PART FIRST. RIGHTS, REMEDIES AND LIABILITIES OF PHYSICIANS. CHAPTER I. LEGAL STATUS OF PHYSICIANS. 1. THE relations of civil society impose obligations upon its members which are necessary for their mutual protection and well-being. These obligations, although at times unequal in extent, are yet always so far reciprocal in character as to require that each party in every transaction should bring to its accomplishment a share, more or less great, of personal and legal responsibility. Wherever, therefore, there is mutuality of benefit there is mutuality of responsibility; nor does it matter what the specific contribution of either party may be, whether in time, money, or skill, provided always it constitutes, when measured by established usage, a fair and just return for the capital advanced, or the service rendered. The foundation of the mutuality of obligation subsisting between men in civil society rests upon the doctrine that each member has rights of which he can not, with propriety, be divested; and that, in the exercise of those rights, and in the ordinary transactions of every-day life, he is entitled to a quid pro quo for every advantage, privilege or favor granted to another. Justice, when abstractly considered, ignores charity, and compels no man to the performance of any act for which a moving consideration or advantage to him has not existed, or will not exist in the future. The whole circle of civil obligations as contradistinguished from natural or imperfect ones may be expressed by the simple maxims of do ut des, vel facio ut facias. § 2. In ordinary commercial transactions, implying either the purchase, sale, or transfer of property, the execution of mechanical works, or the carriage and delivery of goods, the obligations of parties in interest generally assume the character of express contracts regulated by current market prices and usages relating to time and mode of execution; but in the learned professions, other elements enter into the spirit of obligation arising from their practice, and act as moving considerations to the rendition of the particular service in question. While in the former cases tangible and material products constitute the basis of the transaction, in the latter, intangible and immaterial products are the sole exponents of the capital invested. And, inasmuch as skill and judgment form the true capital of a professional man, while his counsel and services are its immaterial fruits, consumed in their very production, it follows that professional services, into which more or less of these qualities must inevitably enter, can never be considered as purely commercial transactions. They are far higher in their nature and consequences than any transactions relating merely to tangible materialities, and have always been regarded among civilized nations as not amenable to any similar standards of value. §3. In legal acceptation, the idea embraced in the term art or profession is that of some uncommon and exceptional attainment possessed by a few, distinguishing them from the many, and securing to them quoad hoc, an exclusive advantage or prerogative in the exercise of this special faculty. The aggregation of such persons from similarity of attainments or pursuits into classes, constitutes those learned corporations termed professions or arts; and the designation lawyer, physician, apothecary, engineer, &c., exactly expresses that idea of special acquirement which finds its highest illustration in a scientific calling. These callings form, doubtless, distinctions of an artificial character among men, yet they are distinctions founded in the necessities of civil society for a distribution of its labors. And, since natural reason makes no provision for those special conditions of estate which classify men living under forms of government, we can not revert to it for information touching the myriad conditions into which a complex system of civilization distributes mankind. All are by nature laymen and apprentices, since nemo nascitur artifex, and the term clerk,1 (clericus,) is the expression of a civilization already recognizing rank as the abstract heritage of the educated mind, and the insignia of an indisputable leading class. Finding no basis for professional prerogative or fiduciary relations in the law of nature, we are driven to seek for them in positive, institutional law, that law which is the offspring of human enactment. It is in the rules of this system as expressed in repeated adjudications, and thus passed into 'The force of this idea, now grown imperceptible in the popular diffusion of knowledge, is well illustrated by the ancient doctrine of benefit of clergy, whereby special immunities from legal penalties were extended to all who could read, such persons being, in contemplation of law, clerici, or clergyBlack's Comm. lib. 4, cap. 28. men. the current of general jurisprudence, that we shall find all the light necessary for our instruction. The common law, with its habitual regard for the widest freedom of action, has always permitted the most unrestricted exercise of any profession, imparting to it, in that sense, no special dignity of character, but leaving to its practitioners the duty of maintaining its sanctions. In the celebrated case of Dr. Bonham, Lord Coke made a fierce assault upon the patent of King Henry VIII., creating the College of Physicians, as against common right, because it gave both judicial and ministerial functions to its censors.1 It was a very plain infraction of the 29th chapter of Magna Charta, guaranteeing to every person within the realm trial by his peers, and according to the law of the land. And this common law principle has been so often reaffirmed as to require no further discussion. Nothing can be better settled. § 4. But, although the door to professional occupations is left open to all, a corresponding responsibility is attached to the manner in which particular services are rendered by persons assuming to be practitioners of any art. They virtually promise, by the very fact of announcing themselves to be willing to undertake any particular service, to bring to its discharge all the qualifications essential to that purpose. Hence skill, diligence, and faithful performance of duty are requisite elements to the rendition of professional services in a legal manner. All of them must be present in some degree, and none in lower measure than accords with the average standard of 1 "And it appears in our books that in many cases the commom law will control acts of Parliament, and sometimes adjudge them to be utterly void, for, when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void." 8 Coke, 375. |