to prove that it was rcumstances; or that. tice to the defendant. ous to the wife to wait efendant." nes not forming any professional services. ithin its purview, the ge for them whenever prescribing belonging not include supplying actically the successful pon them. It is the them himself, or if he he latter has the right rges upon a physician's e sufficiently specific, f the medicines be not ey vary from the usual ing charges. It may amination is not in the essional services, and ttend upon the county ce practice. He may ering the service, even do it, and his bill will professions of physician and e for medicines administered, Simpson v. Ralfe, 4 Tyrw es do not make similar dis s and charge for them when be a proper claim upon the party employing him, to be enforced at law if necessary.1 In Alabama, if a physician sells drugs and medicines, apart from his professional business, he may recover for them; and where they constitute a part of the consideration of a note, the true question to be determined by the jury is, whether such drugs and medicines were prescribed, administered, or furnished by the payee in the capacity of physician, or sold by him as a druggist or apothecary. It is different, however, with surgical instruments, splints, or other professional paraphernalia which are the necessary adjuncts to the practice of the surgeon's art, and are part of his personal property. Their consumption in the ordinary way, and in the line of his daily duties, is his own loss, and the patients can not be charged with them. But if a special instrument be furnished to a patient for his own exclusive use, as a truss or pessary, &c., or an instrument be so altered to meet a particular case as to destroy its specific value to the surgeon, and render it useful only to the patient, the same may be charged to him as a benefit conferred outside of the professional contract. § 50. A physician, where no contrary notice is given to the patient, is presumed to make similar charges for similar services, and to adhere to what has been his customary price in his former treatment of a patient; and the latter, without any new or special contract, must be considered as employing him under this implied and usual compensation. In a suit by a physician for professional services, for which the physician demanded to be paid at 1 Gaston v. Commissioners Marion Co. 3 Ind. 497; County of Northampton v. Innes, 26 Penn. 126. ' Holland v. Adams, 21 Alab. 680. the rate of one dollar and fifty cents per visit; the de- § 51. In a suit by a physician against a county, on a Physicians who contract with a county to attend and 'Sidener v. Fetter, 19 Ind. 310. 2 Simmons v. Means, 8 Sm. & Marsh. 397. 3 McDaniel v. Yuba Co. 14 Cal. 444. at all the inmat Fitted with conta tulated price the e stipulated pric ious diseases, a the usually used Canty authorities. In all suits to re e facts to be p services rende such cases the Ed not manage t t be entitled t silent, for med hile sick with press contract cers in behalf 1Johnson Mays t. Grabam Childe nts per visit; the deand at the commenceplaintiff had been his him for previous and cluding medicines, at or over one dollar and no contract was made the services now sued petent, as tending to he prices to be charged not sufficient evidence physician for medical upplied the defendant practiced in the family ng and returning from proof that the items, customary rates; such legal presumption of gainst a county, on a' s examining physician e is not a graduate of tute, if good at all, less the demurrer dis after such a contract, orm such services only They put it out of his is still entitled to his county to attend and treat all the inmates of the county infirmary, whether afflicted with contagious diseases or not, and to receive a stipulated price therefor, can not recover any thing beyond the stipulated price for attending persons sick with contagious diseases, and placed in a building apart from the one usually used as a county hospital, by order of the county authorities.1 In all suits to recover for the value of services rendered, the facts to be proved are, employment, skill in the physician, services rendered, and charges at the usual rates. And in such cases the defendant may plead and show that he did not manage the case skillfully. But a physician will not be entitled to recover of a town of which he is not a resident, for medical services rendered to its inhabitants while sick with the small-pox, unless there has been an express contract with him for such service by the proper officers in behalf of the town. * 2 4 'Johnson v. St. Clara Co. 28 Cal. 545. Mays v. Hogan, 4 Texas, 26. 3 Graham v. Gautier, 21 Texas, 120. ♦ Childs v. Inhabitants of Phillips, 45 Maine, 408. Marsh. 397. he in the fol red that § 52. In the preceding chapters we have examined the legal status of physicians, so far as their general and professional responsibility to the public extends. We have shown what is of right expected of them ex officio, and under what circumstances. And having done this, we shall be the better able to inquire by what forms of deviation from their acknowledged obligations and responsibilities towards patients, (negligence,) or by what departures from accepted canons of orthodox practice (want of skill) they render themselves liable to actions for malpractice. In passing from established decisions forming the foundations of positive law, to hypothetical cases, requiring for their solution a resort to analogical reasoning, we shall, at times, necessarily, be treading upon new and untried ground. This is inevitable. Yet it need not mislead inquiry in any direction, since the principles of individual responsibility are so trenchantly established in questions relating to the rendition of personal services, that we can always appeal to them for a safe and speedy answer to all interrogatories. fence at co § 53. The obligations involved in the discharge of professional duties are not always nor necessarily subjects of legal accountability. Yet in many senses they are so inwoven into the texture of professional conduct as to exceed the limits belonging to the domain of pure ethics, periment, hich the par the patient's ably just vark harm ring the and honesty Shall be uni Lendance be required avil relation personal rig man can e have examined the their general and proextends. We have f them ex officio, and aving done this, we y what forms of deviations and responsibili or by what departures ractice (want of skill) tions for malpractice. as forming the foundaal cases, requiring for reasoning, we shall, at on new and untried it need not mislead rinciples of individual ablished in questions services, that we can I speedy answer to all the discharge of pronecessarily subjects of senses they are so onal conduct as to exomain of pure ethics, and to enter that of civil responsibility. The physician has no exclusive privileges of absolution for wrong-doing derived from his profession, and becomes responsible, therefore, for any damages to the health, or for any disfigurement of the person of a patient, which are directly traceable to his want of skill or diligence. Blackstone, in his usual sententious style, has well elucidated this doctrine in the following words: "For it hath been solemnly resolved that malapraxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment, or by neglect, because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction." These principles are unquestionably just, and will be found, when strictly applied, to work harm to no man. They simply exact truth, in requiring the possession of skill to accompany its promise, and honesty or fidelity in demanding that its application shall be uniform and consistent throughout the period of attendance upon the patient. Less than this could not be required, since rules and a method must govern all our civil relations, in order to insure mutual protection to the personal rights of each member of society, and surely no man can justly complain when judged by a standard of his own enactment. § 54. But inasmuch as the argument of success is the most potential in its influence over the popular mind, and answers for a test and proof of a man's merit, while he who fails, is apt thereby to be deemed incompetent and blameworthy, it often follows, in the practice of medicine, that a failure in the expected results of a particular treatment too often invites unjust opprobrium upon the practitioner; and not always content with blot1 Black's Com. vol. 3, p. 121. |