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Medical Man (a).
Action by a Surgeon for Charges for Attendance, 1. The plaintiff is a surgeon practising at No. -, Henrietta Claim by Street, C'avendish Square. The defendant is a stockbroker re
surgeon siding in Eaton Square.
ance, &c. (a) At common law a physician could not maintain an action for his fees, nor even for his travelling expenses (Veitch v. Russell, 3 Q. B. 928), unless there was a special contract, proved by unambiguous evidence and not by mere letters acknowledging a debt or an account in vague general terms. (Ib., and Attorney General v. Royal College of Surgeons, 30 L. J. Ch. 757.)
By the 21 & 22 Vict. c. 90, s. 31 (amended in some few particulars by Statutory 22 & 23 Vict. c. 21, and 23 Vict. c. 7) persons registered pursuant to these provisions Acts are entitled to practise medicine or surgery, or both, according to allowing their qualifications, in any part of the Queen's dominions, and to demand medical and recover in any Court of law, with full costs of suit, their reasonable practicharges for professional aid, advice, and visits, and the cost of any medi- tioners to cines or other medical or surgical appliances rendered or supplied to recover their patients. By force of the words according to their qualification,” fees. it has been held that where the plaintiff's qualification is to practise surgery only he cannot recover for attendance on a medical case, as he is not within the section and therefore is under the common law disability in this respect ; and with regard to medicine supplied by him during such attendance, he is within the Apothecaries Act (55 Geo. 3, c. 194), s. 21, cited infra. (Allison v. Haydon, 4 Bing. 619 ; Leman v. Fletcher, L. R. 8 Q. B. 319.) He may, however, recover for medicines supplied as ancillary to a surgical case. (Ib.)
Under this section it has been held that a registered physician may maintain the action without proof of any express contract or implied understanding that he should be paid. (Gibbon v. Budd, 32 L. J. Ex. 182 ; 2 H. & C. 92.)
By sect. 32, as amended by 23 Vict. c. 7, no person shall be entitled to Medical recover any charge in a Court of law for medical or surgical advice, and practiattendance, or for the performance of any operation or for medicine or tioners other medical or surgical appliances which he shall have both prescribed must be and supplied, unless he shall prove at the trial that he is registered under registered the Act (21 & 22 Vict. c. 90.)
under Act. By sect. 28, a copy of the Medical Register directed to be printed and
Medical published by the general council formed under the Act purporting to be so printed and published, shall be evidence that the persons therein Register,
how far specified are registered according to the Act; and the absence of the name of any person from such copy shall be evidence until the contrary
evidence of appear that he is not so registered, provided in this case that a certified registra
tion or noncopy under the hand of the registrar of the General Council or of any branch council of the entry of the name on the general or local register
registrashall be evidence of registration.
tion. By sect. 55, the Act is not to affect the lawful occupation, trade, or business of chemists and druggists, and dentists, so far as selling, compounding, or dispensing medicines,
With regard to apothecaries, the 55 Geo. 3, c. 194, s. 21, provides that Provisions no person shall be allowed to recover any charges claimed by him in a of 55 Geo.3, Court of law, unless he can prove at the trial that he has obtained a c. 194, as certificate from the Court of Examiners of the Apothecaries' Company. to apothe
Claim by 2. On and after the 12th of April, 1877, the plaintiff attended surgeon for
surgeon on the defendant at his request, and on several professional at- occasions operated on him in and about the cure of a dislocated tendance. ankle, and supplied him with surgical appliances and medicines.
3. The plaintiff's charges for such attendances and supply of surgical appliances and medicines amount to £54, of which full particulars have been delivered to the defendant.
4. The defendant has not paid the same or any part thereof. The plaintiff claims £54.
Claim against surgeons for unskilful operation.
Action against Surgeons of a Hospital for unskilfully performing
a Surgical Operation (a). 1. The plaintiff is an infant of tender years, living with his parents at
Street, in the county of Middlesex. The defendant W. T. is an operating surgeon to the X. E. Hospital
The provisions of sect. 32 of the Medical Act (21 & 22 Vict. c. 90), above cited, are not confined in their application to actions against patients themselves, but extend to cases where a third person has guaranteed payment for medical attendance, or is primarily liable for it as supplied on his credit. (Roscoe's Evidence, Nisi Prius, 13th ed.
Defences.]—1st. Non-registration of plaintiff pursuant to the Medical tion must
Act, as amended. (See ante.) It would seem that even if a defendant be proved
admits the allegation that plaintiff was duly qualified and registered, though not this does not dispense with the necessary proof of qualification, i. e. regisdisputed.
tration, on the trial, or deprive the defendant of the benefit of the plaintiff failing to prove it, as by the language of sect. 32 of 21 & 22 Vict. c. 90, registration is made a condition precedent to the plaintiff re
covering. (Wagstaffe v. Sharpe, 3 M. & W. 521.) Bye-law of 2nd. That by a bye-law of a College of Physicians, to which the College of plaintiff belongs, it was provided that no member or fellow thereof Physicians should be entitled to sue for his fees, &c. It seems that the College of against fel. Physicians (London) has made a bye-law that no fellows of the College lows, &c.,
shall be entitled to sue. This, however, does not extend to members. suing
This defence must be expressly stated in the statement of defence.
3rd. That the defendant had no benefit from the plaintiff's attendance, No benefit,
&c., in consequence of his want of skill. But if the practitioner has used owing to
due skill and diligence, he is entitled to claim remuneration, though he plaintiff's
may not have effected a cure. If a surgical operation could have prowant of
duced no useful result in any event, the surgeon cannot recover; but if an skill.
operation, which might have been useful, has failed to produce the desired effect, this does not disentitle him to remuneration for his services.
(See Ilill v. Featherstonehaugh, 7 Bing. 574.) Medical
(a) A medical practitioner is liable for injuries caused through want practi
of due care and skill. But it is not enough to render him liable that he tioners,
has shown a less degree of skill than other medical men may have shown, when liable or a less degree of care than he himself might have bestowed; nor is it for want
enough that he has himself acknowledged some degree of want of care ; of skill
there must have been a want of competent skill and ordinary care, and and care.
to such a degree as to have led to a bad result,
for children at H., and the defendant T. B. is a house surgeon Claim to the said hospital.
surgeons 2. M. Smith, the mother of the said infant plaintiff, in for unthe month of June took the plaintiff to the said N. E. hos- skilful
operation. pital, where the plaintiff was received as an out-door patient, and so remained up to the month of October in the same year.
3. In the said month of October, 1875, the defendants, without the consent or knowledge of the parents of the plaintiff, so negligently and unskilfully performed a surgical operation on the knee of the plaintiff that his health has suffered, and he has received permanent bodily injury.
The plaintiff claims through her next friend £100 damages.
Action by E.cecutrices of Dentist to recover Charges for supplying
and fitting Artificial Teeth. 1. The plaintiffs are the executrices of the last will and
executrices testament of E. S., deceased, of in the county of of surgeon
dentist for surgeon dentist.
profes2. The defendant is a clerk in holy orders, at in the sional
services. county of
3. During the month of 187—, the said E. S. professionally attended on the defendant at his request, and rendered him services and did work and supplied materials in attending and operating upon the teeth of the defendant, and otherwise. And the said E. S. also supplied to and fitted the defendant with certain artificial teeth and a gold plate at his, the defendant's, request. The said E. S. from time to time rendered to the defendant accounts of his the said E. S.'s claim in respect of the premises, and there was at the death of the said E. S. due and payable to him by the defendant the sum of £31 in respect of the premises.
4. The said sum was at the commencement of this action, and now is, due and payable by the defendant to the plaintiffs as such executrices.
The plaintiffs claim £31.
Statement of Defence. 1. The defendant does not admit the allegations contained in the 3rd paragraph of the statement of claim, or any of them.
2. The defendant further denies that the said E. S. supplied executrices and fitted to the defendant a gold plate, as alleged in the said of surgeondentist
3. The defendant says that in or about the month of fessional services. 1874, it was agreed by and between the said E. S. and the
defendant that the said E. S., in consideration that the defendant would employ him as his dentist, should supply the defendant with a set of teeth and plate, and charge the defendant for the materials only; and the defendant employed the said E. S. to fit him with a set of teeth on these terms, and not otherwise.
4. The defendant further says that the said E. S. supplied a certain set of teeth which were not properly fitted and were useless to the defendant, and that he was put to expense in employing another dentist to fit him with other teeth in conse
quence thereof. Payment 5. The defendant further says that he is and always was into Court. ready to pay for the materials used by the said E. S. as afore
said ; and the defendant has paid into Court the sum of £3, and says that the said sum is sufficient to satisfy the plaintiff's claim.
Action by Medical Man for Balance of Purchase-money of a
Practice. Claim by 1. The plaintiff is a medical man, who, until the sale of his physician for balance practice hereafter mentioned, exercised his profession at S., in
the county of chase
2. The defendant is also a medical man. money on sale of 3. By an agreement dated the day of
1877, the practice.
plaintiff agreed to sell to the defendant, and the defendant agreed to buy of the plaintiff, the practice aforesaid, on the terms (among others) that the defendant should pay to the plaintiff the sum of £150 as purchase-money, such sum to be paid when the defendant should have been elected as medical officer to the W. Union, that appointment at the date of the agreement being held by the plaintiff.
4. The defendant paid to the plaintiff £50 as a deposit and in part payment of the aforesaid sum of £150. 5. The defendant took possession of the said practice on the
day of —, 1877, and was duly elected as medical officer
of the W. Union, whereupon the balance of the purchase-money Claim by became payable to the plaintiff.
for balance 6. The defendant refused to pay the said balance, and the of pursame still remains unpaid.
chaseThe plaintiff claims £100.
money on sale of practice.
And see Frau. Action for Misrepresenting the value of a Business on its Sale. Claim for
misrepre1. In or about March, 1875, the defendant caused to be sentation
of the inserted in the “Daily Telegraph” newspaper an advertise- value of
business on sale
thereof. (a) The most common form of action under this head is that for mis
Essential representation of the value of property sold to the plaintiff. It is essen
elements tial to maintain the action that
in action 1. The defendant has made a statement with reference to the subject- for misrematter of the sale which is false in fact. 2. That he knew it to be false.
tion. 3. That he made it intending to influence the decision of the plaintiff.
t. That the plaintiff believed it, and acted on it, or in other words, that he was thereby induced to purchase, &c.
ij. That the plaintiff was thereby damnified.
In Cornfoot v. Fowke (6 M. & W.358), it was held, that where the owner Misrepreof a house authorised an agent to let it without telling him of a nuisance sentation which lowered the value of the premises, and the agent, in answer to the by agent. plaintiff, said there were no objections to it, it was held that there was no fraud either by the agent or his principal.' Where an agent knowing that timber was unsound represented it as sound, but his principal did not know of the defect, the Court was divided as to the responsibility of the latter in an action against him. (Udel v. Atherton, 30 L. J. Ex. 337. And see Archibald v. IIonth, 1 Ir. R. 1 C. L. 608, C. P.) In Wright v. Leonard, 30 L. J. C. P. 367, the Court was divided as to whether defendant was liable for a false representation by his wife.
A person is responsible for the consequences of a false representation When made by him to another on which a third person acts, if made with the in
misrepretention that such third person should act on it, and the injury com
sentation plained of be the immediate consequence of such representation. (Peek made to v. Gurney, L. R. 6 H. L. 377, 412, per Lord Cairns.) Where, however, the third act of the plaintiff which caused him the injury is not directly induced by the representation of the defendant, though made with the intention that it should be so acted on, no action will lie. (16.) Thus, though the
Misreprestatements in a prospectus were knowingly false, and caused the shares
sentations to be all applied for and allotted, and the plaintiff purchased some of made in them in the market, acting on the statements in the prospectus; held he
prospectus. could not recover from the defendants, on the ground that he did not receive the prospectus from them, and could not therefore treat the misre. presentations as made personally to him. (16.) It is not very easy to reconcile this decision with that in Scott v. Dixon, 29 L. J. Ex. 62' n., where