THE RIGHTS OF A CONSULTANT TO 
COMPENSATION. 
BY 
WILLIAM HUNT, M.D., 
PHILADELPHIA. 
FROM 
THE MEDICAL NEWS, 
December 15, 1888. [Reprinted from THE MEDICAL News, December 15, 1888.] 
THE RIGHTS OF A CONSULTANT TO 
COMPENSATION. 
To the Editor of The Medical News, 
Sir : I am happy to be the medium of giving to the 
profession the following very important decision of the 
Orphans' Court of Philadelphia County. 
The circumstances of the case were these: In the sum- 
mer of 1886, a business gentleman of large means, a pa- 
tient of mine for many years, consulted me about some 
vague head symptoms. I advised him to give up busi- 
ness altogether for a time and to take a vacation with me. 
This he declined, as his business was too pressing. 
Nothing occurred of any moment until after I had left 
the city to take my summer vacation. While at Bar 
Harbor I received a letter from Dr. Albert Fricke, whom 
the patient consulted in my absence, asking for informa- 
tion and advice. I answered at once. The case took a 
very serious turn, and within three weeks the patient was 
dead. During all the time of the sickness, however, a 
constant consulting correspondence was kept up with me. 
One of our large trust companies was the executor of 
the decedent's estate, and to it I sent my bill. 
The residuary legatee of the estate was in Europe at 
the time of the sickness and death, and of her own knowl- 
edge knew nothing whatever of the facts. She came 
home, and one day the Trust Officer of the Company 
said to me: " Doctor, I wish you would get the endorse- 
ment of Mrs. on this bill as correct, and we will 
pay you." I assented, and called at the house, expect- 2 
HUNT. 
ing, if I expected anything, to be received with some 
expression of thanks for the care which was taken of her 
brother in his loneliness and extremity, for during his 
sickness he was living in the house with servants only. 
Instead of this, I and the doctors who attended her 
brother were roundly denounced in unsparing terms, and 
she positively refused to endorse my bill. I have met 
with some strange experiences in a doctor's history 
during my professional life, but never with anything 
quite equal to this. I understood Judge Ashman to say 
that a case precisely like this-has not been adjudicated 
before. The reason probably is that the opportunity 
rarely occurs. The common sense of justice in mankind 
mostly settles such questions, but here was one of the ex- 
ceptions. There was nothing for me to do but to bow 
myself out of the house, and to wait for the adjudication 
of the case before the Orphans' Court. 
At this adjudication, the counsel for the accountant 
took the ground that Dr. Fricke acted on his own motion 
in consulting with me; that the patient was well enough 
when the doctor (Fricke) first saw him to ask, or to insist 
on his consulting with me if he wished him to do so. To 
my surprise, the auditing judge decided that as I had 
shown no contract with the patient I could not recover 
my bill, and that the attending physician had no authority 
to employ me. An appeal was immediately taken with 
the subjoined result, with which I must state the judge 
first hearing the case was, on review, fully in accord, and 
the judgment of the bench was unanimous. 
The result, I am sure, most people will think is in 
accordance with public policy, with justice, and with 
humanity. 
Philadelphia, Dec. 5, 1888. 
William Hunt. COMPENSATION TO A CONSULTANT. 
3 
" Sur Exceptions to Adjudication. 
" Opinion by Ashman, J. December i, 1888. 
" Two principles, so commonly accepted, that they do 
not require to be vouched by individual authorities, seem 
to establish the right of the exceptant to recover. One 
is, that a principal will be bound by those acts of his 
accredited agent, which are reasonably incident to the full 
performance of the contract of service; and the other, 
that he will be bound by the acts of a self-constituted 
agent where his own neglect or the act of God, has ren- 
dered those acts necessary for his self-preservation, or for 
the well-being of society. The first was an ingredient in 
every contract of agency, under the civil law, and the 
second is largely due to modern ideas of humanity, but 
each has an equal and just claim upon our common 
sense.. The cases of Fenn v. Harrison, 3 T. R. 757, 
Nelson v. R. R. Co., 48 N. Y. 498, and Richard v. Cart- 
wright, 1 C. & Kir. 328, are strongly illustrative of the 
first of these rules. One of them decided that a broker, 
entrusted with a note for discount, may endorse it in the 
name of his principal; another that a carter employed to 
deliver a mirror to a common carrier, may sign a release 
for the shipper and owner, against liability for breakage; 
and the third, that a foreman, without special authority, 
may bind his employer, by contracting to deliver certain 
goods at a designated time. 
" The spirit in which this rule is to be expounded should 
be in unison with the character and relations which the 
parties have themselves established with each other, and 
should be liberal just in proportion as those relations 
become more intimate and involve delicate questions of 
duty and responsibility. To say that the discretion to 
act promptly in an emergency, which a patient neces- 
sarily gives to his physician, is larger than that which a 
merchant gives to his drayman, is simply to say that a 
man will resign more of his own authority to the will ot 4 
HUNT. 
the person who is to save his life, than to that of the 
person who is to take care of his trunks. The trust, 
which includes the power for its exercise with which the 
patient vests his physician, is often practically unlimited, 
because it may require to be executed at a time when 
disease has taken away all ability to restrict it. The 
patient is not to be left to die, on the plea that during 
such an interval, no act of his adviser can be valid, for 
want of his direct approval. Or, the doctor may suspect 
the presence of an obscure disease, which, if it exists, de- 
mands heroic treatment. To communicate the suspicion 
to the sick man will probably finish him on the spot; 
may he not solve the doubt by consulting a specialist ? 
" But the case in hand is not even so problematical as 
the case which has just been supposed. The decedent, 
when he first consulted the claimant, was affected .with a 
brain disorder, which culminated in paralysis, and killed 
him in three weeks. His powers of thought and speech 
were so far impaired that it was impossible to communi- 
cate intelligently with him as to his past symptoms or as 
to measures for the future. His sole next of kin was a 
sister, who was travelling in Europe, and his only attend- 
ants were servants. His family physician was in New 
England. The doctor who was called in by the business 
partner of the decedent, knew nothing of his patient's 
medical history; and he wrote for information upon that 
point and for professional advice, to the claimant, who 
had attended the patient for years, and who at once re- 
sponded. If the right, in the consulting physician, to 
compensation for his services, is without legal merit, then 
the law is a reproach to conscience. That it has not been 
passed upon hitherto, means nothing; or rather, it means 
that it has never been questioned, any more than the right 
of the physician to charge his patient with the drugs he 
has purchased, or the nurse he has hired for him, when 
drugs and nursing were indispensable to his recovery. COMPENSATION TO A CONSULTANT. 
5 
" The doctrine, however, upon which the claim is now 
to be adjudicated, has been repeatedly enforced. It is 
the doctrine of public policy. In its application the 
courts have held that a parent who leaves his child in 
the care of a servant, will be liable to the surgeon who 
dresses a wound received by the child, although the sur- 
geon was called in by the servant, and although the 
injury was caused by the servant's neglect: Coopers. 
Phillips, 4 Car. & P. 581. They have also held, that a 
husband who abandons his wife, or leaves her even 
with her own consent, is liable for the necessaries which 
a third party may furnish for her support: Reed v. Moore, 
5 Car. & P. 200; Harris v. Morris, 4 Esp. 41 ; that the 
estate of a decedent is liable for the expenses of a funeral 
provided by a stranger: Rogers w. Price, 3 Y. & Jer. 28; 
and the estate of a lunatic for services rendered in pro- 
tecting his person or estate, Williams v. Wentworth, 5 
Beav. 325, Bagster v. Earl of Portsmouth, 2 Car. & P. 
178. or in supporting his family, Elwyn's Appeal, 17 P. 
F. Sm. 367. It is not necessary, for the purposes of this 
argument, that the decedent should answer to the legal 
definition of a lunatic. If he was so far mentally disabled 
as to be unfitted for the proper conduct of his affairs, it 
was sufficient to justify the action of the claimant: Young 
v. Stevens, 48 N. H. 135; Dennett v. Dennett, 48 Id. 
531. We do not mean to displace the rule of liability 
from its footing of strict necessity. The burden of proof 
that in the absence of an express contract, an implied 
contract has arisen from the exigencies of the case, must 
always rest upon the claimant. But that burden was 
fully met in this instance; and we think that the claim 
should have been allowed. 
" The exceptions are therefore sustained." THE MEDICAL NEWS. 
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