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.