64 Me. 305 | Me. | 1874
This is an action against the defendant as a surgeon for alleged malpractice, and one of the causes of complaint-set out in the writ is that he abandoned his patient while still needing medical attention. The exceptions raise the question as to the nature of the contract between the surgeon and his patient.
Upon this point the jury were instructed as follows : “Here I understand the surgeon was called in the usual way, nothing said about the time during which he was to attend, and he went in obe
That the same principles apply to the employment of a physician or surgeon there can he no doubt. If he is called to attend in the usual manner, and undertakes to do so by wrord or act, nothing being said or done to modify this undertaking, it is quite clear as a legal proposition that not only reasonable care and skill should
In this case it is hardly possible that the jury could have been misled by the instruction complained of, for in its terms it was not only legally correct but it was guarded by other instructions not excepted to, in regard to the competency of the parties to make for themselves such a contract as they might see fit, to limit the attendance for a longer or shorter period, or for a single visit; and that, without any limitation the defendant might at any time discontinue his visits upon reasonable notice.
These instructions would seem to be all, if not more than all under the testimony the defendant was entitled to. It appears that he was at the time, and had been the plaintiff’s family physician ; that he was sent for and responded in the usual manner, while there is nothing to show that he was not expected to attend so long as necessary, or that he did not so understand it. On the other hand it appears affirmatively that he alone was relied upon as the attending surgeon, and so understood it.
Another objection is raised to the instruction as to the burden of proof. It is undoubtedly true that in an action of tort the burden is upon the plaintiff all through to give the jury reasonable satisfaction of the alleged wrong on the part of the defendant. But when the defendant takes the ground that the act or want of action was not a wrong because by the terms of the contract or its rescisión he was justified, he assumes an affirmative and so far the burden of proof.
The defendant is charged with negligence in abandoning his patient while in need of medical care; admitting the fact of nonattendance, he attempts to justify, not only on the ground that no further attention was necessary but also on the ground of notice that he should not attend further unless sent for; and that the contract was thus rescinded and he discharged.