Spencer v. West, 9370

• Decision Date: 19 December 1960
• Docket Number: No. 9370,9370
• Citation: 97 A.L.R.2d 1224,126 So.2d 423
• Parties: Bennie E. SPENCER, Plaintiff-Appellee, v. L. Allen WEST, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 423

126 So.2d 423

97 A.L.R.2d 1224

Bennie E. SPENCER, Plaintiff-Appellee, v. L. Allen WEST, Defendant-Appellant.

No. 9370.

Court of Appeal of Louisiana, Second Circuit.

Dec. 19, 1960.

Rehearing Denied Feb. 2, 1961.

Certiorari Denied March 13, 1961.

Theus, Grisham, Davis, Leigh & Brown, Monroe, for appellant.

McHenry, Snellings, Breard & Sartor, Monroe, for appellee.

GLADNEY, Judge.

This suit was filed on July 25, 1957, by Dr. Bennie E. Spencer to recover for professional services rendered the defendant, L. Allen West, during a period commencing December 20, 1955, and terminating March 2, 1956. Dr. Spencer died before the trial was completed and his widow, Marthield Knight Spencer, administratrix of his succession, was substituted as party plaintiff. The action is defended on the ground the charges sought to be collected are excessive. Further, respondent avers that during the course of his treatment he was administered an over-dosage of dicumerol, a blood thinning drug, and as a result suffered hemorrhages and other consequences for which damages are sought in reconvention. Alternatively, defendant pleads that should he not be permitted to recover damages he is nonetheless entitled to an offset or compensation against plaintiff's charges by reason of the unskillful care exercised by Dr. Spencer, and for pain, suffering, and inconvenience thereby sustained. Plaintiff filed a plea of prescription directed to the reconventional demand and an exception of no cause and no right of action against defendant's claim for compensation and offset. The trial judge sustained these pleas in limine and, following trial on the merits, rendered judgment for the amount of the principal demand. Defendant has appealed, assigning several errors to the trial court, which, in substance, are: failure to hold appellant's demand in reconvention is ex contractu rather than ex delicto, and failure to accept and consider as established certain evidence offered by defendant for the purpose of showing the professional charges involved herein were improper and unreasonable.

The existence of consensual relationships between physicians and their patients with certain obligations and duties incumbent upon the respective parties is described in 70 C.J.S. Physicians and Surgeons, § 36, at p. 941. Louisiana courts have uniformly held that where a contract has been breached by negligent or tortious conduct the injured party may bring his action ex contractu or ex delicto. Exhaustive discussions of this rule appear in Loew's, Inc. v. Don George, Inc., 1959, 237 La. 132, 110 So.2d 553; Olinde Hardware & Supply Company v. Ramsey, La.App. 1st Cir., 1957, 98 So.2d 835; Transportation Equipment Company v. Younger Bros., La.App. Orl., 1948, 34 So.2d 347; American Heating & Plumbing Company, Inc., v. West End Country Club, 1930, 171 La. 482, 131 So. 466. The last three cited cases involved reconventional demands in contract, although injuries complained of resulted from negligent or tortious conduct, and in each case it was held that the prescription required to bar the demands was the prescription of ten years. In determining whether the action is one in tort or contract the courts have relied upon the character which the plaintiff gives to his pleadings and the form of his action. Importsales Inc. v. Lindeman, 1957, 231 La. 663, 92 So.2d 574; Kramer v. Freeman, 1941, 198 La. 244, 3 So.2d 609. The plea of prescription filed in behalf of plaintiff should have been overruled.

Defendant's plea of compensation or offset, predicated upon the alleged act of malpractice in administering an overdose of dicumerol, cannot be considered by the court for it constitutes an unliquidated claim for damages which is urged as an offset to a liquidated claim on a professional account. LSA-C.C. arts. 2207, 2209. City of Shreveport v. Curcio, La.App.2d Cir., 1934, 157 So. 317; Calvert Fire Insurance Company v. Lewis, 1957, 231 La. 859, 93 So.2d 194. The ruling of the lower court on the exception of no cause and no right of action was proper.

The circumstances giving rise to this litigation commenced with a heart attack suffered by the defendant in Monroe about noon on December 20, 1955. Drs. Schonlau and Raphael went immediately to West, rendered emergency treatment, and accompanied him to the hospital where the patient was placed under an oxygen tent, administered drugs, and an EKG taken. When notified of West's condition Dr. Spencer was in the Palace Department Store, approximately two blocks from the St. Francis Hospital, where defendant was taken. Prior to arriving at the hospital some thirty or forty minutes after notification, Dr. Spencer telephoned the hospital and gave instructions as to medication. Upon arriving at the patient's bedside, Dr. Spencer made an examination, checking the pulse, blood presure, etc., and was with the patient for two to two and one-half hours. West continued under the treatment of Dr. Raphael, a heart specialist, until the critical stage was passed. Dr. Schonlau also attended defendant for a time, but due to personal differences with Dr. Spencer, he discontinued his services. Appellant remained in the hospital until December 28th, at which time he was permitted to go home where he received almost daily professional attention from Dr. Spencer until February 18th. From February 18th to March 3rd there were no professional visits. On March 3rd West, who had been taking doses of dicumerol pursuant to Dr. Spencer's orders, suffered a reaction which required hospitalization for correction of the condition. This treatment lasted until March 22, 1956.

An action to recover for medical services rendered is, of course, predicated upon the obligation of the patient to pay, and arises ex contractu. The relationship between the physician and patient may result from an express or implied contract, either general or special, and the rights and liabilities of the parties thereto are governed by the general law of contract. Where the terms of the contract, especially as to consideration, have not been predetermined, an agreement therefor will be implied and the doctor is entitled to recover for his services in he same manner as any other person who performs services for another. The general rule as stated in 70 C.J.S. Physicians and Surgeons § 71, at p. 1032, is that the fee usually charged by other practitioners of similar standing for similar services is a factor for consideration in determining a reasonable compensation of a physician. There are a number of other factors which, in the absence of a specific understanding, must be measured by reasonableness. These are founded on custom, the nature of the case, the amount of attention given, professional standing and skill, the end result obtained, the financial condition of the patient, and anything else which tends to increase the burden of the services performed by the physician. 70 C.J.S., supra, at pp. 1032, 1033 and 1034.

In considering the determinative factors in a direct charge, the following comments from decisions of our appellate courts are pertinent:

'Law and jurisprudence have not laid down any hard and fast rule for guidance in the matter of physicians' charges. Courts must of necessity, to a very great extent, rely on the opinions of reputable members of the profession as to the value and character of the services rendered. Any such charges are not to be determined wholly upon the skill of the physician, nor upon the amount of services rendered but the value of the patient's estate and his ability to pay may be taken into consideration.' Young Bros. v. Succession of Von Schoeler, 1922, 151 La. 73, 91 So. 551, 553.

'In determining what is a correct charge for professional services, there should be considered two things: first, the training and experience necessary and the seriousness of the treatment or operation; and, second, the ability of the defendant to pay. We do not mean that because a defendant may be a very rich man he may be required to pay an exorbitant charge, but we do mean that, where a defendant is shown to be well able to pay, the doctor should not be required to reduce his charge, and in fixing it, may take into consideration the fact that the patient has ample funds out...