er e called for by those in wh . Many wrongs undoubtedly r ate remedy can be given, or th -h circuitous means, or such e re it, as to have lost all practi And the knowledge of these fa nulus to the wrong-doer, anl uld otherwise seek for redress at courts of equity are establi furnish, in the language of Arislaw where it is defective by reas der the shadow of such a syste e and apt remedy-a recognitio n court, and means to make his, a large class of rights, partie orporeal character, would find t ert themselves; and the whole would be left at the mercy of ing profit in the enterprise, g to his own use the fruits of another ry often indeed this act of appr › ignorance of any proprietary or he may never have asserted it: to something which has become e custom in a particular calling escence in a course of conduct wh d, might be shown to be origin and perpetuated through ignoras that communis error facit jus ca then we are estopped from inv that doctrine, it will be remembere has been upheld in law only when the public good required it, and applies mainly to forms, and not to principles; to the external rule, and not the fundamental right or obligation; because it is against natural reason, and, therefore, against the ethics of law to assume, that, an erroneous principle can gather strength, or be dignified into a canon of right by lapse of time. On the contrary, the taint of wrong is incurable, and condemns everything into which it enters, whatever semblance of right or age it may wear. § 196. The separation of the practice of medicine from that of pharmacy has created legal relations between the members of these respective avocations which, although well understood and recognized in the legislation of most European countries have, as yet, received but little, if any, attention in our own. It is not in the purchase of drugs by physicians that these relations appear, for, in this respect, they stand, in their dealings with apothecaries, upon precisely the same footing as other persons. But it is in the indiscriminate sale to the public of a combination of drugs originally formularized by a physician in a prescription intended for a particular person, and the consequent repetition of such prescription unauthorized by the writer thereof, that arises the moot question of the tort of an apothecary. Formerly, when physicians dispensed medicines as well as gave advice, such legal questions could never have arisen, for the very elements out of which they are formed were absent. But, in the present day, and in cities at least, the exigencies of practice do not allow physicians the time necessary for compounding and dispensing drugs, nor if they had the leisure would it be well for them to undertake it, since pharmacy is a science by itself, to be studied and practiced specially like any learned profession, and can not be combined with the practice of medicine without detriment to perfection in either calling. refuse The pharmaceutist becomes, therefore, the adjunct of the physician in his practice, and subordinated to him in the dispensation of drugs under a formula invented by such physician. And while he may sell drugs generally, he can not invade the physician's proprietary right in the formula (if original). The problem arising out of these relations, and which offers itself to us for solution, lies midway of absolute and legal rights in literary property, and qualified rights of use and sale as an incident to all property. And, in order to discuss it, we shall be compelled to inquire first, into the legal character of a prescription; second, into the legal rights acquired in it by the patient, and third, into the legal relations of the apothecary to it. There is a very nice discrimination to be observed in these varying and commingling relations, but it will be seen, we believe, that in none of these changes of the aspect of the problem, is the right of either party merged into that of others. The distinct thread of right possessed by each, may be traced with legal precision throughout all the shifting obligations devolving upon physician, patient and apothecary, and if each would, in turn, correctly apprehend and discharge his duty to the others, no wrong could possibly arise in the premises. LEGAL CHARACTER OF A PRESCRIPTION. § 197. Counsel or advice, as given by a physician or lawyer is an immaterial product consumed in its very production. Once uttered, it can not be recalled-verbum demissum irrevocabile-and the author, unless he is allowed a right of property in it, would be constantly remediless against those who, obtaining his counsel, might, afterwards, Wheth theref may a please to an owner that a party not, a same in su cont vice. from with T exc sari the ver in ab su gi an la pa a a a ACTER OF A PRESCRIPTION. ecomes, therefore, the adjunct of e, and subordinated to him in the er a formula invented by such may sell drugs generally, he can proprietary right in the formul m arising out of these relations, ni ; for solution, lies midway of abs rary property, and qualified rigi dent to all property. And, in order › compelled to inquire first, irto te prescription; second, into the len y the patient, and third, into the l necary to it. There is a very ne observed in these varying and at it will be seen, we believe, that s of the aspect of the problem, is merged into that of others. The possessed by each, may be tra hroughout all the shifting obligatie sician, patient and apothecary, and correctly apprehend and disch rs, no wrong could possibly arise i refuse him a just remuneration for the service rendered. Whether this counsel be reduced to writing or not, it is, therefore, none the less the property of its author, and he may accordingly repeat it and re-sell it as often as he pleases; for,.after all, he only disposes of the right of use to another, while the right of property, the absolute ownership, still remains in him. It is, undoubtedly, true that a retainer binds a lawyer not to give advice to a party opposed to his client in a particular suit, but it does not, and can not restrain him from giving advice to that same party, in any matter foreign to his client's interests in such action. In other words, he is not, without a special contract, universally retained, but particularly so pro hac vice. And his retainer is simply a premium to abstain from taking the other side, in some pending litigation. with which, when over, he is no longer legally connected. This surrender by a lawyer of his professional talents exclusively to one side in a judicial action, springs necessarily from the fact that in order to make a legal issue there must be two parties, one alleging and the other traversing. But as no similar reason, or even analogy exists in the practice of medicine, we may dismiss the exception above expounded as having no practical application to the subject under consideration. A physician, therefore, may give the same advice to different parties at the same time, and receive a fee from each for this service, without violating any obligation either moral or legal. And the patient on his part only pays for the usufruct of that advice, but does not, by so doing, create in the physician an implied obligation not to impart that same counsel to any one else who may call for it. § 198. Applying these principles to the question before us, it may be said that a prescription is so much professional advice in the form of a private letter of instructions, for the compounding of certain drugs, intended to be used under specific conditions, relating to time and persons. These specific conditions form an implied contract between the physician and patient, consisting of two elements; first, that the prescription exhibits ordinary skill in its composition, and second, that it is, according to the best. judgment of the physician, suited to the necessities of a particular patient at a particular time. The unities of skill, present or contingent pathological necessity, coupled with individual wants, must all reveal themselves in the prescription. For, the physician's reputation is involved. as much in his prescriptions as in his treatment generally, of which, in fact, they form a most important part, and in case of a suit for malpractice, his ordinary skill will be tested no less by the one than the other. LEGAL RIGHTS OF PATIENTS IN PRESCRIPTIONS. § 199. An original prescription, as a labor of skill, is a mental product like any kind of literary work, consisting of two parts, viz: the paper and the formula. Being written for the special use and benefit of the party who pays for it, the patient acquires a right of property at least in the paper, and may bring an action of detinue for it against any party who withholds it from him.' He has a fiduciary ownership in it, and, consequently, the right to its beneficial use, by virtue of purchase. And, in this respect, it differs in nothing from a letter, which the receiver has an undoubted property in, even as against the sender. A patient should 13 Blacks. Comm. 151; Co. Litt. 286, b; Browne on Actions, 358. Oliver v. Oliver, XI. Common Bench Rep. N. S. 139; Eyre v, Higbee, 35 Barb. 509. refuse t not sig self, cas commit ing it, and th $20 party perty formu prope he pl what this, date It is posi in a tend the afte Con em th pr CO th p le C r private letter of instructions. rtain drugs, intended to be as, relating to time and pers 3 form an implied contract betwe ent, consisting of two elemera ion exhibits ordinary skill in d, that it is, according to the be ian, suited to the necessities - particular time. The unities gent pathological necessity, couple must all reveal themselves in t physician's reputation is inval ptions as in his treatment gener form a most important part, and practice, his ordinary skill wil one than the other. OF PATIENTS IN PRESCRIPTIONS. prescription, as a labor of skills ny kind of literary work, consist paper and the formula. Being w benefit of the party who pays fir right of property at least in the p on of detinue for it against any p m him. He has a fiduciary uently, the right to its beneficials e. And, in this respect, it differs which the receiver has an undan gainst the sender. A patient sho Co. Litt. 286, b; Browne on Actions, 358 mon Bench Rep. N. S. 139; Eyre, Higbe refuse to receive a prescription from a physician who will not sign it with his full name, for the refusal to sign, of itself, casts suspicion upon its merits, and in case of an error committed in its formula, or by the apothecary in compounding it, the signature is the best evidence of its paternity, and the best clue for bringing the error home to its author. § 200. But although, as has been already shown, the party paying for the prescription has an undoubted property in the paper, and a right to the personal use of the formula, it is clear that he acquires thereby no absolute property in the latter. That he may use it as often as he pleases can not be doubted, for the use is precisely what he has purchased and paid for. Yet, even in doing this, it must be remembered that no prescription, when dated, implies universality of use, or illimitability of time. It is only a quack who originates a prescription of a composite character for mankind in general, at all times, and in all places. The physician's liability for the result attending upon the use of the prescription terminates, with the occasion for which he specifically originated it. Hence, after the first use of the formula, the patient, unless he consults the physician, and receives his authority de novo, employs the prescription at his own peril. Nor, again, does it follow from the right to use this latter that he can do it in any essentially different way, as by printing, or publishing it for example, any more than he could private letters, without first obtaining permission of the author, if a letter, and by parity of reason of the physician, if a prescription. This doctrine, as applicable to letters, was very thoroughly discussed in the case of the celebrated Chesterfield letters, and it has been frequently reaffirmed since.1 The law has always entertained a tender 1 Thompson v. Stanhope, Ambler's Rep. 737. |