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JAMA 100 Years Ago
March 15, 2000

Construction of Contract to Cure Physician.

Author Affiliations

JenniferReiling, Editorial Assistant

JAMA. 2000;283(11):1393. doi:10.1001/jama.283.11.1393-JJY00005-3-1

A physician, who had been suffering from a sore on his face, which he himself could not cure, called on another doctor, of whom he had heard as a specialist in several diseases, for the purpose of being treated. The specialist termed the affection lupus or lupus cancer. But whether it was, or not, is here immaterial. Taking the specialist's version of the contract entered into between them, it was that, in the event of a cure, the other should give him either a certificate of his skill and proficiency as a specialist in the treatment of the trouble from which his patient had suffered or $5000 in cash. A cure was effected, and the specialist had recourse to the law to enforce his demands. A trial resulted in a judgment for the defendant, the judge holding that the $5000 which the specialist testified was to be paid if the certificate was not given was a penalty, and therefore not recoverable. But, in so holding, the Supreme Court of Pennsylvania says that the court below must have lost sight of the controlling facts. The supreme court says that the defendant was himself a physician, seeking cure for his ailment at the hands of another. He was not the ordinary patient calling on a specialist, but a member himself of the medical profession, knowing, according to his own testimony, what his trouble was, and presumed to know what would be a proper charge for the services to be rendered—what he himself might ask. And, no matter what its judgment might be under different conditions, the supreme court declares, it can not approve the view that the $5000 was a penalty. So it holds that if the specialist is to be believed, it was an alternative mode of payment agreed on by the parties, capable of intelligently entering into a contract. In consequence of which, it reverses the judgment above mentioned, suggesting that the case, Burgoon vs. Johnson, ought to be remitted for another trial, that the court may instruct the jury that, if the specialist's testimony is to be believed, the defendant must pay the sum agreed on for the relief sought and found.

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