Sayre v. Madison County

254 N.W. 874, 127 Neb. 200, 93 A.L.R. 896, 1934 Neb. LEXIS 30

• Court: Nebraska Supreme Court
• Decided: May 22, 1934
• Docket: No. 28830
• Status: Published

Opinions

Thomsen, District Judge.

The question presented on this appeal is whether a physician, not hired by the county, may recover from the county for services rendered to a poor person in an emergency where there exists a duly appointed county physician to care for the poor, the latter physician being able, willing, and ready to serve, but not consulted.

The services were rendered April, 1932, to one, probably not classified as a pauper, but coming within the definition of those entitled to such relief under section 68-114, Comp. St. 1929. The plaintiff’s associate conferred with one of the county commissioners, who consented to the diseased person being taken to the Lutheran Hospital at Norfolk, but refused any allowance for surgical service to the applying physician. The county paid the hospital charges. The case was one of great emergency in which, through a timely operation, the poor person’s life was saved. According to the testimony, the result might have been fatal had there been any delay.

The essential facts are not in dispute. The county physician’s office “was within a stone’s throw of the Lutheran Hospital.” The county physician had not performed an appendix operation for 12 or 15 years and surgery was not his specialty, but he claimed to be capable of doing such work, and said that he would have performed the operation if he had been called upon, and would have done so without further charge than the fee that the county was paying him. Under the foregoing conditions there can be no recovery. It was the duty of the county to furnish medical aid under the circumstances, but not necessarily to furnish the poor person’s choice of medical aid. Statutes of the kind under consideration here should be given a very liberal construction, and county boards should be generous in supplying the aid which the legislators intended for destitute persons; but when the county provides a physician for that purpose, able and competent to give satisfactory service, and such physician is ready and willing to render such service upon call, then the duty of the county is fulfilled. Under those conditions it is not permissible for the sick one to choose who shall render the service to him. It is stated in Hamilton County v. Meyers, 23 Neb. 718, 722: “While in this case public morals might suggest the payment of the claim presented, yet it would open a door which would be liable to great abuse by the unscrupulous.” If the county physician had refused or been unable to attend or had been incompetent to take care of the case, a different question might have been presented.

The cause was submitted in district court to a jury. The latter found for defendant. A number of questions are raised with respect to the court giving certain instructions to the jury, but it is unnecessary to discuss these in view of the fact that under the law and the facts no recovery at all could be had.

The judgment of the district court is

Affirmed.