So, deal with the doctor?? Modern remedy? : LUSENET : Lessig's Contracts : One Thread

Quick question about the thoughtless doctor? If the case were to happen today, would the result be the same? i.e. have the states enacted statutes forcing the doctor to help??

-- Anonymous, November 03, 1998


i am not sure how authoritative/helpful this is. there are some other cases cited by the am. jur. if anyone wants to check it out on westlaw. there is also a MA statute that regulates rights of the patients/residents in a facility as well as facilities which has emergency care units. (M.G.L.A. 111 sec. 70E)

---------------- 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers ' 14 (1981)

American Jurisprudence, Second Edition Volume 61 (1981) Current Through April 1997 Cumulative Supplement Copyright 1981 Lawyers Co-operative Publishing Company [FNa]

Physicians, Surgeons, and Other Healers Carl T. Drechsler, J.D., J.U.D., Ph.D.

II. Right and Obligation to Practice; Contractual Agreements Restricting Right to Practice ['' 13-25] A. In General ['' 13-15]


In the absence of statute, a physician or surgeon is under no legal obligation to render professional services to everyone who applies to him or seeks to engage him. [FN47] not even in the case of an emergency. [FN48] Physicians are not public servants who are bound to serve all who seek them, as are innkeepers, common carriers, and the like. [FN49] And the existence of a license law and the possession of a license do not enlarge a physician's duty in regard to accepting an offered patient. An act requiring a license before a person practices medicine is essentially a preventive, not a compulsory, measure, and one who has secured a license according to statute is under no obligation to take all the cases offered him, and therefore is not liable for damages alleged to result from the refusal to take a case. [FN50] If he accepts employment, however, he is bound by law to exercise a high standard of skill and care, [FN51] to continue with his treatments and attention until the relation of physician and patient is legally terminated, [FN52] and not to abandon the case. [FN53] Some state statutes provide that the refusal to provide professional service to a person because of such person's race, creed, color, or national origin constitutes professional misconduct. [FN54]

-- Anonymous, November 06, 1998

Thanks for updated statute -- I was wondering what the modern day deal was on this myself.

Had a question, however, regarding the statute quoted -- towards the end, around FN 51 or thereabouts, the statute says that the physician is bound by law to not abandon the case. What exactly defines "the case"? Does "case" here refer to one specific ailment that the patient has sought the doctor's treatment for, in which case once that ailment is fully treated the doctor's obligation to that patient is severed? Or does "case" refer to the patient in a broader sense, in which case the Dr. must be obliged to attend to the patient whenever he seeks her until his death?

My guess would be the former -- case referring to a specific ailment, but those arguing the Hurley cause on the grounds that Eddingfield was his family doctor and relied upon as such, might argue the obligation until death interpretation.

Any thoughts out there as to which of the two definitions this statute implies? I'm sure looking at actual cases citing this statute on Westlaw will probably help me figure out, but until I get around to doing that, was wondering if anyone (or Nobody, having read the statute and cases) might have any gut intuitions as to the statute's intent.

Thanks - Emmeline

-- Anonymous, November 09, 1998

some clarifications: 1) i don't think this is a statute. it seems like it's probably a treatise or something similar. 2) i haven't read most of treatise (which has several hundred sections) or the cases. maybe if we didn't have so much contracts reading.... ;)

anyway, here's the sections of the treatise on the topic that deals with the question of duty to continue care. it's still confusing, but i would agree with emmeline that "case" as defined here seems to have a narrower rather than broader meaning. --------------------------------------------------------------------- ' 234. DUTY TO CONTINUE MEDICAL CARE UNTIL PROPER TERMINATION OF RELATION

It is the settled rule that one who engages a physician to treat his case impliedly engages him to attend throughout that illness, or until his services are dispensed with. [FN21] In other words, the relation of physician and patient, once initiated, continues until it is ended by the consent of the parties or revoked by the dismissal of the physician, or until his services are no longer needed.... long as anything remains to be done to effect a cure, it cannot be said that the treatment has ceased. [FN25] A distinction should be noted in this connection between termination of treatment of a particular case and termination of the relation; the former does not necessarily depend on the latter. [FN26] As far as the physician is concerned, it is his duty to continue to treat the patient until he can lawfully withdraw from the case. [FN27]


the relationship [between physician and patient] may be also terminated by the withdrawal of the physician from the case. It is well recognized that a physician has a right to withdraw from a case, [FN29] but if he would discontinue his services before the need for them is at an end, he is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his own choice.... [FN30]

-- Anonymous, November 10, 1998

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