Lake v. Baccus

• Decision Date: 16 March 1939
• Docket Number: 27170.
• Citation: 2 S.E.2d 121,59 Ga.App. 656
• Parties: LAKE et al. v. BACCUS.
• Court: Georgia Court of Appeals

2 S.E.2d 121

59 Ga.App. 656

LAKE et al. v. BACCUS.

No. 27170.

Court of Appeals of Georgia, Division No. 1.

March 16, 1939

Wm E. Ball and C. R. Wheeless, both of Atlanta, for plaintiffs in error.

John W. Bolton and G. N. Bynum, both of Atlanta, for defendant in error.

MacINTYRE Judge.

The defendant filed a general demurrer to the plaintiff's petition on the ground that "plaintiff's petition as amended sets forth no cause of action. That plaintiff's petition as amended, is a declaration counting upon fraud which does not allege such facts as would in law amount to a fraud upon the part of these defendants. That plaintiff's petition, as amended, is too indefinite, too uncertain and too vague to obtain any recovery whatsoever." In his brief he emphasized the argument that the plaintiff's petition does not allege that the doctors "promised to cure the boy of an incurable disease, or any particular ailment," and they further argue that it was necessary to allege what ailment it was that the examination revealed and that Drs. Lake and Stanford promised to cure the ailment revealed by their examination as Chiropractors and that the doctors did not fulfill their promises.

It should be noted that this is not a case based on the theory of malpractice or upon the negligence of the doctors. Malpractice is a failure of the physician to exercise the required degree of care, skill, and diligence and generally the physician "is only required to possess and exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing, and to use ordinary, and reasonable care and diligence, and his best judgment, in the application of his skill to the case." 48 C.J. § 101, p 1113.

The law does not require the physician to guarantee results but a contract between the parent of the patient, a minor child and his physician that the latter's right to compensation shall be dependent upon his curing the patient is a valid and binding contract. This is such a contract as Corpus Juris refers to as, "'No cure, no pay' contract." 48 C.J., § 176, p. 1160.

In Frankel v. Wolper, 181 A.D. 485, 169 N.Y.S. 15, Thomas, J., speaking for the court says: "The contract of a physician to cure a patient does not mean that in case of failure he will pay the damages resulting from the malady continuing, or for the results of his lack of skill or ignorance, or for the physical consequence, or for treatment by other physicians necessitated by the patient's condition. While a contract to cure a patient does involve the elimination of the patient's condition, the physician cannot be held responsible for suffering from a cause which he agrees to end but does not end, unless he is guilty of malpractice. A physician must have skill, care and judgment and use them, and if he fails to use them and pain results therefrom, whether or not there be ultimate cure, he is liable. It seems that where a physician agrees to cure a patient and fails to do so the patient is absolved from payment and may recover advances made and expenditures for nurses, medicines," etc. (Italics ours.)

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