to describe the portions through which the child had passed, and in which at the time of the operation it was situated?
A. Yes sir. The child had passed what is called the upper or superior strait, and was presented at the outlet of the inferior strait. It had passed the superior strait entirely....

Q. How long had the head of the child been in that situation before the operation was performed?
A. I said in my deposition, given a short time since, that I believed that it was forty-eight hours in that position. Then I was not positive; now I am positive that it was not so long.

Q. How long do you say it was now?
A. I think that it was a little less than twenty-four hours in that position.

Q. Was the child alive when it reached the lower strait?
A. I dont know; I did not examine particularly.

Q. Was it dead at the time the operation was performed?
A. Undoubtedly.

Q. In your judgement, how long had it been dead at that time?
A. I think about fifteen hours.

Q. You were in attendance from the night of the 8th up to the time the operation was performed on the 10th? Do I understand you right there?
A. Yes sir.

Q. During that period, was the bladder of Mrs. Hodges discharged or emptied?
A. Not to my knowledge.

By this line of questioning Heslep inadvertently demonstrated the total irresponsibility of his witness. A medical student with a copy of Churchill's Midwifery would as a matter of common concern for Mrs. Hodges' well-being have followed the course of her labor to far better purpose than the self-styled "watcher" in whom Cooper had placed his trust. To this judgement a later witness will attest.

Now Barstow pressed Wooster further, insisting that he try to recall whether he had carried out any other treatment aside from ergot and chloroform. Here is the exchange that followed:^[13]

[Wooster]. The only treatment Mrs. Hodges had, until the opera[t]ion was performed, consisted of ergot and chloroform. When that was commenced I don't know.

[Barstow]. Was there no variation?
A. None that I know of.

Q. Did you do anything more on the day of the 10th[the day of operation] than administer ergot?
A. I tried to introduce the catheter into the bladder, and draw off the urine.

Q. Well did you introduce the catheter?
A. I could not do so without using more force than I was willing to use on another man's patient....

Q. How late on the day of the 10th was the last attempt made to introduce the catheter?
A. I don't know that it was attempted on the tenth. It was attempted sometime on the 8th or 9th or 10th. I think that I told Dr. Cooper in the morning of the 10th that the bladder ought to be emptied. He replied that he thought that the process of labor would squeeze out enough to render the introduction of the catheter unnecessary.

The above evasive recital by Wooster on the subject of catheterization, a procedure about which a responsible physician would have had a very precise recollection, suggests not forgetfulness but fabrication. As we have already noted, Cooper claimed that prior to the operation Wooster assured him that he had catheterized the patient. Now in his court testimony Wooster "thinks" he informed Cooper before the operation that the bladder had not been emptied. On this question, we have Wooster's word against Cooper's. Given Wooster's manifest duplicity, we are persuaded to believe Cooper.

Throughout this testimony Cooper, sitting at his attorneys' table and facing Wooster who was on the stand, eyed his adversary with loathing and contempt. Cooper recalls the occasion:^[14]

We shall never forget the convulsive tremor which several times shook him, while, transfixed at his overwhelming falsehoods, we gazed upon him in utter astonishment. Never can we forget his cadaverous appearance, during one of these periods, when, in a fit of desperation, endeavoring to relieve himself from our look, he thrust out his arm, and holding up a finger, exclaimed: "If Dr. Cooper wants to look at anything, let him look at my finger," while he continued pointing at us for some time to the no little amusement of the spectators, and chagrin of his counsel, until finally he was permitted to take a seat with his back towards us, in which position he afterwards gave his evidence, whenever his sensibilities required it. We could have compelled him to let us look him in the face, while giving his testimony, had we been so disposed; because it is and has been a law in all civilized nations since the time of Lycurgus, that the "accused may confront the accuser," but we saw the future, and let him have his way. But in addition to this source of Dr. Wooster's embarrassment, he knew that he had either to ruin the cause of the prosecution, of which his testimony was the entire bulwark, or otherwise falsify under oath, statements which he had been constantly making for two months after the operation, as well as those which he had carefully written and published subsequently. . .

Here was the moment to unleash Barstow to accuse Wooster of lying about the catheterization, and to declare that it was Wooster's false statement in this regard which led to the diagnosis of twins and an unnecessary operation. But hold. Had not Cooper reported to the State Society that obstruction in the birth canal was the indication for the operation and had he not failed even to mention urinary retention and the misdiagnosis of twins? However noble his motive for withholding this information, as we have already explained it, Cooper's lack of candor in his paper before the State Society had swept the moral ground from under his feet. He could not challenge Wooster on this crucial aspect of the case without acknowledging that he had lied to the State Society about the circumstances that led to the cesarean operation. Cooper signaled Barstow to cease his line of questioning, which he abruptly did.

On resuming his cross-examination of the now sullen and defensive Wooster, Barstow hammered away at his credibility. During the weeks immediately following the cesarean section, Wooster boasted of his part in the procedure. He stated that the operation was necessary, skillfully performed and a great triumph of surgery. He referred pridefully to Mrs. Hodges as "my patient" and expressed high regard for Cooper as a surgeon and teacher. Barstow had the word of specific physicians (Grover, Sheldon, Rowell, and Williamson) that Wooster had indeed made such statements, and many more in like vein. Now, under oath, Wooster flatly denied that he had made these statements. Barstow insisted that he repeat each denial once over so that the Jury would surely not forget the shameless perjury of the plaintiffs' star witness.

In the final phase of the cross examination, Barstow called on Wooster to explain his sudden turn against Cooper in January 1858. He pressed for an explanation of Wooster's harsh editorial attacks upon Cooper in the Journal and required that the editorials be read aloud to the Jury. He asked Wooster whether he had anything to do with the attempt to expel Cooper from the State Society on the basis of complaints against him in an anonymous letter. Wooster denied complicity in the affair. Nevertheless, the probability of Wooster's collusion in the expulsion effort was by this question called to the Jury's attention. After all, it was well known that Trask, Wooster's associate editor on the Journal, had transcribed and delivered the anonymous letter to Dr. Stout, the State Society President. Barstow demanded that Wooster produce the caustic paper full of abusive epithets that he read before the State Society in rebuttal to Cooper's report on the cesarean operation. Wooster refused to produce the paper, saying "I think it is destroyed;" and when Barstow insisted that he at least tell the court what epithets were used, the insolence of his reply - "I cannot recollect the terms.".- was thinly veiled.

Growing impatient, Judge Hager intervened:

Judge Hager. Well, what do all these questions amount to?

Barstow. We intend to prove that there has been a conspiracy here, to break down Dr. Cooper.

When he concluded his cross-examination of Wooster, Barstow had not proven that a conspiracy against Cooper existed. Be that as it may, Wooster's evasive answers, obvious hostility and the treacherous attacks on Cooper at the State Medical Society, were sufficient to plant the suspicion of conspiracy in the minds of the Jurors, with further evidence to be added as the trial progressed.

Heslep, when he resumed his questioning of Wooster, turned to the allegation that the cesarean was unskillfully performed. Various technical aspects of the operation were ridiculed. For example, the abdomen was opened with a gross "zig-zag" slash of over a foot in length extending from pubis to well above the navel. Moreover, the incision was made with a "sharp-pointed convex-edged bistoury," said to be an inferior instrument for the purpose. Then there was the necessity to drain the bladder which "was distended to the size of a man's head," the implication being that Cooper had failed to assure its evacuation preoperatively. Finally, the wound in the uterus was closed with sutures to control bleeding, now normal practice but then considered unnecessary and inappropriate by "the authorities." According to Wooster, these and other technical deficiencies contributed to the adhesions which were the cause of the patient's disabling hysteria. By his leading questions Heslep escorted Wooster through every gory detail of the operation in order to impress the Jury with the enormity of the cesarean procedure. As an ultimate censure of Cooper, Wooster pronounced the operation completely unjustified because he had determined by his own measurements that the patient's pelvic and vaginal proportions were perfectly adequate for a normal delivery. "I find no malformation," he said, "either of the bones or the soft parts. I should think and say that Mrs. Hodges was a well formed woman."^[15]^[16]

The physician witnesses for the plaintiffs who followed Wooster to the stand were quizzed endlessly by Heslep and Stanly about pelvic anatomy, fetal positions, and methods of managing obstructed labor, including cesarean section. The plaintiffs' attorneys had prepared themselves thoroughly by studying three of the best known midwifery textbooks of the day, authored respectively by Churchill,^[17] Dewees^[18] and Ramsbotham.^[19] Large anatomical charts of the pelvic area were brought to the courtroom so that the stages of labor could be pointed out to the Jury. The attorneys particularly liked to engage the witnesses in technical repartee on pelvic measurements and fetal positions in order to extract their concurrence that Mrs. Hodges' pelvis was of ample proportions for a normal delivery, as Wooster now asserted. Throughout the trial there appeared to be general acceptance, as a baseline, that the risks and indications for cesarean section were about as stated by Churchill:^[20]

Mortality Rate: 75% (Based on the combined total of 43 cases reported from Britain and America.) Only one in four patients survived the operation.
Justification: "As the danger is greater than from any other operation. . ., in cases where we cannot deliver the patient by any other means, and when, consequently, both mother and child would inevitably die, if left unaided, we may afford each a chance by performing Caesarian section."

The plaintiffs' attorneys had three major objectives: (1) to discredit Cooper's claim, stated in his Report to the State Medical Society, that the cesarean section was necessary because of narrowing in the patient's birth canal; (2) to establish through the testimony of expert witnesses that delivery could and should have been accomplished by safer means than cesarean section; and (3) to convince the jury that Mrs. Hodges was suffering from disabling hysteria and related problems caused by abdominal adhesions from an ineptly performed cesarean section.

It is plain to see from this outline of the prosecution's strategy that Cooper's erroneous statement in his Report to the State Society that obstructed labor was the indication for the cesarean, and his failure even to mention the distended bladder and misdiagnosis of twins, placed him in a well-nigh indefensible position. Now, unless he could produce convincing evidence for pelvic obstruction at some level, the claim in his Report to the State Society that the operation was justified on that account would be demolished. Furthermore, to attempt now to clear himself by blaming Wooster and the patient's urinary retention for the fiasco would be inconsistent with his Report. Wooster was quick to recognize Cooper's vulnerability on the issue of his personal integrity and therefore was emboldened not only to attack him on this ground in a Journal article, but also to foment a malpractice suit against him.

Under the circumstances, Cooper had no option but to keep silent, not take the stand in his own defense, and trust that the arrogant Wooster would perjure himself. How apt the poet's words: "Oh, what a tangled web we weave, when first we practice to deceive."

Testimony by Dr. P. J. B. Dupuytren

When a chastened Wooster stepped down after one and a half days of grueling testimony, he was followed on the stand by Dr. Dupuytren, no doubt chosen as a witness for the luster of his family name rather than his eminence as an accoucheur. He was questioned by Mr. Heslep:^[21]

Heslep. State your name and occupation?
A. My name is Pigne J. B. Dupuytren, I am a physician and surgeon and accoucher, including all the branches of the profession.

Q. Where and when did you graduate?
A. I graduated in Edinburgh, in 1848.

Q. Did you pursue your studies on the continent?
A. I studied in Paris and Germany. I studied in the hospitals in Paris.

Q. You are a nephew of the celebrated surgeon Dupuytren are you not?
A. I am.

Q. State under what circumstances, in a case of pregnancy, the performance of the Caesarian section is required and justified?

Mr. Heslep tried in vain to get straightforward answers to this and other questions from Dupuytren who was quite talkative without being sufficiently definitive for the attorney's purpose. The doctor did, however, provide the following awesome intelligence gleaned from his Paris training:

In Paris that operation, the operation for the Caesarian section, has been performed perhaps - I don't know how many hundred times; perhaps a thousand times, and never succeeded, never succeeded.... On the contrary, I know perfectly well that that operation is very light and inoffensive in other countries. I was present in -----, in France, when this operation was performed the 7th time on the same wife, and the operation succeeded seven times. I know perfectly well that in some countries it has been performed eleven times on the same wife.

Dr. Dupuytren's marvelous statistics thoroughly negated his testimony and Mr. Heslep hastened to call more credible witnesses such as the meticulous Dr. Ayer.

Testimony by Dr. Washington Ayer

The testimony of Dr. Ayer was of a quite different order from that of Dupuytren, and was directly relevant to the issue of birth canal obstruction:^[22]

[Heslep]. When did you become acquainted with them[Mr. and Mrs. Hodges]?

[Ayer]. I first saw Mrs. Hodges professionally on the 5th of March 1857....[Note: A date consistent with an early stage of her pregnancy.]

Q. Have you been consulted by Mrs. Hodges in regard to her capacity of giving birth to a child? If so, state the time and circumstances of the consultation and examination.
A. The only time that I ever saw her she called upon me in March 1857, and stated that she believed she was pregnant, and she wished me to examine her, and tell her if pregnancy existed, and if it did to say whether she could be safely delivered. I made the examination and told her at that time that there was no certainty of pregnancy - a probability but not a certainty. I told her that if pregnancy did exist, there was nothing that I could detect which would prevent her from being safely delivered. I thought that there might be delay, but nothing to prevent safe delivery. I took the measurement of the pelvis. I have looked on my books since, and I find that the antero-posterior diameter of the upper strait was four inches and one sixth. . . I made a note also of the transverse diameter of the lower strait. It was between two inches and three-quarters and three inches. I could not give the measure certainly, but it was not less than two and three-quarter inches.[Note: These measurements are adequate for normal delivery according to Churchill.]

Q. Did she say anything to you about an operation that had been performed on her by Dr. Cooper?
A. In connection with this, she told me that an operation had been performed upon her by Dr. Cooper, as I understood for an occlusion of the vagina. I took advantage of the examination to see if there was likely to be any difficulty from this case. I found nothing in the vagina which led me to infer that that would produce any obstruction. There was nothing different from the ordinary form. The hard parts were too small (3 inches,) but still not so small but that a child could be delivered or born by the natural passage. She might need some assistance I thought, but still there was nothing to prevent the birth of a healthy child.

Q. Dr., what evidence of an operation at a former period, did you find, if any?
A. I found no trace of an operation..

Q. Did you examine her carefully?
A. Yes sir, I examined her with care. I did not know or understand precisely what had been done, and I took advantage of[the opportunity] to examine with my finger, and see if anything showed a hardness of the parts and I was unable to find any indication of an operation and, except from what she told me, I should never have known that any had been performed.

Q. State whether there was anything unusual in the structure of the vulva?
A. Nothing.

Q. No stricture?
A. No, sir....

Q. If there had been an occlusion of the vagina, it had been taken away so as to leave no cicatrix?
A. I could find no traces of any previous difficulty or obstruction; I think if there had been I should have detected it, though I can conceive it to be very possible that the vagina had been restored to a normal form, and no trace left.

As a friend of Dr. Cooper, we might expect any bias in the testimony of Dr. Ayer to be in Cooper's favor. On the contrary, Ayer's testimony provides evidence suggesting that there was no significant narrowing of Mrs. Hodges' birth canal at any level. Unfortunately Cooper himself, in an extensive apologia for his conduct of Mrs. Hodges' case, never once describes a prepartum vaginal examination or records pelvic measurements. Could he have simply assumed, without verifying it, that the vaginal stenosis which he relieved by the previous operation was associated with residual narrowing of the passage?

Testimony by Dr. H. H. Toland

Next to take the stand was the Dean of San Francisco surgery, Dr. H. H. Toland, impeccably conservative in dress, cool and aloof in demeanor, his responses to Heslep's questions brisk and authoritative:^[24]

Mr. Stanly. If a woman was taken in labor on the 8th of November 1857 at 8 o'clock in the evening, and on November the 9th at 11 P. M. the bag of water broke, and the head presented itself at the superior[inferior] strait, and things remaining in that condition on the 10th of November, labor not having advanced during the day, the color or the hair on the head of the foetus easily determinable, with an occipito-posterior presentation, what measures should be resorted to for the relief of the patient at that time?
[Toland]. I dont know of but one course to pursue? I should think that the forceps ought to have been applied.

[Heslep]. What next?
A. If you failed with the forceps, then craniotomy should be performed.

Q. State whether under any circumstances the operation of the Caesarian section was then warranted or justified. A. I don't think of a any circumstance which in that case would at all justify the operation.

Q. Now take this case: the child alive - would the Caesarian section be warranted or justified then?
A. If the child was living there would be no difficulty in delivering with the forceps, if the pelvis was of ordinary dimensions.

Q. State in your judgment, where the child has reached the lower strait, the head resting in the perinaeum, whether or not the very position of the child does not demonstrate the capacity of the pelvis?
A. I think it does. Where the pelvis is very small, it is impossible for the child to pass into the superior[lower] strait.

The subsequent physician witnesses for the plaintiffs were in general agreement with Toland that the cesarean section was not justified. As a result, the weight of their combined testimony against Cooper's decision to perform a cesarean section was highly significant. Because such testimony was repetitive, we shall quote very little of it. The strong disapproval of the cesarean by the plaintiffs' numerous expert witnesses placed Cooper in a most precarious position. We shall see how Barstow rose to his defense, and how some of the plaintiffs' own witnesses weakened the Hodges' case.

Returning to the interrogation of Toland, Barstow began the cross-examination and, in his relentless search for evidence of a cabal against Cooper, questioned Toland about his possible support of the Pacific Medical and Surgical Journal:^[23]

[Barstow]. Do you recollect an article published in the Medical and Surgical Journal last February, concerning Dr. Cooper?[Reference here is to the editorial in the February 1858 issue of the Journal announcing that communications from Cooper would no longer be accepted by the Journal.
A. I recollect the article.

Q. Do you know who furnished the money to carry on the Review at that time? (Objected to.)
A. No, sir, I don't know.

Q. Do you know the origin of that February article?
A. I know nothing about it.

Mr. Heslep. Well, if the Court pleases, we object to these questions. They are impertinent and altogether improper.

Q. Were you not on particular friendly terms with the editors and publishers? (Objected to.)
A. No, sir.

Q. Had you anything to do with furnishing the capital of that Medical Review.

Judge Hager. Supposing he had?

Mr. Heslep. We object to that question, to this whole series of interrogatories. All out of the way.

Barstow. Suppose it should appear that Dr. Toland acted in conjunction with Dr. Wooster, in the publication of that Review?

Toland. I did not - I had nothing to do with it.

Judge Hager. Well, he says he had nothing to do with it.

Mr. Barstow. We are satisfied.

Mr. Heslep. We are satisfied.

Judge Hager. Well, Dr., they are all satisfied with you, so you may go.

Cooper firmly believed that Toland provided funds for the Journal beginning with the 1858 February issue in which Wooster ran the editorial denying Cooper access to its pages. As we can see by the above testimony, Toland declared under oath that he was not financing the Journal. Then who did underwrite its publication when Cooper and Rowell ceased to do so in February? Toland was the main contributor of articles in the Journal during the next two years of its publication, being the author of over thirty communications in 1858 and over twenty in 1859. Except for Wooster, who was one of the editors, there was no other major source of papers. Therefore, In spite of Toland's denial of a financial interest in the Journal, the suspicion remains that he supported it with his purse as well as his pen. Certainly he was among the few who had the motivation and the resources to do so, thus securing to himself an outlet for his papers and to Wooster a pulpit for his diatribes against Cooper.

Testimony by Dr. R. K. Nuttal

Dr. Nuttal held diplomas in obstetrics from both the Royal College of Dublin and the London Lying-in-Hospital and was also separately licensed as a surgeon. Thus he was thoroughly grounded in the pragmatic, no-nonsense tradition of British medicine. We have already met him as the first physician to reach the side of the mortally wounded James King of William. In response to Mr. Heslep's now standard catechism on obstructed labor, Dr. Nuttal responded with a well-organized dissertation on the subject, delivered with self-assurance and avoidance of dogmatic statements. But when the attorney sought to extract from him criticism of Cooper's operative technique, Nuttall responded bluntly:

[Heslep]. In the performance of the Caesarian section ... what instrument should be used[in making the incision], and how ought it be used ?

[Nuttal]. ... I think that a good surgeon can act with any form of a knife that was ever made, provided it has a good edge upon it.

Mr. Heslep. Well I think that is the most sensible remark that has been made during the whole trial.

Judge Hager. Would you operate with a sharp axe?

Witness. An axe is not a knife, your Honor. I would not be afraid to undertake the operation with any form of a knife, if it has a good edge..

Q. Is there such an instrument as a bistoury?
A. There is.

Q. Is it not, or would it not be a dangerous instrument to use under such circumstances?
A. All operations are dangerous and a fool should not meddle with edged tools, but I cannot but believe that a good surgeon would make a good operation with any knife.

Q. Do you not think that there is at least a preference? Is not the bistoury more dangerous at such a time than a scalpel?
A. I think not. If the instrument is in the hands of a stupid ignoramus, it will very likely do harm; otherwise, whatever be its name, it will do good.

When Heslep opened up a line of questions about the state of the patient's bladder prior to the cesarean section, Nuttal again surprised him with some unwelcome comments:

[Heslep]. Before performing the operation, should any attention be given to the bladder?

A. In cases of protracted labor the gentleman left in charge of the patient, should see to the emptying of the bladder.

Q. Suppose the man was merely left as a locum tenens, would he then be authorized to perform such an act?

I should say he would have the authority, and it would be his duty; otherwise the principal physician might as well have left his umbrella, or hat, or stick in the room.

Mr. Heslep. That will do.

Barstow now took up the cross-examination of the witness.

Barstow. Dr., had you been left in charge of a patient, by another physician, would you have adopted means to have relieved the bladder?
A. Yes sir, certainly.

Q. If you had been left there at Mrs. Hodges on the 9th of November, would you have adopted means for her relief, as your judgment dictated?
A. Certainly. I don't imagine any physician would be left there as a mere umbrella.

Q. Is there any such a thing as a locum tenens? A person left temporarily in charge of a patient?
A. I continually have to do it.

Q. Is there such a thing as a man's being left in charge of a patient, with no responsibility, and nothing to do?

A. In that case I don't know what the man is left there for, unless he is very handsome and he is left for ornament. I should suppose that if a man, if he is full grown and has brains, was left at all, for an object, it is to be presumed that he will do right.

Q. State whether these facts in regard to physical condition, mentioned by the other side - hysteria, etc. - are not common with women who have not been delivered of children?
A. They are not very common in any case.

Q. Does it make any particular difference whether an operation has been performed or not? Take a case of nervous derangement, such as was described, is there anything in it peculiarly attributable to the Caesarian operation?

A. Well sir, the Caesarian operation has been repeatedly performed, without any of these symptoms following. Sometimes hysteria depends upon other causes.

Q. If any existed after such an operation as this, it would not absolutely follow that they were the effects of the operation, per se, would it?
A. I think not

Q. In regard to adhesion, I will ask you: Upon examination of the patient after the operation had been performed, could you determine the nature and locality of the adhesion?
A.I believe that in any case where the Caesarian section is performed, adhesions to a certain amount always do take place. As far as a man's capacity to know whether adhesions have taken place and where they have taken place, after an operation, and without previous knowledge of the case, I should reply that he might be able to ascertain as to whether the womb was fixed lower down in the abdominal parts. But I think you would have to get a spiritual physician to tell the precise locality of the adhesions.

Q. State as to whether any surgeon can say what operation ought or ought not to be performed, without seeing the patient?
A. His opinion will be only an approximate one. I don't think that any human being, however skillful, can say definitely what ought, or what ought not to be done, in a case he never laid eyes on.

Q. Then a man can form no valuable opinion of a case which he has never seen?
A. No man can form a just and complete opinion of the state of a patient, except by the use of his own individual faculties, his senses - his eyes, his ears, his sense of touch, etc. No other man's eyes can look for me; no other man's head can convey to my head the exact condition of the patient.

We have already outlined the strategy of the plaintiffs' attorneys. They were confident that their impressive train of expert witnesses, who were in general agreement that the cesarean was an egregious error, would override any doubts of the jurors and clinch the verdict in favor of their clients. Their further object was to appeal to the sympathies of the jurors on behalf of just compensation for a woman doomed to intractable post-cesarean hysteria. When they took the case Heslep and Stanly did not perceive, or they chose to ignore, the ulterior motives of the unprincipled Wooster who had involved his trusting patient in a scheme that had nothing to do with her welfare.

Barstow's plan of defense, or counter attack, was now emerging. He would avoid pointless wrangling over pelvic measurements and indications for cesarean section. Instead he would impeach the star witness, Wooster, on grounds of swearing to false statements. He would expose Wooster's gross incompetence in care of the patient during labor, and reveal his base motive for instigating the malpractice suit. He intended to show that many of the expert witnesses were biased against Dr. Cooper and their opinions therefore not objective. He would make the point, as he did in the interrogation of Dr. Nuttal, that expert witnesses who had not actually examined the patient were unreliable judges of the decision to operate. Finally, he would in due course call witnesses to testify that Mrs. Hodges made a good recovery from the operation and was pleased with the outcome until suborned by Wooster.

In the excerpts of testimony quoted so far we can discern the unfolding of Barstow's plan which we will now trace through the responses of additional witnesses.

Testimony by Dr. A. B. Stout

Heslep called Dr. Stout to the stand and began by leading him through the standard litany of questions on cesarean section put earlier to Toland and others.

[Heslep]. Dr., in the case stated, either with a living or a dead child, is there anything, which in your judgement would warrant or justify the Caesarian section?
[Stout]. Nothing whatever sir....

Q. In the case stated, so far as the position of the child is concerned, I will ask you now, in the exercise of reasonable and ordinary judgment, what professional deduction would follow from the position of the child, in reference to obstructions anywhere in the passage of the vagina or upper strait?
A. The deductions that would necessarily be drawn would be that there are no such obstructions; it is evident that if there were, the child had already passed them.

Q. In case you were called upon to perform the Caesarian section, what would you do in reference to the bladder and rectum?[Note: This question was for the purpose of inferring that Cooper was to blame for the patient's urinary retention at operation.]
A. I should prepare my patient for the operation by emptying the bladder of its contents, and also discharging the rectum.

Cross-examination conducted by:

Mr. Barstow. The opinions you have given Dr. are founded upon the details of the particular case[of cesarean section] that has been given you?

A. All except the last answer.

Q. If the circumstances were different from these stated to you, you would have different opinions?
A. Certainly I would.

Q. Dr., would not a person be better able to judge of a case if he saw it, than if it was merely reported to him?
A. Unquestionably.

Q. Dr. Stout, do you know Dr. Cooper?
A. I never speak to Dr. Cooper.

Q. Have you ever had a controversy with him?
A. I never had any controversy with him myself.

Q. Have you not spoken of Dr. Cooper frequently?
A. I have spoken of him occasionally.

Q. Do you belong to the Pathological Society?
A. Yes, sir.

Q. Have you not spoken of him as a "quack"?
A. It would be impossible for me to call him a quack, because he has a diploma.

Q. Have you not said that he was a quack, or a humbug?
A. I may have used that language towards him; I don't recollect. l have spoken very little of him.

Q. Have you not spoken censoriously of Dr. Cooper in the Pathological Society?
A. I have never spoken of him to the Society.

Q. Have you not censured and condemned his[cesarean] operation?
A. Yes. sir.

Q. Have you not stated that he ought to be indicted for manslaughter for performing certain operations?
A. Never.

Q. Have you not spoken of operations of his which proved successful, saying that if they had proved otherwise he would have been guilty of manslaughter?
A. I have once stated, that if the woman had died in this case, it would have been equivalent to murder.

Q. When did you say so?
A. Within this last week.

Q. What do you know about this operation?
A. I know what Dr. Cooper related in the paper read by him in the Medical Convention, and the comments made by Dr. Wooster in another paper.

Q. Did you hear Dr. Wooster's paper read?
A. Yes, sir, I was chairman of that Convention.

At this point Barstow shifted to Stout's role in the attempt to expel Cooper from the State Medical Society in 1858 on the basis of charges against him in an anonymous letter. He drew out all the details of Stout's irresponsible introduction of that unsigned letter into the agenda of the Society Meeting.

Heslep objected to the testimony as irrelevant. Barstow contended that it was important to show the bias of the witness. Then Judge Hager intervened:

Judge Hager. There has been a great deal of unnecessary evidence elicited by both sides. If this practice is continued, we shall not, in all probability, get through this term. Now, this Medical Convention difficulty has nothing whatever to do with this case. If the examination on your side[Barstow] is carried to the same extent we might as well discharge the jury here.

Heslep then resumed the questioning:

Heslep. As regards your feelings towards Dr. Cooper, are they of a personal or professional character?

[Stout]. I have said that they were professional in their character.

Q. Give us some reason why they were of a professional character?
A. Because from the time of the arrival of Dr. Cooper in San Francisco, I considered that he took steps towards the profession which were bold and assuming, and from that time other testimony came to my knowledge which lowered my estimation of Dr. Cooper's professional character. I consider his treatment of the profession, and his assumption, as contrary to the ethics of the profession.

Q. What were the acts of Dr. Cooper, which led you to distrust his professional character?
A. From the time Dr. Cooper arrived in this city, he circulated through the city, to most of the medical men, a card, inviting them to receive medical instruction - that he was going to give cliniques. Besides, he variously advertised himself in an unethical and unprofessional manner. It was that unethical conduct, and that alone, on which rested my disregard for Dr. Cooper, professionally. For that reason alone I opposed his nomination or election to an office (in the State Medical Society) in 1856 in Sacramento, and for that reason I have opposed him ever since. It was that kind of conduct on his part, which I have described, that made me consider that Dr. Cooper's course in California was one of assumption, and that is the only reason why I ever opposed him. Probably, for the same reason, I shall continue to hold the same feelings towards him, as long as I live.

Cross-examination resumed by--

Mr. Barstow. You say that Dr. Cooper "took steps which were bold and assuming, from the time he arrived here, which was contrary to the ethics of the profession, " etc.?

[Stout]. I do say so.

Q. How did he advertise himself?
A. By the cards which he circulated, professing himself to be a very great surgeon, and proposing to teach all the Doctors in the State.

Q. Well, what other means did he employ by way of advertising?
A. I cannot give any other myself - I have heard of other means.

Q. Did he say directly in his card, that he proposed to teach all the other Doctors in the State?
A. That was the inevitable inference - that he was competent to instruct them all in surgery, and would do so.

Q. Is there any difference between Dr. Cooper giving demonstrations and lectures, and anybody else doing the same?
A. I think his proposition was an unprofessional one.

Q. Has not any professional man a right to give lectures, if he can find an audience?
A. He may do that, without assuming to teach men as competent as himself, and perhaps much more so.

Q. Then you consider it "bold and assuming" and "contrary to the ethics of the profession," for a medical man to propose to give anatomical demonstrations and lectures?
A. No, sir. I believe that Dr. Cooper did not propose to give popular lectures; I believe he invited surgeons to visit his dissections.

Q. Is not Dr. Cooper the only one who dissects in this city?
A. I am inclined to think he is not.

Q. Who else?
A. I think I dissect a little myself, when I get an opportunity.

Q. Have you a dissecting room?
A. No sir, I never had one unless it was at the hospital.

There is more testimony from Dr. Stout but this is enough to expose the grounds for his hostility to Cooper, and that of the professional faction in San Francisco of which he and Wooster had become the most active elements. This self-anointed elite among the city's physicians had exhibited no interest in raising the standards of the profession by promoting scientific observations and continuing education, yet they were determined to extinguish the efforts of anyone outside their circle who endeavored to do so. The aggressive methods of the intruder from Peoria had offended their sensibilities and this malpractice trial was to be the final solution to his "bold and assuming" presence in their midst.

Testimony by Mrs. Elvira Pond

For evidence intended to impress the jury with the sad state of Mrs. Hodges' health since the cesarean, the plaintiffs' attorneys called two lay witnesses, Mrs. Elvira Pond and Mrs. Margaret Hosmer who were old friends of the patient. A short excerpt from the testimony of Mrs. Pond, in whose home Mrs. Hodges previously served as a governess, will suffice to provide a glimpse of the patient's alleged hysterical condition during the six months preceding the trial.

[Heslep]. How long have you known her[Mrs. Hodges]?

[Mrs. Pond]. I have known her for five years. . . She was in my father's family as a governess for some time, and I was in the habit of being with her day and night. She was in very good health at that time, I may say she was in perfect health.... I have lived in her family for the last (six months) and I have seen her at all times....

Q. What has been the condition of her health since you came to reside in her family?
A. She has been in very delicate health; she has had no health at all.

Q. Tell the jury how her health is affected?
A. Well, she has been and is in a very poor state of health. For the last six months she has not breakfasted with the family. She would not have been able to get up half the time, in season to come down to breakfast. She is always obliged to retire immediately after dinner. She is unable to attend to any of her domestic duties. Often times I have known her to be taken from the table by her husband, in convulsions of pain and agony.

Q. Describe where she has suffered pain, as near as you can?
A. Owing to the agony which she endures, she suffered so much from hysteria, as almost to amount to insanity.

Q. Where does she experience pain?
A. In that portion of her body where the operation was performed.

With the above responses of Mrs. Pond, we conclude our series of excerpts from the testimony of witnesses introduced by the plaintiffs' attorneys. Heslep and Stanly rested their case, doubtless confident of a favorable outcome for the Hodges.

Opening for the Defendant by Mr. Barstow

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."

[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?
A. She spoke of her wonderful escape from death; how happy she felt, and how gratified she was on account of the operation. She spoke of the great satisfaction Dr. Cooper had given her; she spoke highly of the operation and highly of him....

Q. When did you see her again after that?
A. Of course.

Q. When?
A. ...It might have been in February[1858]....
She said that Dr. Cooper could have used instruments and delivered the child, without resorting to the Caesarian operation. I told her that I looked upon her condition as better and far preferable to that of very many who had been operated upon otherwise. She did not seem to fall in with me on that point....
I told her that I thought that the Dr. had done the very best possible for her, and I would advise her not to say anything against the Dr. She said she would do all she could to injure him. She said she meant to do him all the harm she could; she meant to stop his practice if possible. She seemed very much exasperated indeed. That is all she said in reference to the Doctor.

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....
A. I can testify as to her appearance. She appeared to be very comfortable....
She appeared from all indications I could elsewhere[see], to be enjoying very good health. I remember that she went out doors to take her meals.

Q. How far did she go to take her meals?
A. She went the distance of a long block - to the end of it.

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:

[Stanly]. Do you remember her[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?
A. She sent for me.

Q. Was this before the child was taken out?
A. Oh no. I did not see her during her labor and for some time afterwards. I did not think that it was right for visitors to go and see her for the first few days after the operation, and I didn't go.

Q. How long after the operation was it before you visited her?
A. I should think that it was four or six weeks after the operation before I went to see her.

Q. How was she then.
A. She appeared in good spirits. She laughed, she talked, she drank some porter, she jested, and seemed to be in a good condition altogether.

Q. What did she say?
A. After I had been there a little while, she said she would like a drink of porter. I handed her a tumbler of it, and she drank it nearly all. Then she asked me if I would like to see the incision. I told her that I would. She showed it to me. I told her that I was very much astonished to see how it had healed, and how well it looked. It looked red, but perfectly healthy and well.

Q. When did you see her again?
A. Not for some weeks afterwards, and then she came out to the infirmary.

Q. Did she walk out?
A. It was rather early in the morning when she came. Dr. Cooper had gone out. It appears to me that it was about nine o'clock. I said that I was very much surprised to see her. I asked her how she came. She said that she had waited for an omnibus, but as she did not see any, she had walked the whole distance. I said: "You must be very tired." "Oh, no," she said, "I feel excellent - I feel excellent." "Why," said I, "I would not walk to your house; I am sure you didn't do right. I wish you to lay down and rest." I fixed her a comfortable bed on the sofa, but I could not get her to lay down. She seemed to feel too proud to lay down. In a few moments Dr. Cooper came in. He was very much pleased to see her, and she said she felt very well, indeed, and that she felt that she owed her life to him. She said: "Dr. Cooper, I could not stay away any longer. I had such a propensity to come here that I think I could have walked twice the distance." The Doctor told her that he did not expect to see her out so soon, and that she must be careful and not overstrain herself.

Q. Do you know whether she was engaged in teaching at that time?
A. No - not that day.

Q. When did you see her the next time?
A. The next time I saw her was a week, or perhaps two weeks, after the first visit. She came down to the infirmary, and it was early in the morning and I told her, I recollect, that she must rise very early, because it was not long since we had been at breakfast. She said: "I am going to give a lesson to a family. I called in at the place where I am teaching, and they were at breakfast, and I thought that I would just run down and see you." I asked her if she walked, and she said "Yes." I asked her what she gave lessons in. She said: "You know, Mrs. Roper, that there are a great many persons in this city of the mushroom quality. They came to California poor and ignorant, and as they have had good luck and made money they want to put on the finest airs. But they never learnt anything scarcely at home." She said that most of them were married ladies, and I supposed from what she said that this woman she was teaching was married. She said she gave lessons in reading and writing. I asked her if she was going to walk back? "Why?" she said, "I have no difficulty in walking at all."

Q. In this interview did she say anything about Dr. Cooper?
A. While she was there talking with me that morning, the Doctor came in. She looked up and said: "Oh! you dear man! How I do love you! You saved my life." I give her exact words, I dont use my language.

Mr. Stanly. 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 this 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?
A. Mrs. Hodges said: "I don't know of a man on the coast to whom I am so much indebted , or in whom I have so much confidence. Why, Doctor," said she, "I am indebted to you for my life. I am so grateful that I don't know how to express myself." The Doctor said that he was glad that she recovered so quick. He didn't appear to like much the way Mrs. Hodges endeared him.

Mr. Stanly. Of course not.

Mrs. 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:

Mr. 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.]
A. I always supposed her to be single.

Q. Where have you seen her?
A. I have seen her with Dr. Cooper, once at the Lyceum, and once with him at the Mechanic's Fair. She is frequently present at his operations.

Mr. 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.

[Barstow]. Did you call upon her[Mrs. Hodges] 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?
A. She told me it was a kind of [yellow] powder. She got a pint of gin at my store, and she say she take that with some powder. She told me the powder, but I forget what it was.

Q. Did she tell you what she took the powder for?...
A. She said she took the medicine so that she would not have that.

Q. Have what?

Mr. Heslep. O, the jury understand.

A Juryman. We understand....

Q. What is her appearance in regard to health, since the operation?
A. She has got good health; she is perfect well and fat. She told me, about two or three months ago, that she is so fat that she is ashamed. She is perfect well....

Judge Hager. Did you know Mrs. Hodges before she was confined?
A. Yes sir - three or four months before.

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. . .

[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?
A. I think I can see if a person is in health or not.

Q. Have you any other sign of Mrs. Hodges' health, except her looks and general appearance?
A. She looks perfect well, that's all I know.

Q. Have you had any experience in determining as to whether a person is in good or bad health?
A. I see a person look perfect well, and I think so.

Q. Was there not a large lump where she was cut?
A. No sir, no marks at all. It looked smooth, like a little cut on my hand.

Q. Were there no lumps or rough surfaces?
A. No sir. It was all nice and perfect smooth. You can hardly see it where it is cut.

Q. When did you see these wounds last?
A. I seen them after Christmas. It was about six or seven weeks after the operation. . . .

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.

[Barstow]. Have you been in the habit of seeing her[Mrs. Hodges] frequently during that time[the past two years]?

[Jacob Kriemer]. Yes, sir.

Q. Were you at her house at the time she was ill?
A. Yes, sir. I watched there 14 or 15 days after the operation.

Q. Did you see the wound upon her person?
A. Yes. sir....
She asked me to come up stairs one day. She said, "Mr. Kriemer, just come here; I want to show you my wound - how nice I get cured." I said I was very glad to hear it. She said, "Mr. Cooper do me great work, and Mrs. Kriemer do me good work." Then she opened her clothes outside and showed me her wound, it was pretty near healed.

Q. Was it grown together?
A. It was, it was.

Q. Did you observe whether there was anything rough in the appearance of it?....
A. I feel it healed up right smooth. Of course it was so; the woman herself say she feel it right straight smooth.

Q. Have you been in the habit of seeing Mrs. Hodges since that time?
A. I frequently goes up there, and she comes many times to my house.

Q. What has been her appearance as to health?
A. She very well, she say.

Q. Did she ever tell you about her being too fat?
A. About 4 or 6 months ago she come down to my store, and she say: "I been perfectly well. I'm most ashamed I get so fat." She asked me to feel of her arm, she was so fat.

Q. Was your wife present at that time?
A. Yes, sir.

Q. Have you seen her since?
A. I see her pass my house in the street.

Q. How often do you see her pass your house?
A. Most every week, twice or three times.

Q. How does she appear?
A. She appears pretty good.

Q. All the times you have seen her, did you notice how she was traveling?
A. I see her traveling nicely this week. I believe I saw her last Saturday on this week, on a milk dray. I think I see her with her brother taking a ride.

Q. Have you seen her on foot within the last 2 or 3 months?
A. I saw her this week; no, not this week - I saw her last Saturday.

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:

[Barstow]. Will you state Dr. 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 to 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 (Stanly's notes of Wooster, on the position of the child), can you determine from this, what operation ought or ought not to be performed.?
A. I cannot sir....

Q. State whether you have seen Mrs. Hodges repeatedly?
A. Yes, sir.

Q. What was her appearance as to health in that intercourse.
A. She appeared in perfect health. I have never seen her when I could have judged that she was in ill-health.

Q. Where have you seen her?
A. I have seen her walk in the streets repeatedly. I have seen her once on Stockton street, and several times on Washington street. Once I rode in the omnibus by her side. I have never seen anything in her carriage or countenance that exhibited bad health.

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:

Mr. Heslep. I recognize in the witness before me a good anatomist.

Witness[Cole]. Thank you.

Q. Now you and I will get along together.

Judge Hager. Well, proceed together in some form.

Mr. 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?
Cole. I am quite sure that no one could, for the reason that there has not been a sufficient detail of the case stated. . .

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.

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?
A. I am engaged in an enterprise of that kind.

Q. You hope to be one of the professors. Dr. Cooper is the chief man, isn't he?
A. No, sir; I don't know as his relations with the concern are any more intimate than my own.

Q. What are your relations now?
A. I am a lecturer now.

Q. Not in a professorship?
A. I am merely giving informal lectures at present.

(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:

Mr. Heslep. I wish to question this witness in regard to his views in regard to the obligations involved by the administration of an oath.

Mr. McDougal. What is the object?

Mr. Heslep. It is to determine the competency of the witness.

Mr. 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.

Mr. Stanly. Now, who's said anything about a church, Gen. McDougal?

Mr. 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.

Mr. 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:

[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?
A. Able surgeons might differ in such a case, and certainly they could not determine what ought to be done without seeing the case.

Q. Then take the case as given thus: (Stanly's notes of Wooster on the child's position,) what opinion could you give under such a statement?
A. I should be very unwilling to risk my reputation upon any act that I might recommend, without I saw the case myself. I don't think that any prudent man would be willing to give advice under such circumstances. It would be very unwarrantable advice to follow, unless he saw the case.

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."

[Barstow]. Do you recollect hearing him[Dr. Wooster] speak [in November or December 1857] of an operation for the Caesarian 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?

Mr. 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?
A. He did.

Q. Did he converse about the operation?
A. He did.

Q. Where was this?
A. It was 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?
A. A few days after the operation had been performed. I don't recollect precisely the number of days. . .

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?
A. I believe that was his language and that his reference, at one time....

Q. Have you had any other conversations since that time, Dr.?....
A.[After the published notice of the operation in the January 1858 issue of the Pacific Medical and Surgical Journal], Dr. Wooster spoke to me . . .and said that a more extensive notice should have been given of it, but modesty on his part forbade it, as he was connected with the case.

The Verdict

Here we conclude these highlights of the trial. The purpose of providing excerpts of testimony rather than a narrative account is to reveal the character of the witnesses in their own words. After seven days and 240 pages of preliminaries and testimony, the counsel for the plaintiffs and the counsel for the defense each made several hours of closing argument. Unfortunately for the annals of colorful rhetoric, and our knowledge of the specific questions they debated, no transcription of the final lengthy summation by the attorneys has been found.

Judge Hager's charge to the Gentlemen of the Jury was a masterful analysis of a complicated medical case He advised jurors that it was now their duty to examine the highly conflicting testimony and, where doctors disagree, they must decide. They must determine whether, as claimed by Doctor Cooper the defendant, he acted as a surgeon in the case, but not as an attending accoucheur; that he performed the cesarean operation as a surgeon; and that it was a necessary operation performed with a reasonable degree of learning, judgement and skill.

The Jury was supposed to retain in memory as a guide to their deliberations the relevant technical details of normal and abnormal pelvic measurements; stages of labor; passage of the head through upper and lower straits; positions of the head at delivery; and indications for use of instruments in delivery, including cesarean section. All this as expounded by expert witnesses who sharply disagreed. In view of these complexities, Judge Hager's further advice had an ironic tone:

A great deal of testimony has been introduced before you, but the greater portion has been from professional medical gentlemen who have been called as experts to give their opinion upon the facts presented before you, and upon such hypothetical propositions as have been presented by the counsel on either side.

You may not find the testimony as exact and uniform as you might wish; but whilst it may be a matter of regret that there is so much uncertainty in matters of science, and that there should be such a want of harmony among the members of a learned profession claimed to be scientific, you must if possible arrive at a verdict, and draw your conclusions as to facts from the testimony such as it is. . .

The jury then retired. After remaining out all night and a portion of the next day, the Court became satisfied they would not agree, and they were discharged. They stood, according to report: for plantiffs - six; for defendant - six.

The trial began on 22 November 1858 and concluded about eighteen days later on approximately 10 December.

Cooper was exonerated. The trial exposed the malice and hypocrisy of his professional enemies who shamelessly victimized a credulous but avaricious patient in their plot to destroy him. As Cooper himself wrote:^[25]

To prove that there was professional treachery and perjury of the blackest dye will be an easy matter but to prove the actual existence of a conspiracy may be somewhat more difficult though it is the only inference which can with any propriety be drawn from the facts of the case.

A conspiracy was never proven, but Wooster was unanimously charged by a Grand Jury of twenty-one citizens of San Francisco County with the crime of perjury for his testimony in the Hodges malpractice trial. He was summoned to court with an outcome to which we shall later refer. Meanwhile his vicious attacks continued unabated on Cooper who answered in kind while forging ahead with his projected medical school, the historic enterprise to which we shall now turn our attention.

Endnotes

Cooper-Hoges Malpractice Suit, Cooper's notes - Box 2, Folder 13, Elias Samuel Cooper Papers – MS 458, California Historical Society, North Baker Research Library
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 167-169 Lane Library catalog record
Illustration Face page of Proceedings in Malpractice Suit
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 9-10 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 251-253Lane Library catalog record
Cooper-Hoges Malpractice Suit, Cooper's notes - Box 2, Folder 13, Elias Samuel Cooper Papers – MS 458, California Historical Society, North Baker Research Library
Oscar T. Shuck , ed., Representative and Leading Men of the Pacific (San Francisco: Bacon and Company, Printers and Publishers, 1870), pp. 690-692 Lane Library catalog record
Charles F. Ritter and Jon L. Wakelyn , American Legislative Leaders, 1850-1910 (New York: Greenwood Press, 1939), p. 41
James D. Driscoll , California's Legislature (Sacramento: California State University, 1986), p. 184
Theodore H. Hittell , History of California, Vol. 4 (San Francisco: N. J. Stone and Company, 1897), pp. 292 and 303
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), p. 15 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), p. 17-18 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), p. 31 Lane Library catalog record
Elias S. Cooper , "Editorial from Editor's Table," San Francisco Medical Press 1, no. 2 (April 1860): 114 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), p. 51 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 23-28 Lane Library catalog record
Fleetwood Churchill , Theory and Practice of Midwifery, 2nd American Edition (Philadelphia: Lea and Blanchard, 1846), pp. 525
William P. Dewees , Compendious System of Midwifery, 11th edition (Philadelphia: Lea and Blanchard, 1847), pp. 562 Lane Library catalog record
Francis H. Ramsbotham , Principles and Practice of Obstetric Medicine and Surgery (London: John Churchill,1841), pp. 672 Lane Library catalog record
Fleetwood Churchill , Theory and Practice of Midwifery, 2nd American Edition (Philadelphia: Lea and Blanchard, 1846), pp. 370-371 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 53-54 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 66-68 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), p. 86 Lane Library catalog record
Proceedings in the Case for Damages for Alleged Mal-Practice in the Performance of the Caesarian Operation: Elkanah H. Hodges and Mary E.P. Hodges, plffs., vs. E.S. Cooper, defendant, tried in the Fourth District Court, San Francisco, John S. Hager, judge, November, 1858, (San Francisco, 1859), pp. 71-74 and 84-86 Lane Library catalog record
Lane Medical Archives, Stanford. E. S. Cooper Collection. File of California Historical Society Library. Folder: Miscellaneous (CHSL Box #2. Folder #13)