PHYSICIAN. A person who has re ceived the degree of doctor of medicine from an incorporated institution.
One lawfully engaged in the practice of medicine.
2. Although the physician is civilly and criminally responsible for his conduct while discharging the duties of his profession, he is in no sense a warrantor or insurer of a favorable result, without an express contract to that effect. Elwell, Ma:p. 20; 7 Carr. & P. 81.
Every person who offers hie services to the public generally impliedly contracts with the employer that he is in possession of the ne cessary ordinary skill and experience which are possessed by those who practise or profess to understand the art or science, and which are generally regarded by those most con versant with ths profession as necessary to qualify one to engags in such business suc cessfully. This ordinary skill may differ ac cording to locality and the means of informa tion. Elwell, Malp. 22-24, 201 ; Story, Bailm. 433 ; 3 Carr. & P. 629; 8 id. 475.
3. The physician's responsibility is the same when he is negligent as when he lacks ordinary skill, although the measure of in demnity and punishment may be different. Elwell, Malp. 27 ; Archbold, Crim. Pl. 2d ed. 411 ; 2 Ld. Raym. 1583 ; 3 Maule & S. 14, 15 ; 5 id. 198 ; 1 Lew. Cr. Cas. 169 ; 2 Starkie, Ev. 526 : Broom, Leg. Max, 1st ed. 168, 169 ; 4 Den. N Y. 464; 1-9 Wend. N. Y. 345, 346.
In England, a physician cannot maintain an action for his fees for any thing done as physician either while attending to or pre scribing for a patient ; but a distinction is taken when he acts as a surgeon or in any other capacity than that of physician, and in such cases an action for fees will ba sus tained. All acts of a physician as such are considered strictly honorary, and therefore without compensation except when there exists an express contract. Without this express weement the physician cannot even recover his travelling expenses while going to attend his patient and returning,—such expense being incidental to the attendance, and regarded as money paid to the physician's own use in the ordinary exercise of hie profession, and not money paid to the uss of the patient. 1 Carr. & M. 227, 370 ; 3 Gale & D. 198. • 4. In this country, the various states have statutory enactments regulating the collec tion of fees and the practice of medicine. In Georgia, a physician cannot recover for his services unless he shows that he is licensed ftd required by the act of 1839, or unless he is within the proviso in favor of physicians who were in practice before its passage. 8 Ga. 74. In New York, prior to the act •repealing all former acts prohibit ing unlicensed physicians from recovering a compensation for their services (Stat. of 1844, p. 406), an unlicensed physician oould not maintain an action for medical attendance and medicines. 4 Den. N. Y. 60. Under
the Maine statute of 1838, c. 53, a person who is not allowed by law to collect his dues for msdical or surgical services as a regular practitioner cannot recover compensation for such serviess unless previous to their performance he obtained a certificate of good moral character in manner prescribed by that statute, nor can he recover payment for such services under the provision of the Re vised Statute, c. 22, by having obtained a medical degree, in manner prescribed by that statute, after the psrformance of the service, tbnugh prior to the suit. 25 Me. 104.
5. In Alabama and Missouri, a non-li censed physician cannot recovsr for profes sional services. Hallowell vs. Adams, 21 Ala. N. s. 680 ; 15 Mo. 407. When A, the plant ation physician of a planter, found a sur gical operation necessary on one of the ne. groes, and requested the overseer to send for B, another physician, who came and performed the operation without any assistance from A, it was held that B could not maintain an action against A to recover for his services 1 Strobh. So. C. 171. In 'Vermont, the ern ployment of a physician, and a promise to pay him for hie services, made on the Sabbath. day, is not prohibited by statute. 14 Vt. 332. In Massachusetts, an unlicensed physician or surgeon may maintain an action for profes sional service. 1 Mete. Mass. 154.
6. Where the wife of the defendant, being afflicted with a dangerous disease, was carried by him to a distance from hie residence and left under the care of the plaintiff as a sur geon, and after the lapse of some weeks the plaintiff performed an operation on her for the cure of the disease, soon after which she died, it was held, in an action by the plaintiff against the defendant to recover compensa tion for his services, that the performance of the operation was within the scope of the plaintiff's authority, if, in his judgment, it was necessary or expedient, and that it was not incumbent on him to provs that it was necessary or proper under the circumstances, or that before he performed it he gave no tice to the defendant, or that it would have been dangerous to the wife to wait until notice could be given to the defendant. 19 Pick. Mass. 333. In assumpsit by a physi cian for his services, the defendant cannot prove the professional character of ths plain tiff. 3 Hawks, No. C. 105. Physicians can recover for the servicss of their students in attendance upon their patients. 4 Wend. N. Y. 200. Partners in the practice of physic are within the law merchant, which excludes the jus accrescendi between traders. 9 Cow. N. Y. 631. If a physician carries conta gious disease into a family, on a suit for eel, vices this may ba shown to reduce such claim. 12 B. Monr. Ky. 465.