It has been held, however, that an attempt to confer the exclusive right. to treat all diseases, physical and mental, real or imaginary, upon licensed physicians, so as to make it illegal to call upon anyone except licensed physicians, to attend persons who are ill, is unconstitutional, under a provision prohibiting monopolies and perpetuities.12 And to prohibit practising medicine or surgery without a license, and to make the practice of medicine and surgery include the management of any disease by any method whatever, are not within legislative power, since this would be to make the practice of medicine and surgery include the practice of healing without medicine or surgery.18 And a person suffering a personal injury is not precluded from recovering therefor against the person causing the injury, by the fact that he cared for himself instead of calling a physician, where it appears that he used all reasonably accessible means for his cure, and pursued upon his own judgment that course of treatment which would ordinarily have been adopted by a physician.14

his ability to procure assistance, and as tending to lead the jury to understand that, because he did not turn her into the street when he discovered her condition, it was a reckless disregard of his duty to the child not to have procured assistance. State v. Noakes, 70 Vt. 247, 40 Atl. 249.

State v. Biggs, 133 N. C. 729, 64 L. R. A. 139, 98 Am. St. Rep. 731, 46 S. E. 401.

And an act passed apparently in favor of a state medical society, practically confining the right to practise medicine to its members, will be construed most strongly against the society. Ibid.

13Ibid.

And the Postmaster General is not warranted in prohibiting the delivery of letters addressed to a corporation which assumes to heal disease through the influence of the mind, by a statute authorizing such detention of letters addressed to anyone obtaining money by fraud or false pretenses. American

School of Magnetic Healing ▼. MoAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33.

It is to be observed that the above case of State v. Biggs, 133 N. C. 729, 64 L. R. A. 139, 98 Am. St. Rep. 731, 46 S. E. 401 is one of prosecution for a violation of laws regulating the practice of medicine, and not one of failure or refusal to call a physician; and it is thought that, while the principles announced in it would probably operate to except a person practising healing without medicine or surgery from punishment for practising medicine and surgery without a license, they would not operate to excuse a person upon whom a duty rested to call a physician or surgeon for the benefit of another, in a case in which the services of a physician or surgeon were required, for calling, instead, a practitioner of healing without medicine or surgery.

Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29, 58 S. W. 278.

CHAPTER XV.

RELATION BETWEEN PHYSICIAN AND PATIENT OR EMPLOYER

463. Its nature generally.

464. Personal character of contract.

465. Continuance of relation.

466. Warranty of cure.

467. Contracts by third persons generally.

468. Employment by husband or wife.

469. Employment by head of family.

470. Employment for servant or apprentice.

471. Agency in employment of physician for another. 472. Regular physician calling counsel or assistance.

463. Its nature generally.-The relation between a physician and his patient or employer is contractual in its nature;1 and the principles of the common law apply in general to the services of a physician, as well as to the services of others.2 The contract may be formal and express, or it may be implied from the rendition and acceptance of service. Where services are rendered by a physician and accepted by the patient, there is an implied contract to pay for them, whether the physician was engaged by him or by a third person. And the nature of the demand of a physician for medical services rendered without a special contract therefor is simply an implied promise to pay what such services are reasonably worth.* Where a contract is made through a physician for services at a hospital, it is subject to the rules of the hospital except as modified by the parties by special agreement.5 And a subscriber to a hospital under a verbal contract ex

1 See Jonas v. King, 81 Ala. 285, 1 So. 591; Morrisette v. Wood, 128 Ala. 505, 30 So. 630; Smith v. Hobbs, 119 Ga. 96, 45 S. E. 963; Re Freeman, 46 Hun, 458, 12 N. Y. S. R. 175; Musser v. Chase, 29 Ohio St. 577; Smith v. Watson, 14 Vt. 332.

Starrett v. Miley, 79 Ill. App. 658. Smith v. Watson, 14 Vt. 332; Peck v. Martin, 17 Ind. 115; Shelton v. Johnson, 40 Iowa, 84.

An averment in an action against a physician for malpractice, that the retainer of the defendant was at his spe

3

cial instance and request, is sufficiently proved by showing that the defendant held himself out as a practitioner soliciting public patronage, and that the employment was by mutual consent. Musser v. Chase, 29 Ohio St. 577.

'Morrisette v. Wood, 128 Ala. 505, 30 So. 630; Chicago & N. W. R. Co. v. Friend, 86 Ill. App. 157; Peck v. Martin, 17 Ind. 115.

"Crumrine v. Austin (Mich.) 10 Det. L. N. 216, 94 N. W. 1057.

And where such a contract is made not contemplating an operation, and un

isting between the company employing him and the hospital, that all of its employees subscribing should be entitled to medical attendance at the hospital free, cannot escape payment of a bill for medical services rendered him by the hospital physician at his residence. A contract with a physician for medical services cannot be avoided because made on the Sabbath. Healing the sick is a work of necessity or charity within the exception in statutory prohibitions against Sunday labor.8

.8

464. Personal character of contract.-Contracts for personal services, like those of a physician, are subject to the implied condition that he shall remain in a condition to perform, and are revoked if sickness or other disability renders him unable to do so; and in such case an obligation previously given for payment for such services is discharged. But a physician to whom a sum of money is paid by a patient upon his agreement to cure him of a disease, the contract being conditioned that the patient should take further treatment if a cure was not effected, may retain the money paid though there was no cure, where the other neglected or refused to submit to further treatment.1 465. Continuance of relation.-A physician or surgeon called to attend a patient may elect whether or not he will give his services to the case.11 But if he accepts the employment, it continues while the sickness lasts unless ended by express dismissal by the patient,12

der the rules of the hospital the house surgeon was not given charge of patients, and an outside surgeon was called upon to perform the operation, the party operated upon is liable to the surgeon performing the operation for compensation for his services. Ibid.

"Corbus v. Leonhardt, 51 C. C. A. 636, 114 Fed. 10.

'Smith v. Watson, 14 Vt. 332; Aldrich v. Blackstone, 128 Mass. 148; Staggers's Estate, 8 Pa. Super. Ct. 260.

10

18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564; Dale v. Donaldson Lumber Co. 48 Ark. 188, 3 Am. St. Rep. 224, 2 S. W. 703; Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683; Edelman v. McDonell, 126 Cal. 210, 58 Pac. 528; Ritchey v. West, 23 Ill. 385; Barbour v. Martin, 62 Me. 536; Dashiell V. Griffith, 84 Md. 363, 35 Atl. 1094; Potter v. Virgil, 67 Barb. 578; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675;

'Powell v. Newell, 59 Minn. 406, 61 Gerken v. Plimpton, 62 App. Div. 35, N. W. 335.

Ibid.

10 Madison v. Mangan, 77 Ill. App. 651. "Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683; Hurley v. Eddingfield, 156 Ind. 416, 53 L. R. A. 135, 83 Am. St. Rep. 198, 59 N. E. 1058.

A physician is not liable for injury resulting to a person from his arbitrary refusal to attend her when sick, although no other physician was procurable. Hurley v. Eddingfield, 156 Ind. 416, 53 L. R. A. 135, 83 Am. St. Rep. 198, 59 N. E. 1058.

"Lawson v. Conaway, 37 W. Va. 159,

70 N. Y. Supp. 793; Tucker v. Gillette, 22 Ohio C. C. 664.

And a physician called upon to care for an injured arm of a patient, who dismisses himself on the ground that his services are no longer required, but subsequently calls and gives directions as to the arm, and makes statements as to its condition, occupies the same position as if he had acted continuously, and is responsible for such directions and statements. Carpenter v. Blake, 75 N. Y. 12.

And any person of intelligence is capable of judging of the necessity of medical advice and services, and is com

which may be done at any time;18 or until terminated by the physician, which can only be done after due notice, and an ample opportunity to secure other medical attendance.14 Continued attention upon the part of a physician or surgeon to his patient so long as attention is required is an inference of law from the undertaking of the physician, in the absence of any stipulation to the contrary.15 It is competent for a physician and his employer, however, to make such a contract as they see fit; and they may limit the attendance to a longer or shorter period.16 And it is for the physician to determine how often he ought to visit the patient; and if the patient accepts his services without objection or modification, he cannot afterwards refuse to pay for visits on the ground that they were unnecessary.17

466. Warranty of cure.-In the absence of special contract, a physician in charge of a patient is not considered as warranting a cure. 18

petent to prove that a person was sick, or so sick as to require medical advice; and it is not improper to permit a nonmedical witness to testify whether or not it was necessary for the physician to give his attendance as long as he did. Chicago, B. & Q. R. Co. v. George, 19 Ill. 510, 71 Am. Dec. 239.

So, a veterinary, called upon to treat a sick horse, agreeing to call the next morning early, but neglecting ever to call again, is guilty of such negligence as will prevent a recovery for his services. Boom v. Reed, 69 Hun, 426, 23 N. Y. Supp. 421.

18 Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683. And see Dashiell v. Griffith, 84 Md. 363, 35 Atl. 1094; Tucker v. Gillette, 11 Ohio S. & C. P. Dec. 226.

"Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683; Ballou v. Prescott, 64 Me. 305; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675; Gerken v. Plimpton, 62 App. Div. 35, 70 N. Y. Supp. 793; Tucker v. Gillette, 22 Ohio C. C. 664; Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564. But see White v. Mastin, 38 Ala. 147.

15 Ballou v. Prescott, 64 Me. 305. 18Ballou v. Prescott, 64 Me. 305; Dale v. Donaldson Lumber Co. 48 Ark. 188, 3 Am. St. Rep. 224, 2 S. W. 703; Carpenter v. Blake, 60 Barb. 488.

A physician, with une consent of his patient, may, at any time, discontinue his services at the instance of the patient, and continue them under a con tract with another person at his expense; and the assent of the patient to

the new contract is not necessary. White v. Mastin, 38 Ala. 147.

But while a physician or surgeon may give up the care of a patient at any time with the patient's assent, if he insists upon such assent as a shield from liabil ity for any negligence of which he may have been guilty, or for any malpractice committed, it is competent for the patient to show that consent was obtained by false representations. Carpenter v. Blake, 60 Barb. 488.

And the consent of a person injured, to the abandonment of his case by the surgeon employed by him, given because the acts or language of the surgeon had induced the patient to believe that the injury was properly cared for and in a fair way to be cured, does not discharge him, where such acts and representations were false or unfounded. Ibid.

"Ebner v. Mackey, 186 III. 297, 51 L. R. A. 298, 78 Am. St. Rep. 280, 57 N. E. 834; Todd v. Myres, 40 Cal. 355.

18 Tefft v. Wilcox, 6 Kan. 46; Becknell v. Hosier, 10 Ind. App. 5, 37 N. E. 580; Baker v. Hancock, 29 Ind. App. 457, 63 N. E. 323, 64 N. E. 38; Patien v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Hesse v. Knippel, 1 Mich. N. P. 109; Vanhooser v. Berghoff, 90 Mo. 487, 3 S. W. 72; Van Skike v. Potter, 53 Neb. 28, 73 N. W. 295; O'Hara v. Wells, 14 Neb. 403, 15 N. W. 722; Pike v. Honsinger, 155 N. Y. 201, 63 Am. St. Rep. 655, 49 N. E. 760; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675; Grindle v. Rush, 7 Ohio, pt. 2, p. 123; Craig v. Chambers, 17 Ohio St. 253; Tish v. Welker, 5 Ohio S. & C. P. Dec.

He is not an insurer of the success of his treatment,1 not be permitted to draw a conclusion of unskilfulness upon his part from the result of the treatment.20 He is at liberty, however, to contract to effect a cure,21 in which case he can only recover compensation for his services on showing performance of the contract according to its terms.22 And he may even render himself responsible for the results of mere errors of judgment.23