"The repealing act (Session Laws, 1844, cap. 275, p. 406) expressly permits any person to practice physic, subject to punishment as for a misdemeanor, if convicted of gross ignorance, malpractice, or immoral conduct. "Medicine is a progressive rather than an exact science, and in determining the legal significance of the word 'physician' or 'doctor,' when used in a contract, the term must be held to mean any person who makes it his regular business to practice physic. "Accordingly, where an agreement of employment between an opera director and a vocalist provided for a forfeiture of a month's salary in case the latter should fail to attend at any stated performance, except in the event of sickness, certified to by a doctor, to be appointed by the director, held that the provision was binding upon the artist, although the director appointed a person in the practice of what is known as the homeopathic system of medicine. "In adverting to the conflicting views and differences of opinion that exist and have ever existed in the practice of the healing art, it is not to call in question the value of learned, skilful, and experienced physicians, but merely to show the error of attempting, in the present state of medical science, to recognize, as matter of law, any one system of practice, or of declaring that the practitioner who follows a particular system is a doctor, and that one who pursues a different method is not." And in another case it was said: "Before the statute upon the subject, proof of his having practiced for several years with success and reputation will establish the fact of the plaintiff's being a physician.”2 § 8. But whatever may be the school or system of 1 Corsi v. Maretzek, 4 E. D. Smith, 1. cine to which a physici sistency between his , where there are differe Ey physician undertakes is a different way from w erent and opposite s sent first had and obt Aysician is expected system. Bowman e. by long experience had b medicine to which a physician belongs, the law presumes consistency between his profession and his practice.1 For, where there are different schools of practice, all that any physician undertakes is, that he understands and will faithfully treat the case, according to the recognized law and rules of his own particular school.2 This doctrine is essential to the protection of his rights, as it is of those of his employer. Hence, if one employ a homeopathic or botanic physician, or any other reformer in medicine, knowing him to be such, he can not traverse his claim for services rendered with the plea that such services were rendered in a different way from what was expected of him, or is adopted by orthodox practitioners. He is bound by his own choice. And contrariwise, if a practitioner of one school of medicine, being employed through predilection for that system by any person, treat him according to a different and opposite system, either with or without his consent first had and obtained, he inferentially admits his want of that ordinary skill belonging to his calling, and thus perpetrates a fraud upon the public. Should he fail to benefit the patient, the evidence of this duplicity and ignorance would certainly destroy all right to recover for his services.3 A physician is expected to practice according to his professed and avowed system. Bowman v. Woods, 1 Iowa, 441. 2 Patten v. Wiggin, 51 Maine, 594. The ancient Egyptians were not only believers in, but enforcers of, this doctrine of consistency, which was evidently part of the law of the land. "For the physicians have a public stipend, and make use of receipts prescribed by the law, made up by the ancient physicians. And if they can not cure the patient by them, they are never blamed. But if they use other medicines, they are to suffer death, inasmuch as the lawgiver appointed such receipts for cure as were approved by the most learned doctors, such as by long experience had been found effectual." Diodorus Siculus, lib. 1, cap. 6. CHAPTER II. CONTRACT BETWEEN PHYSICIANS AND PATIENTS, ITS NATURE, § 9. THE character of a professional service, whether in law or medicine is that of a mandate, and the obligations incurred under it, when no special contract has been entered into by the parties, belong to that class termed in the civil law quasi ex contractu. A mandate was in its nature always gratuitous, being founded in personal confidence. In this respect it differed from all other consensual contracts. Mandatum nisi gratuitum, nullum est.1 This is its very essence, for, if any compensation, either actual or prospective, enters into it, the contract would pass into one of hire. Yet if there was a mere honorary payment expected, not, strictly speaking as a compensation, but as a tribute of respect, the purity of the mandate was not affected thereby. Si remunerandi gratia honor intervenit, erit mandati actio.2 This being the mode of reward usually practiced towards lawyers and physicians, the quiddam honorarium became always an implied right possessed by them against clients and patients. And this right it will be seen could be enforced by an appropriate action, being considered as outside the sphere of a merely moral or imperfect obligation. There has, indeed, been some conflict of opinion among authors, as to the true interpretation of the contract subsisting between lawyer and client, physician and patient. 'Pothier ad Pandect. lib. 17, tit. 1, n. 15. 2 Ibid. De exalted character attach ing than lawyers. Th to operis in order to Chorley ITS NATURE, ce, whether in che obligations t has been enass termed in late was in its personal confiother consen"n, nullum est.1 ensation, either contract would mere honorary as a compensaity of the manunerandi gratia being the mode yers and physi ays an implied s and patients. forced by an ap ide the sphere of of opinion among che contract subcian and patient. 2 Ibid. The exalted character attached by the civil law to this class of services, which it regarded as strictly honorific, was adopted without modification by the common law, while nò equal provision was made by this latter to secure a remedy for those services when unremunerated.1 The view taken by the Roman law belonged to an age when practitioners in either science were limited to men of wealth and leisure, since, in no sense did they practice these callings as the exclusive means of a livelihood. And in the law at least, the very nature of the relation between patron and client raised it above all taint of a mercenary character. But this extreme view of an honorific service was specially modified in the case of physicians, who, in this respect, were placed upon a better legal footing than lawyers. Their remedy could not be questioned by implication from the honorific nature of their employment, and means were furnished them for obtaining compensation without at the same time derogating from the dignity of their calling. A new action based upon the legal fiction of an implied promise, was invented for the purpose of meeting precisely such cases, and it is from overlooking the fact, that the mandate, although in its essence gratuitous, was not, when relating to professional services, necessarily a remediless contract, that some writers have felt constrained to convert it into a locatio operis in order to give it a standing in court. Says Mr. Bell," "under this rule all professional men are comprehended. Their contract is locatio operarum, not mandate, and they, as well as smiths, farriers, bleachers and ordinary artists of all kinds, wherever they engage their services for hire, are responsible for the skill Chorley v. Bolcot, 4 Term R. 317. Comment. Law of Scotland, p. 459. 1 and art necessary to accomplish safely what they under take, in so far as ordinary skill and art can accomplish it." And Judge Bouvier adopts essentially the same view, in the words following: "Under this rule, all professional men who can recover for their services in an action are included; their contract is locatio operarum, and not mandate."1 § 10. On the other hand, a directly opposite view is taken by some of the best civilians who have written in our language. Says Erskine :2 "But the honoraries of lawyers and physicians, though they may be sued for without a previous agreement, 1. 1, § 1, 10, 12 De Ext. Cogn., do not alter the nature of the contract from mandate to location; because they are, as Stair expresses it, the reward of services, which can receive no proper estimation, and therefore the action by which they are recovered is the actio mandati, not locati." advalent for the estimated re was nevertheless crea And before him, Stair3 thus expressed himself: "Yet honoraries or salaries for performing of things having no proper price or estimation, alter not the nature of this contract; as the salaries or honoraries of physicians for procuring of health, which hath no price, or of judges or advocates for giving or procuring of justice." These views are further confirmed by a late, and most critical writer, as follows: "But if there be a remuneration given or promised by way of honorarium, the contract is still mandate; such a remuneration differs from a hire, inasmuch as it is not an 1 Bouvier's Inst. vol. 1, 2 1004-5. 2 Insts. book 3, tit. 3, 32. Stair's Inst. book 1, tit. 12, % 5. |