32 is specifically shown though he fell into mistake in his treatment, and though he did not succeed in accomplishing that for which he was employed.33 A physician in such case, however, can only recover the fair value of the services actually rendered;34 and the value of a physician's services cannot be measured as matter of law by his actual average daily receipts; the jury in such cases must take all of the various elements into consideration, and draw its own conclusion as to the amount by comparison.35 And the reasonableness of the charge of a physician for his services cannot be determined by comparison with other charges made by him in similar cases.36 Physicians keeping accounts, which by custom become due at the end of the year, are entitled to interest on their accounts from the end of the year, within the equity of a statutory provision declaring that the accounts of merchants, tradesmen, and mechanics, which by custom become due at the end of the year, should bear interest, though they are not within the very terms of the statute.37 484. Effect of professional standing, nature of case, and financial ability. The measure of compensation of physicians and surgeons is controlled to some extent by their standing and ability in the profession, and the seriousness of the case, and the services rendered, and their general responsibility and success.38 In such cases, where the skill and learning of the practitioner, as well as the variety in character and circumstances of the subject to which he devotes his services, preclude the establishment of any fixed rate of compensation, the rule that the usual price at the time and place of performance controls in the absence of special contract does not apply.39 The rule has of the verdict above the expenses, and no proof of any usage or custom that the plaintiff should pay the physician's expenses. Forbes v. Kennedy, 76 Hun, 39, 27 N. Y. Supp. 596. Ely v. Wilbur, 49 N. J. L. 685, 60 Am. Rep. 668, 10 Atl. 358, 441. And see ante, § 466. Tiedeman v. Loewengrund, 2 W. N. C. 272; Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111. And see ante, § 466. "Chicago & N. W. R. Co. v. Friend, 86 Ill. App. 157. And see McNamara v. McNamara, 108 Wis. 613, 84 N. W. 901. A brother of a decedent can recover no more from the decedent's estate for services as a physician than the ordinary value of such services which could be recovered by another physician. Moffett's Estate, 11 Phila. 79. "Thomas v. Caulkett, 57 Mich. 392, 58 Am. Rep. 369, 24 N. W. 154. "Collins v. Fowler, 4 Ala. 647. But an account with a physician for similar services previously settled is competent and admissible in evidence in an action by the physician for services subsequently rendered, as tending to establish an implied contract or understanding in relation to the amount which should be charged for such services. Sidener v. Fetter, 19 Ind. 310. Woodfield v. Colzey, 47 Ga. 121. 38 Lange v. Kearney, 21 N. Y. S. R. 262, 4 N. Y. Supp. 14; MacEvitt v. Maass, 64 App. Div. 382, 72 N. Y. Supp. 158; Heintz v. Cooper (Cal.) 47 Pac. 360. The fitness of the place in which a surgical operation was performed is pertinent and admissible in an action for services, on the question of the reasonableness of the surgeon's charge. Sayles v. Fitzgerald, 72 Conn. 391, 44 Atl. 733. Heintz v. Cooper (Cal.) 47 Pac. 360. been laid down, however, that the charges of a physician for services cannot be determined solely upon the basis of skill, and that the amount of the patient's estate, and his ability to pay, also enter into the conclusion and influence it.40 But the contrary rule, that the circumstances of the party subject to be charged do not constitute an element in fixing the value of the services, has also been asserted.11 Where a patient requires an unusual amount of attention, that fact may be considered in fixing the amount of the compensation. And a physician attending a patient is the proper and sole judge of the necessary frequency of his visits to his patient so long as the patient is in his charge; and he is not required to prove the necessity of making the visits he did, in order to recover his compensation, it being presumed that all professional visits were necessary and were properly made. 44 43 485. Effect of failure to obtain license.-The statutes of many of the states regulating the practice of medicine, surgery, etc., prohibit practice for a fee or reward by unlicensed persons, or provide expressly that an unlicensed person shall not recover compensation for services rendered.45 Under such statutes a contract by an unlicensed "Czarnowski v. Zeyer, 35 La. Ann. 796; Haley's Succession, 50 La. Ann. 840, 24 So. 285. And see Lange v. Kearney, 21 N. Y. S. R. 262, 4 N. Y. Supp. 14. But the financial condition of a person is irrelevant and incompetent on the question whether or not he had bargained with a physician on the "no cure no pay" basis. Hollywood v. Reed, 55 Mich. 308, 21 N. W. 313. "Robinson v. Campbell, 47 Iowa, 625. It has been held in a late case that testimony as to the value of a patient's estate, upon an inquiry as to the value of professional services rendered to him, is not admissible, in the absence of a recognized usage obtaining in the premises to graduate professional charges with reference to the financial condition of the person for whom such services were rendered, which had been so long established and so universally acted upon as to have ripened into a custom of such a character that it might be supposed the services were rendered in contemplation of it. Morrissett v. Wood, 123 Ala. 384, 82 Am. St. Rep. 127, 26 So. 307. Short's Succession, 45 La. Ann. 1485, 14 So. 184. “Ebner v. Mackey, 186 Ill. 297, 51 L. R. A. 298, 78 Am. St. Rep. 280, 57 N. E. 834; Todd v. Myres, 40 Cal. 355. And see Short's Succession, 45 La. Ann. 1485, 14 So. 184. And refusal to permit defendant's counsel to cross-examine the plaintiff, in an action for medical services, as to the amount charged for particular visits, and what they were worth, is not prejudicial error, where there was no dispute as to the number of visits or items. Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111. "Todd v. Myres, 40 Cal. 355. But an extra charge for the visits of a physician based solely upon the fact that more than one physician had been called in and should have regularly attended the patient, on the theory that each call was a consultation, is illegal. Haley's Succession, 50 La. Ann. 840, 24 So. 285. See Puckett v. Alexander 102 N. C. 98, 3 L. R. A. 43, 8 S. E. 767; Orr v. Meek, 111 Ind. 40, 11 N. E. 787; Eastman v. State, 109 Ind. 278, 58 Am. Rep. 400, 10 N. E. 97; Czarnowski v. Zeyer, 35 La. Ann. 796; Berry v. Scott, 2 Harr. & G. 92; Spaulding v. Alford, 1 Pick. 33; Davidson v. Bohlman, 37 Mo. App. 576; Maxwell v. Swigart, 48 Neb. 789, 67 N. W. 789; Haworth v. Montgomery, physician to render medical services for a fee is void in ite inception, and does not constitute a sufficient consideration for an express promise to pay for the services.48 Such statutes embrace all cases in which the attempt to recover is subsequent to the time the act went into effect, without reference to the time the claim accrued,47 requiring qualification before the services were rendered,48 and include actions brought after the repeal of the law for recovery for medical services rendered while it remained in force,49 and include, also, 91 Tenn. 16, 18 S. W. 399; Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236. A statutory provision forbidding persons not graduates of a reputable school of medicine from practising medicine, the only penalty prescribed being that the person violating it shall not be entitled to compensation for his services; and another provision prohibiting any one except graduates of schools of medicine from practising medicine, imposing a fine, penalty, and imprisonment, leaves a person not having graduated from a medical college held to be reputable at liberty to practise his profession, but he is not entitled to compensation therefor. State ex rel. Baldwin v. Prendergast, 8 Ohio C. C. 401. "Puckett v. Alexander, 102 N. C. 98, 3 L. R. A. 43, 8 S. E. 767; Mays v. Wil liams, 27 Ala. 267. But a physician suing for medicines and medical services is not bound to produce his license, under a statute making contracts or securities given for medical services void where the physician is unlicensed, unless he has received notice by plea or otherwise that he will be required to produce it. Crane v. MoLaw, 12 Rich. L. 129. "Berry v. Scott, 2 Harr. & G. 92; Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880. But though the statute provides that no action shall lie in favor of any person for services rendered as a physician unless he shall have procured a license to practise medicine in the county where the services were rendered, yet it is not necessary in filing a claim against an estate for such services to allege that he was a regularly licensed physician at the time the services were rendered. Cooper v. Griffin, 13 Ind. App. 212, 40 N. E. 710. Thompson v. Hazen, 25 Me. 104; Leman v. Houseley, L. R. 10 Q. B. 66, 44 L. J. C. B. N. S. 22, 31 L. T. N. S. 833, 23 Week. Rep. 235. And a certificate issued to a physician during the period of continuance of medical services rendered by him will not relate back to the time he made his application so as to warrant recovery for services rendered previous to the time he obtained it. Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880. But all that a medical practitioner seeking to recover for services rendered need do, under a statute prohibiting recovery for services by a practitioner unless he can prove upon the trial that he is registered, is to establish that he was registered at the time of the trial; he need not show that he was registered at the time of the rendition of the services. 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. And a statutory provision prohibiting recovery by an unregistered medical practitioner for services rendered has no retrospective effect so as to prevent a person who was not registered from maintaining an action for such services rendered before the act went into operation. Wright v. Greenroyd, 1 Best & S. 758, 31 L. J. Q. B. N. S. 4, 8 Jur. N. S. 98, 5 L. T. N. S. 347. Nichols v. Poulson, 6 Ohio, 305; Mays v. Williams, 27 Ala. 267; Quarles v. Evans, 7 La. Ann. 543; Bailey v. Mogg, 4 Denio, 60; Puckett v. Alexander, 102 N. C. 98, 3 L. R. A. 43, 8 S. E. 767; Warren v. Saxby, 12 Vt. 146. re But a statute providing that no phy. sician shall be entitled to recover any debt or fee accruing for professional services rendered after a designated date unless he had been licensed, and that all former acts directed thereto are pealed, takes effect so far as the repealing provision is concerned at the time designated for the taking effect of the rest of the act, and not at the time of its enactment, so that acts of practice in the interval would be unaffected either by that act or the laws previously in actions for compensation for medicines and bottles used incidentally in performing the services.50 And the effect is not changed by the fact that the person employing the physician knew that he was unlicensed.51 Even in the absence of an express prohibition against practising for a fee or reward, where the statute requires every person practising medicine to take particular designated steps as a prerequisite to his rights, enforcing the requirement by penal sanction, one who fails to comply with such provision can recover no fees for professional services.52 And he cannot recover upon a contract for such services." 53 existence. Spaulding v. Alford, 1 Pick. 33. And in Hewitt v. Wilcox, 1 Met. 154, it was held that a statutory provision that a physician should not be entitled to the benefit of the law for the recovery of any debt or fee accruing for his professional services unless he was duly qualified as required by law affects the remedy, and not the right, and leaves in force the principle of the common law that, when services are performed on request, and no agreement is made in respect to them, the law raises an implied promise to pay their reasonable value; so that, if the law is repealed, a physician, though unlicensed, may recover for professional services rendered by him before the repeal. Smith v. Tracy, 2 Hall, 465; Alcott v. Barber, 1 Wend. 526; Steed v. Henley, 1 Car. & P. 574. And the fact that medicines supplied by an unlicensed physician were patented gives him no additional right to recover for them, the only effect of the patent being to preclude others from selling or using them. Smith v. Tracy, 2 Hall, 465. But though the statute provides that obligations given for medical services rendered by an unlicensed practitioner shall be void, one who practises as a physician may also be a druggist or an apothecary; and where drugs sold constitute a part of the consideration for a note given to the physician, the true question for the jury in an action thereon is, Were the drugs and medicines, embraced in the account, prescribed, administered, or furnished by the plaintiff acting in the capacity of a physician, or did he sell them in the capacity of a druggist or apothecary? Holland V. Adams, 21 Ala. 680. Smith v. Tracy, 2 Hall, 465. But the contrary rule seems to obtain where the statute merely prohibits unlicensed practice, and does not expressly prohibit the recovery of compensation by unlicensed practitioners. Bronson v. Hoffman, 7 Hun, 674. Chicago v. Honey, 10 Ill. App. 535; Patrick v. Perryman, 52 Ill. App. 514; Harrison v. Jones, 80 Ala. 412; Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880; Roberts v. Levy (Cal.) 31 Pac. 570; Byrne v. Panesi, 77 Ill. App. 164; Underwood v. Scott, 43 Kan. 714, 23 Pac. 942; Dickerson v. Gordy, 5 Rob. (La.) 489; Bohn v. Lowery, 77 Miss. 424, 27 So. 604; Timmerman v. Morrison, 14 Johns. 369; Bailey v. Mogg, 4 Denio, 60; For v. Dixon, 34 N. Y. S. R. 710, 12 N. Y. Supp. 267; Accetta v. Zupa, 54 App. Div. 33, 66 N. Y. Supp. 303; Ottaway. Lowden, 55 App. Div. 410, 66 N. Y. Supp. 952; Alcott v. Barber, 1 Wend. 526; Dowdell v. McBride, 18 Tex. Civ. App. 645, 45 S. W. 397; Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667; San Antonio Street R. Co. v. Muth, 7 Tex. Civ. App. 443, 27 S. W. 752; Wilson v. Vick (Tex. Civ. App.) 51 S. W. 45; Wooley v. Bell (Tex. Civ. App.) 76 S. W. 797. In Smythe v. Hanson, 61 Mo. App. 285, however, where the statute formerly provided that a person practising medicine without a license should not recover any compensation for his services so rendered, but was subsequently amended by omitting this provision, leaving such practice a misdemeanor, it was held, apparently in order to give effect to such amendment, that a physician rendering services as such, under a contract with the person benefited, may recover their value from him, though in rendering the services he was guilty of a misdemeanor because he rendered them without a proper certificate or license. And the same ruling was made in Prietto . Lewis, 11 Mo. App. 600. 3 Mayfield v. Nale, 26 Ind. App. 240, 59 N. E. 415. In Gremare v. Le Clerc Bois Valon, Nor can one recover for services when he practises without being duly qualified, in opposition to a direct prohibition against practising without all the required qualifications;54 though a substantial compliance, one from which it can be seen that the prescribed qualifications exist, seems to be all that is required.55 Neither can a licensed practitioner give a roving authority to an unlicensed one to practise in his name without consulting him, and then recover compensation for services rendered by the unqualified person.56 And where one person has bound himself to pay for medical services rendered to another, the statutory prohibition affords a defense to the surety, as well as to the principal debtor.57 And it has been held that no recovery can be had by an unqualified practitioner though the services were rendered in a foreign state or jurisdiction.58 Where one chooses to be treated by the methods of Christian Science, osteopathy, or other similar system, however, and agrees to pay for such treatment, there is nothing unlawful in the contract; and the practitioner is entitled to recover.59 486. Effect of failure to record or register.-Where the statute re 2 Campb. 144, however, it was held that And if medicines applied by an a person practising as a surgeon may apothecary were given under the direcmaintain an action for services rendered tion of a physician, however improperly, notwithstanding a statutory provision the action should be supported because prohibiting practising as a surgeon the skill of the apothecary would not in without being licensed, under a penalty that case be an element of the action. where the statute contains no prohibi- Kannen v. M’Mullen, Peake, N. P. Cas. tion against recovery of compensation. 59. And Citizens' State Bank v. Nore (Neb.) 60 L. R. A. 737, 93 N. W. 160, holds that a note given for medical services rendered by an unlicensed practitioner may be recovered upon by a bona fide purchaser notwithstanding the provisions of a statute prohibiting the practice of medicine without a license. "Haworth v. Montgomery, 91 Tenn. 16, 18 S. W. 399; Bohn v. Lowery, 77 Miss. 424, 27 So. 604. See Carleton v. Sloan (Tex. Civ. App.) 55 S. W. 753; Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236; Chadwick v. Bunning, 2 Car. & P. 106, Ryan & M. 306. Howarth v. Brearley, L. R. 19 Q. B. Div. 303, 56 L. J. Q. B. N. S. 543, 56 L. T. N. S. 743, 36 Week. Rep. 302, 51 J. P. 440. But a statute prohibiting the recovery of fees by unlicensed physicians does not prevent a recovery of fees by a licensed physician for services of his students in attendance upon his patients. People ex rel. Waring v. Monroe Common Pleas, 4 Wend. 200. De la Rosa v. Prieto, 16 C. B. N. S. 578, 33 L. J. C. P. N. S. 262, 10 Jur. N. S. 851, 10 L. T. N. S. 757, 12 Week. Rep. 1029. And a statutory prohibition against recovery by an unregistered medical practitioner for advice, attendance, or medicines, includes a case of a suit by an unregistered practitioner against a registered one for medicines supplied to, or attendance upon, the patients of the latter at his request. Ibid. Rugg v. Lewis, Rapp. Jud. Quebec, 17 C. S. 206; De la Rosa v. Prieto, 16 C. B. N. S. 578, 33 L. J. C. P. N. S. 262, 10 Jur. N. S. 851, 10 L. T. N. S. 757, 12 Week. Rep. 1029. Contra, Downs v. Minchew, 30 Ala. 86. And a statute denying the benefit of the law for the recovery of fees by medical practitioners not duly licensed extends to physicians residing out of the state, with reference to professional services rendered within it. Spaulding v. Alford, 1 Pick. 33. Wheeler v. Sawyer (Me.) 15 Atl. 67; Smith v. Lane, 24 Hun, 632. |