OF THE CONTRACTUAL RELATION BETWEEN PHYSICIAN AND PATIENT.
EMPLOYMENT AND RIGHTS IN REGARD TO COMPENSATION.
_Legal Character of the Employment._—Whatever may have been the
theories of the Roman civil law, and following it of the early English
common law, as to the character of the employment of physicians and
other professional men, it is now so well settled that the reciprocal
duties and obligations arising between physician and patient, or
attorney and client, and the like, are to be classed under and
governed by the law of contracts, that any extended discussion of
these theories is unnecessary here.[162] Mr. Ordronaux, in the second
chapter of his interesting work on the “Jurisprudence of Medicine,”
has considered them fully, and has quoted amply from the books of the
earlier and later text-writers, and from the expressions of the judges,
to show what these theories and rules were; and he and all later
authorities agree that the ancient notion, that professional services
are always gratuitous unless a special contract to pay for them is
made, has long been abandoned. He observes (pp. 13 and 14): “But in
our day the increase in the number of professional practitioners, and
their exclusive devotion to a special class of services as a means
of living, has essentially modified the practical character of the
contracts with their patrons. Although in legal acceptation a mandate,
yet from force of circumstances growing out of an altered state of
society, the _mandate_ is practically changed into a contract of hire
(_locatio operis_). _This doubtless reduces professions to the status
of artisanship_, and places them on a par with manual labor, conjoined
to the special skill of a particular calling. But it also simplifies
the contract, removes it from the category of innominate or imperfect
obligations, requiring the intervention of legal fictions to furnish
a means for their enforcement, and brings it within the pale of
consensual agreements based upon a sufficient consideration.”
The physician’s right to sue on contract in England was declared by
legislative enactment by Chap. 90 (Sec. 31), 21 and 22 Victoria. It has
never been denied in the United States. Adams _v._ Stephens, 26 Wend.,
451-455.
_Physicians’ and Surgeons’ Service in a Sense Voluntary._—Though it
is true, as in the case of many other doctrines of ancient law which
were formulated under social conditions far different from those which
prevail in modern times, that these rules and theories have long
since lost their potency as distinct rules governing actions at law,
nevertheless the legal aspect of the peculiar relationship between
physician and patient, is still affected by the idea that the service
on the part of the physician is voluntary—that is, the physician or
surgeon is not bound to come and perform services whenever or wherever
he is called. He is at liberty to refuse any and every patient who
attempts to employ him.
_Patients may Cease Employing at Any Time, unless there is a Contract
for a Certain Period._—And when he is employed, the patient may at any
moment discharge him, without incurring liability in damages, unless a
special contract has been entered into between them that the services
shall be rendered for a fixed period.
_Service once Begun by Physician must be Continued until Notice of
Intention to Cease is Given by Him._—If, however, the services are
begun, they must be continued until notice has been given of the
intention to discontinue them, and a reasonable time allowed the
patient to obtain the services of another person. The reasons for this
rule will be considered more fully below.
_Contracts either Express or Implied._—The contract between the
physician and patient may be an express one, that is, one in which all
the terms are agreed upon or _expressed_ between the parties, or it may
be what is called an implied contract, or one in which the patient, or
another person, simply calls on the physician or surgeon to come and
perform services, and neither party specifically stipulates or agrees
upon any of the terms of the employment.
_Express Contracts may Include any Stipulation Not Contrary to Public
Policy._—In the case of an express contract the agreement of the
parties settles and determines their mutual obligations, whether it
be written or merely verbal. But an express contract may also be made
in such a form that certain conditions are required to be performed
by the physician before he becomes entitled to any compensation for
his services. It may also embody an agreement that the patient shall
pay certain sums at certain times as the treatment goes on, or that no
other physicians shall be employed without the consent of the attending
physician, or if so employed that they shall be under the direction of
the attending physician.
Almost anything may be stipulated which is not contrary to public
policy, and a breach of any such stipulation entitles the aggrieved
party to rescind the contract and cease from performing it.[163]
_Qualifications of the Rule that Express Contracts may Include any
Stipulation._—Some qualifications of this rule of law must, however,
be noted. A breach by the patient of any one of these stipulations
would entitle the physician to treat the engagement as terminated like
any other contractual relation, and to bring his action for a recovery
for services rendered up to the time of the breach; but it is doubtful
whether he would have any action for damages for failure to permit him
to perform further services. This doubt arises from the legal doctrine,
hereinbefore referred to, that a patient is always at liberty to
dismiss his physician at any time without notice, and without assigning
any cause, which recognizes and grows out of the fact that if the trust
and confidence of the patient are destroyed, or impaired, no matter how
unreasonably or unjustly, the relation between them must thereafter
be unprofitable to both parties, and dangerous to the patient. On the
other hand there is little doubt but that whenever an express contract
is made by a physician to treat a patient for a certain length of time
for a particular disease or injury, the physician is not at liberty to
arbitrarily terminate that relation or his connection with the case,
unless he has in the contract specifically reserved the right so to do.
_Contracts Making Payment Contingent upon Successful Treatment
Valid._—The express contract between the parties may also contain a
stipulation, by which the physician makes his compensation contingent
upon his effecting a cure. Smith _v._ Hyde, 19 Vt., 54; Mack _v._
Kelly, 3 Ala., 387. See also Coughlin _v._ N. Y. Cen. R. R. Co., 71
N. Y., 443. In such a case, however, if the patient does not permit
the physician opportunity to treat him during the time named in the
contract, or for a reasonable time, if no specific time is fixed, the
courts would probably permit the physician to recover a reasonable
compensation for his services for the time during which he treated his
patient.
_Physician must Allow Reasonable Time to Supply his Place if he
Quits his Patient._—In any event, whether the contract be express
or implied, conditional or unconditional, the law through motives of
public policy, and with a just regard for the welfare of the sick and
injured, undoubtedly requires that if a physician has once taken charge
of a case, and determines to abandon it, he must give the patient
reasonable notice and reasonable opportunity to supply his place. If he
fails to do this he is liable in damages for the results that follow as
the proximate consequence of his abandoning the case.
_This Rule True even in the Case of a Charity Patient._—This is true,
it is believed, even when the patient is a charity patient, and the
services are gratuitous. Shiels _v._ Blackburn (1 H. Blacks., 159). For
any other rule less strict might entail the most serious consequences.
Ordronaux, “Jur. of Med.,” 13 and 14, citing Inst., lib. 3, 26, 11;
Pothier, “Du Contrat Mandat,” Chap. I., § 4.
ELEMENTS OF THE CONTRACT BETWEEN PHYSICIAN AND PATIENT.
_Duties of Physician._—When the relations between physician and
patient are not defined otherwise by express contract, the implied
contract is, and the law presumes, that the physician contracts, first,
to use the necessary care and attention; second, to use the necessary
skill; third, in case the physician furnishes his own medicines (and
the obligation to furnish them would probably be imposed, if it was the
custom of the school or class of physicians to which the particular
physician belonged to do so), that the medicines are proper and
suitable. As a corollary of these duties it necessarily follows, also,
that the physician contracts that the instruments or appliances which
he uses are free from taint or contagion, and are suitable and proper
for the uses to which they are put. Upon this theory an action could be
maintained against a physician for using impure vaccine.
_Duties of Patient._—The patient on his part contracts, first, to
give the physician information concerning the facts and circumstances
of the case, and full opportunity to treat him properly; second, to
obey his instructions and follow his directions, and, third, to pay
him the reasonable worth and value of his services. The different
branches of this contract are reciprocal. The failure of either party
to fulfil the obligation of any one of them which is imposed upon
him, would bar him of his remedies against the other party to recover
damages for any breach, or any proximate result of his breach, of
such obligations. The necessary care and attention required of the
physician in such a case are measured by the requirements of the case
and the physician’s duties to his other patients, modified, however,
by the rule that the physician is presumed to know, at the time he
takes up the case, the condition and situation of his other patients
at that time. Consequently, if those who have first employed him are
so situated at the time that his services for them are likely to be
soon and continuously required, he cannot without making himself liable
in damages undertake another case and then neglect it, but he should
either decline to take it, or should with the full knowledge and
consent of the patient make provision for the temporary substitution
of some other physician, during the time that his prior obligations
engross his attention. Nevertheless, if the situation and condition of
those to whom he has first contracted his services is such that he had,
although he exercised due professional knowledge and skill, no reason
to apprehend that these patients would need his exclusive service,
and by a sudden development, arising from those occult causes which
obtain in all serious diseases and injuries, any of his prior patients
suffer a sudden and dangerous relapse, or from an accession of new and
dangerous symptoms and conditions so that he must fly to their aid,
he would not be liable to another patient, to whom he had afterward
contracted his services, for neglecting his case; still he should in
such instances use extra means to obtain the services of some other and
equally skilful man.
_Only Ordinary and Usual Skill Required._—The degree and character
of necessary skill contracted for has been variously defined by the
courts. When malpractice is discussed, a more extended consideration
of this matter will be required. At present the doctrine laid down
in Shearman and Redfield on “Negligence,” paragraphs 433-435, may be
adopted. It is as follows:
“Although a physician or surgeon may doubtless by express contract
undertake to perform a cure absolutely, the law will not imply such
a contract from the mere employment of a physician. A physician is
not an insurer of a cure, and is not to be tried for the result of
his remedies. His only contract is to treat the case with reasonable
diligence and skill. If more than this is expected it must be expressly
stipulated for.... The general rule, therefore, is, that a medical
man, who attends for a fee, is liable for such want of ordinary care,
diligence or skill on his part as leads to the injury of his patient.
To render him liable, it is not enough that there has been a less
degree of skill than some other medical man might have shown, or a less
degree of care than even himself might have bestowed; nor is it enough
that he himself acknowledged some degree of want of care; there must
have been a want of competent and ordinary care and skill, and to such
a degree as to have led to a bad result.... But a professed physician
or surgeon is bound to use not only such skill as he has, but to have
a reasonable degree of skill. The law will not countenance quackery;
and although the law does not require the most thorough education or
the largest experience, it does require that an uneducated, ignorant
man shall not, under the pretence of being a well-qualified physician,
attempt recklessly and blindly to administer medicines or perform
surgical operations. If the practitioner, however, frankly informs his
patient of his want of skill, or the patient is in some other way fully
aware of it, the latter cannot complain of the lack of that which he
knew did not exist.”[164]
_Average Standard of Skill of any Professed School must be
Attained._—It is also a rule that one who professes to adhere to
a particular school must come up to its average standard, and must
be judged by its tests, and in the light of the present day. Thus a
physician who would practise the reckless and indiscriminate bleeding
which was in high repute not very many years ago, or should shut up
a patient in fever and deny all cooling drinks, would doubtless find
the old practice a poor excuse for his imbecility. So, if a professed
homœopathist should violate all the canons of homœopathy, he would
be bound to show some very good reasons for his conduct, if it was
attended with injurious effects. Upon many points of medical and
surgical practice all of the schools are agreed, and indeed common
sense and universal experience prescribe some invariable rules, to
violate which may generally be called gross negligence. Yet the patient
cannot justly complain if he gets only that quality and kind of service
for which he bargains. If he employs a cheap man, he must expect cheap
service. Puffendorf, in his “Law of Nature and Nations,” observes:
“We read a pleasant story of a man who had sore eyes and came to a
horse-doctor for relief. The doctor anointed his eyes with the same
ointment he used among his horses, upon which the man falls blind,
and the cause is brought before the judge, who acquits the physician.
For if the fellow, says he, had not been an ass he had never applied
himself to a horse-doctor.” See also Jones on Bailments, 100; 1 Field’s
“Lawyers’ Briefs,” sub. Bailments, Sec. 573; Musser _v._ Chase, 29 Ohio
St., 577; Lanphier _v._ Phipos, 8 Carr. & Payne, 478.
_Degree of Care and Skill Used a Question of Fact._—In an action
at law, whether brought by a physician to recover for his services,
or by a patient to recover for malpractice or neglect, it is always
a question of fact, to be determined by the jury under proper
instructions as to the measure of care and skill required, whether or
not the physician has in a given case used that degree of care and
displayed that amount of skill which might reasonably be expected of a
man of ordinary ability and professional skill. These same rules apply
to the surgeon. He must possess and exercise that degree of knowledge
and sense which the leading authorities have announced, as a result of
their researches and experiments up to the time, or within a reasonable
time before, the issue or question to be determined is made.[165]
_Rule in Leading Case of Lanphier v. Phipos._—In the case of Lanphier
_v._ Phipos, 8 C. & P., 478, already cited, Chief Justice Tyndall
enunciated the rule as to the degree of skill required of a physician
or surgeon, which has been followed by all the courts since then. He
said: “Every person who enters into a learned profession undertakes to
bring to the exercise of it a reasonable degree of care and skill. He
does not, if he is an attorney, undertake at all events to gain the
cause, nor does a surgeon undertake that he will perform a cure; nor
does the latter undertake to use the highest possible degree of skill,
as there may be persons of higher education and greater advantages
than himself; but he undertakes to bring a fair, reasonable and
competent degree of skill. And in an action against him by a patient,
the question for the jury is whether the injury complained of must be
referred to a want of proper degree of skill and care in the defendant,
or not. Hence he is never presumed to engage for extraordinary skill,
or for extraordinary diligence and care. As a general rule, he who
undertakes for a reward to perform any work is bound to use a degree
of diligence, attention and skill, adequate to the performance of his
undertaking; that is, to do it according to the rules of the art;
_spondet peritiam artis_. And the degree of skill arises in proportion
to the value and delicacy of the operation. But he is in no case
required to have more than ordinary skill, for he does not engage for
more.”
_Physician Must Instruct Patient how to Care for Himself, etc._—A
corollary of these rules is, that the physician must give proper
instruction to his patient how to take care of himself, how to manage a
diseased or injured member, when and how to take any medicines that may
be prescribed, what diet to adopt, and that in case the physician fails
to give these instructions he is liable for any injuries that result
from this failure. Carpenter _v._ Blake, _supra_.
_Patient Must Inform Physician Fully Concerning his Case—His
Communications Privileged._—On the other hand, as we have already
stated, the patient owes the duty to his physician of informing him
fully of all the varied symptoms of his disease, or the circumstances
attending his injury, and to freely and with due confidence answer
all questions concerning his past history which would tend to throw
any light upon his present condition. To battle with the occult
forces which play so important a part in determining the course or
consequences of disease, it is absolutely essential that the physician
should know all that is possible to be known of the patient’s history,
and of the history of the patient’s family. As we shall see later on,
all such communications are, in most of the States of the Union and
elsewhere, by statutory enactment made privileged, and without the
consent of the patient the physician or surgeon is absolutely forbidden
to divulge any communication or information which he receives in order
to enable him to prescribe. This rule applies equally whether the
physician or surgeon is acting for hire or is treating the person as a
charity patient, and it has been extended by construction by the courts
in some States, so as to include examinations made by jail physicians
or other physicians sent by the prosecuting officials of the State to
examine a prisoner, for purpose of giving evidence, but who allowed
the prisoner to suppose that they were there simply to treat him in
their professional capacity. People _v._ Murphy, 101 N. Y., 126. At
the same time the courts have been careful to make an exception in the
case of advice given for the purpose of enabling the person receiving
the advice to commit a crime, and of any information received by the
physicians while the persons asking for it were engaged in a criminal
attempt. All of these interesting questions will be examined and
treated of at length hereafter.[166]
_Conditions of Contract Between Physician and Patient Further
Considered._—It has been observed that the contract between the
physician and patient may be conditional or unconditional. By this it
is meant that limitations upon the reciprocal obligations between them
may be imposed, or extensions of such obligations made, by special
agreement. The physician may contract to cure, and may make the cure
a condition precedent to receiving any reward for his services or
medicaments, and a breach of such a contract will be enforced by
the courts as a bar to an action for services rendered or medicines
furnished. The patient may agree to come to the physician’s home or to
a hospital or other place agreed upon between them, for the purpose of
being treated, or of being operated upon by a surgeon, and a failure
to perform such an agreement on the part of the patient absolves the
medical man from carrying out his agreement to treat the patient.
In the case already suggested of a request by the medical man for
information as to the patient’s past history, or that of the patient’s
family, or the circumstances concerning the injury or symptoms of
the disease, if the patient should give false information, or should
wilfully neglect to give true information, the physician would have a
right, upon giving reasonable and due notice, and opportunity to employ
some one else, as already intimated, to decline to proceed further with
his care of the case, and might sue and recover pay for the services
rendered.
_Physicians Cannot Contract that they shall Not be Responsible for
Want of Ordinary Care and Skill._—An important and salutary exception
to the general rule that all parties may contract freely as between
themselves stipulations measuring their reciprocal obligations,
doubtless applies to the relations between physician and patient.
It is an exception which has been applied to the contract relations
existing between a common carrier and a shipper or a passenger. This is
that persons contracting to perform services which are to a certain
extent public in their nature, and which, as in the case of the common
carrier or in the case of the physician or surgeon, are founded
upon conventional relations, and affect the public welfare, are not
permitted, from reasons of public policy, to contract for a release or
escape from liability arising out of their own negligence or wrong. In
short, a physician or surgeon cannot contract with a patient that the
patient shall waive any claim for damages growing out of his want of
ordinary care and skill. Nevertheless, the physician or surgeon may
frankly inform his patient of his want of knowledge and experience as
to the particular kind of treatment required by any special and unusual
disease or injury. If after full information on this point, and full
opportunity to employ some one else, the patient insists that the
physician or surgeon go on with such treatment as he is able to give
to the case, and injuries result which a more skilful and experienced
practitioner might have avoided, it is probable that the courts would
hold that the practitioner was not liable under such circumstances,
or that such circumstances could be pleaded in mitigation of damages.
But it would be the duty of the practitioner in such a case to be
exceedingly careful in performing any surgical operations, and not
administer any powerful drugs with the strength and medicinal qualities
of which he was not acquainted. If he should assume to perform such
operations or administer such drugs instead of confining himself to
modifying the ravages of disease by the use of well-known simple
remedies, or protecting against the consequences of severe injury by
the use of ordinary antiseptic dressings and treatment, he would no
doubt be liable for any resulting damage, and could not recover pay for
his service.
_Experiments Not to be Tried on Patients—This Rule Applies to Charity
Patients._—For like reasons of public policy it has been held that a
physician has no right to try experiments on his patient.[167] In this
respect a charity patient will be protected by law and compensated for
damages received from experiments on his health and person, just as
much as a person from whom a large fee could be expected. Humanity and
public policy both forbid that experiments should be tried upon one
class of patients any more than another. However this may be, in a
case of extreme danger, where other resorts have failed and everything
else done that could reasonably be required, and if the patient and
his family consent after full information of the dangerous character
of the operation, or the unknown qualities and powers of the drug to
be administered, the practitioner would be justified and protected if
some new methods of treatment not entirely developed or known to the
profession, but supposed to be efficacious, should be adopted, although
the result might prove unfavorable. In such a case, however, it would
be extremely perilous for the physician to stand upon his own judgment
alone. He should consult the best talent in his profession available,
and abide by the judgment of his colleagues or a fair majority of them;
and even then should apply to his course of action the maxim. When in
doubt run no risks; better let a patient perish from disease or injury,
than while attempting uncertain experiments with the surgeon’s knife
or the use of dangerous drugs. The safe rule is to take no chances,
unless there is a consensus of judgment of several physicians. It
may be objected that if no experiments are tried no new medicines or
surgical devices could be discovered, or their effects observed. The
answer to this objection is that vivisection, and other experiments
upon live animals, permit of experimentation to a considerable degree,
and often effectually point out the proper course of treatment of the
human subjects. In the case of drugs and medicines the practice is well
known of physicians trying the effects thereof upon their own persons,
in their zeal and anxiety to give to the world new discoveries. But,
as heretofore observed, the law does not recognize the right of the
medical or surgical practitioner to tamper with his patients’ health by
the use of untried experiments, without imposing upon the practitioner
liability for all injuries proximately resulting from their use. All
of such matters will, however, fall more properly under consideration
when the liability of the physician and surgeon for malpractice is
considered.