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quires the recording or registration of a license or diploma, making it a penal offense to practise without a license so recorded or registered, no recovery can be had for medical services rendered, in the absence of such recording or registration.60 And the rule is the same where the statute provides that no person shall recover for such services unless he shall have complied with the provisions of the act which requires registration.61 And a statute making valid a previous imperfect registration is not retroactive in effect so as to give a right of recovery for services rendered previous to registration.62 A physician is not prevented from recovering for his fees, however, by the fact that he had not recorded or registered his license as required by law, where the existing statute did not attach any legal disability to the practitioner for failure to record.63 And where the statute provides that the issuance of the certificate of a board or body shall be conclusive as to the right of the holder to practise, a holder of such a certificate may recover though he had failed to record it in accordance with an express statutory requirement. And a physician's clain for services cannot be defeated for failure to record, under a statute requiring record in the county in which he resides, in the absence of proof as to his residence.65

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487. Failure to qualify through accident or inability.-Failure on the part of a physician to register will not prevent his recovery for medical services rendered, where it was due to the fact that the clerk did not have a proper book in which he could register at the time of the rendition of the services, and a registry was made as soon as the clerk could be required to procure the book.66 And the rule has been laid down that the failure of a physician to procure a license will not prevent him from maintaining an action for his services, where the statute contained no prohibition to practise, and there was no existing medical board by which a license could be granted.67 It has been held, however, that the fact that a physician was disabled by sickness from

Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667; Wickes-Nease v. Watts, 30 Tex. Civ. App. 515, 70 S. W. 1001; Wilson v. Vick (Tex. Civ. App.) 51 S. W. 45; Accetta v. Zupa, 54 App. Div. 33, 66 N. Y. Supp. 303; Fox v. Dixon, 34 N. Y. S. R. 710, 12 N. Y. Supp. 267.

Maxwell v. Swigart, 48 Neb. 789, 67 N. W. 789. And see Ottaway v. Lowden, 55 App. Div. 410, 66 N. Y. Supp.

952.

Ottaway v. Lowden, 55 App. Div. 410, 66 N. Y. Supv. 952.

Towle v. Marrett, 3 Me. 22, 14 Am. Dec. 206; Finch v. Gridley, 25 Wend. 469; Prietto v. Lewis, 11 Mo. App. 600; Wilson v. Vick, 93 Tex. 88, 53 S. W. 576.

Riley v. Collins, 16 Colo. App. 280. 64 Pac. 1052. 651bid.

66 Parish v. Foss, 75 Ga. 439. "Woodside v. Baldwin, 4 Cranch, C. C. 174, Fed. Cas. No. 17,995.

procuring a license at the time of a meeting of the board for the issuance of licenses, does not furnish an excuse for his failure to procure one which will warrant his recovery of fees for services rendered without a license.68 But in any event a physician called upon in a pressing emergency, or in a case in which human life is immediately at stake, who has no time to procure a license, would, nevertheless, be entitled to compensation for services rendered while the emergency lasted notwithstanding a statutory provision prohibiting recovery of compensation by an unlicensed physician."

488. Effect of malpractice.-Facts which would sustain an action against a physician for malpractice either in his diagnosis, or in administering medicine, or in a surgical operation, are held in some of the states to constitute a complete defense to an action by him for professional services.70 This rule is based upon the theory that tort cannot be set off against contract;71 and that the act is not a counterclaim, since in such case the plaintiff cannot be said to have a claim, it not being possible for the two claims to coexist.72 The contrary rule, however, that a physician or surgeon is not deprived of all compensation for his services merely because he was guilty of negligence causing injury, and is not compelled to suffer any penalty beyond the amount of the actual damages sustained, seems to be the prevailing

604.

Bohn v. Lowery, 77 Miss. 424, 27 So.

Adams County v. Cole, 9 Ind. App. 474, 36 N. E. 912.

But he would be entitled to no compensation for services afterwards rendered for which there would be ample time to procure a license as required by law; in such case the right to recover could not be extended beyond the necessities of the actual emergency. Ibid. TO Abbott v. Mayfield, 8 Kan. App. 387, 56 Pac. 327; McKleroy v. Sewell, 73 Ga. 657; Piper v. Menifee, 12 B. Mon. 465, 54 Am. Dec. 547; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Logan v. Field, 75 Mo. App. 594; Bellinger v. Craigue, 31 Barb. 534; Kannen v. M'Mullen, Peake, N. P. Cas. 59. And see Styles v. Tyler, 64 Conn. 432, 30 Atl. 165; Mays v. Hogan, 4 Tex. 26. And see Brinkman v. Kursheedt, 84 N. Y. Supp. 575.

And a pl ysician who treated a patient for a long time, and afterwards found that it was impossible to cure him except by a surgical operation, who, at the inception of the treatment, did not

know that fact, but during the progress of same could have discovered it by the exercise of due care and skill, or, who discovered and concealed it, and continued the treatment,-is not entitled to recover any compensation therefor, after the discovery that it would be ineffectual. Logan v. Field, 75 Mo. App. 594.

But the fact that a patient grew worse under a physician's treatment, and that he grew better after the physician had been discharged, is not suffi cient to show that the physician was guilty of negligence or unskilfulness in treating him. Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111.

And that a physician had been intoxicated in the past is not a good ground of defense in an action for services rendered, if, after such intoxication, the patient kept him for his family physician for years. McKleroy v. Sewell, 73 Ga. 657.

"Ibid.

"Bellinger v. Craigue, 31 Barb. 534. So, a claim for damages for malprac tice is not new matter which admits the plaintiff's demand. Ibid.

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one." And under this rule malpractice may be set up, in an action for compensation, as a counterclaim, going to reduce or defeat the plaintiff's claim, and warrants an independent recovery by the defendant. And it would seem that the want of care and skill may be considered for the purpose of reducing the physician's claim." A physician cannot be deprived of the right to recover compensation for his services by the negligence of others for whose acts he is not responsible.76

489. Preference of claim.-The expenses of a person's last illness, generally including compensation for the attending physician, are usually made a preferred claim by statute over ordinary demands upon the estate of the decedent." Such claims are not limited as to time, and may be given a preference though incurred a long time before death; the question is whether or not it was the decedent's last illness which finally resulted in death, and whether the sickness was progressive from the first services rendered to the time of death;78

"Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894.

"See Styles v. Tyler, 64 Conn. 432, 30 Atl. 165; Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111; Howell v. Goodrich, 69 Ill. 556; Robinson v. Campbell, 47 Iowa, 625; Schopen v. Baldwin, 83 Hun, 234, 31 N. Y. Supp. 581; Alder v. Buckley, 1 Swan, 68.

A valid claim for services rendered by a physician may coexist with, and constitute a counterclaim against, a claim for damages sustained by the patient in consequence of malpractice. Whitesell v. Hill, 101 Iowa, 629, 37 L. R. A. 830, 70 N. W. 750, 66 N. W. 894.

But a plea of set-off in an action for medical services, that an overdose of ipecac damaged the patient $200, with out stating wherein and how, is too loose and indefinite. McKleroy v. Sewell, 73 Ga. 657.

75 See Piper v. Menifee, 12 B. Mon. 465, 54 Am. Dec. 547; Langolf v. Pfromer, 2 Phila. 17; Schopen v. Baldwin, 83 Hun, 234, 31 N. Y. Supp. 581.

And persons employing a physician cannot be made liable for extraordinary services performed in experimenting upon the patient for the purpose of discovering new and improved methods of treatment; and a physician cannot be permitted to testify, in an action for his services, as to discoveries he made while caring for the patient. Gardner v. Ta tum, 81 Cal. 370, 22 Pac. 880.

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The act of a physician attending a pa tient in his last illness, of giving his account to the executor and demanding payment, when the executor, the estate being insolvent, filed the claim with the commissioners, does not constitute a waiver by the physician of his prefer ence over ordinary claims. Flitner V. Hanly, 18 Me. 270.

"Staggers's Estate, 8 Pa. Super. Ct. 260; Huse v. Brown, 8 Me. 167; Perc val v. McAvoy, Dud. L. 337.

Where a physician treated a patient for an incurable disease, but during such treatment the patient received a wound which was the immediate cause of his death, the physician is not entitled to preference for the amount of his bill for services previous to the injury, under a statutory provision giving a privilege for all charges of whatever nature oe casioned by the last sickness. Whit aker's Succession, 7 Rob. (La.) 91.

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and it is a question of fact to be determined from all the circumstances. And where the statutory provision gives preference to physic, funeral expenses, etc., the preference is not confined to drugs administered, but includes every service or medical aid rendered by a physician to his patient,80 and attendance upon the debtor's family as well as himself. 81 And in such case the claim is not confined to service and attendance during the last illness of the deceased, but may be made out of the assets of a deceased insolvent in case of a previous illness.82 Physicians appointed by the court in pending actions to make examinations have been given preference by treating them as quasi officers of the court, entitled to compensation as such out of funds in litigation.83

II. PROCEEDINGS FOR RECOVERY.

490. Methods of procedure generally.-Proceedings for the recovery of compensation for medical services rendered differ from proceedings for the recovery of compensation for other services in general, only as affected by the peculiar character of the service. Assumpsit is the proper action, when the services were rendered without special contract.84 And, under a plea of non assumpsit, it may be shown that at the time of the rendition of the services the plaintiff had no authority to practise medicine.85 A plea of no license to practise, however, must show that the act in question was performed within the locality covered by the statutory restriction. 86 And it is too late to object to the failure of the plaintiff to plead that he was licensed, after the defendant has pleaded to the merits and the case has been

"Staggers's Estate, 8 Pa. Super. Ct. 260; Huse v. Brown, 8 Me. 167; Percival v. McAvoy, Dud. L. 337.

Rouse v. Morris, 17 Serg. & R. 328.
Ibid.

But the estate of a deceased person in the hands of his administrator is not liable for medical services rendered to the family of the deceased after his death. Bomford v. Grimes, 17 Ark. 567. Rouse v. Morris, 17 Serg. & R. 328. Rollwagen v. Powell, 8 Hun, 210. Morrisette v. Wood, 128 Ala. 505, 30 So. 630.

And a statute entitling a defendant, upon proper notice, to a list of the items composing an account when it is the foundation of a suit, applies to an action of assumpsit brought by a physician to recover for medical services renVOL. III. MED. JUR.-31.

dered in the absence of special contract. Ibid.

And the fact that a physician brings an action of assumpsit for compensation for services does not prevent a recovery by him for a less sum than that named in the declaration. Pynchon v. Brewster, Quincy (Mass.) 224.

Matthews v. Turner, 2 Stew. & P. (Ala.) 239.

And a note drawn by a physician to the order of his patient may be pleaded in compensation in an action by a physician against the patient for compensa tion for services rendered in his profes sional capacity. Arbonneaux v. Letorey, 6 Rob. (La.) 456.

83 D'Allax v. Jones, 26 L. J. Exch. N. S. 79, 2 Jur. N. S. 979.

submitted.87 And the violation of a physician's obligation to use ordinary care and skill, to the injury of the patient, may be interposed as a defense in the nature of a bar to a suit for compensation, as well as used as a ground for an independent action.88 The ordinary statute of limitations, and not a special one with reference to actions on account for goods sold, applies.89 And when the service is rendered and charged for item by item, the statute begins to run against each item at the time it was rendered.90

A physician's employment is usually personal; and where a recovery is sought for services rendered by another physician sent in his stead, that fact should be alleged in the complaint. And a recovery cannot be had for medical services, under pleadings based upon the theory that the services were of another and different character. 92 And it is competent for the defendant to prove the real value of the plaintiff's services, or that they were of no value, though the action was upon a quantum meruit; and for that purpose he may show the customary charges for like services in the same locality.93 Evidence of the value of medical services is inadmissible, however, in an action for recovery for such services, under an allegation setting forth a special contract. 94

"Durand v. Grimes, 18 Ga. 693.

Styles v. Tyler, 64 Conn. 432, 30 Atl. 165; Ladd v. Witte, 116 Wis. 35, 92 N. W. 365.

And a plea in an action for recovery of compensation for medical services, that by misrepresentation the plaintiff led the defendant to believe the medica! services to be necessary when they were not, arises out of the transaction stated in the complaint, and is properly plead able even after appeal taken. Ladd v. Witte, 116 Wis. 35, 92 N. W. 365.

326.

Hazlip v. Leggett, 6 Smedes & M.

"Ackley v. Fishbeck, 124 Cal. 409, 57 Pac. 207; Jones v. Lewis, 1 Tex. App. Civ. Cas. (White & W.) p. 189.

But where physicians keep accounts which by custom become due at the end of each year, they are entitled to inter est thereon from the end of each year respectively. Woodfield v. Colzey, 47 Ga. 121.

"Sayles v. FitzGerald, 72 Conn. 391, 44 Atl. 733.

And where medical services are per formed upon the request of two persons, and the evidence establishes a contract upon the part of both, if of either, a

nonjoinder of one may be taken advantage of by the other. Smith v. Watson, 14 Vt. 332.

Roberts v. Levy (Cal.) 31 Pac. 570; Lee v. Griffin, 30 L. J. Q. B. N. S. 252. 1 Best & S. 272, 7 Jur. N. S. 1302, 4 L. T. N. S. 546, 9 Week. Rep. 702.

But a bill of particulars for medical services, which sets out the items of each visit, and a general allegation that the plaintiff is a practising physician engaged in the practice of medicine, and has been so engaged for ten years last past, is sufficient. Underwood v. Scott, 43 Kan. 714, 23 Pac. 942.

93 Jonas v. King, 81 Ala. 285, 1 So. 591. But the value of services of a physi cian does not in any way depend upon the nature, value, or result of the services of another physician attending his patient; and evidence as to the result of the treatment of the other physician is inadmissible in an action for services rendered. Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880.

"Doyle v. Edwards, 15 S. D. 648, 91 N. W. 322.

And a bill for medical services previcusly presented, not mentioning a spe cial contract, is inadmissible in an ac

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