Patient Must Inform Physician Fully Concerning his Case—His Communications Privileged.—On the other hand, as we have already stated, the patient owes the duty to his physician of informing him fully of all the varied symptoms of his disease, or the circumstances attending his injury, and to freely and with due confidence answer all questions concerning his past history which would tend to throw any light upon his present condition. To battle with the occult forces which play so important a part in determining the course or consequences of disease, it is absolutely essential that the physician should know all that is possible to be known of the patient’s history, and of the history of the patient’s family. As we shall see later on, all such communications are, in most of the States of the Union and elsewhere, by statutory enactment made privileged, and without the consent of the patient the physician or surgeon is absolutely forbidden to divulge any communication or information which he receives in order to enable him to prescribe. This rule applies equally whether the physician or surgeon is acting for hire or is treating the person as a charity patient, and it has been extended by construction by the courts in some States, so as to include examinations made by jail physicians or other physicians sent by the prosecuting officials of the State to examine a prisoner, for purpose of giving evidence, but who allowed the prisoner to suppose that they were there simply to treat him in their professional capacity. People v. Murphy, 101 N. Y., 126. At the same time the courts have been careful to make an exception in the case of advice given for the purpose of enabling the person receiving the advice to commit a crime, and of any information received by the physicians while the persons asking for it were engaged in a criminal attempt. All of these interesting questions will be examined and treated of at length hereafter.[166]
Conditions of Contract Between Physician and Patient Further Considered.—It has been observed that the contract between the physician and patient may be conditional or unconditional. By this it is meant that limitations upon the reciprocal obligations between them may be imposed, or extensions of such obligations made, by special agreement. The physician may contract to cure, and may make the cure a condition precedent to receiving any reward for his services or medicaments, and a breach of such a contract will be enforced by the courts as a bar to an action for services rendered or medicines furnished. The patient may agree to come to the physician’s home or to a hospital or other place agreed upon between them, for the purpose of being treated, or of being operated upon by a surgeon, and a failure to perform such an agreement on the part of the patient absolves the medical man from carrying out his agreement to treat the patient. In the case already suggested of a request by the medical man for information as to the patient’s past history, or that of the patient’s family, or the circumstances concerning the injury or symptoms of the disease, if the patient should give false information, or should wilfully neglect to give true information, the physician would have a right, upon giving reasonable and due notice, and opportunity to employ some one else, as already intimated, to decline to proceed further with his care of the case, and might sue and recover pay for the services rendered.
Physicians Cannot Contract that they shall Not be Responsible for Want of Ordinary Care and Skill.—An important and salutary exception to the general rule that all parties may contract freely as between themselves stipulations measuring their reciprocal obligations, doubtless applies to the relations between physician and patient. It is an exception which has been applied to the contract relations existing between a common carrier and a shipper or a passenger. This is that persons contracting to perform services which are to a certain extent public in their nature, and which, as in the case of the common carrier or in the case of the physician or surgeon, are founded upon conventional relations, and affect the public welfare, are not permitted, from reasons of public policy, to contract for a release or escape from liability arising out of their own negligence or wrong. In short, a physician or surgeon cannot contract with a patient that the patient shall waive any claim for damages growing out of his want of ordinary care and skill. Nevertheless, the physician or surgeon may frankly inform his patient of his want of knowledge and experience as to the particular kind of treatment required by any special and unusual disease or injury. If after full information on this point, and full opportunity to employ some one else, the patient insists that the physician or surgeon go on with such treatment as he is able to give to the case, and injuries result which a more skilful and experienced practitioner might have avoided, it is probable that the courts would hold that the practitioner was not liable under such circumstances, or that such circumstances could be pleaded in mitigation of damages. But it would be the duty of the practitioner in such a case to be exceedingly careful in performing any surgical operations, and not administer any powerful drugs with the strength and medicinal qualities of which he was not acquainted. If he should assume to perform such operations or administer such drugs instead of confining himself to modifying the ravages of disease by the use of well-known simple remedies, or protecting against the consequences of severe injury by the use of ordinary antiseptic dressings and treatment, he would no doubt be liable for any resulting damage, and could not recover pay for his service.
Experiments Not to be Tried on Patients—This Rule Applies to Charity Patients.—For like reasons of public policy it has been held that a physician has no right to try experiments on his patient.[167] In this respect a charity patient will be protected by law and compensated for damages received from experiments on his health and person, just as much as a person from whom a large fee could be expected. Humanity and public policy both forbid that experiments should be tried upon one class of patients any more than another. However this may be, in a case of extreme danger, where other resorts have failed and everything else done that could reasonably be required, and if the patient and his family consent after full information of the dangerous character of the operation, or the unknown qualities and powers of the drug to be administered, the practitioner would be justified and protected if some new methods of treatment not entirely developed or known to the profession, but supposed to be efficacious, should be adopted, although the result might prove unfavorable. In such a case, however, it would be extremely perilous for the physician to stand upon his own judgment alone. He should consult the best talent in his profession available, and abide by the judgment of his colleagues or a fair majority of them; and even then should apply to his course of action the maxim. When in doubt run no risks; better let a patient perish from disease or injury, than while attempting uncertain experiments with the surgeon’s knife or the use of dangerous drugs. The safe rule is to take no chances, unless there is a consensus of judgment of several physicians. It may be objected that if no experiments are tried no new medicines or surgical devices could be discovered, or their effects observed. The answer to this objection is that vivisection, and other experiments upon live animals, permit of experimentation to a considerable degree, and often effectually point out the proper course of treatment of the human subjects. In the case of drugs and medicines the practice is well known of physicians trying the effects thereof upon their own persons, in their zeal and anxiety to give to the world new discoveries. But, as heretofore observed, the law does not recognize the right of the medical or surgical practitioner to tamper with his patients’ health by the use of untried experiments, without imposing upon the practitioner liability for all injuries proximately resulting from their use. All of such matters will, however, fall more properly under consideration when the liability of the physician and surgeon for malpractice is considered.
CHAPTER IV.
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.