CHAPTER XVII. COMPENSATION UNDER ORDINARY CONTRACT OF EMPLOYMENT. I. RIGHT TO, GENERALLY. 480. The common-law rule. 481. The modern rule. 482. Amount under express contract. 483. Amount under implied contract generally. 484. Effect of professional standing, nature of case, and financial ability. 485. Effect of failure to obtain license. 486. Effect of failure to record or register. 487. Failure to qualify through accident or inability. 488. Effect of malpractice. 489. Preference of claim. II. PROCEEDINGS FOR RECOVERY. 490. Methods of procedure generally. 491. Presumption and burden of proof. 492. Competency and sufficiency of evidence. I. RIGHT TO, GENERALLY. 480. The common-law rule.-In England under the common law, physicians could not maintain action to recover fees for medical services. Owing to the credit and rank of the body of physicians, fees were regarded as honorable, and not demandable of right. And this rule applied to an unlicensed person professing to act as a physician, as well as to regularly licensed physicians.2 It was lawful, however, for a physician to accept an honorarium or gratuity. And a recovery might be had on a special contract for such services, or on notes, 'Starrett v. Miley, 79 Ill. App. 658; Judah v. M'Namee, 3 Blackf. 269; McPherson v. Cheadell, 24 Wend. 15; Mooney v. Lloyd, 5 Serg. & R. 412; Graham v. Gautier, 21 Tex. 111; Lipscombe v. Holmes, 2 Campb. 441; Chorley v. Bolcot, 4 T. R. 317; 2 Revised Rep. 395; Poucher v. Norman, 3 Barn. & C. 745, 5 Dowl. & R. 648, 3 L. J. K. B. 115; Gibbon v. Budd, 2 Hurlst. & C. 92, 32 L. J. Exch. N. S. 182, 9 Jur. N. S. 525, 8 L. T. N. S. 321, 11 Week. Rep. 626; Little v. Oldaker, Car. & M. 370. So. a physician could not at common law recover his traveling expenses in 4 curred in visiting a patient as money paid to the patient's use, since such payments were made to the physician's own use in the ordinary exercise of his profession. Veitch v. Russell, 3 Q. B. 928, 3 Gale & D. 198, Car. & M. 362, 12 L. J. Q. B. N. S. 13, 7 Jur. 60. 'Lipscombe v. Holmes, 2 Campb. 441; Hupe v. Phelps, 2 Starkie, 480, 20 Re vised Rep. 726. Mooney v. Lloyd, 5 Serg. & R. 412; 5 6 bonds, or other obligations given therefor. Nor were surgeons and apothecaries regarded as belonging to the same class as physicians; and they were entitled to recover for services rendered. And a physician who acted in the double capacity of physician and surgeon in attending a patient, or in any other capacity than that of physician, was not prevented from recovering compensation for his services in the other capacity by the fact that he also acted as physician. And a surgeon may recover for medicines given, when the giving was incidental and subordinate to the performance of his duty as a surgeon. 481. The modern rule. Since the passage of the medical act in England, physicians, as well as surgeons, are entitled to recover compensation for their services. And the common-law rule has never been 32 L. J. Exch. N. S. 182, 9 Jur. N. S. 525, 8 L. T. N. S. 321, 11 Week. Rep. 626; Veitch v. Russell, 3 Q. B. 928, 3 Gale & D. 198, Car. & M. 362, 12 L. J. Q. B. N. S. 13, 7 Jur. 60. A physician at common law might properly contract for a fixed sum as a reasonable compensation for his services at the termination of his attendance. Veitch v. Russell, Car. & M. 362, 3 Q. B. 928, 3 Gale & D. 198, 12 L. J. Q. B. N. S. 13, 7 Jur. 60. But a contract to pay a physician for services would not be inferred at common law from a request for his attendance. Ibid. On the contrary, the fact that a physician was not paid fees at the time he was consulted tends to show, on the question of his right to compensation, that he was not acting as a physician. Little v. Oldaker, Car. & M. 370. "Mooney v. Lloyd, 5 Serg. & R. 412. "Graham v. Gautier, 21 Tex. 111; Handey v. Henson, 4 Car. & P. 110. cary, and the other as a surgeon only, furnishes no defense, under a statute prohibiting recovery for services by unregistered medical practitioners, to a joint claim for attendance and medicines supplied in both capacities. Turner v. Reynall, 14 C. B. N. S. 328, 32 L. J. C. P. N. S. 164, 9 Jur. N. S. 1077, 8 L. T. N. S. 281, 11 Week. Rep. 700. Simpson v. Ralfe, 4 Tyrw. 325; Allison v. Haydon, 3 Car. & P. 246, 4 Bing. 619, 1 Moore & P. 588, 6 L. J. C. P. 144, 29 Revised Rep. 653. But admission as a member of the Royal College of Surgeons does not entitle a person to charge for medicines administered by him while he attended a patient suffering from fever. Allison v. Haydon, 3 Car. & P. 246, 4 Bing. 619, 1 Moore & P. 588, 6 L. J. C. P. 144, 29 Revised Rep. 653. And a statutory provision subsequently passed, enabling a person registered according to his qualification, to practise medicine or surgery, and to recover reasonable charges for his professional services, does not repeal an act prohibiting apothecaries from recovering There is no rule of law which prevents an apothecary from making distinct charges for attendance and for medicines; the liability of the patient charges unless they have certificates therefor being a question for the jury, depending upon their reasonableness under the circumstances of the case. Morgan v. Hallen, 8 Ad. & El. 489, 3 Nev. & P. 489, 7 L. J. Q. B. N. S. 212, 2 Jur. 591, 1 W. W. & H. 370. 'Battersby v. Lawrence, Car. & M. 277; Little v. Oldaker, Car. & M. 370; Veitch v. Russell, 3 Q. B. 928, Car. & M. 362, 3 Gale & D. 198, 12 L. J. Q. B. N. S. 13, 7 Jur. 60. So, the fact that a business was carried on by two partners, one of whom was registered as a surgeon and apothe from the society of apothecaries; and a medical practitioner registered under the subsequent act as a member of the college of surgeons only cannot recover for attendance and medicines supplied in a surgical case. Leman v. Fletcher, L. R. 8 Q. B. 319, 42 L. J. Q. B. N. S. 214, 28 L. T. N. S. 499, 21 Week. Rep. 738. 'Starrett v. Miley, 79 Ill. App. 659; Gibbon v. Budd, 2 Hurlst. & C. 92, 32 L. J. Exch. N. S. 182, 9 Jur. N. S. 525, 8 L. T. N. S. 321, 11 Week. Rep. 626. Under the English medical act, 21 & deemed applicable in the United States, the universal rule here be ing, and having always been, that the law will imply a promise to pay a reasonable compensation for a physician's services, upon which a recovery may be had.10 And recovery of compensation under a contract therefor is not prevented by the fact that the services were rendered to another than the one sought to be held;11 or that the physician is the executor of his deceased patient;12 or by want of success, due care and skill having been used.13 The contract of a physician is entire, however, and performance must be shown to warrant a recovery for services;14 and where medical services were intended and accepted as a gift, or gratuity, they cannot be subsequently regarded as creating a legal obligation to pay.15 And it is competent to show that medical services were rendered gratuitously;16 or that they were 22 Vict. chap. 90, the object of which was to permit physicians to recover fees for services, but to enable the fellows of the college of physicians, if they desired that the dignity of their body should be preserved by practising for an honorarium, to effect this by a by-law, the presumption is that a physician who at tends a patient does so for a fee, the right to which can be enforced by action. Gibbon v. Budd, 2 Hurlst. & C. 92, 32 L. J. Exch. N. S. 182, 9 Jur. N. S. 525, 8 L. T. N. S. 321, 11 Week. Rep. 626. 10 Starrett v. Miley, 79 Ill. App. 658; Judah v. M'Namee, 3 Blackf. 269; Peck v. Martin, 17 Ind. 115; McPherson v. Cheadell, 24 Wend. 15; Re Scott, 1 Redf. 234; Graham v. Gautier, 21 Tex. 111. And an agreement by a physician, in settlement of a controversy, in consider ation of a payment of a sum of money, to render to the other party such general advice and prescriptions as would be needed by him from time to time, is too uncertain and indefinite to constitute a defense to an action subsequently brought by the physician for medical services alleged to have been rendered in consideration of such payment. Mays v. Patterson, 20 Pa. Super. Ct. 92. See White v. Mastin, 38 Ala. 147. And see also ante, §§ 467, 468, 469, 470, 471, 472. And a physician, seeking to recover for medical services rendered to a third person, may prove that, although he did not begin, he continued, his services at the instance and request of the defendant. White v. Mastin, 38 Ala. 147. But the fact that a person, sought to be held liable to a physician for services rendered by him to a third person in an infirmary, had paid his account contracted with the infirmary, is irrelevant and inadmissible in an action for services rendered. Ibid. "Re Scott, 1 Redf. 234. "Yunker v. Marshall, 65 Ill. App. 667; Ely v. Wilbur, 49 N. J. L. 685, 60 Am. Rep. 668, 10 Atl. 358, 441; Ladd v. Witte, 116 Wis. 35, 92 N. W. 365. The mistake which will deprive a physician of a right to compensation must have been the result of want of care or skill. Ely v. Wilbur, 49 N. J. L. 685, 60 Am. Rep. 668, 10 Atl. 358, 441. "Bellinger v. Craigue, 31 Barb. 534. Prince v. McRae, 84 N. C. 674; Lippman v. Tittmann, 31 Mo. App. 69. A surgeon who presents his bill to a patient, leaving the charge for attendance blank, must be regarded as leaving the amount to the generosity of the patient; and where the patient pays him a certain sum, he can recover no more. Tuson v. Batting, 3 Esp. 192. And where, in a proceeding for the recovery of compensation for medical services rendered by a son to his parent, it appears that part of such services were intended to be gratuitous, it cannot be presumed that there was any design to charge for the remainder; and no promise to pay can be implied. Ross v. Ross, 6 Hun, 182. But the fact that a physician made no charge for a part of his visits and services to a patient has no effect on the right of a physician to recover for the balance of such services. Buchanan v. Sterling, 63 Ga. 227. Re Scott, 1 Redf. 234; Huston v. Barstow, 19 Pa. 169. But the fact that a physician attended a patient and rendered no bill for his rendered on a "no cure no pay" contract, and that a cure had not been effected. It is a question for the jury in an action for compensation, whether or not such services were intended to be gratuitous;18 and, in order to defeat the claim therefor, affirmative evidence must be produced.19 A physician would not be entitled to recover for medical services rendered to another physician, it seems, where there was a general understanding among physicians that, instead of receiving money for such services, the attending physician accepted in full payment therefor the benefits and advantages of professional comity, which assured to him valuable professional skill under similar conditions, and the continued good opinion of members of the learned profession deemed essential to success, and confidential scientific counsel in matters pertaining to health and reputation.20 And, in such case, evidence of universal custom among physicians not to charge for their attendance upon fellow physicians is admissible.21 The code of ethics of the profession, however, would not be evidence, without accompanying proof that both parties acknowledged themselves to be bound by it at the time the services were rendered.22 And a custom among physicians not to charge each other for professional services, to be a defense against an action for a physician's services, must have been so universal as to justify the conclusion that it became by implication a part of the contract for services.23 482. Amount under express contract.-When there is an express contract between the parties relating directly to the amount of compensation of a physician for medical services, that is, of course, controlling." When made with relation to particular circumstances or services, but expected and hoped to be compensated by receiving a legacy from her, does not preclude him from suing her executor for his services, where no legacy was left him. Baxter v. Gray, 4 Scott, N. R. 374, Mann. & G. 771, 11 L. J. C. P. N. S. 63. "Pickler v. Caldwell, 86 Minn. 133, 90 N. W. 307; McDonald v. Harris, 131 Ala. 359, 31 So. 548. Prince v. McRae, 84 N. C. 674. "Re Scott, 1 Redf. 234. But a physician in the employment of another as a dermatologist on a weekly salary, who volunteers and renders medical services to his employer during the employment, will be deemed to have rendered them as a part of his employment, in the absence of evidence of an express agreement to pay for them. Perry v. Woodbury, 44 N. Y. S. R. 287, 17 N. Y. And a physician summoned from a distant place to attend an aunt, not in a professional capacity, but as adviser in business matters, who, on his arrival, renders valuable professional services which were accepted by the aunt, is entitled to compensation therefor; but not having been summoned professionally in the first instance, he cannot include a claim for loss of home practice. Dickie's Succession, 41 La. Ann. 1010, 6 So. 798. 20 Bremerman v. Hayes, 9 Pa. Super. Ct. 8. Madden v. Blain, 66 Ga. 49. "See Burgoon v. Johnson, 194 Pa. 61, conditions existing and expected to continue, however, it is subject to change or to the engrafting thereon of alterations and new conditions if there is a total or radical change in such circumstances and conditions;25 and though there is an express contract, recovery for other and different services not included within its provisions is not thereby prevented.26 It is a question for the jury whether or not changes in circumstances or conditions have abrogated or altered an express contract for compensation for medical services previously existing.27 It is competent for a physician to enter into a contract for the performance of medical services, and for the submission of his claims for compensation to the approval of certain persons named; and, in such case his right to recover depends upon such approval, where it was not fraudulently withheld.28 But a contract by which the compensation of a physician was made to depend upon the amount obtained by the patient from the one causing his injury, contemplating a disclosure of the extent of the injury for the purpose of enhancing such amount, is void as against public policy.29 483. Amount under implied contract generally.-A physician rendering medical services to another, without a specific agreement as to compensation, must recover, if at all, upon a quantum meruit,30 the value to be proved being the ordinary and reasonable price for services of that nature.31 And this he is entitled to, where no want of actual skill 45 Atl. 65; Brown v. Murrell (Ark.) 16 A contract to pay a physician from $200 to $400 for the performance of a surgical operation is binding and valid for $200, and for the value of his services up to $400, upon proof of such value. Doyle v. Edwards, 15 S. D. 648, 91 N. W. 322. And where a physician having a trouble, contracted with a specialist for his cure, agreeing that he would give a certificate of skill and proficiency of the specialist as such in the treatment of that trouble, or $5,000 in cash, the $5,000 will not be regarded as a penalty which cannot be recovered in full, but as merely an alternative mode of payment agreed upon by the parties, and is recoverable in case of failure to give the certificate. Burgoon v. Johnson, 194 Pa. 61, 45 Atl. 65. Brown v. Murrell (Ark.) 16 S. W. 478; MacEvitt v. Maass, 64 App. Div. 382, 72 N. Y. Supp. 158. Union P. R. Co. v. Graddy, 25 849, 41 N. W. 809. Neb. "MacEvitt v. Maass, 64 App. Div. 382, 72 N. Y. Supp. 158. 28 Union P. R. Co. v. Anderson, 11 Colo. 293, 18 Pac. 24. 29Thomas v. Caulkett, 57 Mich. 392, 58 Am. Rep. 369, 24 N. W. 154. 30 Forbes v. Kennedy, 76 Hun, 39, 27 N. Y. Supp. 596; Prince v. McRae, 84 N. C. 674. Styles v. Tyler, 64 Conn. 432, 30 Atl. 165; Prince v. McRae, 84 N. C. 674; McKnight v. Detroit & M. R. Co. (Mich.) 10 Det. L. N. 777, 97 N. W. 772. Where witnesses differ as to charges made by physicians for services rendered a decedent in his last sickness, in the settlement of his estate the correct rule is to allow the lowest estimate. Duclos's Succession, 11 La. Ann. 406; Collins v. Graves, 13 La. Ann. 95. And a verdict of a large amount on a claim for medical services rendered upon the implied promise of the patient to bear all the expenses, and pay what the services were fairly and reasonably worth, will be set aside though no evidence was given to controvert the amount, where there was no evidence that the services were worth the amount |