Ely v. Wilbur

The opinion of the court was delivered by Knapp, J. The action was brought to recover reasonable compensation for services as a physician, rendered by the plaintiff to the defendant, at his request. By the bill of exceptions returned with the record, it is shown that the plaintiff was a practicing physician, and that he had bestowed upon the defendant, personally, professional medical treatment. The defendant offered evidence tending to show that the plaintiff had mistaken the nature of the defendant’s disease, and had, in treating him, prescribed and administered remedies for a disease which he had not. In the charge to the jury on this phase of the case the Chief Justice instructed them that this insistment of the defendant, even if true, would not prevent a recovery; that the question was whether the plaintiff exercised proper care and skill as a physician; that if the jury should conclude that the doctor was mistaken in the nature of the defendant’s disease, they must go still farther, and say that a want of care and skill was exhibited. If no want of care or skill appeared, he was entitled to a fair compensation, although he fell into a mistake. This charge and instruction to the jury is complained of as error. But it does not seem to us to be subject to any adverse criticism. It is entirely in accord with the general rule, as given by all the approved text-writers on the subject, and but asserts the principle often declared by courts of recognized authority. Chitty on Cont. 808, and cases cited in notes. The rule is general that whenever labor and services are performed at the request of another there is an implied promise raised by the law to pay for such work and services what they are worth; and the skill and care required in doing the work in order to deserve compensation is that ordinarily possessed and exercised by others in like callings. Chitty on Cont. 796. [687] The physician, like the attorney, undertakes in the practice of his profession that he is possessed of that degree of'knowledge and skill therein which usually pertains to the other members of his profession. And the physician in attending his patients engages that he will use due care to discover the nature of the disease which gives occasion for his services, and in applying the usual remedies. But beyond this measure of skill and diligence the law makes no exaction. If he is to be held for results, or as a guarantor of success, it can be only in virtue of his express engagement. Smith v. Hyde, 19 Vt. 54. Ordronaux, in his “Jurisprudence of Medicine,” states the rule in question clearly! “ The physician,” he says, “ is not a guarantor, without express contract, of the good effects of his treatment, and he only undertakes to do what can ordinarily be done under similar circumstances. If the good effect of his treatment and the consequent value of his services be disputed, he must be prepared to show that his labor was performed with the ordinary skill and in the ordinary way of his profession. This is all the essential evidence upon which to found his case.” Ord. Jur. Med. 42. A further citation from the same author is in point: “ If a physician ignorantly and unskillfully administer improper medicine, and the patient consequently derives no benefit from his attendance, the physician is not entitled to any remuneration for what he has done. But if he has employed the ordinary degree of skill of his profession, and has applied remedies fitted to the complaint, he is entitled to his hire and reward, although they may have failed in the particular instance.” Id. 43. In Hupe v. Phelps, 2 Stark. 480, Chief Justice Abbott, in summing up to the jury, stated the ground upon which a recovery could be had for a physician, as follows: “ In case of a regular practitioner, who had used due care and diligence, his claim to remuneration depends not on the question whether he effected a cure; he would be entitled to be paid for his services although he was unsuccessful.” See, further, [688] on this general subject, McClallen v. Adams, 19 Pick. 333; Slater v. Baker, 2 Wils. 359 ; Leighton v. Sargent, 27 N. H. 469 ; S. C., 31 N. H. 119 ; Gallagher v. Thompson, Wright (Ohio) 466; Seare v. Prentice, 8 East 348; McCandless v. McWha, 22 Penna. St. 261. It plainly appears, then, that the right of a physician to be compensated for his services and medicine does not depend upon the measure of his success in effecting a cure by the means employed, but upon the diligent exercise, under his employment, of the skill which commonly pertains to his profession. Such services cannot be regarded as other than beneficial. They are so in a legal sense, and the right to adequate compensation arises upon their rendition, wherever his fees are otherwise recoverable by suit at law. But it is said that this case is not within the rule. For, conceding that failure in results of usual treatment does not disprove beneficial services, the patient is not treated, for his disease. It is argued that if the disease of the patient be mistaken by the doctor, and his treatment be directed under that error, the services could not be meritorious or of value to the patient. It is to be observed that the bill of exceptions coming with this record gives us none of the evidence taken at the trial, and its statement on argument is entirely aside from the purposes which the writ of error is brought to serve. The bill states only that the suit was for a physician’s bill, and the defendant gave evidence tending to show that the plaintiff had mistaken his disease, and treated him for another disease; that the trial judge instructed the jury that in itself this was an immaterial fact. Its value in the case, in connection with the consideration of skill and care, was stated in a subsequent part of the charge, and was not excepted to. The plaintiff in error claims the fact of such mistake to be both material and controlling in the case. But it can be so only upon the establishment of a proposition which, I think, has not before been asserted. Directly stated, it is that if, after the exercise of due care and skill to discover the nature [689] of his patient’s disease, however obscure it may be, the physician errs in judgment, and determines inaccurately, and treats for the disease which, to him, appears to be that which afflicts his patient, a right to compensation never arises or is forfeited. The position, if correct, holds the physician to the duties and obligations of a guarantor in diagnosis. Ordinary skill and care will not suffice; indeed, the highest skill and diligence to which the best ever attain will not fill the measure of duty and requirement, but there must, in this branch of the science of medicine, be absolute certainty in its results, or no merit attaches to the services. No case asserts the doctrine that such an assumption is implied on his part in virtue of his professional employment. In legal theory, it could only be so on the ground that an error in that branch of the medical art imports the absence of usual skill or care in every case. It cannot be maintained without direct hostility to the general rule, unless it be true that this branch of medicine is always capable of assured and exact determination in practice, and that the practitioner of customary skill cannot, with proper diligence, fail to distinguish the nature of each disease. There is nothing before us to show, by admission or proof, that such is the fact. We cannot, on any ground known to us, so conjecture. We are better justified in the inference that cases present themselves to the pathologist, where the aid of the most consummate skill of the practitioner is required in determining the true cause to which to refer observed symptoms, with ground still left for possible error. There would seem to be no reason, and there is no authority for holding that in the mistakes which the careful and skillful medical practitioner may make in judging upon the true interpretation of symptoms, there is to be found a more serviceable defence to a suit for compensation than can be found in mistakes and failures in the results of treatment. [690] In all that pertains to the practice of the profession, the physician is subject to the one rule, and that rule was correctly stated in the instructions given to the jury on the trial. This being the only point presented by the bill of exceptions, it follows that the judgment must be affirmed, with costs.