OF THE LEGAL RIGHT OF PHYSICIANS AND SURGEONS TO RECOVER COMPENSATION
FOR SERVICES.
_Liability to Pay for Services._—An important matter for physicians
and surgeons is the question as to who is responsible, or liable to pay
for their services. If there is an express contract this question does
not arise; but in most instances the person performing the services
renders them upon call, and it is necessary for him to understand his
legal right to recover pay for services in the absence of an express
contract.
_Person Treated, and not Person calling in Physician, Employs Him
and is Liable._—In the first place, it must be stated as a general
proposition that the person for whom the services are actually
rendered, or upon whom the operation is performed, is bound to pay for
them, if otherwise capable in law of making contracts and incurring
obligations. And secondly, that one who calls a physician or surgeon
to attend a patient is not presumed to have contracted to pay for the
services rendered, unless his relations with the patient are such that
he would be obligated in law to pay, even if he had not himself called
in the medical man.
In the first case it is presumed that the patient is liable, because he
receives the benefit of the services, and nothing less than a distinct
understanding that he was not to pay will relieve him from this
obligation.
_Married Women and Infants Generally Not Liable._—Where such a person
is a married woman, unless the case arises in States or countries
where married women have been declared by statutes to be liable
the same as if single, this rule does not obtain. Nor is an infant
personally liable when he is living with his parent or guardian. Hull
_v._ Connelly, 3 McCord (S. C.), 6; Klein _v._ La Amoreaux, 2 Paige
Ch., 419; Atchinson _v._ Bruff, 50 Barb., 384; Wilcox _v._ Smith, 26
Barb., 341. But the contract of an infant for medicine and medical
attendance is deemed a contract for necessaries, and will be held
valid and enforced against his estate if there is no person standing
_in loco parentis_ who can be held liable. 3 Barn. & Cress., 484; 2
Kent Com., 236. In cases when the parent of the infant or the husband
of the married woman is liable, this liability obtains because the
services rendered are deemed necessary, and fall within the common-law
obligation of such persons to provide and pay for necessaries for those
whom they are bound to support and maintain.
_Burden upon Physicians Treating Minors to Show Services
Necessary._—But even in such cases the burden is upon the person
performing the services, to show that they were necessary, and it is
his duty to know, or learn, the true legal status of the patient, and
the true legal relations of the patient to the person other than the
patient from whom payment is to be claimed. As said in the case of
Crain _v._ Baudouin (55 N. Y., 256-261), “in the case of minor children
even, the law imposes this duty upon those who would furnish them with
necessaries, relying upon the credit of their fathers, and seeking
to charge them. (Hunt _v._ Thompson, 3 Scam., 179; Van Valkinburgh
_v._ Watson, 13 J. R., 480).” “_A fortiori_, it is so in the case of
an adult married daughter living with her husband.” And as to the
liability of the husband of a married woman in the absence of statute
giving her legal capacity to contract and charge her separate estate.
Consult Moody _v._ Osgood, 50 Barb., 628; Potter _v._ Virgil, 67 Barb.,
578; Crain _v._ Baudouin, 55 N. Y., 256-261.
_Mother of Infant probably Liable after Father’s Death._—It has been
a much disputed question whether after the father’s death the mother
becomes responsible for necessaries furnished for her minor children.
The theory of law upon which a father is made liable proceeds upon the
ground that he is bound to support the child and has a right to the
child’s services during its minority.[168] It has been held that the
mother after the death of the father is entitled to those services.
Campbell _v._ Campbell, 3 Stock. (N. J.), 265; Cain _v._ Dewitt, 8
Iowa, 116; Furman _v._ Van Size, 56 N. Y., 435-439, disapproving
Bentley _v._ Richtmeyer (4 Comstock, 38), and approving _In re_ Ryder,
11 Paige, 185. If she is entitled to the services of her child, she
must be bound to support and care for it; and so it was held in Furman
_v._ Van Size cited above.
_Estates of Insane Persons Liable in a Proper Case._—Persons of
unsound mind are liable for necessaries furnished for their benefit,
and can be made to pay therefor at reasonable and proper rates, but
they cannot make contracts for a specific rate. It is always a question
of fact as to what sum should be charged against their estates, if they
have any.
_Master Not Liable for Services Rendered Servant without Special
Contract._—In the case of master and servant, while at common law as
between a master and servant the master was bound to provide medicine
and food for the servant when the servant was an inmate of the master’s
house, this is an obligation which a third person could not enforce,
and the master can only be held liable for services rendered to the
servant, upon proof of a specific contract with him to pay for them.
_Case of Crain v. Baudouin Considered._—The case of Crain _v._
Baudouin, _supra_, affords an interesting discussion before the
highest court of New York State, as to the question as to how far a
father calling a physician for an adult child for whom he is not bound
to provide, although lying sick at the father’s house, can be held
liable for the services rendered upon such call. In that case the
plaintiff attended as a physician upon the daughter of the defendant,
who was sick at his house. The daughter was of full age, married and
living with her husband, but was brought from that of her husband to
that of her father in order that she might be under the care of her
mother. Defendant was present when plaintiff made his calls, gave the
latter a history of the patient’s illness, and received directions
as to her treatment. He told others of the frequency and length of
the plaintiff’s visits, and of his opinion of the case, without any
disclaimer of liability. The Court held, however, that these facts
were insufficient to imply a promise on the father’s part to pay
for the services, and that the additional facts that the defendant
consented to the calling in of a consulting physician, and that a bill
was sent in by the plaintiff, unless acknowledged and acquiesced in by
defendant, or that he had before this employed other physicians, were
also insufficient to raise an implication of law of such a promise
to pay. The plaintiff relied in his argument upon the fact that the
patient was a daughter of the defendant, but the Court held that any
presumption which might arise from this had the daughter been under
age, was overcome by the fact that she was past a majority, and was
married and lived with her husband and children. The plaintiff also
relied to support his cause of action upon the interest exhibited
by the defendant in the course of treatment pursued, and the other
facts as to the presence of the defendant when the plaintiff made
his professional calls alone and in consultation; his receiving
directions as to treatment; his recognition to others of the fact that
the plaintiff was in attendance; his reciting to others a knowledge
of the frequency and length of the visits of plaintiff without any
disclaimer on the part of the defendant of liability. The Court said
as to these facts: “It is true that particular acts will sometimes
give rise to particular obligations, duties and liabilities. But the
party whose acts are thus to affect him must be in such predicament
as that those acts have, of legal necessity, a significance attached
to them, at the time, which he may not afterward repel.... It has
been held that a special request by a father to a physician to attend
upon his son, then of full age but lying sick at the father’s house,
raised no implied promise on the part of the father to pay for the
services rendered.” See Boyd _v._ Sappington, 4 Watts (Pa.), 247; and
so in Veitch _v._ Russell, 3 Ad. & Ell. (N. S.), 927, it is said:
“A physician attends in every case on request; that fact alone is
not enough for the inference of a special contract;” and see Sellen
_v._ Norman, 4 Carr. & P., 284. Still less where there has been no
special request by the father to the physician, and no more than
acquiescence in his calls. As it would be unnatural for the parent
of an invalid child, though legally emancipated, or for an intimate
and confidential friend of hers, not to know the rise and course of
her malady, not to be interested in the state of it as disclosed at
any time to skilled inspection, not to be so anxious as to be in
waiting when scientific skill was to be applied for its cure, not to
be ready to receive directions for treatment in the intervals; so it
is not to be implied in the one case more than in the other that,
from these manifestations, because unaccompanied with an express
repudiation of liability, a liability may be implied. They are to be
referred to natural affection and friendly sympathy, rather than to
an acquiescence in the rendition of a personal benefit, or counted as
acts done under a sense of legal obligation.” The Court further said
that “even if it should be assumed that the usage exists that the
physician called to consult with him who is in attendance, with the
consent of the person who has employed the latter, is in contemplation
of law in the hire of that person, still the assent of the defendant
to the calling in of the consulting physician, and his expression of
desire to be present when he came—until he is shown to have employed
the plaintiff—is a basis too weak for an implication of law, that
he promised to pay his consultation fees. Still less it is a fact
from which to imply a promise to pay the plaintiff.” This case is,
however, close to the border line, and it may be well criticised
and denied its apparent full weight of authority, notwithstanding
the very great learning and ability of the learned Judge Folger,
who wrote the opinion, upon the ground that it appears that the
father had as a witness expressly denied calling in the plaintiff or
authorizing anybody to call him in, or authorizing the employment of a
consulting physician, and that on the trial the Court had found upon
the whole testimony in the case that the defendant had never employed
the plaintiff. Taking the decision as a whole it cannot be regarded
as determining that upon such a set of circumstances as is there
disclosed, the father could not in any event have been held liable,
but rather that the trial court having found upon the whole testimony
that the defendant was not liable, having witnesses before it fully
able to judge of their capability, the appellate court could not say
as a matter of law that a finding in favor of the defendant should be
overruled. This case is considered here at some length chiefly for
the purpose of affording an illustration to physicians and surgeons
which will suggest to them the advisability of care in ascertaining in
all cases who is responsible for their charge for services. See also
Bradley _v._ Dodge, 45 How Pr. (N.Y.), 57; Smith _v._ Riddick, 5 Jones
(N. C.), 42.
LIABILITY OF THIRD PERSONS CALLING A PHYSICIAN—GENERAL RULE.
As to liability for services rendered, when the medical man is called
by one person to attend another, it may be stated as a general rule
that in order to create such a liability it must appear that the person
calling either actually intended to become responsible, or acted in
such a manner that the physician was led to suppose that he so intended.
_Liability of Railway Company Calling Physician in Case of Accident
to Employees, etc._—Another more troublesome question has arisen
where physicians and surgeons have been called in by employees of a
railway company in case of sudden accident or injury. In one case in
New York, the Superior Court of New York City held, that although the
general superintendent of a railroad company testified that he had
general authority to hire and discharge men, and that he had employed a
physician, the railroad company was not liable.[169]
This doctrine seems to be opposed to the weight of authority. See
cases collated in Vol. 18, “Am. and Eng. Cyclopædia of Law,” p. 434
_et seq._, some of which are: Toledo, etc., R. R. Co. _v._ Rodrigues,
47 Ill., 188; Same _v._ Prince, 50 Ill., 26; Indianapolis, etc., R. R.
_v._ Morris, 67 Ill., 295; Cairo, etc., R. R. Co. _v._ Mahoney, 82
Ill., 73; Atchison, etc., R. R. _v._ Beecher, 24 Kansas, 228.
_Same Rule does Not Prevail in United States in Case of Accidents to
Passengers._—The cases just noted were all cases of employees. In
the cases of injured passengers it has been doubted whether the same
rule applied, some State courts holding that in that case there is no
obligation to furnish medical and surgical attendance, but that the
physician attending must look to the persons whom they attended. Union
Pacific R. R. Co. _v._ Beatty, 35 Kansas, 265; Brown _v._ Missouri, 67
Missouri, 122.
_Different in England._—In England a different rule prevails—one
more humane and in consonance with the moral obligation imposed by
the relationship of the parties. In Walker _v._ The Great Western
R. R. Co., a recent case (Law Reports, 2 Exch., 228), Chief-Justice
Kelley, in the course of the argument, made this remark: “Must a board
be convened before a man who has his legs broken can have medical
attendance?”
But in Cox _v._ The Midland Counties R. R. Co. (3 Wellsby, H. &
G., 268), the station master, employed as the chief officer of the
passenger and other departments, called in a surgeon to perform an
operation upon a passenger injured by a train. The road was held not
liable.
On the other hand, in Langan _v._ Great Western R. R. Co. (30 Law
Times, N. S., 173), a sub-inspector of railway police was held to have
implied power to employ a surgeon for an injured employee. But in
Arkansas an attorney for a railroad company was held not authorized to
do so. St. Louis, etc., R. R. Co. _v._ Hoover, 53 Ark., 377.
_Doctrine in Indiana the More Sensible One._—The more sensible
doctrine seems to be established in this country, in the State of
Indiana at least, in the case of Terre Haute R. R. Co. _v._ McMurray
(98 Ind., 358), in which the Court held that where there was great
necessity for the employment of a surgeon, the conductor of a train
has authority to employ the surgeon, if the conductor is the highest
officer in rank on the ground at the time. But in that case the Court
expressly states that this liability grows out of the exigencies of
the case; not out of any theory of general authority.
_Authority of Railroad Physician to Employ Nurses, etc.,
Doubtful._—It has also been disputed whether the authority of the
company’s physician extended far enough to render the company liable
for services performed by nurses employed by him, or for board and
lodging engaged by him for injured employees. In Bingham _v._ Chicago,
etc., R. R. Co. (79 Iowa, 534), it was held that the authority was
sufficient, but in that case testimony appeared tending to show that
an agent of the company who had authority to employ the physician had
authorized him to employ two nurses. The converse doctrine—namely,
that the fact that a physician of the company was authorized to
buy medicines on the credit of the company does not authorize the
inference that he has power to render the company liable by a contract
for board and nursing of a person injured on the company’s road—was
held in Maber _v._ The Chicago, etc., R. R. Co., 75 Missouri, 495;
Brown _v._ The Missouri R. R., 67 Missouri, 122. To the same effect,
see Louisville, etc., R. R. Co. _v._ McVeigh, 98 Ind., 391; Cooper
_v._ N. Y. C. & C., 6 Hun, 276; and St. Louis, etc., R. R. Co. _v._
Hoover, 53 Arkansas, 377. 2 Redfield on Railways, 114:
On the other hand, where a physician and surgeon has been duly
employed by a sub-officer or servant of the railroad company,
ratification of this employment, by those having authority to employ
him and to render the company liable, will be inferred from slight
circumstances.
Such was the case of Louisville R. R. Co. _v._ McVeigh, which has been
cited.
And in another case where information of the fact of the employment
had been conveyed to the company’s general manager, and he had
neglected and omitted to repudiate the employment or to terminate it,
and the surgeon went on and performed services, it was held that from
these facts a ratification will be inferred. Indianapolis R. R. Co.
_v._ Morris, _supra_. See also Toledo, etc., R. R. Co. _v._ Rodrigues,
_supra_; Same _v._ Prince, _supra_; Terre Haute, etc., R. R. Co. _v._
Stockwell, 118 Ind., 98.
_Presentation and Retention of Doctor’s Bill Raises No Presumption of
Liability._—The presentation of a bill to a person containing charges
against him for services rendered another person, and his retention
of that bill without disclaimer of liability, does not raise a
presumption of liability, for it is not necessarily an account stated.
To constitute an account stated, there must be not only a statement of
account, but acquiescence in it; mere retention of the account is not
sufficient.
_Bills Presented Not Conclusive as to Amounts Charged._—On the other
hand, if a bill is presented which contains charges which are not
acquiesced in, the person making out and presenting the bill is not
absolutely bound by the charges therein contained, although such a bill
affords some evidence as to the value of the services rendered.[170]
_Claims Against Estates of Deceased Persons._—A bill for a physician’s
services constitutes a claim against the estate of a deceased person,
like any other debt. In some States it is a preferred claim.[171] In
this connection it should be observed that short statutes of limitation
exist in most countries and States applicable to such cases, shorter
than the ordinary limitation imposed by law upon the right to sue upon
claims for services rendered (which is six years). In order to preserve
his legal rights, the physician should as soon as possible after the
death of the person for whom his services have been rendered, ascertain
who is the administrator or executor of the estate of such person, and
file with such representative, personally, proof of his claim.
_Patient who Receives Benefit of Services of Consulting Physician
Liable._—The liability of a patient for the services of a consulting
physician is generally governed by the same rules as his liability to
the physician in immediate charge of the case.[172]
Where the patient accepts the services of a consulting physician,
although he has not directly requested them, he must pay for them if
he receives the benefit of them without objecting, because it will be
presumed that he ratified the act of the physician who was in charge of
the case, in calling the other physician into consultation.[173]
But, however this may be, it is a principle of professional ethics,
which has almost acquired the authority of legal doctrine, that a
physician in charge of a case should obtain the full assent of a
patient, or of his family and friends, if he is too ill to give his own
consent, to the calling of another physician in consultation.
_No Other Stranger can be Called into Sick-Room without Assent of
Patient._—A limitation upon the authority and right of an attending
physician is, that if he desires or attempts to call in a stranger not
a physician, he must obtain his patient’s consent. The obligation of
a physician toward his patient of secrecy and confidence is regarded
as very strict, and if a physician should call in a student or other
stranger, without first consulting his patient, or those who are in
some measure related to him and connected with him, it would be a very
severe stretch of morals and possibly of law. In fact, in a recent case
in Michigan, a physician was held liable for damages who called in a
stranger, an unmarried man, who was an unprofessional man, to be with
him while he was in attendance on a confinement case. In that case both
the physician and the person so called in, and who was present at that
time, were held liable in damages; and it was further held that the
right to recover was not affected by the fact that the patient supposed
that the person so called in was a medical man, and therefore submitted
to his presence without objection.[174]
The statutes which create the privilege as to professional
communications and information necessary to enable the physician to
prescribe, might not apply to students or other strangers, and this is
probably the reason for the rule of law laid down in the Michigan case.
The obligation to preserve inviolate a communication as a privileged
communication, including in the meaning of the word “communication”
all knowledge or information received while in attendance upon a case,
would be held to have been broken by the act of the physician in
bringing in a stranger who would not be privileged from testifying.
MEASURE OF RECOVERY FOR SERVICES RENDERED.
_Terms of Express Contract Govern—Reasonable Worth the Rule in Implied
Contracts._—In case of an express contract its terms necessarily
measure the amount of the charges. In the absence of an express
contract fixing the value of the services to be rendered, the measure
of damages for breach of payment is like that in any other case of
personal services, the reasonable worth and value of the services
performed. So likewise if medicines or appliances are furnished, which
are not reasonably to be expected and furnished, according to the
custom of the school to which the physician or surgeon belongs, the
reasonable worth and value at the time of furnishing them, and at the
place of furnishing them, is the measure fixed by the law to determine
what shall be recovered for them.[175]
_Value—How Proved._—When the medical man is compelled to go into
court to enforce payment for his services, it has been questioned
whether he can testify to the services rendered, and the facts and
circumstances surrounding the patient at the time of the treatment,
because it has been claimed that he could not do so without violating
the statute against the disclosure by physicians of information
received which is necessary to enable them to prescribe. The tendency
of the later decisions, however, seems to be that the breach of the
patient’s contract to pay relieves the physician from his obligation
of secrecy, and consequently, that if it is necessary for him to go
into court and prove the value of his services, he may testify, within
reasonable limitations, to all matters necessary to inform the court
fully as to the nature and extent of the disease or injuries of the
patient, in order that he may show the responsibility imposed upon him
and the extent of the services that he has rendered. This subject will
be fully considered under the head of “Privileged Communications.”
The usual course of practice where there is not an express contract
fixing the charges, is to prove the facts and circumstances showing the
treatment and services, and then to produce other physicians who, in
answer to a hypothetical question stating the facts and circumstances
in the case, assuming them as true, are allowed, if they state they
know the value of such services, to give an expert opinion as to what
that value is.[176] It has also been said (Ordronaux, “Jurisprudence
of Medicine,” § 43), that if a fee-bill of charges for such services
has been established by an association of physicians recognized by
law, such as a county medical society or a State medical society,
incorporated pursuant to statute, such fee-bill can, if properly
authenticated as having been adopted by the association, be offered in
evidence on behalf of the patient and against the physician. But such
a fee-bill in such a case would not be held to be conclusive evidence
of the value of the services, but will be received in evidence, if at
all, merely for the purpose of showing what was the usual and ordinary
charge in such cases. As we shall see later on, under “Malpractice,” a
judgment for services rendered, however small, is a bar to an action of
malpractice, because a judgment for the value of the services rendered
involves proof on the part of the plaintiff, and a finding on the part
of the court, that the services had value and were skilfully performed
and properly rendered.[177]
_Custom of Physicians to Treat Each Other Gratis,
Enforceable._—Physicians frequently treat each other, and it has been
held, where the custom exists to do so without charge, that such a
custom is binding. Of course, this rule does not prevent physicians
from making an express contract to waive the custom and agreeing that
the services be compensated.
_Elements to be Proved in an Action for Service, etc.—General
Advice._—The result of these rules may be thus summarized, viz.: The
elements to be established in an action for services by a physician
against a patient are three in number—(1) the employment; (2) the
performance of the services;[178] and (3) the value of the services,
that value being either a fixed value determined by the terms of the
contract between the parties, or the reasonable worth and value of the
services determined by evidence of experts upon that subject. It is,
therefore, important that physicians and surgeons should be advised,
when entering upon the practice of their profession, to keep a record
of their transactions and of their business generally. Because, if they
are compelled to go into court to recover for their services, they will
be called upon to describe with minuteness the character and extent
of the services they have performed in order that the value thereof
may be correctly ascertained and determined in the suit. Any person in
active practice who is not blessed with a most tenacious and particular
memory is liable to forget a great many details which, with a record in
hand, properly kept, could be brought to his memory and be testified to
with absolute truthfulness and conviction. And the record itself, when
properly shown to be a book of original entry, is generally receivable
in evidence, as a memorandum of the transaction.[179]