Physicians cannot pursue any action for their advice and attendance, except during the time of deathbed sickness.
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Doctor Russell pursues Sir James Dunbar, as executor to the Lord and Lady Duffus, his father and mother, for the sum of L. 2000 Scots, for the Doctor's attendance upon, and advices given, to the Lord and Lady Duffus, for the course of several years before their deceases. There was no question about the fact of the Doctor's attendance, as the defunct's ordinary physician; but it was alleged, That there did no action arise to a physician for fees or honoraries during his attendance; because these are presumed either to have been given from time to time, in such manner as the patient thought proper, and as satisfied the physician, or otherwise, that the attendance and advice was freely given; for, in such case, there is no receipt or other document in use to be taken, but fees are given in the most private manner; and, by the same rule, if processes were sustained for the fees and honoraries of physicians, lawyers might also pursue, who, on the like ground of law, are presumed either to be satisfied, or to serve gratis; at least, whatever specialty might be allowed to a physician in an acute disease, or a deathbed sickness, it would be of very dangerous consequence to allow processes for a course of years; for, if it would be competent to a physician or lawyer alive, the same action would be competent to their relicts or children after their decease; and there would need no more but to prove the attendance for the course of many years, and no satisfaction could be proved to have been given any manner of way, the receiver of the fees being dead, and no writ or witnesses interposed in such cases; for which reason, in a late case, at the pursuit of Doctor Johnston against Bell, (supra) the Lords sustained no process even for deathbed attendance; because, in that case, the process was not raised within the three years, but the Lords having reasoned the case fully, were satisfied, that lawyers and physicians were upon the same footing, and that neither had any competent action for the course of years.
It was answered for the Doctor; That my Lord Duffus's case and my Lady's was singular, especially my Lord's; because, for some years before his death, his estate was affected by diligences of his creditors, so as he had no access to his rents, and had a very straitened subsistence for supporting his life; so that the ordinary presumption of ready payment ceases; nor is it presumable that a physician, who subsists his family by his employment, did attend with a resolution to serve gratis.
It was replied; That circumstances in particular cases ought not to have any influence in the decision of general points of law; and it is rather to be presumed, that the Doctor, who may have been better gratified formerly, would have served gratis, if there were no means of payment, or that the defunct's friends would be as careful, if necessity required, to make provision for medicine as for meat to preserve his life.
“The Lords found, That the physician had no action for advice and attendance for the course of years; but sustained process for his attendance during the deathbed sickness; and having considered how far deathbed sickness might be reckoned in acute diseases, they found the same could not be extended beyond 60 days; because, if the disease had continued longer, the presumption of satisfaction would in so far take place.”
Fol. Dic. v. 2. p. 140. Dalrymple, No 171. p. 236.
