Ballou v. Prescott

Dankorth, <1. This is an action against the defendant as a surgeon for alleged malpractice, and one of the causes of complaint-set out in the writ is that he abandoned his patient while still needing medical attention. The exceptions raise the question as to the nature of the contract between the surgeon and his patient. Upon this point the jury were instructed as follows : “Here I understand the surgeon was called in the usual way, nothing said about the time during which he was to attend, and he went in obe — 313 — dience to that call. If nothing more were said or done, the law would require him to give such attention as the case or patient required.” It is suggested that, by this ruling, that which was really a question of fact for the jury, was decided as a question of law; or in other words, whatever contract existed between the parties, being verbal, it was tlie province of the jury to settle its terms. As a general proposition this is undoubtedly true ; but it is equally true that in many cases from certain admitted facts, the law will infer a definite contract, implied perhaps but none the less distinct and certain. Much more will it infer certain elements as belonging to particular contracts, or impose specific duties in connection with and growing out of special undertakings. Especially is this true of all that class of cases in'which the contract grows out of an employment, in a greater or less degree public in its nature. All professional business partakes somewhat of this character. Tbe care and skill which a professional man guarantees to his employer are elements of the contract to which he becomes a party on accepting a proffered engagement. They are implied by the law as resulting from that engagement, though it be but verbal, and nothing said in relation to such elements. So continued attention to the undertaking so long as attention is required in the absence of any stipulation to tbe contrary, is equally an inference of the law. If a counsellor at law undertakes the management of a cause, nothing more being said or done than simply an offer and acceptance of a retainer for that purpose, it will hardly be denied that an abandonment of the cause before its close would he as much a violation of the contract with the client as a neglect to use the requisite care and skill in its prosecution, and the duty of continued attention is equally an implication of the law as that of exercising the required care and skill. That the same principles apply to the employment of a physician or surgeon there can he no doubt. If he is called to attend in the usual manner, and undertakes to do so by wrord or act, nothing being said or done to modify this undertaking, it is quite clear as a legal proposition that not only reasonable care and skill should — 314 — be exercised, but also continued attention so long as the condition of the patient might require it, in the exercise of an honest and properly educated judgment, and certainly any culpable negligence in this respect would render him liable in an action. Barbour v. Martin, 62 Maine, 536; Shearman & Redfield on Negligence, § 441. In this case it is hardly possible that the jury could have been misled by the instruction complained of, for in its terms it was not only legally correct but it was guarded by other instructions not excepted to, in regard to the competency of the parties to make for themselves such a contract as they might see fit, to limit the attendance for a longer or shorter period, or for a single visit; and that, without any limitation the defendant might at any time discontinue his visits upon reasonable notice. These instructions would seem to be all, if not more than all under the testimony the defendant was entitled to. It appears that he was at the time, and had been the plaintiff’s family physician ; that he was sent for and responded in the usual manner, while there is nothing to show that he was not expected to attend so long as necessary, or that he did not so understand it. On the other hand it appears affirmatively that he alone was relied upon as the attending surgeon, and so understood it. Another objection is raised to the instruction as to the burden of proof. It is undoubtedly true that in an action of tort the burden is upon the plaintiff all through to give the jury reasonable satisfaction of the alleged wrong on the part of the defendant. But when the defendant takes the ground that the act or want of action was not a wrong because by the terms of the contract or its rescisión he was justified, he assumes an affirmative and so far the burden of proof. The defendant is charged with negligence in abandoning his patient while in need of medical care; admitting the fact of nonattendance, he attempts to justify, not only on the ground that no further attention was necessary but also on the ground of notice that he should not attend further unless sent for; and that the contract was thus rescinded and he discharged. — 315 — As to the first ground, the burden would continue upon the plaintiff, for there would be no delinquency unless the defendant had failed to exercise the required judgment or carelessly neglected his duty. But upon the latter ground the defendant sets up a new fact in avoidance, and that he must prove before it can avail him. To this and this alone the instruction applied. The first part of it may perhaps be a little uncertain in its meaning, and the presiding justice, apparently so fearing, to prevent any misunderstanding adds these words : “So far as the discharge alone is concerned the burden of proof is upon the defendant to show that he was discharged.” In this we see no error. Exceptions overruled. Appleton, C. J., Dickerson, Barrows and Virgin, JJ., concurred.