The statute (Section 10509-121, General Code) does not provide that time shall be the determining factor, or even a determining factor, in deciding whether medical services were or were not rendered in and during the last sickness of a decedent. Assuming the Legislature could fix a limitation of time, it has not done so. In some states, in statutes with a similar purpose, a time limit has been fixed.
It appears to me such arbitrary fixing of a time limit would not be a fair test, for what constitutes a "last sickness" would depend upon so many conditions — the nature of the disease, its malignancy, the resistance of a patient to the particular disease, the patient's age and general physical condition, his response to treatment, his willingness to co-operate and many *Page 198 other conditions. In any event, under our statute the test must be, were the services rendered to decedent in his or her "last sickness," the sickness from which he or she died?
There is no dispute that the decedent was treated by appellee for cancer of the cervix of the uterus during all of his treatment of her. There is no dispute that she died from cancer of the cervix of the uterus. It is not claimed she was ever free from cancer of the cervix of the uterus from the time appellee first began to treat her for that disease until she died from it, even though she had at times improved sufficiently to work intermittently. It is not claimed, and in view of the medical evidence could not well be, that she was ever free from the same cancer during any of that period. Appellee is a specialist in his line and cannot move his cumbersome and delicate electrical and other equipment from house to house. Decedent knew this when he was engaged and she came to his office when she could. When she no longer could come to his office he could not move his equipment to her home, but he had treated her from the beginning of his service for her last sickness, the sickness from which she died. While appellee treated her, she had no other doctor, and he apparently was willing and ready to continue treatments so long as she could come. He had engagements for her which she did not keep.
It is my view that in cases under this statute the particular facts of each case must determine the preference to be given to medical bills for services rendered a decedent in his or her last sickness, and on the record before us I think appellee's bill comes fairly within the definition in the statute, "expenses of last sickness" — the only definition that could reasonably be used, and to be applied largely within the wisdom and discretion of the Probate Court, considering the nature of the disease and all other circumstances. *Page 199
I am particularly not in sympathy with the theory advanced in argument and suggested in some decisions cited, that appellee should forfeit his fee, or part of it, because he did not see fit to sue a dying woman and send a process server to her bedside.
I think the judgment should have been affirmed.