R. Vashon Rogers

The Roman Law considered the services of an advocate and of a physician as strictly honorific; and, as in the Roman age, practitioners in law and medicine, were usually men of leisure and wealthy, who did not practise for the sake of a livelihood, remuneration for their services could not be recovered in the ordinary way. Although owing to the Utopian ideas concerning the honour of a liberal profession then in vogue it was considered that any mention of a “fee,” or a “salary,” by that name would soil and disgrace the robe of a practitioner, still it was an established fiction of the Civil Law that the promise of an honorarium always accompanied the employment of a professional man, and that such promise created one of those obligations that might be enforced by action (10). The Common Law of England adopted the theory of the Civil Law as to the high standing of the profession, but afforded no remedy for the recovery of the charges. Surgeons and apothecaries were enabled to recover by law remuneration for their services, but a physician was presumed to attend his patient for an honorarium (something left to the honour of the patient to pay or not to pay), and could not maintain an action for his fees until the passing of the Medical Act, 1858, put an end to his anomalous position in this money-making age, and gave him as free an entrance into the courts of law to recover compensation for his work and labour, time and "16" skill bestowed, as the worker in any other path of life. Before this a physician could not recover even expenses out of pocket, such as those incurred in travelling to visit a patient, unless there had been an agreement specially made to that effect (11).

If a physician was a surgeon as well, and attended a case where the advice of a physician and the aid of a surgeon were necessary, he could recover the value of his services as a surgeon but not as a physician (12).

In England the question sometimes arises, where the practitioner is only a surgeon, whether he can charge for attendance as a physician or as an apothecary. It has been held that typhus fever is not a disease that belongs to a surgeon’s branch of medicine, and that he cannot therefore recover for his attendance on a patient suffering under it. So, too, with regard to consumption and dropsy, though, in the latter case, he may recover for any work done for the patient specifically within his practise, such as puncturation, scarification, bandaging and friction (13).

At one time it was considered that an apothecary was not entitled to charges for his attendances, but only for his medicine: then the law decided that he might charge for either attendances or medicines, but not for both. Shortly afterwards Tenterden held that one might recover for attendance (the charge being reasonable), as well as for medicine. After that full justice was done to this branch of the profession, and it was decided that there was no rule of law, and there certainly is none of morals, to prevent an apothecary from making distinct charges for "17" attendances and medicines; but if he charges very high for his drugs the jury may think the attendances ought not to be paid for as well (14).

In Scotland, also, at one time physicians’ fees were regarded as honoraries, and not recoverable by action except under a special contract (15). Neither in the United States nor in the Colonies have these distinctions been made between the different branches of the profession, nor has the principle been adopted that the profession of a physician is a merely honorary one, and that his services cannot be charged for (16).

In England every person registered according to the Medical Act, 1858, and in Ontario those registered under the Provincial Act, can practise medicine or surgery, or medicine and surgery; and can recover in any court of law, with full costs of suit, reasonable charges for professional aid, advice, and visits, and the costs of any medicine or other medical and surgical appliances rendered or supplied to his patient; but no person is entitled to recover any such charges in any court of law unless he can prove upon the trial that he is so registered. Registration has now become a part of the plaintiff’s title to recover, which it is imperative upon him to prove. A copy of the medical register for the time being, purporting to be printed and published under the direction of the General Council, is evidence in all courts that the persons therein specified are registered according to the provisions of the Medical Act; and the absence of the name of any person is evidence, until the contrary be made to appear, that such person is not so registered; and the contrary may be shown by a certified copy, under the hand "18" of the registrar, of the entry of the name of such person on the register (17). Similar rules are in force in the various States where Medical Boards have been constituted by legislative authorities for the purpose of examining and licensing practitioners, such as Alabama, Delaware, Florida, Georgia, Louisiana, Maine, Minnesota, New York, Ohio, South Carolina and Wisconsin.

Subject to the various statutory enactments, every physician or surgeon, or any one who chooses to act as such, is entitled to a reasonable reward for his services and for his medicines. If there was no express promise to pay when the services were requested, the law implies one: the broad principle being, that when a person has bestowed his skill and labor for the benefit of another, at his request, and no agreement is made in respect to them, the law raises an implied promise to pay such compensation as the person performing the service deserved to have; and when there is no statutory or other restraint upon the remedy, an action lies on such promise (18). The amount, unless settled by law, is a question for the jury, and in settling that, the eminence of the practitioner, the wealth of the patient, the delicacy and difficulty of the operation, as well as the time and care expended, are to be considered (19).

The law, as a rule, sets no limitation to fees, provided they be reasonable. Within this rule a practitioner is allowed discretionary powers and may charge more or less according to his own estimate of the value of his services. No one will pretend to assert that all services are of equal value, and no one will claim that those who can "19" render them the most skilfully should receive only the same reward as those who can render them the least so. A medical man of great eminence may be considered reasonably entitled to a larger recompense than one who has not equal practice, after it has become publicly understood that he expects a larger fee, inasmuch as the party applying to him must be taken to have employed him with a knowledge of this circumstance (20). But doctors must not be unreasonable in their charges; as Lord Kenyon remarked, “Though professional men are entitled to a fair and liberal compensation for their assistance, there are certain claims which they affect to set up, which if unreasonable or improper, it is for the jury to control” (21). That a patient is a millionaire does not justify an extortionate charge. The French rule is to consider the gravity of the disease as well as the fortune and position of the patient in settling the remuneration of a physician (22).

The existence of an epidemic does not authorise the charging of exorbitant fees (23).

In some ages and countries the fees payable to medical practitioners have been fixed by law. In Persia, for instance, in ancient times the law said that “a physician shall treat a priest for a pious blessing, or a spell; the master of a house for a small draught animal; the lord of a district for a team of four oxen; and if he cure the mistress of a house a female ass shall be his fee.” (Vendidad Farg. VII.) To take another instance, the medical men in attendance upon the old princes of Wales had their fees settled; for curing a slight wound, a surgeon received for payment the clothes of the injured person which had been stained with blood; "20" and for curing a dangerous wound he had, in addition to the bloody clothing, board and lodging while in attendance, and 180 pence. In Egypt, according to Herodotus, practitioners were paid out of the public treasury, although they might also receive fees from their patients.

A medical man can also recover for the services rendered by his assistants or students; and that even though the assistant is unregistered (24). It is not necessary that there should be any agreed specified price, he will be allowed what is usual and reasonable (25).

The right of a medical man to recover his charges for professional services does not depend upon his effecting a cure, or on his services being successful, unless there is a special agreement to that effect. It does not depend upon the fortune of the case whether it be good or bad, but upon the skill, diligence and attention bestowed. For, as a general rule, a physician does not guarantee the success of his treatment; he knows that that depends upon a higher power. Still, some good must have resulted from his efforts. The rule appears to be that if there has been no beneficial service there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence (26). The practitioner must be prepared to show that his work was properly done, if that be disputed, in order to prove that he is entitled to his reward (27). Where the surgical implements employed in amputating an arm were a large butcher knife and a carpenter’s sash-saw, it was held that the Court rightly charged the jury, that if the "21" operation was of service, and the patient did well and recovered, the surgeon was entitled to compensation, though it was not performed with the highest degree of skill, or might have been performed more skilfully by others (28).

If a surgeon has performed an operation which might have been useful but has merely failed in the event, he is nevertheless, entitled to charge; but, if it could not have been useful in any event, he will have no claim on the patient (29). A medical man who has made a patient undergo a course of treatment which plainly could be of no service, cannot make it a subject of charge; but an apothecary who has simply administered medicines under the direction of a physician may recover for the same, however improper they may have been (30). If the physician has employed the ordinary degree of skill required of one in his profession, and has applied remedies fitted to the complaint and calculated to do good in general, he is entitled to his fees, although he may have failed in this particular instance, such failure being then attributable to some vice or peculiarity in the constitution of the patient, for which the medical man is not responsible (31).

It is the duty of a physician who is attending a patient infected with a contagious disease, when called upon to attend others not so infected, to take all such precautionary means experience has proved to be necessary to prevent its communication to them. When a physician who was told by a patient not to attend any infected with small-pox or his services would be dispensed with, failed to say that he was attending such a patient, and "22" promised not to do so, but continued to attend, and did by want of proper care communicate small-pox to the plaintiff and his family, it was held that these facts were proper evidence to go to the jury in reduction of damages in an action for his account, and that the physician was responsible in damages for the suffering, loss of time and damage to which the plaintiff may have been subjected. If a physician by communicating an infectious disease has rendered a prolonged attendance necessary, thereby increasing his bill, he cannot recover for such additional services necessitated by his own want of care (32). This rule will apply with equal force to puerperal fever (33).

In the case of vaccination, the physician, while he does not guarantee the specific value of the vaccine virus, yet guarantees its freshness; so that if he inoculate a patient with virus in an altered state, constituting as it then would mere putrid animal matter, and erysipelas or any injury to any limb necessitating amputation should arise, he will undoubtedly be held responsible for the suffering, loss of time, and permanent injury to the patient (34). Long since Lord Kenyon was of the opinion that if a surgeon was sent for to extract a thorn, which might be pulled out with a pair of nippers, and through his misconduct it became necessary to amputate the limb, the surgeon could not come into a court of justice to recover fees for the cure of the wound which he himself had caused (35).

The physician when sending in his bill should be specific in his charges and not general; he should give the number of visits and dates. In one case a lump charge of “$13 for medicine and attendance on one of the general’s daughters "23" in curing the whooping cough,” being objected to by the valiant officer, was held by the Court to be too loose to sustain an action (36). Where a practitioner brought an action for a bill consisting of a great number of items, and gave evidence as to some of them only, and the jury gave a verdict for the whole amount of the bill, the Court refused to interfere and grant a new trial because every item was not proved (37). Where a medical man delivered his bill to a patient without a specific charge, leaving a blank for his attendance, the Court inferred that he considered his demand in the light of a “quiddam honorarium,” (this was before the Medical Act), and intended to leave it to the generosity of the patient, and the latter having paid into court a certain amount, the Court held the surgeon was bound by the amount so paid and could not recover any more (38). As a rule, however, if a doctor’s bill is not paid when presented he is not limited by it to the amount of his claim, if he can show that his services were of greater value (39). When witnesses are called to speak as to the value of the practitioner’s services the Courts generally incline towards the lowest estimate (40).

The number of visits required must depend on each particular case, and the physician is deemed the best and proper judge of the necessity of frequent visits; and in the absence of proof to the contrary, the Court will presume that all the professional visits made were deemed necessary and were properly made (41). There must not be too many consultations; and the physician called in for consultation or to perform an operation may recover his fees from the "24" patient, not­with­stand­ing that the attending practitioner summoned him for his own benefit and had arranged with the patient that he himself would pay (42).

Where a medical man has attended as a friend, he cannot charge for his visits. This was held in one case where it was proved that the practitioner had attended the patient as a friend, upon the understanding that he was to have refreshments and dinners free of charge; and in another case, where a medical man had attended professionally, for several years, a lady with whom he was on terms of intimacy (but received no fees, except once, when he had prescribed for her servant). The day before her death this lady had written to her executors, asking them to remunerate the doctor in a handsome manner, and moreover in her will she gave him a legacy of £3,000 and a reversionary interest in £6000 more. It was proved that he had attended others without having taken fees or sent in bills. It was held that his services had been tendered as for a friend, and accepted as a friends, and his demand as a debt against the assets of the lady was rejected (43). One would have thought that the physician in this latter case should have been satisfied.

Where a tariff of fees has been prepared, and agreed to by the physicians in any locality, they are bound by it legally as far as the public is concerned, morally as far as they themselves are concerned (44). It is no part of the physicians business to supply the patient with drugs; if he does so he has a right to be reimbursed therefor (45). "25"

If a physician enters into a special contract to perform a cure he will be held strictly to its terms, nor will he be allowed to plead circumstances, which, under the general law of professional obligation, might fairly exonerate him from blame, for failing of success in the treatment of his patient. To promise an absolute cure is to assume arrogantly the possession of powers never delegated to man; only a weak and vapid intellect will commit so egregious a blunder. Yet, if a man choose to do it he may, and having entered into an express contract he will be held liable for its fulfilment. For it is his own fault if he undertake a thing above his strength. If the agreement is, no cure, no pay: he cannot even recover for medicines supplied if the cure is not effected. At least, so it was held at Vermont. Contracts to receive a certain sum contingent upon the performance of a cure have always been considered as professionally immoral, and in the civil law were repudiated as against public policy (46).

The physician is always allowed discretionary powers over the patient entrusted to his care in modes of treatment, so as to be able to alter them according to the varying necessities of the case. Unless such change of treatment involves a risk of life or consequences of which he is unwilling to assume the responsibility, he is not under obligation to give notice or obtain permission before making it. Particularly is this the case where the patient is not at home or among friends or relatives, but is in some degree in his custody and under his exclusive supervision, as well as care. In such circumstances he is authorised to perform operations, or change his treatment, or enforce discipline essential to its fulfilment, without first consulting or obtaining permission from friends or guardians at a distance, since delay might involve a greater risk to the health "26" and possibly the life of the patient than would a necessitated operation; and of such things he alone is the proper, as he alone can be the best, judge. He may recover his fees for such operation or change of treatment without proving that it was necessary or proper, or that before he performed it he gave notice to the party who had to pay, or that it would have been dangerous to have waited until such notice had been given. The burden of proving unskilfulness or carelessness in the operation lies upon the party objecting to it (47).

When a medical man is called as a witness before a court, to testify as to facts within his knowledge, he must attend and give evidence upon payment of the same fees as other witnesses are entitled to; unless it is otherwise provided by statute.

Where a statute provides that a medical man should be paid a certain witness fee, he is entitled to that fee although he be not called to give professional evidence, and it is not necessary to prove that he is in practice (48). A witness should be paid his fees when he is subpoenaed; but even if he attends he can refuse to give evidence until he is paid, unless he takes the oath before making the objection (49). A subpoena should be served a reasonable time before the trial, to enable a witness to put his affairs in such order that his attendance on the court may be as little detrimental as possible to his interests (50).

Where a medical man is summoned to attend a coroner’s inquest, unless the statute law is clearly to the contrary, "27" he is only entitled to be paid for each days attendance, not for each body on which the inquest was held (51).

Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the deceased was attended during his last illness, or at his death, by a duly qualified medical man, may summon that medical man to attend the inquest; if he finds that he was not so attended, he may summons any legally qualified neighbouring practitioner, and may direct him to hold a post-mortem examination; but a second practitioner will not be entitled to any fees, unless a majority of the jury have, in writing, asked him to be called (52). The fees are, for attendance without post-mortem $5, if with post-mortem, without an analysis of the contents of the stomach or intestines, $10; if with such analysis, $20; together with a mileage each way of twenty cents. If the practitioner when duly summoned fails to attend, without sufficient reason, he is liable to a penalty of $40 (53).

Is an expert witness entitled to receive greater compensation than an ordinary witness? or can he be compelled to give a professional opinion without being paid for it? The States of Iowa, North Carolina and Rhode Island have answered these questions by statutes which say such witnesses shall be entitled to extra compensation to be fixed by the court, in its discretion: while Indiana says experts may be compelled to appear and testify to opinions without payment or tender of compensation other than the per diem and mileage allowed by law to other witnesses (54).

The subject does not appear to have been very much considered in England. In a case, at Nisi Prius, Lord "28" Campbell declared that an expert was not bound to attend upon being served with a subpoena, and that he ought not to be subpoenaed; that he could not be compelled to attend to speak merely to matters of opinion (55). And Mr. Justice Maule, where an expert demanded additional compensation, said there was a distinction between a witness to facts and a witness selected by a party to give his opinion on a subject with which he is peculiarly conversant from his employment in life. The former is bound as a matter of public duty to testify as to all facts within his knowledge, the latter is under no such obligation, and the party who selects him must pay him for his time before he will be compelled to give evidence (56).

Worden, J., of the Supreme Court of Indiana, in considering the question, in a case that came up prior to the statute above referred to, reviewed most of the American decisions and the opinions of the text writers, and concluded “that physicians and surgeons, whose opinions are valuable to them as a source of their income and livelihood, cannot be compelled to perform service by giving such opinions in a court of justice without payment.” The Court further said, “It would seem, on general principles, that the knowledge and learning of a physician should be regarded as his property, which ought not to be extorted from him in the form of opinions without just compensation.” “If the professional services of a lawyer cannot be required in a civil or criminal case without compensation, how can the professional services of a physician be thus required? Is not his medical knowledge his capital stock? Are his professional services more at the mercy of the public than the services of a lawyer? When a physician testifies as an expert by giving his opinion, he is performing a strictly "29" professional service. *** The position of a medical witness testifying as an expert is much more like that of a lawyer than that of an ordinary witness testifying to facts. The purpose of this service is not to prove facts in the cause, but to aid the Court or Jury in arriving at a proper conclusion from facts otherwise proved” (57). In an earlier case (in 1854), in Massachusetts, the Court said, “to compel a person to attend because he is accomplished in a particular science, art or profession, would subject the same individual to be called upon in every case in which any question in his department of knowledge is to be solved. Thus, the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. This is so unreasonable that nothing but necessity can justify it” (58).

On a trial for murder the prosecution had procured the attendance of Dr. Hammond to testify professionally, and had agreed to give him $500 as his fee. This fee was complained of as an irregularity, but the Court in delivering judgment remarked, “The district attorney, it is true, might have required the attendance of Dr. H. on subpoena, but that would not have sufficed to qualify him as an expert with clearness and certainty upon the questions involved. He would have met the requirements of the subpoena if he had appeared in court when he was required to testify and given impromptu answers to such questions as might have been put to him. He could not have been required, under process of subpoena, to examine the case, and to have used his skill and knowledge to enable him to give an opinion upon any points of the case, nor to have attended during the whole trial and attentively considered and carefully "30" heard all the testimony given on both sides, in order to qualify him to give a deliberate opinion upon such testimony, as an expert, in respect to the question of the sanity of the prisoner;” and held “that there was no irregularity in the payment of such a fee” (59).

Such text writers of high repute as Taylor, Phillips, Redfield and Ordronaux, all agree that an expert cannot be compelled to give professional opinions without proper remuneration. The last named writer says, “Where a subpoena is served upon an expert he must obey it, if within the range of physical possibility. But once on the stand as a skilled witness his obligation to the public ceases, and he stands in the position of any professional man consulted in relation to a subject upon which his opinion is sought. He cannot be compelled to bestow his skill and professional experience gratuitously; whoever calls for an opinion from him in chief must pay him, and the expert may decline to answer until the party calling him has paid. When he has given his evidence he cannot decline repeating it, or explaining it. A similar rule will, by parity of reasoning, apply to personal services demanded from the expert, as well as to opinions asked” (60).

On the other hand, the Supreme Court of Alabama, in 1875 (61), confirmed a fine imposed upon a physician for refusing to state the nature and character of a wound received by a man and its probable effect, upon the ground that he had not been remunerated for his professional opinion, nor had compensation for it been promised or secured. And the Court of Appeals in Texas, in 1879, held, that the court could compel a physician to testify as to the "31" result of a post-mortem examination; adding, that a medical expert could not be compelled to make a post-mortem examination unless paid for it, but an examination having already been made by him he could be obliged to disclose the results thereof (62).

The result of the authorities seems to be that, without the aid of a statute, an expert cannot be compelled to bestow his skill and professional experience gratuitously upon any party, for his skill and experience are his individual capital and property.