Ely v. Wilbur

• Decision Date: 30 June 1887
• Citation: 10 A. 358,49 N.J.L. 685
• Parties: ELY v. WILBUR.
• Court: New Jersey Supreme Court

10 A. 358

49 N.J.L. 685

ELY

v. WILBUR.

Court of Errors and Appeals of New Jersey.

June Term, 1887.

Error to circuit court, Mercer county.

Mercer Beasley, Jr., for plaintiff in error. A. G. Richey, for defendant in error.

KNAPP, J. The action was brought to recover reasonable compensation for services as a physician rendered by the plaintiff to the defendant at his request. By the bill of exceptions returned with the record, it is shown that the plaintiff was a practicing physician, and that he had bestowed upon the defendant, personally, professional medical treatment. The defendant offered evidence tending to show that the plaintiff had mistaken the nature of the defendant's disease, and had, in treating him, prescribed and administered remedies for a disease which lie had not. In the charge to the jury on this phase of the case the chief justice instructed them that this insistment of the defendant, even if true, would not prevent recovery; that the question was whether the plaintiff exercised proper care and skill as a physician; that, if the jury should conclude that the doctor was mistaken in the nature of the defendant's disease, they must go still further, and say that a want of care and skill was exhibited. If no want of care or skill appeared, he was entitled to a fair compensation although he fell into a mistake. This charge and instruction to the jury is complained of as error. But it does not seem to us to be subject to any adverse criticism. It is entirely in accord with the general rule, as given by all the approved text writers on the subject, and but asserts the principle often declared by courts of recognized authority. Chit. Cont. 808, and cases cited in notes.

The rule is general that, wherever labor and services are performed at the request of another, there is an implied promise raised by the law to pay for such work and services what they are worth; and the skill and care required in doing the work, in order to deserve compensation, is that ordinarily possessed and exercised by others in like callings. Chit. Cont. 796. The physician like the attorney, undertakes, in the practice of his profession, that he is possessed of that degree of knowledge and skill which usually pertains to the other members of his profession. And the physician, in attending his patients, engages that he will use due care to discover the nature of the disease which gives occasion for his services, and in applying the usual remedies; but beyond this measure of skill and diligence the law makes no exaction. If he is to be held for results, or as a guarantor of success, it can be only in virtue of his express engagement. Smith v. Hyde, 19 Vt. 54.

Ordronaux, in his Jurisprudence of Medicine, states the rule in question clearly. "The physician," he says, "is not a guarantor, without express contract of the good effects of his treatment, and he only undertakes to do what can ordinarily be done under similar circumstances. If the good effect of his treatment, and the consequent value of his services, be disputed, he must be prepared to show that his labor was performed with the ordinary skill and in the ordinary way of his profession. This is all the essential evidence upon which to found his case." Ordr. Med. Jur. 42. A further citation from the same author is in point: "If a physician ignorantly and unskillfully administer medicine, and the patient consequently derives no benefit from his attendance, the physician is not entitled to any remuneration for what he has done. But if he has employed the ordinary degree of skill of his profession, and has applied remedies fitted to the complaint, he is entitled to his hire and reward, although they may have failed in the particular instance." Id. 1-43.

In Hupe v. Phelps, 2 Starkie, 480, Chief Justice Abbott, in summing up to the jury, stated the ground upon which a recovery could be had for a physician's services, as follows: "In case of a regular practitioner, who had used due care and diligence, his claim to remuneration depends not on the question whether ...