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]).