A-30913, APRIL 12, 1930, 9 COMP. GEN. 450

A-30913: Apr 12, 1930

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF DR. DURING WHICH PERIOD THE SERVICES REQUIRED OF HIM BY HIS CONTRACT WERE. AT A COMPENSATION NOT TO EXCEED ONE HUNDRED AND FIFTY DOLLARS PER MONTH. * * * THE CONTRACTS WITH PRIVATE PHYSICIANS ENTERED INTO BY THE SURGEON GENERAL UNDER THIS ACT ARE OF TWO CLASSES. THESE CLASSES ARE DESCRIBED AND DISTINGUISHED IN DECISION OF FEBRUARY 15. DOCTOR BAKER'S CONTRACT IS AS FOLLOWS: SPECIAL CONTRACT WITH A PRIVATE PHYSICIAN FOR SERVICE AS CONTRACT SURGEON. IT IS MUTUALLY AGREED AND UNDERSTOOD THAT THIS CONTRACT SHALL CONTINUE AT LEAST ONE MONTH. IT IS FURTHERMORE AGREED AND UNDERSTOOD IN CONFORMITY TO THE REQUIREMENTS OF SECTION 3741 OF THE REVISED STATUTES.

A-30913, APRIL 12, 1930, 9 COMP. GEN. 450

CONTRACT SURGEONS - SUBSTITUTES A CONTRACT SURGEON OF THE ARMY, UNABLE PERSONALLY DUE TO ILLNESS TO RENDER THE SERVICES REQUIRED UNDER HIS CONTRACT, MAY ARRANGE FOR THE MEDICAL ATTENDANCE BY HIS SUBSTITUTE EMPLOYED BY HIM, IF SATISFACTORY TO THE COMMANDING OFFICER OF THE POST.

COMPTROLLER GENERAL MCCARL TO CAPT. JOHN B. FIDLAR, UNITED STATES ARMY, APRIL 12, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 4, 1930, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF DR. A. L. L. BAKER, IN THE AMOUNT OF $125, FOR PAY AS CONTRACT SURGEON FROM JANUARY 1 TO 31, 1930, DURING WHICH PERIOD THE SERVICES REQUIRED OF HIM BY HIS CONTRACT WERE, DUE TO HIS SICKNESS, RENDERED BY DR. C. L. BLANCHARD, A SUBSTITUTE FURNISHED BY DOCTOR BAKER.

SECTION 18 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 752, PROVIDES:

* * * THAT IN EMERGENCIES, THE SURGEON GENERAL OF THE ARMY, WITH THE APPROVAL OF THE SECRETARY OF WAR MAY APPOINT AS MANY CONTRACT SURGEONS AS MAY BE NECESSARY, AT A COMPENSATION NOT TO EXCEED ONE HUNDRED AND FIFTY DOLLARS PER MONTH. * * *

THE CONTRACTS WITH PRIVATE PHYSICIANS ENTERED INTO BY THE SURGEON GENERAL UNDER THIS ACT ARE OF TWO CLASSES, GENERAL AND SPECIAL. THESE CLASSES ARE DESCRIBED AND DISTINGUISHED IN DECISION OF FEBRUARY 15, 1924, 3 COMP. GEN. 523.

DOCTOR BAKER'S CONTRACT IS AS FOLLOWS:

SPECIAL CONTRACT WITH A PRIVATE PHYSICIAN FOR SERVICE AS CONTRACT

SURGEON, U.S. ARMY

THIS CONTRACT, ENTERED INTO THIS FIRST DAY OF FEBRUARY, 1923, AT DOVER IN THE STATE OF NEW JERSEY, BETWEEN THE SURGEON GENERAL OF THE UNITED STATES ARMY, AND DR. AUGUSTUS L. L. BAKER, OF DOVER, IN THE STATE OF NEW JERSEY, WITNESSETH: THAT FOR THE CONSIDERATION HEREINAFTER MENTIONED THE SAID DR. AUGUSTUS L. L. BAKER PROMISES AND AGREES TO PERFORM THE DUTIES OF A MEDICAL OFFICER, AGREEABLE TO ARMY REGULATIONS AT PICATINNY ARSENAL, NEW JERSEY; AND THE SAID SURGEON GENERAL, U.S. ARMY, PROMISES AND AGREES, ON BEHALF OF THE UNITED STATES, TO PAY, OR CAUSE TO BE PAID, TO THE SAID DR. AUGUSTUS L. L. BAKER THE SUM OF ONE HUNDRED AND TWENTY-FIVE DOLLARS A MONTH DURING THE CONTINUANCE OF THIS CONTRACT, WHICH SHALL BE HIS FULL COMPENSATION, AND IN LIEU OF ALL ALLOWANCES AND EMOLUMENTS, ANY PROVISIONS OF ARMY REGULATIONS TO THE CONTRARY NOTWITHSTANDING. IT IS MUTUALLY AGREED AND UNDERSTOOD THAT THIS CONTRACT SHALL CONTINUE AT LEAST ONE MONTH, IF NOT SOONER DETERMINED BY THE SURGEON GENERAL OF THE ARMY. IT IS FURTHERMORE AGREED AND UNDERSTOOD IN CONFORMITY TO THE REQUIREMENTS OF SECTION 3741 OF THE REVISED STATUTES, THAT NO MEMBER OF OR DELEGATE TO CONGRESS SHALL BE ADMITTED TO ANY SHARE OR PART IN THIS CONTRACT, OR TO ANY BENEFIT TO ARISE THEREFROM.

PRINCIPALS:

M. W. IRELAND,

BY (SGD.) M. ASHFORD,

MAJOR, M.C., U.S. ARMY

(SGD.) AUGUSTUS L. L. BAKER

M.D. WITNESSES:

(SGD.) ANNA E. CAREY AS TO---

CLERK, S.G.D.,

(SGD.) N.F. RAMSEY AS TO---

THIS IS DESIGNATED A SPECIAL CONTRACT, AND THE PURPOSE AND SPECIFIC WORK TO BE ACCOMPLISHED THEREUNDER IS SET OUT IN PARAGRAPH 54 OF THE MANUAL OF THE MEDICAL DEPARTMENT, 1916, AS FOLLOW:

SPECIAL CONTRACTS ARE FOR LOCAL SERVICE ONLY, AT STATIONS THEREIN DESIGNATED, AS, FOR EXAMPLE AT ARSENALS, WHERE THE AMOUNT OF SERVICE CALLED FOR IS NOT USUALLY SUFFICIENT TO WARRANT THE ASSIGNMENT THERETO OF A MEDICAL OFFICER. NO TRAVEL UNDER SUCH CONTRACTS IS REQUIRED. THE PHYSICIAN CONTRACTED WITH IS NEITHER EXPECTED TO TAKE STATION AT THE POST NOR TO GIVE UP HIS PRIVATE PRACTICE, EXCEPT IN SO FAR AS HE HAS TO DO SO IN ORDER TO CARRY OUT HIS PUBLIC DUTIES. HE IS NOT FURNISHED QUARTERS OR OTHER ALLOWANCES, AND HIS PAY PROPER CONSTITUTES HIS ENTIRE COMPENSATION.

(A) SPECIAL CONTRACTS MAY BE MADE WITH ANY GRADUATE OF A REPUTABLE MEDICAL SCHOOL, LEGALLY AUTHORIZED TO CONFER THE DEGREE OF DOCTOR OF MEDICINE, WHO IS A CITIZEN OF THE UNITED STATES AND HAS QUALIFIED TO PRACTICE MEDICINE IN THE STATE OR TERRITORY IN WHICH HE RESIDES. APPROPRIATE EVIDENCE THAT HE IS A CITIZEN OF THE UNITED STATES, AND THAT HE HAS QUALIFIED TO PRACTICE AS ABOVE, SHOULD BE REQUIRED BEFORE THE CONTRACT WITH HIM IS EXECUTED.

THE SPECIAL CONTRACT WITH DOCTOR BAKER IS FOR HIS PERSONAL SERVICES AND HIS RESPONSIBILITY THEREUNDER IS TO GIVE COMPETENT MEDICAL ATTENTION TO THE OFFICERS, ENLISTED MEN, AND CIVILIANS ENTITLED THERETO, ON DUTY AT PICATINNY ARSENAL, WHENEVER HIS SERVICES ARE REQUIRED. THIS IS SERVICE REQUIRING SPECIAL KNOWLEDGE, SKILL, AND ABILITY, AND SUCH A CONTRACT, IN THE ABSENCE OF PROVISION THEREIN FOR THE FURNISHING OF A SUBSTITUTE WHEN SICK OR OTHERWISE INCAPACITATED, ORDINARILY REQUIRES PERSONAL PERFORMANCE. 13 C.J. 674. CLAIM BY DOCTOR BAKER FOR PAYMENT IS ON THE BASIS OF SUBSTANTIAL PERFORMANCE OF THE SERVICES REQUIRED BY HIS CONTRACT.

THE SURGEON GENERAL HAS STATED THAT IT HAS BEEN THE UNIFORM PRACTICE TO EXCUSE CONTRACT SURGEONS SERVING UNDER PART-TIME CONTRACTS FROM PERSONAL PERFORMANCE OF THE SERVICES REQUIRED BY THEIR CONTRACTS, WHEN SICK OR OTHERWISE INCAPACITATED, PROVIDED ARRANGEMENTS FOR MEDICAL ATTENDANCE, SATISFACTORY TO THE COMMANDING OFFICER OF THE POST, ARE MADE. THERE WILL BE MADE NO OBJECTION IN THIS INSTANCE TO PAYMENT ON THE VOUCHER RETURNED HEREWITH IF IT IS OTHERWISE CORRECT. IT IS CALLED TO ATTENTION, HOWEVER, THAT SERVICES OF A PHYSICIAN NECESSARILY CONTEMPLATE THAT HE SHALL BE PERSONALLY AVAILABLE FOR RENDERING THEM AND DO NOT CONTEMPLATE THAT WHEN HE IS NEEDED HE MAY SUBSTITUTE ANOTHER IN HIS PLACE AND YET OBTAIN THE COMPENSATION THE SAME AS IF HE HAD RENDERED THE SERVICES. THE INTENT OF THE CONTRACT IS THAT THE PHYSICIAN SHALL BE AVAILABLE AT ALL TIME, BUT IT IS, OF COURSE, TO BE RECOGNIZED THAT A CALL FOR THE PHYSICIAN MAY ARISE AT A TIME WHEN HE MAY NOT BE PERSONALLY AVAILABLE, AND I WOULD SUGGEST THAT SUCH CONTINGENCY SHOULD BE SPECIFICALLY CONTRACTED FOR AND NOT LEFT TO THE PHYSICIAN TO SUBSTITUTE WHOMEVER HE MAY WISH. THE VERY PURPOSE OF CONTRACTING TO HAVE A PHYSICIAN AVAILABLE WOULD BE NULLIFIED IF THE CONTRACTING PHYSICIAN MAY PRACTICALLY AT WILL SUBSTITUTE ANOTHER. WOULD SEEM MORE PROPER THAT THERE BE EITHER NAMED IN THE CONTRACT OR OTHERWISE MADE KNOWN TO THE CONTRACTING OFFICER A LIST OF AVAILABLE PHYSICIANS UPON WHOM CALL MAY BE MADE IN THE EVENT OF THE NONAVAILABILITY OF THE CONTRACTING PHYSICIAN. HAVING REGARD TO THE FACT THAT THE CONTRACT SEEKS TO HAVE THE PHYSICIAN AVAILABLE AT ALL TIMES, IT IS NOT PROPER TO PERMIT A SUBSTITUTION, BUT RATHER, IN THE EVENT OF THE NONAVAILABILITY OF THE CONTRACTING PHYSICIAN--- FOR PROPER CAUSES SHOWN BY FACTS--- THEN THE CONTRACTING OFFICER SHOULD MAKE THE CALL FOR A PHYSICIAN FROM SUCH AVAILABLE LIST AND PAYMENT FOR THE SERVICES BE MADE THEREFORE DIRECT TO THE PHYSICIAN SO CALLED, THE AMOUNT TO BE DEDUCTED FROM THE AMOUNT OTHERWISE EARNED AND DUE THE CONTRACTING PHYSICIAN. I WOULD ASK CONSIDERATION OF THESE SUGGESTIONS SO THAT FUTURE CONTRACTS MAY MORE SPECIFICALLY COVER THE POSSIBILITY OF A CONTRACTING PHYSICIAN NOT ANSWERING TO CALLS WHEN NEEDED AND WHAT SHALL BE THE LIABILITY THEREFOR.