Is there a doctor on the plane (2) : LUSENET : Lessig's Contracts : One Thread

On a transatlantic flight, an airline asks passengers whether there is a "doctor onboard." Reluctantly, a doctor announces that she is a doctor. She proceeds to save the life of an unconscious patient.

Does the doctor have a right to recover against the patient?

-- Anonymous, October 05, 1998


Under Sect. 86, of the 2nd Restatement (comment d) it notes that the law of restitution, presumably to avoid socially distasteful ex ante incentives, "severely limits recovery for necessaries furnished to a person under disability and for emergency services." Thus it seems that unless the patient, or in the previous case, the airline, makes a subsequent promise of restitution, it will be difficult for the doctor to overcome the presumption that her action was a gratuity.

-- Anonymous, October 12, 1998

Response+?'s: Is there a doctor on the plane(2)

I would agree with Nathan that, as a general rule, ' 86 views with skepticism the claim that benefits have been conferred in an emergency situation. Note, however, that the law of restitution "restricts" but does not absolutely bar such recovery. I still maintain, therefore, that in the extreme case where a doctor clearly saves someone's life, said doctor has a right to recover reasonable expenses even in the absence of a promise by the patient to pay. In such circumstances there can be no doubt as to either the the veracity of the claim or the value of the benfit.

A few related questions: What happens when an unconscious person is brought into an emergency room? If doctors provide lifesaving treatment, can they bill the patient? What happens if the patient dies? If the hospital cannot collect, wouldn't that also distort ex ante incentives to save lives?



-- Anonymous, October 14, 1998

Some ideas that I am not very sure of and some questions, in no particular order:

First, I don't think that the benefit conferred rule (that you have no legal obligation to pay for a benefit conferred until you make a promise) is entirely based on the rationale of the uncertainty of the benefit or the possibility of the fraudulent claim.... If we adopt those two things as the sole criteria of whether someone could collect, would there ever be a situation where you have a moral but not a legal obligation to someone who conferred a benefit to you? Also, what if another passenger, not a doctor, saves the patient's life by performing CPR? There is also a truthful claim about a benefit conferred. Should the passenger be able to collect? (It would seem kind of weird to me if he could.) So I guess I agree more with the idea that the rule is more geared towards preserving volunteerism in society.

About emergency rooms: I don't know if the hospital could collect, but I think there's a difference because in the ER case there's less of a clash between two opposing presumptions (presumption against volunteers collecting and presumption for paying for medical care). About distorting the ex-ante incentive to save lives: if we emphasize payment as the incentive for ER doctors to save lives wouldn't there be an incentive to save only rich people? In any case, I think the ER scenerio is more like the admiralty case with the law about saving shipwrecked people b/c I think there is some sort of regulation /law / policy that says you can't transfer/release a patient from ER until s/he has been stabilized. (Someone who also did LRA memo on hospital liability please correct me if I am wrong....)

I need to learn to be less verbose, Tawen

-- Anonymous, October 14, 1998

Problem with Is a Doc on the Plane(2)

I suppose the horse is glue, but Momma always said I was stubborn as a mule...

I think Tawen's response points to a real problem with the hypothetical. Namely, the situation described does not detail either the seriousness of the injury to the passenger or the nature of the doctor's services. I would concede that if the doctor simply performs CPR, she probably doesn't have a right to collect anything. Or, to put it another way, her services in that situation aren't worth much from a market perspective since, as Tawen points out, CPR is a fairly common skill.

What happens, however, if we assume the patient's situation is more grave? Let's say the patient has some condition that requires immediate and extraordinary surgery. The doctor -- avid fan of McGyver that she is (who isn't?) -- intubates using the oxygen mask overhead, fashions a scalpel from the pages of the inflight magazine (those edges are sharp!), and then closes her handiwork up using (what else?) airplane glue. The patient survives.

Can we honestly say the doctor was a volunteer? In ordinary circumstances, one presumes that a patient who received such life-saving care in a hospital or doctor's office would have to pay the provider. Why does the mere fact that the doctor in our hypothetical happens to be outside the hospital or office remove that presumption (questions of legal obligations to provide care aside)? In my mind, and in the spirit of our current class focus on damages, I would argue that the doctor has a right to recover the fair market value of her services. Otherwise, what's the point of having the concept of implied contract in law?



-- Anonymous, October 15, 1998

Arghh. Now I am getting very confused--and my post would probably reflect this....

First, about the presumption of payment Andy mentioned as a justification for the patient's legal obligation. I thought this idea was more relevant in contracts implied in fact, as someone I think already mentioned. Since the patient in this case was not conscious, there couldn't have been a contract implied in fact despite the presumption. (Or could there?) So the fact of the presumption--or the "market value" of the doctor's services--shouldn't affect the patient's legal obligations.

More questions: I really don't understand the concept of a contract implied in law other than the fact that privity is not required. (But what positive characteristics makes something contract implied in law? The only thing I can think of is possibly the presumption against unjust enrichment. Is there unjust enrichment on the patient's part in this case?)

Finally, I think we ought to consider the doctor a volunteer b/c she didn't have to tell the airline that she was a doctor. (I don't think she would have been liable for the patient's death if she hadn't done anything. Is that true?)


-- Anonymous, October 19, 1998

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