Page:Harvard Law Review Volume 10.djvu/149

Rh The court says: "I am inclined to think that under the peculiar circumstances of this case, they [the receivers] cannot be charged with negligent delay, although the court cannot see that a definite conclusion could not have been sooner reached. It may be said, however, that the delay. . . . . did not in any way operate to the prejudice of the Clybourn Park Company, because the receivers appear to have acted upon very equitable considerations in carrying out the contract during the year I894, when it appeared that the Clybourn Park Company had made arrangements and entered in-to contracts for that season; so that the question of time within which the receivers acted ought not under the circumstances to be deemed unreasonable." The last phrase is unfortunate. As used in ordinary cases of election, the criterion of "reasonableness" is whether the party electing has had time intelligently to make up his mind. Having done this, he must notify the other party immediately; he has no farther leeway. The court in the case above cited would have done the profession a service if it had said -what the decision means — that the artificial rule of strict election does not apply to receivers at all. Whether they are bound or not — independently of express election to be bound — is determined by balancing the substantial equities: Has the petitioner been diligent in asserting his rights? Have the receivers misled him to his hurt? Have they made profits out of his property during the time of delay?

. — Considerable discussion of this topic has been provoked by the case of Kitson v. Playfair, fully reported in the London Times of March 23d and the days following. This case, however, did not involve the point, for the defendant pleaded privileged communication in an action of libel and slander, and the jury found malice in fact. In a proper form of action the question then is: What right must a plaintiff rely upon to recover from a physician for the disclosure of a professional secret? The nature of the relation between physician and patient seems to be similar to the relation between principal and agent, bailor and bailee. Except for clearness, it is immaterial by what name it is known; whether, as is frequently done in agency, it is spoken of as a status, or whether some other term is applied to it. Under all circumstances, the fundamental nature of the right remains. It does not arise merely from the physician's being a member of society, and is not a duty owed to the public generally, and, therefore, it is not strictly proper to call its violation a tort; nor can it be said to be a duty assumed by contract, for though there may generally be a consideration, consideration is not essential, and when present would be of but slight importance in measuring the duty assumed. The foundation of this duty has very aptly been called an "undertaking." See article on "'Gratuitous Undertakings," 5. It is one of the recognized rights, so much discussed of late, the breach of which does not belong to either of the great classes of tort or breach of contract.

What is "undertaken" is a question of fact. It is clear that a physician "undertakes " to use that degree of skill which modern practice demands under the circumstances, and also such skill as may reasonably be expected of him from his individual record. Is there more? Does he "undertake " to keep secret whatever he discovers or is told while acting professionally? It would seem so. This is an obligation clearly recognized in the ethics of the profession, and it would seem to be a legal duty