The right of a medical man to recover his charges for professional services does not depend upon his effecting a cure, or on his services being successful, unless there is a special agreement to that effect. It does not depend upon the fortune of the case whether it be good or bad, but upon the skill, diligence and attention bestowed. For, as a general rule, a physician does not guarantee the success of his treatment; he knows that that depends upon a higher power. Still, some good must have resulted from his efforts. The rule appears to be that if there has been no beneficial service there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence ([26]). The practitioner must be prepared to show that his work was properly done, if that be disputed, in order to prove that he is entitled to his reward ([27]). Where the surgical implements employed in amputating an arm were a large butcher knife and a carpenter’s sash-saw, it was held that the Court rightly charged the jury, that if the |21| operation was of service, and the patient did well and recovered, the surgeon was entitled to compensation, though it was not performed with the highest degree of skill, or might have been performed more skilfully by others ([28]).
If a surgeon has performed an operation which might have been useful but has merely failed in the event, he is nevertheless, entitled to charge; but, if it could not have been useful in any event, he will have no claim on the patient ([29]). A medical man who has made a patient undergo a course of treatment which plainly could be of no service, cannot make it a subject of charge; but an apothecary who has simply administered medicines under the direction of a physician may recover for the same, however improper they may have been ([30]). If the physician has employed the ordinary degree of skill required of one in his profession, and has applied remedies fitted to the complaint and calculated to do good in general, he is entitled to his fees, although he may have failed in this particular instance, such failure being then attributable to some vice or peculiarity in the constitution of the patient, for which the medical man is not responsible ([31]).
It is the duty of a physician who is attending a patient infected with a contagious disease, when called upon to attend others not so infected, to take all such precautionary means experience has proved to be necessary to prevent its communication to them. When a physician who was told by a patient not to attend any infected with small-pox or his services would be dispensed with, failed to say that he was attending such a patient, and |22| promised not to do so, but continued to attend, and did by want of proper care communicate small-pox to the plaintiff and his family, it was held that these facts were proper evidence to go to the jury in reduction of damages in an action for his account, and that the physician was responsible in damages for the suffering, loss of time and damage to which the plaintiff may have been subjected. If a physician by communicating an infectious disease has rendered a prolonged attendance necessary, thereby increasing his bill, he cannot recover for such additional services necessitated by his own want of care ([32]). This rule will apply with equal force to puerperal fever ([33]).
In the case of vaccination, the physician, while he does not guarantee the specific value of the vaccine virus, yet guarantees its freshness; so that if he inoculate a patient with virus in an altered state, constituting as it then would mere putrid animal matter, and erysipelas or any injury to any limb necessitating amputation should arise, he will undoubtedly be held responsible for the suffering, loss of time, and permanent injury to the patient ([34]). Long since Lord Kenyon was of the opinion that if a surgeon was sent for to extract a thorn, which might be pulled out with a pair of nippers, and through his misconduct it became necessary to amputate the limb, the surgeon could not come into a court of justice to recover fees for the cure of the wound which he himself had caused ([35]).
The physician when sending in his bill should be specific in his charges and not general; he should give the number of visits and dates. In one case a lump charge of “$13 for medicine and attendance on one of the general’s daughters |23| in curing the whooping cough,” being objected to by the valiant officer, was held by the Court to be too loose to sustain an action ([36]). Where a practitioner brought an action for a bill consisting of a great number of items, and gave evidence as to some of them only, and the jury gave a verdict for the whole amount of the bill, the Court refused to interfere and grant a new trial because every item was not proved ([37]). Where a medical man delivered his bill to a patient without a specific charge, leaving a blank for his attendance, the Court inferred that he considered his demand in the light of a “quiddam honorarium,” (this was before the Medical Act), and intended to leave it to the generosity of the patient, and the latter having paid into court a certain amount, the Court held the surgeon was bound by the amount so paid and could not recover any more ([38]). As a rule, however, if a doctor’s bill is not paid when presented he is not limited by it to the amount of his claim, if he can show that his services were of greater value ([39]). When witnesses are called to speak as to the value of the practitioner’s services the Courts generally incline towards the lowest estimate ([40]).
The number of visits required must depend on each particular case, and the physician is deemed the best and proper judge of the necessity of frequent visits; and in the absence of proof to the contrary, the Court will presume that all the professional visits made were deemed necessary and were properly made ([41]). There must not be too many consultations; and the physician called in for consultation or to perform an operation may recover his fees from the |24| patient, notwithstanding that the attending practitioner summoned him for his own benefit and had arranged with the patient that he himself would pay ([42]).
Where a medical man has attended as a friend, he cannot charge for his visits. This was held in one case where it was proved that the practitioner had attended the patient as a friend, upon the understanding that he was to have refreshments and dinners free of charge; and in another case, where a medical man had attended professionally, for several years, a lady with whom he was on terms of intimacy (but received no fees, except once, when he had prescribed for her servant). The day before her death this lady had written to her executors, asking them to remunerate the doctor in a handsome manner, and moreover in her will she gave him a legacy of £3,000 and a reversionary interest in £6000 more. It was proved that he had attended others without having taken fees or sent in bills. It was held that his services had been tendered as for a friend, and accepted as a friends, and his demand as a debt against the assets of the lady was rejected ([43]). One would have thought that the physician in this latter case should have been satisfied.
Where a tariff of fees has been prepared, and agreed to by the physicians in any locality, they are bound by it legally as far as the public is concerned, morally as far as they themselves are concerned ([44]). It is no part of the physicians business to supply the patient with drugs; if he does so he has a right to be reimbursed therefor ([45]). |25|
If a physician enters into a special contract to perform a cure he will be held strictly to its terms, nor will he be allowed to plead circumstances, which, under the general law of professional obligation, might fairly exonerate him from blame, for failing of success in the treatment of his patient. To promise an absolute cure is to assume arrogantly the possession of powers never delegated to man; only a weak and vapid intellect will commit so egregious a blunder. Yet, if a man choose to do it he may, and having entered into an express contract he will be held liable for its fulfilment. For it is his own fault if he undertake a thing above his strength. If the agreement is, no cure, no pay: he cannot even recover for medicines supplied if the cure is not effected. At least, so it was held at Vermont. Contracts to receive a certain sum contingent upon the performance of a cure have always been considered as professionally immoral, and in the civil law were repudiated as against public policy ([46]).
The physician is always allowed discretionary powers over the patient entrusted to his care in modes of treatment, so as to be able to alter them according to the varying necessities of the case. Unless such change of treatment involves a risk of life or consequences of which he is unwilling to assume the responsibility, he is not under obligation to give notice or obtain permission before making it. Particularly is this the case where the patient is not at home or among friends or relatives, but is in some degree in his custody and under his exclusive supervision, as well as care. In such circumstances he is authorised to perform operations, or change his treatment, or enforce discipline essential to its fulfilment, without first consulting or obtaining permission from friends or guardians at a distance, since delay might involve a greater risk to the health |26| and possibly the life of the patient than would a necessitated operation; and of such things he alone is the proper, as he alone can be the best, judge. He may recover his fees for such operation or change of treatment without proving that it was necessary or proper, or that before he performed it he gave notice to the party who had to pay, or that it would have been dangerous to have waited until such notice had been given. The burden of proving unskilfulness or carelessness in the operation lies upon the party objecting to it ([47]).