The patient is dying! : LUSENET : Lessig's Contracts : One Thread

On the issue of whether a doctor has obligation to go into a contract with a dying patient, I just provide some interesting points.

The situation 1: I am a doctor, and I am sitting in the living room of my house watching NBA. The telephone rings, and a young girl tells me her father is dying. She reguest me to see him. I refuse. Then, the patient dies. According to contract law, should I take responsibility for the patient's death?

Maybe it is difficult to answer the question, so let's suppose another situitaion:

The situation 2: Now, I am a doctor, and I am sitting in my clinic. The time is 3:00 pm, my practicing time. The door of the clinic is open,too. Then, the telephoe rings, I am told a patient is dying and he needs help. I refuse and the patient dies. According to contract law, should I take responsibility?

Q1: What is the difference between these two situiations?

Q2: According to contract law, Is there any "offer and acceptance" or "negotiation" or "consideration" in the situiation 1. Then, the same question, how about in the situiatin 2?

Q3: What kind of contract does it belong to (if we suppose it does, of course, maybe not)?

Q4: If we can not punish the bad doctor by contract law, is there any method to punish him? Administrative law? Criminal Law (maybe death penalty is a good way, because his bad behavior is as the same as a murder)? Antitrust law (We should introduce more doctors into the market)? Or just by the power of "doctors' market"?

O.K., too many questions, but let's think about another situiation: A patient with a stroke is sent to an emergency room of a hospital, and his condiction is really emergent. Does the doctor in the emergency room have the right to refuse the patient?

I am looking forward to hearing from you!


-- Anonymous, November 02, 1998


Maybe contract law is not enough

I don't really see any difference between the two situations. I think that if we assume that Hurley v. Eddingfield controls, then in both situations, the doctor could refuse and not be held liable under contract law. In both situations, an offer was extended and refused by the doctor. Hurley v. Eddingfield established that a doctor has the right to refuse to enter into labor contracts. There is no duty that a doctor must perform under contract.

I personally find this idea that a doctor does not have a duty to save someone else's life repugnant. So I hope that there is some other remedy which would force the doctor to perform. Maybe you can sue the doctor under tort law. Or maybe the doctor can be charged criminally as Chun-Ming suggested.

-- Anonymous, November 06, 1998

I agree with Ayn's analysis of these situations using Hurley as a basis for understanding the obligations of a doctor to a prospective patient. Unless the doctor accepts the offer to help the patient, I don't think that she is bound by contract law to do anything.

The only aspect of the case that might change the way that the courts view these situations would be if the parties had a prior contractual relationship. If we assume that the dying person was a life long patient of the doctor, then perhaps there is an implied contract to help. In the past, this patient relied on the doctor for help with medical problems. The patient had a reasonable expectation that "his doctor" would treat him whenever he had a medical problem. In the present situation, the patient reasonably relied on the doctor to his detriment. As such, the doctor has breached the contract and it should be enforceable.

-- Anonymous, November 06, 1998

One possible difference between the two situations is that it would be a lot easier to make the argument that the doctor is "like" the comon carrier or the inn in the second case. He presumably is offering his service to the public when he has office hours and has his clinic door open.... (I can't remember whether the court in Hurley ever gave a rationale about why the doctor is not like an innkeeper.) This argument also makes sense in view of government regulations of Emergency Rooms in hospitals.

On the other hand, you could conceivably argue that the doctor in the second case has a more "socially acceptable" excuse for not coming to the aid of the patient, i.e. other patients would rely on him to be in his clinic during his office hours.

-- Anonymous, November 06, 1998

The thing that really gets me about this doctor case is the question of discrimination. Even if the court couldn't sufficiently prove the doctor discriminated against the dying potential patient, I feel like the court would have found a way to hold the doctor liable in some form had the doctor been white and the patient black, jewish, etc.. The trick here, as Mr. Stamelman reminded me after class, is that the doctor in this case had treated the patient in the past (a critical fact, I think) meaning the dr. had no history of discrimination with this patient. Maybe this is why the court was so unreservedly "harsh" in upholding the dr's right to refuse to contract. Do people agree?

I've been amazed at how the courts bend rules to match their conception of what is right, especially in the anti discrimination cases in the last unit. Holmes might have mocked the method, but at least the court did the right thing.

What's scary about this (and I guess this is esp on my mind after seeing "Life is Beautiful" last night) is all the injustice courts have dealt out in the history of this country when judges and courts are "evil-ly" minded (eg racist). It's scary in a way to live in a world where the law seems so relative... Do we as lawyers just sit back and trust we live in an enlighted age where ulimately courts will decide rightly? (which I suppose ties into the discussion about legal ethics raging elsewhere on this site...)

-- Anonymous, November 07, 1998

Moderation questions? read the FAQ