Mullins v. DuVall , 25 Ga. App. 690 ( 1920 )

Jenkins, P. J.

1. It appears from the petition, with reasonable clearness, that when the patient called at the office of the physician, to receive the usual hypodermic injection, it was at the proper time and in accordance with the regular adopted routine of treatment, as prescribed and employed by the defendant physician; that the relation of physician and patient had not terminated, since the adopted course of treatment, the nature of which was unknown to plaintiff, was still in process of regular administration, and no provision had been made for its discontinuance, but, on the contrary, general directions had been given to the plaintiff, whereby the treatment was to be given by the defendant’s attendant or servant- in charge whenever he might be absent from his office. The petition excludes the idea that the plaintiff exceeded the authority, since the dealings had with the agent pertained only to the one particular act specifically authorized. It is a general proposition of law that where one holds another out as his special agent, the principal is bound by the agent’s apparent authority to do the particular thing thus authorized, and to employ all usual and necessary means that may be reasonably required, in the due, proper, and ordinary performance of the particular purpose of the appointment. Wise v. Mohawk Rubber Co., 23 Ga. App. 255 (98 S. E. 100). A physician is liable for the negligent acts of one while acting as his agent or assistant. 22 A. & E. Enc. L. 805 (m). It is not our opinion, however, that a physician or surgeon can engage in the practice of his profession by proxy. This is not the purport of the holding. Where a physician or surgeon sends another as his substitute, to treat or perform an operation upon a patient, and the services of the substitute are accepted, the patient will be presumed to have reposed confidence in the professional capacity of the substitute, not as an agent but as the principal, and will be taken to have relied upon him as a physician to exercise his own knowledge, skill, and discretion. Thus, where a physician, on leaving town or in other ease of need, recommends or even employs another physician or surgeon to treat a patient for him, he would not, in the absence of what would amount to negligence in the selection, be liable for the negligence or lack of skill of the substitute practitioner. 21 R. C. L. 395. In the instant ease, however, the physician did not delegate his functions and duties as a physician. In authorizing or directing the patient to allow his own employee to perform for him and in his stead this particular service in his absence, he did not renounce any part of his functions as the sole physician in the case. Nothing whatever was left to the discretion of the attendant, since what the treatment was to be and when it was to be administered were determined by the line of treatment adopted by the physician himself, and the authority given to the attendant related solely to the one definite and specific act authorizing the mere physical administration of the prescribed treatment. So far as the question of the amount of skill required by the act is concerned, the direction given amounted to his assurance as an expert that the act was not of such character as to require in his absence the services of another physician, but that in such contingency she might with safety receive the treatment as rendered for him and on his behalf by his office attendant or servant. It was upon such implied assurance, rather than upon any confidence in the professional skill and discretion of defendant’s servant, that the patient had a right to rely.

Judgment reversed.

Stephens and Smith, JJ., concur.