RELATIONS WITH PATIENTS.
It is a well settled doctrine that where one occupies a position
which naturally gives him the confidence of another, or which in any
way gives him an influence, or an undue advantage over the other,
transactions between them require something more to give them validity
than is necessary in other cases. The mere fact of the existence of
such a relationship as naturally creates influence over the mind will
lead the courts to infer the probability of undue influence having
been exerted. Confidence has been held to imply the opportunity for
influence, and when established, dispenses with any more direct
proof of influence. In such cases the _onus_ is cast upon the person
occupying such a relationship to establish the perfect fairness and
equity of the transaction. He must shew that the other acted after full
and sufficient deliberation and with all the information that it was
material for him to have, in order to guide his conduct, and that he
had either independent and disinterested advice, or as ample protection
as such advice could have given him [368]. _Rhodes_ v. _Bates_ [369] lays
it down that the donor must have had competent and independent advice.
The relation between a medical man and his patient is one in which
the probability of undue influence is inferred; |139| and so in
dealings with their patients the acts of physicians are watched with
great jealousy; not because the Court blames and discountenances the
influence flowing from such relation, but because it holds that this
influence should be exerted for the benefit of the person subject to
it, and not for the advantage of the person possessing it [370]. The
discontinuance of the relationship is only material if the influence
has ceased with the relation; and the relation does not necessarily
cease because the patient has not medicine actually administered to him
at the time [371].
Where a surgeon and apothecary obtained from a patient, eighty-five
years old, an agreement to pay him £25,000, in consideration of past
medical services, duly charged and paid for, and the promise of future
medical and surgical assistance until death without charge, and kept
the matter concealed until after the death of the patient, the Court,
on the prayer of the patient’s executor, ordered the medical man to
give up the agreement to be cancelled. So, when an octogenarian patient
conveyed by deed of gift a property worth £1,000 to his physician,
who was also his intimate friend, and the son of his benefactor, the
Court set aside the deed for fraud. (In this case the consideration
named in this deed was not the true one.) And even where a patient
gave to his surgeon an annuity of £100 for the surgeon’s life, in
consideration that he would live with him and give him the benefit of
his professional assistance during his (the donor’s) life, it being
shown that the surgeon had been told by an eminent physician, just
before the deeds were drawn, that the patient could not recover or
live long, and that the surgeon himself, about the same time, had said
the patient could not live more than a month or so; the Court held
the instruments could not be |140| maintained [372]. A patient, aged,
feeble, deaf and of very weak mind, bestowed all his estate on the
attending physician, who lived with him, and had controlling influence
over him, for an extremely trifling compensation. The transaction was
set aside, the Court saying: “Owing to the relation which the parties
sustained towards each other, the deed was presumptively the result
of undue influence, and therefore _prima facie_ void for that reason.
It has been repeatedly declared by learned chancellors that the mere
relation of patient and medical adviser was sufficient to avoid the
contracts of the former made with the latter during the continuance of
such relation” [373].
A security given by an old man for £262 10_s._ to a dentist, in
consideration of his old teeth being kept in order and new ones being
supplied during the remainder of his life, had to be given up [374].
And if a man pays an exorbitant bill to a doctor, the Court will grant
him relief; and it will be no answer to his asking his money back to
say that he intended to be liberal, unless such intentions can be
clearly shown [375]. Even a sale to a patient by the medical man under
whose care he is will be set aside if at an exorbitant price, and the
purchaser has had no independent advice [376].
But where the evidence showed that the patient’s own attorney prepared
the papers, that he had independent advice, and understood what he
was doing, and exercised his free will, and that the medical man had
long attended him, the Court refused to set aside the deed, although
the patient was eighty years of age [377]. And although a |141| gift
made to a physician may be voidable, because of his standing in a
confidential relation to the donor, a patient, yet, if after the
confidential relation has ceased to exist, the donor intentionally
elects to abide by the gift, and does, in fact, abide by it, it cannot
be impeached after his death, even if it is not proved that the patient
was aware that the gift was voidable at his election [378].
There is, of course, nothing in the relation of medical attendant and
patient which can prevent the one from entering into a contract with
the other, where the transaction proceeds openly and fairly, and the
relation of physician and patient has, in reality, no bearing upon
it [379]. In the case of a sale by a patient to a physician, where there
was no proof of inadequacy of price, the transaction was sustained [380].
A strong case must be made to set aside a will on the ground of undue
influence. Influence is not sufficient: there must be such a degree
of influence as deprives the testator of the proper mastery over
his faculties [381]. To invalidate a will, on the ground of undue
influence, it must be shown that it was practised with respect to the
will itself, or so contemporaneously with the will, or connected with
it, as by almost necessary presumption to affect it; and flattery
and obsequiousness, however degrading, will not constitute such an
undue influence as will affect the acts of a capable testatrix [382].
Many wills made in favour of medical men by their patients have been
sustained, although disputed, and that even in cases where the patients
have been aged, infirm women, with impaired minds [383]. |142|
A physician, however, may fail to obtain the benefits which a
grateful patient has wished him to have under a will, if—as was done
in one case—after a long attendance on a patient, he thinks fit, when
she is almost on her deathbed, to prepare and procure the execution
of a will by which he becomes the principal object of her bounty,
to the exclusion of her near relatives; and to do this without the
intervention of any solicitor or other person competent to give her
advice, and to guard her against undue influence; for in such a case
the interests of the public require that his conduct should be regarded
by Courts of Justice with the utmost jealousy [384]. In another case,
it was said that although there is no rule of law which forbids a
man to bequeath his property to his medical attendant, yet it is not
a favourable circumstance for one in such a confidential position,
with respect to a patient labouring under a severe disease, to take a
large benefit under such patient’s will, more particularly, if it be
executed in secrecy and the whole transaction assumes the character
of a clandestine proceeding, and in such a case the _onus_ will lie
very heavily upon the party benefited to maintain the validity of the
will [385].
Clairvoyant physicians may also get into trouble. An action was brought
against one to set aside a marriage and a conveyance of property
worth $25,000. The patient was old, feeble, deaf, childish and a firm
spiritualist. The clairvoyant was a woman who pretended to be very
modest and bashful and able to cure the deafness. After a course of
treatment, mainly by manipulation, she told the old man that the
spirits said that they must be married within two weeks, or something
dreadful “would step in between them.” |143| By misrepresentations
concerning her character and her friends she won the old man and his
property. After the honeymoon the patient came to his senses, and
prayed to get back his liberty and possessions, because of the fraud
used. The Court granted his prayer [386].
To promise a cure is unprofessional, and to obtain money on the faith
of such a promise is sometimes dangerous. Brown falsely represented
himself to A., an ignorant negro, to be a practising physician, and
that he had restored sight to the blind. He persuaded A. that his
(A.’s) house was infected with poison, and that it was in the bed
occupied by his granddaughter, that she was poisoned, and that he could
remove the poison if he was paid for so doing. A. gave him $22 to
remove it. The Court held that Brown had been guilty of obtaining money
under false pretences [387].
A physician should take all possible care to prevent the spread
of smallpox or any other contagious disease, and use all such
precautionary measures as may appear desirable. So, where the paper
upon the walls of a room in which there had been smallpox patients had
become so soiled and smeared with the smallpox virus as to make its
removal necessary, a physician or other attendant may order the paper
to be torn down; and the landlord cannot successfully maintain an
action against the physician for doing this [388].
Apparently a surgeon may retain the limbs he cuts off a patient, upon
the ground that parts of the body when severed become dead, and at
common law there is no property in a dead human body. The point was
once contested in Washington [389]. |144|
A surgeon who attends a duel, although to save by his skill if
possible the lives therein imperilled, will be held guilty of aiding
and abetting the principal offender in the event of death ensuing [390].
If a medical practitioner wilfully injures a patient he is liable to
be indicted for an assault, and if death ensue from the injuries so
inflicted he may be indicted for murder. And this is so even though
the patient might have submitted at the time from the supposition
that the treatment was for his good. Having or attempting to have
carnal connection with a female patient under pretence of treating her
medically is an assault [391]. Making a female patient strip naked,
under pretence that the defendant, a medical practitioner, cannot
otherwise judge of her illness, if he himself takes off her clothes,
contrary to her wishes, is an assault. In this case the jury found that
the defendant had stripped the girl wantonly, and not from any belief
that it was necessary [392].
Where a physician takes an unprofessional unmarried man with him to
attend a case of confinement, and no real necessity exists for the
latter’s assistance or presence, both are liable for damages; and it
makes no difference that the patient, or her husband, supposed at the
time that the intruder was a medical man, and therefore submitted
without objection to his presence; or that the intruder accompanied the
physician reluctantly on a dark and stormy night to carry a lantern
or umbrella, and some instruments, and that there was only one room
in the house. The Court remarked: “Dr. De May therefore took an
unprofessional young unmarried man with him, introduced and permitted
him to remain in the house of the plaintiff, when it was apparent that
he could hear at least, |145| if not see, all that was said and done,
and, as the jury must have found under the instructions given, without
either the plaintiff or her husband having any knowledge or reason to
believe the true character of the third party. It would be shocking
to our sense of right, justice and propriety even to doubt that for
such an act the law would afford an ample remedy. To the plaintiff
the occasion was a most sacred one, and no one had a right to intrude
unless invited, or because of some real and pressing necessity which it
is not pretended existed in this case. The plaintiff had a legal right
to the privacy of her apartment at such a time, and the law secures to
her this right by requiring others to observe it and to abstain from
its violation. The fact that at the time she consented to the presence
of Scattergood, supposing him to be a physician, does not preclude her
from maintaining an action, and recovering substantial damages upon
afterward ascertaining his true character. In obtaining admission at
such a time and under such circumstances, without fully disclosing
his true character, both parties were guilty of deceit, and the wrong
thus done entitles the injured party to recover the damages afterward
sustained, from shame and mortification, upon discovering the true
character of the defendants.” The action was brought by the wife [393].
If physicians, who have certified to the insanity of a person, have
not made the enquiry and examination which the statute requires, or if
their evidence and certificate in any respect of form or substance are
not sufficient to justify a commitment to an asylum, the authorities
should not commit, and if they do it is their fault and not that of the
physicians, provided the latter have stated facts and opinions truly
and have acted with due professional care and skill [394]. |146|
If a medical man takes upon himself the responsibility of imprisoning
a person on the ground of insanity, upon mere statements made to him
by others, he will be liable to an action, and also for an assault,
unless he can indeed show that the party imprisoned was insane at
the time [395]. He is not liable for an assault if he has signed a
certificate under the Lunacy Acts and has done nothing more towards
causing the confinement of the alleged lunatic [396]. A medical man
or other person may justify an assault where it is committed for the
purpose of putting a restraint upon a dangerous lunatic in such a state
that it is likely he may do mischief to some one [397].
In Ontario, except under order of the Lieutenant-Governor, no one
can be admitted into a lunatic asylum without the certificate of
three medical men, each attested by the signatures of two subscribing
witnesses. Their certificates must state a personal and separate
examination, and that after due enquiry the patient was found insane;
and the physicians must also specify the facts upon which they formed
their opinion of the insanity. In England, except in the case of
paupers, two certificates are required [398].
The practice of abortion is forbidden by the oath of Hippocrates. The
act is recognized as a crime in almost every code of medical ethics:
its known commission has always been followed by ignominious expulsion
from medical fellowship and fraternity. At Common Law a child _en
ventre sa mere_ is not considered a person the killing of whom is
murder; but if one, intending to procure abortion, causes a child to be
born so soon that it cannot live, and |147| it dies in consequence,
it is murder [399]. And it is murder if one, attempting to procure
abortion, either by means of drugs or instruments, cause the death of
the woman [400].
In most civilized countries it is now either a felony, or grave
misdemeanor, to attempt to procure the miscarriage of a woman by any
means; or to supply or procure any thing knowing that it is intended
to be unlawfully used or employed to procure a miscarriage [401]. In
some States the crime of abortion may be committed at any stage of
pregnancy [402]. The thing prescribed must be noxious in its nature, but
it is not necessary to prove that it will produce miscarriage [403].
The burden of shewing that the use of instruments to produce abortion
was necessary to save the life of the woman is on the accused [404].
It is an indictable offence for a physician, or any one else,
unlawfully and injuriously to carry along or to expose in a public
highway, on which persons are passing, and near to the habitations
of others, any person infected with the small-pox, or any contagious
disorder; and it is for the accused to shew that the object of the
carrying or exposure was lawful [405].
In England, since 1840, it has been an indictable offence to innoculate
for the small-pox [406]. So, too, it has been in Canada for a number of
years [407]. |148|
It has been held in the State of Alabama, that where a special
prohibitory Act does not except the practising physician from its
operation, he is liable if he administers intoxicating bitters to his
patient, but not for using liquors necessary in compounding medicine
manufactured and sold by him. The application of any other rule,
it was said by the Court, would be fraught with difficulty, if not
impracticability. So, too, in Kansas [408].
Any registered practitioner who has been convicted of felony shall
forfeit his right to registration, and the Medical Council may cause
his name to be erased from the register; and if any one who has been
convicted of felony presents himself for registration the registrar may
refuse registration. But one’s name cannot legally be removed from the
register without notice and an opportunity of being heard [409].
A person who has met with personal injuries must exercise the same
degree of care in the employment of a physician and surgeon, and in
procuring and submitting to proper medical treatment, as a prudent and
reasonable man would in any other matter; for those persons liable for
the original injury will not be responsible for the further damage
arising from the improper selection of a physician [410].
If a family doctor, or the surgeon of a company or society, on leaving
home, recommends in case of need, some other physician, who is not,
however, in any sense in his employment, it does not make him in any
way liable for injuries arising from the latter’s want of skill [411].
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