FEES.
The Roman Law considered the services of an advocate and of a physician
as strictly honorific; and, as in the Roman age, practitioners in law
and medicine, were usually men of leisure and wealthy, who did not
practise for the sake of a livelihood, remuneration for their services
could not be recovered in the ordinary way. Although owing to the
Utopian ideas concerning the honour of a liberal profession then in
vogue it was considered that any mention of a “fee,” or a “salary,” by
that name would soil and disgrace the robe of a practitioner, still
it was an established fiction of the Civil Law that the promise of an
_honorarium_ always accompanied the employment of a professional man,
and that such promise created one of those obligations that might be
enforced by action [10]. The Common Law of England adopted the theory of
the Civil Law as to the high standing of the profession, but afforded
no remedy for the recovery of the charges. Surgeons and apothecaries
were enabled to recover by law remuneration for their services, but
a physician was presumed to attend his patient for an _honorarium_
(something left to the honour of the patient to pay or not to pay),
and could not maintain an action for his fees until the passing of
the Medical Act, 1858, put an end to his anomalous position in this
money-making age, and gave him as free an entrance into the courts of
law to recover compensation for his work and labour, time and |16|
skill bestowed, as the worker in any other path of life. Before this a
physician could not recover even expenses out of pocket, such as those
incurred in travelling to visit a patient, unless there had been an
agreement specially made to that effect [11].
If a physician was a surgeon as well, and attended a case where the
advice of a physician and the aid of a surgeon were necessary, he
could recover the value of his services as a surgeon but not as a
physician [12].
In England the question sometimes arises, where the practitioner is
only a surgeon, whether he can charge for attendance as a physician or
as an apothecary. It has been held that typhus fever is not a disease
that belongs to a surgeon’s branch of medicine, and that he cannot
therefore recover for his attendance on a patient suffering under it.
So, too, with regard to consumption and dropsy, though, in the latter
case, he may recover for any work done for the patient specifically
within his practise, such as puncturation, scarification, bandaging and
friction [13].
At one time it was considered that an apothecary was not entitled to
charges for his attendances, but only for his medicine: then the law
decided that he might charge for either attendances or medicines, but
not for both. Shortly afterwards Tenterden held that one might recover
for attendance (the charge being reasonable), as well as for medicine.
After that full justice was done to this branch of the profession, and
it was decided that there was no rule of law, and there certainly is
none of morals, to prevent an apothecary from making distinct charges
for |17| attendances and medicines; but if he charges very high for
his drugs the jury may think the attendances ought not to be paid for
as well [14].
In Scotland, also, at one time physicians’ fees were regarded as
honoraries, and not recoverable by action except under a special
contract [15]. Neither in the United States nor in the Colonies have
these distinctions been made between the different branches of the
profession, nor has the principle been adopted that the profession of
a physician is a merely honorary one, and that his services cannot be
charged for [16].
In England every person registered according to the Medical Act,
1858, and in Ontario those registered under the Provincial Act, can
practise medicine or surgery, or medicine and surgery; and can recover
in any court of law, with full costs of suit, reasonable charges for
professional aid, advice, and visits, and the costs of any medicine
or other medical and surgical appliances rendered or supplied to his
patient; but no person is entitled to recover any such charges in
any court of law unless he can prove upon the trial that he is so
registered. Registration has now become a part of the plaintiff’s
title to recover, which it is imperative upon him to prove. A copy of
the medical register for the time being, purporting to be printed and
published under the direction of the General Council, is evidence in
all courts that the persons therein specified are registered according
to the provisions of the Medical Act; and the absence of the name of
any person is evidence, until the contrary be made to appear, that
such person is not so registered; and the contrary may be shown by a
certified copy, under the hand |18| of the registrar, of the entry
of the name of such person on the register [17]. Similar rules are in
force in the various States where Medical Boards have been constituted
by legislative authorities for the purpose of examining and licensing
practitioners, such as Alabama, Delaware, Florida, Georgia, Louisiana,
Maine, Minnesota, New York, Ohio, South Carolina and Wisconsin.
Subject to the various statutory enactments, every physician or
surgeon, or any one who chooses to act as such, is entitled to a
reasonable reward for his services and for his medicines. If there was
no express promise to pay when the services were requested, the law
implies one: the broad principle being, that when a person has bestowed
his skill and labor for the benefit of another, at his request, and
no agreement is made in respect to them, the law raises an implied
promise to pay such compensation as the person performing the service
deserved to have; and when there is no statutory or other restraint
upon the remedy, an action lies on such promise [18]. The amount, unless
settled by law, is a question for the jury, and in settling that, the
eminence of the practitioner, the wealth of the patient, the delicacy
and difficulty of the operation, as well as the time and care expended,
are to be considered [19].
The law, as a rule, sets no limitation to fees, provided they be
reasonable. Within this rule a practitioner is allowed discretionary
powers and may charge more or less according to his own estimate of
the value of his services. No one will pretend to assert that all
services are of equal value, and no one will claim that those who
can |19| render them the most skilfully should receive only the
same reward as those who can render them the least so. A medical man
of great eminence may be considered reasonably entitled to a larger
recompense than one who has not equal practice, after it has become
publicly understood that he expects a larger fee, inasmuch as the party
applying to him must be taken to have employed him with a knowledge
of this circumstance [20]. But doctors must not be unreasonable in
their charges; as Lord Kenyon remarked, “Though professional men are
entitled to a fair and liberal compensation for their assistance, there
are certain claims which they affect to set up, which if unreasonable
or improper, it is for the jury to control” [21]. That a patient is a
millionaire does not justify an extortionate charge. The French rule
is to consider the gravity of the disease as well as the fortune and
position of the patient in settling the remuneration of a physician [22].
The existence of an epidemic does not authorise the charging of
exorbitant fees [23].
In some ages and countries the fees payable to medical practitioners
have been fixed by law. In Persia, for instance, in ancient times the
law said that “a physician shall treat a priest for a pious blessing,
or a spell; the master of a house for a small draught animal; the lord
of a district for a team of four oxen; and if he cure the mistress of
a house a female ass shall be his fee.” (Vendidad Farg. VII.) To take
another instance, the medical men in attendance upon the old princes
of Wales had their fees settled; for curing a slight wound, a surgeon
received for payment the clothes of the injured person which had been
stained with blood; |20| and for curing a dangerous wound he had, in
addition to the bloody clothing, board and lodging while in attendance,
and 180 pence. In Egypt, according to Herodotus, practitioners were
paid out of the public treasury, although they might also receive fees
from their patients.
A medical man can also recover for the services rendered by his
assistants or students; and that even though the assistant is
unregistered [24]. It is not necessary that there should be any agreed
specified price, he will be allowed what is usual and reasonable [25].
The right of a medical man to recover his charges for professional
services does not depend upon his effecting a cure, or on his services
being successful, unless there is a special agreement to that effect.
It does not depend upon the fortune of the case whether it be good
or bad, but upon the skill, diligence and attention bestowed. For,
as a general rule, a physician does not guarantee the success of his
treatment; he knows that that depends upon a higher power. Still, some
good must have resulted from his efforts. The rule appears to be that
if there has been no beneficial service there shall be no pay; but if
some benefit has been derived, though not to the extent expected, this
shall go to the amount of the plaintiff’s demand, leaving the defendant
to his action for negligence [26]. The practitioner must be prepared to
show that his work was properly done, if that be disputed, in order
to prove that he is entitled to his reward [27]. Where the surgical
implements employed in amputating an arm were a large butcher knife and
a carpenter’s sash-saw, it was held that the Court rightly charged the
jury, that if the |21| operation was of service, and the patient did
well and recovered, the surgeon was entitled to compensation, though it
was not performed with the highest degree of skill, or might have been
performed more skilfully by others [28].
If a surgeon has performed an operation which might have been useful
but has merely failed in the event, he is nevertheless, entitled
to charge; but, if it could not have been useful in any event, he
will have no claim on the patient [29]. A medical man who has made a
patient undergo a course of treatment which plainly could be of no
service, cannot make it a subject of charge; but an apothecary who has
simply administered medicines under the direction of a physician may
recover for the same, however improper they may have been [30]. If the
physician has employed the ordinary degree of skill required of one in
his profession, and has applied remedies fitted to the complaint and
calculated to do good in general, he is entitled to his fees, although
he may have failed in this particular instance, such failure being then
attributable to some vice or peculiarity in the constitution of the
patient, for which the medical man is not responsible [31].
It is the duty of a physician who is attending a patient infected
with a contagious disease, when called upon to attend others not so
infected, to take all such precautionary means experience has proved to
be necessary to prevent its communication to them. When a physician who
was told by a patient not to attend any infected with small-pox or his
services would be dispensed with, failed to say that he was attending
such a patient, and |22| promised not to do so, but continued to
attend, and did by want of proper care communicate small-pox to the
plaintiff and his family, it was held that these facts were proper
evidence to go to the jury in reduction of damages in an action for
his account, and that the physician was responsible in damages for the
suffering, loss of time and damage to which the plaintiff may have been
subjected. If a physician by communicating an infectious disease has
rendered a prolonged attendance necessary, thereby increasing his bill,
he cannot recover for such additional services necessitated by his own
want of care [32]. This rule will apply with equal force to puerperal
fever [33].
In the case of vaccination, the physician, while he does not guarantee
the specific value of the vaccine virus, yet guarantees its freshness;
so that if he inoculate a patient with virus in an altered state,
constituting as it then would mere putrid animal matter, and erysipelas
or any injury to any limb necessitating amputation should arise, he
will undoubtedly be held responsible for the suffering, loss of time,
and permanent injury to the patient [34]. Long since Lord Kenyon was of
the opinion that if a surgeon was sent for to extract a thorn, which
might be pulled out with a pair of nippers, and through his misconduct
it became necessary to amputate the limb, the surgeon could not come
into a court of justice to recover fees for the cure of the wound which
he himself had caused [35].
The physician when sending in his bill should be specific in his
charges and not general; he should give the number of visits and dates.
In one case a lump charge of “$13 for medicine and attendance on one
of the general’s daughters |23| in curing the whooping cough,” being
objected to by the valiant officer, was held by the Court to be too
loose to sustain an action [36]. Where a practitioner brought an action
for a bill consisting of a great number of items, and gave evidence as
to some of them only, and the jury gave a verdict for the whole amount
of the bill, the Court refused to interfere and grant a new trial
because every item was not proved [37]. Where a medical man delivered
his bill to a patient without a specific charge, leaving a blank for
his attendance, the Court inferred that he considered his demand in
the light of a “_quiddam honorarium_,” (this was before the Medical
Act), and intended to leave it to the generosity of the patient, and
the latter having paid into court a certain amount, the Court held
the surgeon was bound by the amount so paid and could not recover any
more [38]. As a rule, however, if a doctor’s bill is not paid when
presented he is not limited by it to the amount of his claim, if he
can show that his services were of greater value [39]. When witnesses
are called to speak as to the value of the practitioner’s services the
Courts generally incline towards the lowest estimate [40].
The number of visits required must depend on each particular case, and
the physician is deemed the best and proper judge of the necessity
of frequent visits; and in the absence of proof to the contrary, the
Court will presume that all the professional visits made were deemed
necessary and were properly made [41]. There must not be too many
_consultations_; and the physician called in for consultation or to
perform an operation may recover his fees from the |24| patient,
notwithstanding that the attending practitioner summoned him for his
own benefit and had arranged with the patient that he himself would
pay [42].
Where a medical man has attended as a friend, he cannot charge for
his visits. This was held in one case where it was proved that
the practitioner had attended the patient as a friend, upon the
understanding that he was to have refreshments and dinners free
of charge; and in another case, where a medical man had attended
professionally, for several years, a lady with whom he was on terms of
intimacy (but received no fees, except once, when he had prescribed
for her servant). The day before her death this lady had written to
her executors, asking them to remunerate the doctor in a handsome
manner, and moreover in her will she gave him a legacy of £3,000 and a
reversionary interest in £6000 more. It was proved that he had attended
others without having taken fees or sent in bills. It was held that
his services had been tendered as for a friend, and accepted as a
friends, and his demand as a debt against the assets of the lady was
rejected [43]. One would have thought that the physician in this latter
case should have been satisfied.
Where a tariff of fees has been prepared, and agreed to by the
physicians in any locality, they are bound by it legally as far
as the public is concerned, morally as far as they themselves are
concerned [44]. It is no part of the physicians business to supply the
patient with drugs; if he does so he has a right to be reimbursed
therefor [45]. |25|
If a physician enters into a special contract to perform a cure he
will be held strictly to its terms, nor will he be allowed to plead
circumstances, which, under the general law of professional obligation,
might fairly exonerate him from blame, for failing of success in the
treatment of his patient. To promise an absolute cure is to assume
arrogantly the possession of powers never delegated to man; only a weak
and vapid intellect will commit so egregious a blunder. Yet, if a man
choose to do it he may, and having entered into an _express_ contract
he will be held liable for its fulfilment. For it is his own fault if
he undertake a thing above his strength. If the agreement is, no cure,
no pay: he cannot even recover for medicines supplied if the cure is
not effected. At least, so it was held at Vermont. Contracts to receive
a certain sum contingent upon the performance of a cure have always
been considered as professionally immoral, and in the civil law were
repudiated as against public policy [46].
The physician is always allowed discretionary powers over the patient
entrusted to his care in modes of treatment, so as to be able to alter
them according to the varying necessities of the case. Unless such
change of treatment involves a risk of life or consequences of which he
is unwilling to assume the responsibility, he is not under obligation
to give notice or obtain permission before making it. Particularly is
this the case where the patient is not at home or among friends or
relatives, but is in some degree in his custody and under his exclusive
supervision, as well as care. In such circumstances he is authorised
to perform operations, or change his treatment, or enforce discipline
essential to its fulfilment, without first consulting or obtaining
permission from friends or guardians at a distance, since delay might
involve a greater risk to the health |26| and possibly the life of
the patient than would a necessitated operation; and of such things he
alone is the proper, as he alone can be the best, judge. He may recover
his fees for such operation or change of treatment without proving
that it was necessary or proper, or that before he performed it he
gave notice to the party who had to pay, or that it would have been
dangerous to have waited until such notice had been given. The burden
of proving unskilfulness or carelessness in the operation lies upon the
party objecting to it [47].
When a medical man is called as a witness before a court, to testify as
to facts within his knowledge, he must attend and give evidence upon
payment of the same fees as other witnesses are entitled to; unless it
is otherwise provided by statute.
Where a statute provides that a medical man should be paid a certain
witness fee, he is entitled to that fee although he be not called to
give professional evidence, and it is not necessary to prove that
he is in practice [48]. A witness should be paid his fees when he is
subpœnaed; but even if he attends he can refuse to give evidence until
he is paid, unless he takes the oath before making the objection [49]. A
subpœna should be served a reasonable time before the trial, to enable
a witness to put his affairs in such order that his attendance on the
court may be as little detrimental as possible to his interests [50].
Where a medical man is summoned to attend a coroner’s inquest, unless
the statute law is clearly to the contrary, |27| he is only entitled
to be paid for each days attendance, not for each body on which the
inquest was held [51].
Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the
deceased was attended during his last illness, or at his death, by a
duly qualified medical man, may summon that medical man to attend the
inquest; if he finds that he was not so attended, he may summons any
legally qualified neighbouring practitioner, and may direct him to
hold a post-mortem examination; but a second practitioner will not be
entitled to any fees, unless a majority of the jury have, in writing,
asked him to be called [52]. The fees are, for attendance without
_post-mortem_ $5, if with _post-mortem_, without an analysis of the
contents of the stomach or intestines, $10; if with such analysis, $20;
together with a mileage each way of twenty cents. If the practitioner
when duly summoned fails to attend, without sufficient reason, he is
liable to a penalty of $40 [53].
Is an expert witness entitled to receive greater compensation than
an ordinary witness? or can he be compelled to give a professional
opinion without being paid for it? The States of Iowa, North Carolina
and Rhode Island have answered these questions by statutes which say
such witnesses shall be entitled to extra compensation to be fixed
by the court, in its discretion: while Indiana says experts may be
compelled to appear and testify to opinions without payment or tender
of compensation other than the _per diem_ and mileage allowed by law to
other witnesses [54].
The subject does not appear to have been very much considered in
England. In a case, at _Nisi Prius_, Lord |28| Campbell declared that
an expert was not bound to attend upon being served with a subpœna,
and that he ought not to be subpœnaed; that he could not be compelled
to attend to speak merely to matters of opinion [55]. And Mr. Justice
Maule, where an expert demanded additional compensation, said there
was a distinction between a witness to facts and a witness selected by
a party to give his opinion on a subject with which he is peculiarly
conversant from his employment in life. The former is bound as a matter
of public duty to testify as to all facts within his knowledge, the
latter is under no such obligation, and the party who selects him must
pay him for his time before he will be compelled to give evidence [56].
Worden, J., of the Supreme Court of Indiana, in considering the
question, in a case that came up prior to the statute above referred
to, reviewed most of the American decisions and the opinions of
the text writers, and concluded “that physicians and surgeons,
whose opinions are valuable to them as a source of their income and
livelihood, cannot be compelled to perform service by giving such
opinions in a court of justice without payment.” The Court further
said, “It would seem, on general principles, that the knowledge and
learning of a physician should be regarded as his property, which
ought not to be extorted from him in the form of opinions without just
compensation.” “If the professional services of a lawyer cannot be
required in a civil or criminal case without compensation, how can
the professional services of a physician be thus required? Is not his
medical knowledge his capital stock? Are his professional services
more at the mercy of the public than the services of a lawyer? When
a physician testifies as an expert by giving his opinion, he is
performing a strictly |29| professional service. * * * The position
of a medical witness testifying as an expert is much more like that
of a lawyer than that of an ordinary witness testifying to facts. The
purpose of this service is not to prove facts in the cause, but to
aid the Court or Jury in arriving at a proper conclusion from facts
otherwise proved” [57]. In an earlier case (in 1854), in Massachusetts,
the Court said, “to compel a person to attend because he is
accomplished in a particular science, art or profession, would subject
the same individual to be called upon in every case in which any
question in his department of knowledge is to be solved. Thus, the most
eminent physician might be compelled, merely for the ordinary witness
fees, to attend from the remotest part of the district, and give his
opinion in every trial in which a medical question should arise. This
is so unreasonable that nothing but necessity can justify it” [58].
On a trial for murder the prosecution had procured the attendance of
Dr. Hammond to testify professionally, and had agreed to give him
$500 as his fee. This fee was complained of as an irregularity, but
the Court in delivering judgment remarked, “The district attorney,
it is true, might have required the attendance of Dr. H. on subpœna,
but that would not have sufficed to qualify him as an expert with
clearness and certainty upon the questions involved. He would have met
the requirements of the subpœna if he had appeared in court when he
was required to testify and given impromptu answers to such questions
as might have been put to him. He could not have been required, under
process of subpœna, to examine the case, and to have used his skill
and knowledge to enable him to give an opinion upon any points of the
case, nor to have attended during the whole trial and attentively
considered and carefully |30| heard all the testimony given on both
sides, in order to qualify him to give a deliberate opinion upon such
testimony, as an expert, in respect to the question of the sanity of
the prisoner;” and held “that there was no irregularity in the payment
of such a fee” [59].
Such text writers of high repute as Taylor, Phillips, Redfield and
Ordronaux, all agree that an expert cannot be compelled to give
professional opinions without proper remuneration. The last named
writer says, “Where a subpœna is served upon an expert he must obey it,
if within the range of physical possibility. But once on the stand as a
skilled witness his obligation to the public ceases, and he stands in
the position of any professional man consulted in relation to a subject
upon which his opinion is sought. He cannot be compelled to bestow
his skill and professional experience gratuitously; whoever calls for
an opinion from him in chief must pay him, and the expert may decline
to answer until the party calling him has paid. When he has given his
evidence he cannot decline repeating it, or explaining it. A similar
rule will, by parity of reasoning, apply to personal services demanded
from the expert, as well as to opinions asked” [60].
On the other hand, the Supreme Court of Alabama, in 1875 [61], confirmed
a fine imposed upon a physician for refusing to state the nature and
character of a wound received by a man and its probable effect, upon
the ground that he had not been remunerated for his professional
opinion, nor had compensation for it been promised or secured. And
the Court of Appeals in Texas, in 1879, held, that the court could
compel a physician to testify as to the |31| result of a post-mortem
examination; adding, that a medical expert could not be compelled to
make a post-mortem examination unless paid for it, but an examination
having already been made by him he could be obliged to disclose the
results thereof [62].
The result of the authorities seems to be that, without the aid of
a statute, an expert cannot be compelled to bestow his skill and
professional experience gratuitously upon any party, for his skill and
experience are his individual capital and property.
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