WHO SHOULD PAY THE DOCTOR.
If Smith says to Brown, a medical man, “Attend upon Robinson, and if
he does not pay you I will;” that being a promise to answer for a debt
of Robinson’s, for which he is also liable, the guarantee is only a
collateral undertaking, and, under the Statute of Frauds, must be in
writing and signed by Smith, or some other person thereunto by him
lawfully authorised, in order to be binding upon him. But if Smith says
to Dr. Brown, absolutely and unqualifiedly, “Attend upon Robinson,
and charge your bill to me,” or “I will pay you for your attendance
upon Robinson;” then the whole credit being given to Smith, no written
agreement is necessary to enable the doctor to recover the amount of
his account from him, since it is absolutely the debt of Smith [63].
Where a person calls at the office of a physician, and, he being
absent, the visitor leaves his business card with these words written
on it, “Call on Mrs. Jones, at No. 769 High Street,” handing it to the
clerk in attendance, with the request that he would give it to the
doctor and tell him to go as soon as possible; this caller becomes
liable to pay the doctor’s bill for attendance upon Mrs. Jones in
pursuance of such message. Yet Mrs. Jones, if a widow, may also be
liable; for one who acquiesces in the employment of a physician, and
implies, by his or her conduct, that the doctor is attending at his or
her request, is responsible for |33| the value of his services. If
Mrs. Jones is living with her husband, or, without her fault, away from
him, the doctor has still another string to his bow, and may recover
the amount of his bill from Mr. Jones; for the rule is, that a husband
must pay his wife’s doctor’s bills. Of course the doctor cannot make
all three pay [64].
Long since, Park, J., was clearly of the opinion that if a mere
stranger directed a surgeon to attend a poor man, such person was
clearly liable to pay the surgeon [65]. Yet, in some cases in the United
States, it has been held that the man who merely calls the doctor is
not bound to pay him. When, for instance, in Pennsylvania, a son of
full age, when living with his father, fell sick, and the father went
for the doctor, urging him to visit his son. Afterwards the physician
sued the parent. The Court said this was wrong, that he should have
sued the son, as the father went as a messenger only, that the son,
who had the benefit of the services, was the responsible person; and
remarked that it was clear that had the defendant been a stranger,
however urgent he may have been and whatever opinions the physician
may have formed as to his liability, he would not have been chargeable
without an express promise to pay, as, for instance, in the case of an
inn-keeper or any other individual whose guest may receive the aid of
medical service. A different principle, the Court considered, would be
very pernicious, as but very few would be willing to run the risk of
calling in the aid of a physician where the patient was a stranger or
of doubtful ability to pay. This was in 1835 [66]. And, in Vermont, one
brother took another, who was insane, to a private lunatic asylum and
asked that he (the insane one), might be taken in and |34| cared for.
This was done. In course of time the doctor sued the sane one for his
bill, but the Court would not aid him in the matter, saying, “He is not
liable unless he promised to pay” [67].
In the case of Mr. Dodge, above referred to, the Court said, “He might
very readily have screened himself from all liability, by simply
writing the memorandum on a blank card, or by adding to that which he
wrote on his own card something that would have apprised the doctor of
the fact that he acted in the matter for Mrs. Jones, as her agent.”
The reporter did not approve of this decision, and so appended the
following graphic note: “Let us see how this thing works. We will
take as an illustration an almost every-day occurrence arising in the
country. A. B. is taken suddenly and seriously ill in the night time,
and sends to his neighbour, C. D. living in the next house to his, to
have him go after the doctor as soon as he can, for he is in great
pain and distress. C. D. jumps out of bed without hesitation, and
hastily dresses himself, and goes out to his barn and takes a horse
from the stable, and not waiting to put on a saddle or bridle, jumps
on to the horse with the halter only, puts him at full speed for the
doctor’s office, some two or three miles distant. On arriving there
he finds the doctor absent from home, but his clerk is there, and C.
D. at once says, ‘Tell the doctor to call on A. B. who has been taken
suddenly sick; tell him to come as soon as possible.’ In accordance
with this message the doctor calls upon A. B., and prescribes for and
attends him professionally for several days. After a reasonable time
the doctor sends in his bill to A. B. and it not being paid as soon
as the doctor desires, he calls on C. D. and requests him to pay the
bill. C. D. with perfect astonishment, asks why he is to pay. |35| The
doctor informs him that he made himself liable to pay the bill because,
when he delivered the message, he did not tell the clerk that he came
for the doctor by the request of A. B. nor that he acted as agent of
A. B. in delivering his message. Well, says C. D. the fact was I did
go at the request of A. B. and merely acted as his agent in delivering
the message, and I will swear to these facts if necessary. The doctor
insists that it will do him no good if he should give such testimony,
for the law is settled on that point, as just such a case has recently
been decided in New York under just such a state of facts, where the
jury, in the justice court, found a verdict for the doctor for the
amount of his bill, and, on appeal by the defendant to the general
term of the New York Common Pleas, that court unanimously sustained
the verdict of the jury, and affirmed the judgment of the court below.
Well, says C. D. ‘If that is the law I think I will wait awhile before
I go after a doctor again as an act of neighbourly kindness.’” This
case was decided as late as March, 1873.
A wife has implied authority to bind her husband for reasonable expense
incurred in obtaining medicines and medical attendance during illness;
but this implied authority is put an end to if she commits adultery
while living apart from her husband, and there has been no subsequent
condonation; or, if she leaves her husband’s home of her own accord
and without sufficient reason, and the fact has become notorious, or
the husband has given sufficient notice that he will no longer be
responsible for any debts that she may incur [68]. If a husband turn an
innocent wife out of doors without the means of obtaining necessaries,
it is a presumption of law, which cannot be rebutted by evidence, that
she was turned out with the authority of her husband to pledge his
credit for necessaries, and in such a case |36| medical attendance
will be considered as one of the primary necessaries [69]. A married
woman’s misconduct does not exonerate the husband from paying a doctor
whom he requests to attend her [70].
Although the law requires the husband to furnish the wife with all
necessaries suitable to his condition in life, including medical
attendance in case of sickness, still it gives him the right to procure
these necessaries himself and to decide from whom and from what place
they are to come. If a physician attends a wife whom he knows to be
living separate and apart from her husband, he ought to enquire whether
she has good cause for so doing; for if she has not he cannot make
the husband pay the bill; and it has been held that it devolves upon
the doctor to show that there was sufficient cause for the wife’s
separation [71]. The employment of a physician by a husband to attend
his sick wife, presumably continues throughout the illness; and the
mere fact that the wife is removed, with the husband’s consent, from
his home to her father’s, will not enable him to resist payment of the
doctor’s bill for visits paid to her at the father’s [72].
Notwithstanding the law’s desire not to favour any particular school,
a quack’s bill was thrown out where the services were rendered without
the husband’s assent. This was done in a case where a doctor was in the
habit of putting a woman into a mesmeric sleep, she thereupon became a
clairvoyant and prescribed the medicines which the doctor furnished,
and for these he sued. The Judge said:—“The law does not recognize
the dreams, visions or revelations of a woman in mesmeric sleep as
necessaries for |37| a wife for which the husband, without his consent,
can be made to pay. These are fancy articles which those who have money
of their own to dispose of may purchase if they think proper, but they
are not necessaries known to the law for which the wife can pledge the
credit of the absent husband” [73].
In England, it was, until 1869, considered that a parent’s duty to
furnish necessaries for an infant child was a moral and not a legal
one, so that he was not liable to pay for medicines or medical aid
furnished to his child without some proof of a contract on his part
either expressed or implied. And this still is the view where the child
is over fourteen. The rule of law varies in the different States of
the Union. In most of those in which the question has come before the
courts the legal liability of the parent for necessaries furnished
to the infant is asserted, unless they are otherwise supplied by the
father; and it is put upon the ground that the moral obligation is a
legal one, and some of the courts have declared this quite strongly.
In other States the old English rule has been held to be law, and
agency and authority have been declared to be the only ground of such
liability. The authority of the infant to bind the parent for medical
aid supplied him will be inferred from very slight evidence [74]. But a
contract to pay will not be implied when the infant has been allowed a
sufficiently reasonable sum for his expenses [75]. Where the services
have been rendered with the parent’s knowledge and consent, he will
generally have to pay for them. A boy left home against his father’s
will, and refused to return at his parent’s command. Being seized with
a mortal illness he did at last come back. His father went with him to
a |38| physician to obtain medical advice, and the doctor afterwards
visited him professionally at his father’s house. No express promise
to pay was proved, nor had the father said he would not pay. The Court
held the father liable to pay the doctor’s bill [76]. And in an English
case, where a father had several of his children living at a distance
from his own house under the protection of servants, it was held that
if an accident happened to one of the children he was liable to pay for
the medical attendance on such child, although he might not know the
surgeon called in, and although the accident might have been received
through the carelessness of a servant [77].
By a recent English statute [78], when any parent shall wilfully neglect
to provide adequate food, clothing, medical aid, or lodging for his
child, in his custody, under the age of fourteen, whereby the child’s
health shall have been, or shall be likely to be, seriously injured, he
shall be guilty of an indictable offence punishable by imprisonment.
Charles Downes was the two-year-old child of a member of the sect
of Peculiar People. These people never call in medical aid or give
medicines: to do so would be contrary to their religious opinions; but
if any is sick they call in the elders of the church, who pray over
him, anointing him with oil in the name of the Lord; then they hope
for a cure, as they have thus literally complied with the directions
in the 14th and 15th verses of the 5th chapter of the Epistle of St.
James. This child was ill for months; the usual course was pursued by
his father; no medical aid was obtained, although easily obtainable.
The illness was misunderstood, and, although he was taken care of and
well supplied with food, the child died. The father was indicted for
manslaughter, and the |39| jury found that the death was caused by
the neglect to obtain medical assistance, that the father _bona fide_
(though erroneously) believed that medical aid was not required, and
that it was wrong to use it. The Judge entered a verdict of guilty, and
the Court held—under this statute—that a positive duty was imposed upon
the father to provide adequate medical aid when necessary, whatever
his conscientious scruples might be, and that that duty having been
wilfully neglected by the prisoner, and death having ensued from that
neglect, he was properly convicted of manslaughter [79].
It had been held by Pigott, B., in a case against these same Peculiar
People, and also by Willis, J., that, at common law, there was no legal
duty upon a father to employ a physician for his sick child [80].
It is not enough to shew neglect of reasonable means for preserving
or prolonging the child’s life, to convict of manslaughter, it must
be shewn that the neglect had the effect of shortening life. It will
not do merely to prove that proper medical aid might have saved or
prolonged life and would have increased the chance of recovery, but
that it might have been of no avail [81]. In this case the father,
perhaps, might have been convicted of neglect of duty as a parent,
under the statute (per Stephen, J.).
Medicines and medical aid are necessaries for which an infant may
legally contract, and for which he can render himself liable. In
Massachusetts, it was held that he would not be liable merely because
his father was poor and unable to pay [82]. |40|
A master is not bound to provide medical assistance for his servant,
but the obligation, if it exists at all, must arise from contract; nor
will such a contract be implied simply because the servant is living
under the master’s roof, nor because the illness of the servant has
arisen from an accident met with in the master’s service [83]. But
where a servant left in charge of her master’s children was made ill
by suckling one of the children, and called in a medical man to attend
her, with the knowledge and without the disapprobation of her mistress,
it was decided that the doctor could make the father and master
pay [84]. And a master is bound to provide an apprentice with proper
medicines and medical attendance [85].
In England, when a pauper meets with an accident, the parish where
it occurs is usually liable for the surgeon’s bill. If, however, the
illness of the pauper arises from any other cause than accident or
sudden calamity, the parish in which he is settled is under legal
liability to supply him with medical aid, although he may be residing
in another parish. But all these questions with regard to paupers are
determined according to the poor laws of the different countries [86].
It has frequently happened that when a railway passenger or employee
has been injured by a collision or accident, and some railway official
has called in a doctor, the company has afterwards refused to pay
the bill; and the courts have declined to make them do so, unless it
be shown that the agent or servant who summoned the medical man had
authority to do so. It has been held that neither a guard, nor the
superintendent of a station, nor the engineer of the train in which
the accident happened, had any implied authority, as incidental |41|
to their positions, to render their companies liable for medical
services so rendered [87]. The Court of Exchequer said, “It is not to
be supposed that the result of their decision will be prejudicial
to railway travellers who may happen to be injured. It will rarely
occur that the surgeon will not have a remedy against his patient,
who, if he be rich, must at all events pay; and if poor, the sufferer
will be entitled to a compensation from the company, if they by their
servants have been guilty of a breach of duty, out of which he will be
able to pay, for the surgeon’s bill is always allowed for in damages.
There will, therefore, be little mischief to the interests of the
passengers, little to the benevolent surgeons who give their services.”
But, in England, it has been decided that the general manager of a
railway company has, as incidental to his employment, authority to
bind his company for medical services bestowed upon one injured on his
railway. In Illinois, a similar decision was given as to a general
superintendent, although in New York judgment was given the other
way [88].
If an accident happen to a stage coach by which a passenger’s leg is
broken, or his human form divine is otherwise injured, the coachman has
no authority to bind his master by a contract with a surgeon to attend
to the injury; nor if a lamp-lighter, by neglect, burn any person, has
he, or any officers of the gas company, power to bind the company by a
contract for the cure of the injured person [89]. If ordinary employees
had such authority, then every servant who, by his negligence or
misconduct, had caused injury to an individual, would have an implied
authority to employ, on behalf and at the expense of his employer, any
person he thought fit to remedy the mischief.
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