Читать книгу The Law and Medical Men - R. Vashon Rogers - Страница 10

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If Smith says to Brown, a medical man, “Attend upon Robinson, and if he does not pay you I will;” that being a promise to answer for a debt of Robinson’s, for which he is also liable, the guarantee is only a collateral undertaking, and, under the Statute of Frauds, must be in writing and signed by Smith, or some other person thereunto by him lawfully authorised, in order to be binding upon him. But if Smith says to Dr. Brown, absolutely and unqualifiedly, “Attend upon Robinson, and charge your bill to me,” or “I will pay you for your attendance upon Robinson;” then the whole credit being given to Smith, no written agreement is necessary to enable the doctor to recover the amount of his account from him, since it is absolutely the debt of Smith (63).

Where a person calls at the office of a physician, and, he being absent, the visitor leaves his business card with these words written on it, “Call on Mrs. Jones, at No. 769 High Street,” handing it to the clerk in attendance, with the request that he would give it to the doctor and tell him to go as soon as possible; this caller becomes liable to pay the doctor’s bill for attendance upon Mrs. Jones in pursuance of such message. Yet Mrs. Jones, if a widow, may also be liable; for one who acquiesces in the employment of a physician, and implies, by his or her conduct, that the doctor is attending at his or her request, is responsible for |33| the value of his services. If Mrs. Jones is living with her husband, or, without her fault, away from him, the doctor has still another string to his bow, and may recover the amount of his bill from Mr. Jones; for the rule is, that a husband must pay his wife’s doctor’s bills. Of course the doctor cannot make all three pay (64).

Long since, Park, J., was clearly of the opinion that if a mere stranger directed a surgeon to attend a poor man, such person was clearly liable to pay the surgeon (65). Yet, in some cases in the United States, it has been held that the man who merely calls the doctor is not bound to pay him. When, for instance, in Pennsylvania, a son of full age, when living with his father, fell sick, and the father went for the doctor, urging him to visit his son. Afterwards the physician sued the parent. The Court said this was wrong, that he should have sued the son, as the father went as a messenger only, that the son, who had the benefit of the services, was the responsible person; and remarked that it was clear that had the defendant been a stranger, however urgent he may have been and whatever opinions the physician may have formed as to his liability, he would not have been chargeable without an express promise to pay, as, for instance, in the case of an inn-keeper or any other individual whose guest may receive the aid of medical service. A different principle, the Court considered, would be very pernicious, as but very few would be willing to run the risk of calling in the aid of a physician where the patient was a stranger or of doubtful ability to pay. This was in 1835 (66). And, in Vermont, one brother took another, who was insane, to a private lunatic asylum and asked that he (the insane one), might be taken in and |34| cared for. This was done. In course of time the doctor sued the sane one for his bill, but the Court would not aid him in the matter, saying, “He is not liable unless he promised to pay” (67).

In the case of Mr. Dodge, above referred to, the Court said, “He might very readily have screened himself from all liability, by simply writing the memorandum on a blank card, or by adding to that which he wrote on his own card something that would have apprised the doctor of the fact that he acted in the matter for Mrs. Jones, as her agent.”

The reporter did not approve of this decision, and so appended the following graphic note: “Let us see how this thing works. We will take as an illustration an almost every-day occurrence arising in the country. A. B. is taken suddenly and seriously ill in the night time, and sends to his neighbour, C. D. living in the next house to his, to have him go after the doctor as soon as he can, for he is in great pain and distress. C. D. jumps out of bed without hesitation, and hastily dresses himself, and goes out to his barn and takes a horse from the stable, and not waiting to put on a saddle or bridle, jumps on to the horse with the halter only, puts him at full speed for the doctor’s office, some two or three miles distant. On arriving there he finds the doctor absent from home, but his clerk is there, and C. D. at once says, ‘Tell the doctor to call on A. B. who has been taken suddenly sick; tell him to come as soon as possible.’ In accordance with this message the doctor calls upon A. B., and prescribes for and attends him professionally for several days. After a reasonable time the doctor sends in his bill to A. B. and it not being paid as soon as the doctor desires, he calls on C. D. and requests him to pay the bill. C. D. with perfect astonishment, asks why he is to pay. |35| The doctor informs him that he made himself liable to pay the bill because, when he delivered the message, he did not tell the clerk that he came for the doctor by the request of A. B. nor that he acted as agent of A. B. in delivering his message. Well, says C. D. the fact was I did go at the request of A. B. and merely acted as his agent in delivering the message, and I will swear to these facts if necessary. The doctor insists that it will do him no good if he should give such testimony, for the law is settled on that point, as just such a case has recently been decided in New York under just such a state of facts, where the jury, in the justice court, found a verdict for the doctor for the amount of his bill, and, on appeal by the defendant to the general term of the New York Common Pleas, that court unanimously sustained the verdict of the jury, and affirmed the judgment of the court below. Well, says C. D. ‘If that is the law I think I will wait awhile before I go after a doctor again as an act of neighbourly kindness.’ ” This case was decided as late as March, 1873.

A wife has implied authority to bind her husband for reasonable expense incurred in obtaining medicines and medical attendance during illness; but this implied authority is put an end to if she commits adultery while living apart from her husband, and there has been no subsequent condonation; or, if she leaves her husband’s home of her own accord and without sufficient reason, and the fact has become notorious, or the husband has given sufficient notice that he will no longer be responsible for any debts that she may incur (68). If a husband turn an innocent wife out of doors without the means of obtaining necessaries, it is a presumption of law, which cannot be rebutted by evidence, that she was turned out with the authority of her husband to pledge his credit for necessaries, and in such a case |36| medical attendance will be considered as one of the primary necessaries (69). A married woman’s misconduct does not exonerate the husband from paying a doctor whom he requests to attend her (70).

Although the law requires the husband to furnish the wife with all necessaries suitable to his condition in life, including medical attendance in case of sickness, still it gives him the right to procure these necessaries himself and to decide from whom and from what place they are to come. If a physician attends a wife whom he knows to be living separate and apart from her husband, he ought to enquire whether she has good cause for so doing; for if she has not he cannot make the husband pay the bill; and it has been held that it devolves upon the doctor to show that there was sufficient cause for the wife’s separation (71). The employment of a physician by a husband to attend his sick wife, presumably continues throughout the illness; and the mere fact that the wife is removed, with the husband’s consent, from his home to her father’s, will not enable him to resist payment of the doctor’s bill for visits paid to her at the father’s (72).

Notwithstanding the law’s desire not to favour any particular school, a quack’s bill was thrown out where the services were rendered without the husband’s assent. This was done in a case where a doctor was in the habit of putting a woman into a mesmeric sleep, she thereupon became a clairvoyant and prescribed the medicines which the doctor furnished, and for these he sued. The Judge said:—“The law does not recognize the dreams, visions or revelations of a woman in mesmeric sleep as necessaries for |37| a wife for which the husband, without his consent, can be made to pay. These are fancy articles which those who have money of their own to dispose of may purchase if they think proper, but they are not necessaries known to the law for which the wife can pledge the credit of the absent husband” (73).

In England, it was, until 1869, considered that a parent’s duty to furnish necessaries for an infant child was a moral and not a legal one, so that he was not liable to pay for medicines or medical aid furnished to his child without some proof of a contract on his part either expressed or implied. And this still is the view where the child is over fourteen. The rule of law varies in the different States of the Union. In most of those in which the question has come before the courts the legal liability of the parent for necessaries furnished to the infant is asserted, unless they are otherwise supplied by the father; and it is put upon the ground that the moral obligation is a legal one, and some of the courts have declared this quite strongly. In other States the old English rule has been held to be law, and agency and authority have been declared to be the only ground of such liability. The authority of the infant to bind the parent for medical aid supplied him will be inferred from very slight evidence (74). But a contract to pay will not be implied when the infant has been allowed a sufficiently reasonable sum for his expenses (75). Where the services have been rendered with the parent’s knowledge and consent, he will generally have to pay for them. A boy left home against his father’s will, and refused to return at his parent’s command. Being seized with a mortal illness he did at last come back. His father went with him to a |38| physician to obtain medical advice, and the doctor afterwards visited him professionally at his father’s house. No express promise to pay was proved, nor had the father said he would not pay. The Court held the father liable to pay the doctor’s bill (76). And in an English case, where a father had several of his children living at a distance from his own house under the protection of servants, it was held that if an accident happened to one of the children he was liable to pay for the medical attendance on such child, although he might not know the surgeon called in, and although the accident might have been received through the carelessness of a servant (77).

By a recent English statute (78), when any parent shall wilfully neglect to provide adequate food, clothing, medical aid, or lodging for his child, in his custody, under the age of fourteen, whereby the child’s health shall have been, or shall be likely to be, seriously injured, he shall be guilty of an indictable offence punishable by imprisonment. Charles Downes was the two-year-old child of a member of the sect of Peculiar People. These people never call in medical aid or give medicines: to do so would be contrary to their religious opinions; but if any is sick they call in the elders of the church, who pray over him, anointing him with oil in the name of the Lord; then they hope for a cure, as they have thus literally complied with the directions in the 14th and 15th verses of the 5th chapter of the Epistle of St. James. This child was ill for months; the usual course was pursued by his father; no medical aid was obtained, although easily obtainable. The illness was misunderstood, and, although he was taken care of and well supplied with food, the child died. The father was indicted for manslaughter, and the |39| jury found that the death was caused by the neglect to obtain medical assistance, that the father bona fide (though erroneously) believed that medical aid was not required, and that it was wrong to use it. The Judge entered a verdict of guilty, and the Court held—under this statute—that a positive duty was imposed upon the father to provide adequate medical aid when necessary, whatever his conscientious scruples might be, and that that duty having been wilfully neglected by the prisoner, and death having ensued from that neglect, he was properly convicted of manslaughter (79).

It had been held by Pigott, B., in a case against these same Peculiar People, and also by Willis, J., that, at common law, there was no legal duty upon a father to employ a physician for his sick child (80).

It is not enough to shew neglect of reasonable means for preserving or prolonging the child’s life, to convict of manslaughter, it must be shewn that the neglect had the effect of shortening life. It will not do merely to prove that proper medical aid might have saved or prolonged life and would have increased the chance of recovery, but that it might have been of no avail (81). In this case the father, perhaps, might have been convicted of neglect of duty as a parent, under the statute (per Stephen, J.).

Medicines and medical aid are necessaries for which an infant may legally contract, and for which he can render himself liable. In Massachusetts, it was held that he would not be liable merely because his father was poor and unable to pay (82). |40|

A master is not bound to provide medical assistance for his servant, but the obligation, if it exists at all, must arise from contract; nor will such a contract be implied simply because the servant is living under the master’s roof, nor because the illness of the servant has arisen from an accident met with in the master’s service (83). But where a servant left in charge of her master’s children was made ill by suckling one of the children, and called in a medical man to attend her, with the knowledge and without the disapprobation of her mistress, it was decided that the doctor could make the father and master pay (84). And a master is bound to provide an apprentice with proper medicines and medical attendance (85).

In England, when a pauper meets with an accident, the parish where it occurs is usually liable for the surgeon’s bill. If, however, the illness of the pauper arises from any other cause than accident or sudden calamity, the parish in which he is settled is under legal liability to supply him with medical aid, although he may be residing in another parish. But all these questions with regard to paupers are determined according to the poor laws of the different countries (86).

It has frequently happened that when a railway passenger or employee has been injured by a collision or accident, and some railway official has called in a doctor, the company has afterwards refused to pay the bill; and the courts have declined to make them do so, unless it be shown that the agent or servant who summoned the medical man had authority to do so. It has been held that neither a guard, nor the superintendent of a station, nor the engineer of the train in which the accident happened, had any implied authority, as incidental |41| to their positions, to render their companies liable for medical services so rendered (87). The Court of Exchequer said, “It is not to be supposed that the result of their decision will be prejudicial to railway travellers who may happen to be injured. It will rarely occur that the surgeon will not have a remedy against his patient, who, if he be rich, must at all events pay; and if poor, the sufferer will be entitled to a compensation from the company, if they by their servants have been guilty of a breach of duty, out of which he will be able to pay, for the surgeon’s bill is always allowed for in damages. There will, therefore, be little mischief to the interests of the passengers, little to the benevolent surgeons who give their services.” But, in England, it has been decided that the general manager of a railway company has, as incidental to his employment, authority to bind his company for medical services bestowed upon one injured on his railway. In Illinois, a similar decision was given as to a general superintendent, although in New York judgment was given the other way (88).

If an accident happen to a stage coach by which a passenger’s leg is broken, or his human form divine is otherwise injured, the coachman has no authority to bind his master by a contract with a surgeon to attend to the injury; nor if a lamp-lighter, by neglect, burn any person, has he, or any officers of the gas company, power to bind the company by a contract for the cure of the injured person (89). If ordinary employees had such authority, then every servant who, by his negligence or misconduct, had caused injury to an individual, would have an implied authority to employ, on behalf and at the expense of his employer, any person he thought fit to remedy the mischief.