Freedom of Contract – Freedom from Contract
Supreme Court of Indiana.
HURLEY v. EDDINGFIELD
156 Ind. 416 (1901)
BAKER, J.
The appellant sued appellee for $10,000 damages for wrongfully causing the death of his
intestate. The court sustained appellee's demurrer to the complaint, and this ruling is assigned
as error.
The material facts alleged may be summarized thus: At and for years before decedent's death
appellee was a practicing physician at Mace, in Montgomery county, duly licensed under the
laws of the state. He held himself out to the public as a general practitioner of medicine. He
had been decedent's family physician. Decedent became dangerously ill, and sent for
appellee. The messenger informed appellee of decedent's violent sickness, tendered him
his fee for his services, and stated to him that no other physician was procurable in time, and
that decedent relied on him for attention. No other physician was procurable in time to be of
any use, and decedent did rely on appellee for medical assistance. Without any reason
whatever, appellee refused to render aid to decedent. No other patients were requiring
appellee's immediate service, and he could have gone to the relief of decedent if he had been
willing to do so. Death ensued, without decedent's fault, and wholly from appellee's wrongful
act.
The alleged wrongful act was appellee's refusal to enter into a contract of employment.
Counsel do not contend that, before the enactment of the law regulating the practice of
medicine, physicians were bound to render professional service to every one who applied.
Whart. Neg. § 731. The act regulating the practice of medicine provides for a board of
examiners, standards of qualification,
examinations, licenses to those found qualified, and penalties for practicing without license.
Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventive, not a compulsive, measure. In
obtaining the state's license (permission) to practice medicine, the state does not require, and
the licensee does not engage, that he will practice at all or on other terms than he may choose
to accept. Counsel's
analogies, drawn from the obligations to the public on the part of innkeepers, common
carriers, and the like, are beside the mark.
Judgment affirmed.
1. The principle set forth in the opinion has retained its vitality over the years. L. S. Ayres &
Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334 (1942); Harper v. Baptist Medical Center-Princeton,
341 So. 2d 133 (Ala. 1976); Lyons v. Grether, 218 Va. 630, 239 S.E.2d 103 (1977); 61 Am.
Jur. 2d, Physicians, Surgeons, and Other Healers, §14, p. 159. But it is also generally
recognized that when a physician or surgeon takes charge of a case and is employed to attend
a patient, unless the terms of employment otherwise limit the service, or notice be given that
he will not undertake, or cannot afford, the subsequent treatment, his employment, as well as
the relation of physician and patient, continues until ended by the mutual consent of the
parties, or revoked by the dismissal of the physician or surgeon, or until his services are no
longer needed. And he must exercise, at his peril, reasonable care and judgment in
determining when his attendance may properly and safely be discontinued. Nash v. Royster,
189 N.C. 408, 413, 127 S.E. 356, 359 (1925). Whether a physician-patient relationship exists
is a question of fact. Compare Lyons v. Grether, supra, and Harper v. Baptist Medical
Center-Princeton, supra. Paradoxically, a physician who is summoned by a bystander to
render services to an unconscious person injured in a road accident is entitled to
compensation from the estate, even if the patient dies without ever regaining consciousness.
Cotnam v. Wisdom, infra p. 163.
Does the Hurley case still reflect our moral sentiments? More than a hundred years ago
Bentham argued for imposing a duty to aid backed up by criminal sanctions.
Every man is bound to assist those who have need of assistance if he can do it without
exposing himself to sensible inconvenience. This obligation is stronger, in proportion as the
danger is the greater for the one and the trouble of preserving him the less for the other. . . .
[T]he crime would be greater if he refrained from acting not simply from idleness, but from
malice or some pecuniary interest.
J. Bentham, Introduction to the Principles of Morals and Legislation, in 1 Works 164 (J.
Bowring ed. 1843). See Weinrib, The Case for a Duty to Rescue, 90 Yale L.J. 247 (1980). Is
the recent suggestion that social goods should be distributed according to their "internal goal"
(in the case of physicians’' services, the prevention and cure of physical suffering) helpful in
deciding the doctor's case? See B. Williams, The Idea of Equality, in 2 Philosophy, Politics
and Society 121-122 (P. Laslett & W. Runciman eds. 1962). Should a doctor bear the costs of
the desired allocation just because he happens to have the requisite skill? "[I]s he less entitled
to pursue his own goals, within the special circumstances of practicing medicine, than
anybody else?" R. Nozick, Anarchy, State, and Utopia 234 (1974). Should society be able to
compel a physician to render aid, on the grounds that its licensing statutes give the physician
the benefit of an artificial monopoly? See generally A. Kronman & R Posner, The Economics
of Contract Law 264-265 (1979).
Assume that a court, inspired by a concern for distributive justice, decides to impose liability
on the doctor. How should liability be confined to prevent runaway social engineering?
Would a rule be workable that imposed a duty to give aid, unless the physician had a
legitimate reason for refusing? Should a statute be passed that imposes on a physician the
duty to give aid in an emergency? Should such a statute be passed only in a jurisdiction that
has a good Samaritan law? For examples of good Samaritan laws, see Cal. Bus. & Prof. Code
§2144 (West 1959), §2725.5 (West 1963); Conn. Gen. Stat. Ann. §52-557b (1983). On the
duty to aid imposed by admiralty law, see G. Gilmore & C. Black, The Law of Admiralty §8-
4 (2d ed. 1975). See 1964 Wis. L. Rev. 494; 51 Calif. L. Rev. 816 (1963).
2. In the modern urban setting, the hospital emergency ward has relieved the individual
physician from many of the burdens of rendering individual emergency care. Should a
hospital with an emergency ward be held liable for refusing to treat an emergency patient?
Some courts, though not all, have so held. See the policy discussion in Mercy Medical Center
of Oshkosh, Inc. v. Winnebago County, 58 Wis. 2d 260, 206 N.E.2d 198, 200-201 (1973).
See also Powers, Hospital Emergency Service and the Open Door, 66 Mich. L. Rev. 1455
(1968); Annot., 35 A.L.R.3d 841 (1971).
On the constitutional and public policy aspects of a private hospital's refusal to allow its
facilities to be used for elective abortions, see Doe v. Bridgeton Hospital Assn., 71 N.J. 478,
366 A2d 641 (1976); Annot., 42 AL.R. Fed. 463, 526 et seq. (1979). Receipt by a private
hospital of federal funding may also have an effect on its freedom to deny members of the
public use of its facilities, even if they are unable to pay. See Hill-Burton Act, 42 U.S.C.
§§291 et seq.; Annot., 11 AL.R. Fed. 683 (1972) (discussing whether there is a private right
of action under the Hill-Burton Act).
3. In recent years, freedom of contract has been severely limited in an effort to prevent
discrimination in employment, housing, and public accommodation. Could a private
physician/dentist today refuse to treat a patient because of race? See Rice v. Rinaldo, 67 Ohio
Abs. 183, 119 N.E.2d 657 (1951). On legislation controlling discrimination in the credit
market, see p. 603 infra. Discussion on the pertinent legislation and case law in other fields
lies outside the scope of this casebook.
4. Consult Wyman, The Inherent Limitation of the Public Service Duty to Particular Classes,
23 Harv. L. Rev. 339 (1910); Lenhoff, The Scope of Compulsory Contracts Proper, 43
Colum. L. Rev. 586 (1943). For the attitude of the common law with regard to the duty to
render aid in an emergency, see Bohlen, The Moral Duty to Aid Others as a Basis of Tort
Liability, 56 U. Pa. L. Rev. 217 (1908); 52 Colum. L. Rev. 631 (1952). For the compensation
of the rescuer, see Dawson, The Altruistic Intermeddler, 74 Harv. L. Rev. 817, 1073 (1961).
