Should anyone request a physician to treat a disease or a wound under contract, after the physician has seen the wound or diagnosed the illness, he may begin treating the patient under the agreed-upon terms and after payment of a security.

die, the physician shall not request the fee specified in the contract. Thereafter, neither party shall bring suit against the other.

The patient-healer relationship prescribed in these laws seems very similar to the practice shown in the cure agreements.  First of all, the relationship is defined as contractual.  After the physician has visited the patient and diagnosed the illness, he may choose to treat him or her under a written agreement in which his own obligation is clearly defined: to restore the sick person to health.  If the patient dies, the healer cannot request the contracted fee.  The fact that payment is conditional on the success of treatment is also stated in another Visigothic law:

Law V, Ancient:  When a physician removes a cataract from the eyes.
    Should a physician remove a cataract from somebody's eye and restore the patient to health, he shall receive five coins for his services.

The presence of these norms in the Visigothic laws indicates that the stipulation of cure contracts was an old custom, probably dating from a period much earlier than the late Middle Ages -- as early, at least, as the time when these laws were issued, between the fifth and the sixth century.  Promulgated toward the end of the Visigothic reign, these laws continued to be enforced in the Iberian peninsula, both in the Christian territories and in those subject to Arab domination, remaining effective even after the Frankish conquest.  Their vernacular version -- the so-called Fuero Juzgo (Forum Iudicum), which also included the norms "on doctors and patients" -- laid the foundation for the Spanish legislation of the thirteenth and fourteenth centuries.

Was the agreement for a cure, then, a barbaric custom, alien to Roman legal traditions?  The historians who have studied the Visigothic laws "on doctors and patients" are inclined to think so, but they do not offer real evidence to support their view.  Can one say that the healer-patient relationship codified in Roman law differed significantly from the model we find in the laws of the Visigoths?

Since the Visigothic laws "on doctors and patients" date back to the second half of the fifth century, the contemporary Roman law code with which we can compare them is the Theodosian Code (A.D. 438).  Although Visigothic law borrowed heavily from Roman law, it did not include the

A town physician [archiater] should be hired for each of the city quarters (except for the area of portus Syxti and that of the Vestal Virgins).  The town physicians should be aware that their salaries (annonaria commoda) come from the public, and in consequence they should honestly treat the poor rather than shamelessly serve the rich.  They will be allowed to accept what their patients offer them once they have been cured, but not what those who are dangerously sick promise in exchange for health.

The law does not concern medical practitioners in general, but only the public physicians, hired by the city neighborhoods.  As public servants, these physicians were warned to provide honest care to the poor, instead of serving only the rich.  They could take gifts offered by their patients out of gratitude and respect, but they were not allowed to accept promises by the seriously ill.  Remuneration for their services was left to the discretion of the patients.

This section of the law on public physicians (archiatri) was passed on to the Code of Justinian (A.D. 529).  As part of the Corpus juris civilis, it was discussed in innumerable commentaries by European jurists in later centuries.  I should say at this point that it was precisely this law that would be used later, by early modern jurists, to undermine the legal validity of the contract for a cure.  This law's injunction that public physicians not request promises from the sick was seen by early modern jurists as a fundamental argument against the legitimacy of any contracts between doctors and patients.  Should their interpretation be correct, one could say that Roman and the Visigothic laws entailed widely differing views of the patient-healer relationship -- the cure agreement being lawful according to the Visigothic code and unlawful under Roman law.

In fact, the interpretation of the early modern jurists is highly questionable.  First, the law pertaining to the town physicians did not concern all doctors but only those hired by the public.  Its goal was to keep physicians already paid by the community from taking advantage of the sick by requesting additional fees.  The law seems to acknowledge that physicians were usually promised payment by the

For all these reasons, I am inclined to disagree with those who argue that the contract for a cure was a barbaric practice, extraneous to Roman customs.  In my opinion, Roman law and barbaric law (as expressed in Visigothic law) shared a basic element:  the assumption, explicit in Visigothic law but also present in Roman legislation, of the purely contractual nature of the relationship between healer and patient.  This relationship was left entirely to a private agreement.  There was no public licensing system, no state regulation of medical practice, no distinction between legal and illegal practitioners.  Neither Roman nor Visigothic law specified that only those licensed to practice were physicians.  Visigothic law was silent on this issue, while Roman law simply discriminated against those who used magic for healing purposes.  This discrimination had important consequences, for it forbade these practitioners to take delinquent clients to court and thus stripped them of their right to a fee.  With the exception of this clause, Roman law opened the practice of medicine to everyone.  In Rome, a physician was whoever

IV.

In addition to linking payment to results, the cure agreement also favored the patient by fixing a deadline for his or her recovery.  The healer was bound to restore the patient to his former health within a fixed period of time.  If treatment was not successful within this period, the patient was released from the obligation to pay.  A time constraint was thus imposed on the healer, while at the same time the sick person got a common-sense yardstick by which to evaluate the efficacy of treatment.  The deadline for recovery was constantly emphasized in cure agreements, as in, for instance, the one drawn up by the healer Antonio Mondini and Pietro Pecoroni, on October 3, 1698, in Bologna:  "Having seen the disease affecting Pietro Giuseppe Pecoroni's left side, especially on his face, I hereby declare that it is my duty to cure him of the aforementioned disease by this coming Christmas without requesting payment now.  Once said disease or sickness is cured, said Pecoroni will be responsible for giving me a gift of one hundred lire."

After undersigning this document, the healer added, near his signature,

Promising a Cure 43

Your Honor, I want you to know that I was troubled by scrofula; and while speaking about my disease with Don Giobatta Sgargi, last October, I was told of an Antonio Mondini of Santa Maria Maggiore, who had cured one of his servants of a sore on the leg that no one had ever been able to cure; and he told me that the man [Mondini] had many medical secrets.  Right away I went to see Mondini and showed him my illness; and after he saw it, he assured the that he would cure me, and I would not have to pay him before the end of treatment except to reimburse him for the price of ointments; and that he wanted ten doppie.  I told him that was too much, but I would discuss the issue with Don Giobatta Sgargi; and we did so, and having agreed on one hundred lire, we put everything in writing.

The patient was now asking that part of the money he had already paid to Mondini be returned to him.  For these payments he had a receipt, signed by Mondini, in which the healer promised to return the deposit if the treatment did not work, or to treat him without charge in the case of relapse ("if the scrofula returns to his face before next August, I will be responsible for treating him at my own expense").

>From the point of view of the Protomedicato, Mondini was only a marginal healer, and illegal at that, since he did not have a license to practice.  By trade he was a seller of used furniture.  As a healer, however, he acknowledged the responsibility to cure his patient without charge in the event of a relapse -- a duty sanctioned in the medieval juridical literature, as we know.  By 1698 only a nonprofessional healer such as Mondini would have offered a patient such a guarantee, applying a norm that professional practitioners such as physicians and surgeons had abandoned a long time back.  Nevertheless, traces of the ancient principle binding the payment of the healer to the patient's complete recovery -- rather than to the work performed and the duration of the treatment -- still existed at the end of the seventeenth century, albeit only among nonprofessional healers.  The healer's commitment to treat the patient without charge in case of relapse clearly contrasts with another prerequisite of professional medical practice, that is, the idea that a medical practitioner should be paid for his time, because time is money.

When should a patient pay the salary of the physician: at the beginning, during, or at the end of treatment?  On this issue the interpreters of law are not in agreement.  Yet it seems to be common opinion that the physician who is not a public employee cannot ask for a salary or any other compensation before the patient is cured, i.e., once treatment has been completed and not at the beginning or in the middle ....  Although this is the common opinion, it is derided by Zasius . . . who says that, if this were true, physicians could not go about splendidly dressed in purple clothes, as they do; and the same author adds that whether their patients die or are cured, physicians come out winners.

The cure agreements made sense within a culture that considered medicine as the art of healing rather than a professional practice.  In fact, these agreements denied two basic tenets of medical professionalism:  first, that medical practitioners deserve to be paid because they are licensed members of the profession, and second, that payment does not depend on the patient's satisfaction.  As medical ethics became increasingly shaped by the principles of professionalism, negotiating with patients was rejected by physicians as demeaning and unprofessional.

Traditional medical ethics had urged healers not to exploit patients' fears by charging exorbitant fees. "When the fate of a patient is uncertain, it is criminal to charge a high fee for treatment," the physician Alessandro Benedetti wrote in the fifteenth century.  This view was restated two hundred years later by another doctor, Ludovico Settala:  "It is cruel to bargain for fees during a serious illness.  It is not only always unworthy of this noble art [of medicine], but also cruel:  while the patient considers the fee, the right moment to treat him might be lost.  Thus valuable moments may be wasted, and once gone, the patient will worsen or die."

Settala's statement indicates a new notion:  discussing fees during treatment was unacceptable not only because it was unethical but also because it was undecorous, unworthy of the noble art of medicine.  According to Paolo Zacchia, a fee negotiated by a physician lost its dignified status as an honorarium and became instead like the vulgar wages of a servant.  "Bargaining for money should be left to the vile mechanics," that is, to lesser practitioners such as surgeons, because "their work is, in fact, servile."  The new belief that negotiating with patients was incompatible with the dignity of the medical profession was supported by the idea that such negotiation was at odds with the Hippocratic Oath.  While the medieval statutes of the medical colleges had not mentioned this aspect of the doctor-patient relationship, sixteenth-century statutes often prohibited doctors from negotiating with their patients and making agreements with them.

We shall see how the custom of making agreements for a cure progressively declined and disappeared in the early modern period.  In the Middle Ages, such contracts, drawn up in the presence of a notary, were recognized as "public documents" and undersigned even by renowned physicians such as Bartolomeo da Varignana, Guglielmo da Saliceto, and Taddeo Alderotti.  By 1600, in contrast, an agreement like the one cited above between Antonio Mondini and Pietro Pecoroni was acceptable only to marginal, unlicensed

Promising a Cure 47

Yet the contractual nature of the healer-patient relationship was so entrenched in traditional medical practice that even doctors came to terms by contract -- with a community if not with an individual patient.  In fact, there is widespread evidence that a large number of physicians worked on retainer, for a yearly salary, with groups such as families, convents, parishes, hospitals, and confraternities.  The agreements they signed in this case were similar to the so-called patti di condotta, the hiring terms set down by contract when a municipality secured the services of a town doctor.  Significantly, the statutes of some medical colleges in the early modern period prohibited their members from making cure agreements with individuals but allowed them to contract for a retainer's remuneration with the representatives of communities or groups, such as heads of families and public officers.  The medieval system of town doctors, which was probably already widespread in ancient Italy, can be better understood in this context.  Originally, the contract between a town doctor and a community may have developed out of the practice of single individuals or groups keeping a doctor on retainer.  Here is a record of a doctor being hired as a personal physician -- what we may call a medieval example of private medical insurance in a document from Siena, dating from 1233:


I, the priest Dietaviva, rector of the church of San Paolo, solemnly and legitimately promise you, Sir Bonifacio, physician, son of the late physician Niccolo, that at the end of every January each year I shall give you forty Sienese coins, as long as I live, in exchange for your medical advice and care (pro via et consilio mea personae) . . . ; and I take this responsibility upon myself and my heirs plea by my property and the property of the church; as equity, to you and your heirs . . . ; and I promise that neither I nor my heirs will file any claim against you if you are away from Siena or become ill.

A patto di condotta established similar terms on a public level.  The whole community committed itself to retain a doctor on a yearly salary in exchange for his being permanently on call.  Having a doctor regularly employed by the public gave both practitioners and patients advantages that were not offered by individual cure agreements.  From the doctor's viewpoint, a reliable salary received under a retainer arrangement provided an attractive financial

cushion against the uncertainty of the payment to be earned from the cure agreements.  Payment on retainer, of course, was not conditional upon results.  In fact, by practicing only privately, without having stable arrangements with communities, physicians simply could not make a living.  From the patients' viewpoint, having a town doctor offered the advantage of price control, since the hiring contract (patto di condotta) established the maximum amount the doctor could ask for a single cure.  Significantly, the earliest medieval examples of such contracts testify to such a price-fixing clause.  Consider, for example, the hiring agreement drawn in 124 between Ugo da Lucca, medicus, and the municipality of Bologna.  For himself and his heirs -- that is, his legitimate male descendants who might also become physicians in the service of the city -- Ugo requested an income of six hundred Bolognese lire "in feudum."  In exchange, he promised to serve the city by living there for six consecutive months, each year, and "to treat and cure all citizens of Bologna . . . and their families who live in the city, and all the inhabitants of the countryside who may be wounded or suffering from hernia."  He also promised "not to negotiate cure agreements with any citizen, except with the people from the countryside, from whom he will be allowed to ask for payment for a cure only to the following amount:  nothing from the poor; no more than a cart of wood from those who are serfs; and from the rich only up to a maximum of twenty soldi or a cart of hay"

With this contract, the community of Bologna limited the fee that the physician could request from patients living outside the city, and ensured that he did not charge city residents for curing them.  In other words, the contract allowed the city to regulate the price of medical service in a way that private agreements between healers and single patients could not.

The same terms can be seen, several centuries later, in a contract of 1527 between the community of Pieve di San Stefano (in the territory of Arezzo) and Master Bernardino di Francesco Rinaldi da Pisa, the town doctor. For six ducats a month, the doctor wvas requested to "treat all people affected by plague in the area, with ointments and remedies to be purchased by the community or by the patients."  As for Master Bernardino, "he promised to treat all residents of said community without charging other fees and without advancing any other requests; although he can accept the gifts that his patients, out of courtesy or kindness, wish to present him."  This agreement, however, "does not include what was promised to him for the cure of Madonna Crisostoma, wife of the late Fazino.''  By signing this contract as town doctor, Master Bernardino renounced any cure agreements with individual patients.  Presumably, since his agreement with Madonna Crisostoma

Although physicians gradually rejected the terms of the cure agreements, finding them demeaning and unprofessional, they were often bound nevertheless to the ethical and legal obligations. stipulated in the contracts for town doctors -- obligations that also tried to redress some inequalities of the doctor-patient relationship.  However, the contradiction with the principles of medical professionalism was much more marked in cure agreements than in contracts for town doctors.  In addition to the principle of payment by result, another unprofessional feature of the agreements was the commonsense definition of recovery on which they were based.  How was recovery defined, and who could determine if it had indeed been attained?  When the parties disagreed, they turned for arbitration to a judge of the guild.  Typically, this happened only as a last resort.  On a daily basis, the rule adopted in the cure agreements was that the patients were the ones to decide if they were healed.  Such a rule clearly contradicted professional principles, according to which not lay opinion but only medical experts can pass final judgments on the results of medical care.  But the reality is that healers are always judged from below as well as from above:  by the patients, who base their judgment on the effectiveness of care; and by the medical authorities, who use professional standards, including adherence to medical orthodoxy.  The first professional duty of a doctor, then as now, is to follow the established, or canonical procedure; in other words: "traiter methodiquement, et dans toutes les regularites de l'art" ("to treat according to standard and by the rules of the

art"), as a physician says in Moliere's Monsieur de Pourceaugnac, "and never ever, for all the gold in the world, cure anybody with remedies not approved by the medical school."

In contrast, by emphasizing results, the cure agreement allowed patients the upper hand in evaluating the effectiveness of treatment.  We should remember that, at the time, even learned medicine was largely based on symptoms, on the patient's own subjective perception of illness.  It is not so strange, therefore, for the healing process to be mostly understood in terms of common experience rather than in terms of specialized medical knowledge.

More evidence of the diffusion of such a nonprofessional definition of recovery comes from the documents called fedi di guarigione testimonials in which sick persons declared themselves to be cured of specific illnesses.  These are fascinating documents that can be used to reconstruct the perception of illness by common people.  Their function was to legitimize practitioners by publicly recognizing their healing skills.  The testimonials were given to common healers as well as to holy ones, as proven by the votive offerings in the sanctuary of Saint Marcoul in Corbeny, mentioned by Marc Bloch in The Royal Touch.

These testimonials were often presented by folk healers when petitioning the protomedici for a permit to practice.  In 1613, when applying for a license to sell a balsam of his own making, Josepho Scarpetta attached this document to his request:  "I, Tomaso, tenant farmer of the Dalnessi, hereby declare that for the past year, having an intolerable pain in one knee, I applied Ser Joseffo Scharpetta's balsam and, through the grace of God, I recovered; in this year I used the same balsam to medicate a friend of mine who was on his death bed for a pain in his body and stomach; and with my own hand I applied it and, through the grace of God, he healed . . . and in witness thereof I have made my mark below."'
In 1689 a healer, Francesco Nannini, was granted a license by the Bolognese Protomedicato on the basis of several testimonials from patients who had been cured by him "with the help of God . . . of an incurable illness called the scrofula."

The custom of presenting such testimonials was not limited to folk healers.  Letters of reference from patients were also included in the certificates of "diligent practice" that the physicians were requested to file with the college.  These documents, often accompanied by recommendations from noble and influential patrons, stated that the undersigned had been "perfectly restored to health" and that they had been "treated diligently and canonically."  We find patients' testimonials printed in the little book published by

Promising a Cure 51

These two sources of legitimization for medical practice and the need for mediating between them had to be acknowledged also by the

At the end of the sixteenth century, therefore, the behavior of the medical authorities did not yet show unmitigated adherence to purely professional criteria for the regulation of medical practice.  Even the protomedici had to accommodate their conduct to the traditional customs that guaranteed the sick an equitable relationship with their healers.  This model of equity was expressed in the agreement for a cure, which represented a mediation between the interests of the sick and those of the healer.  While the protomedici considered cure agreements to be beneath the dignity of the medical profession (and certainly would not have undersigned such agreements in

in 1583, in which a surgeon asked for the remainder of the agreed-upon fee, the protomedici grant it "above all, since the patient is cured thanks to him [the surgeon's] labor and industry."  Also in this case, however, the protomedici felt the need to investigate the patient's behavior during treatment in order to establish whether he might be deemed responsible for jeopardizing the success of the treatment.

At the end of the sixteenth century, the protomedici acted as magistrates in charge of implementing the terms of the agreement for a cure, by ordering practitioners to refund money to patients who had not been healed, or conversely, by charging patients to pay healers who had successfully treated them.  We also find the college doctors in the role of mediators between the parties who had undersigned a cure agreement.  In 1586, for instance, the protomedici were called to witness a cure contract between some patients and an itinerant healer, Stefano da Capua.  The sum agreed upon as payment for Stefano's services was deposited in the hands of the protomedici, who would give it to him after the successful completion of treatment.  For his part, Stefano assured the protomedici under oath "that he would not leave Bologna for one month," which was the duration of treatment set in the contract.  By means of their interventions or mediation, the medical authorities protected the patients against the chance of abandonment before the end of the cure and also safeguarded the healer against the risk that his patients would be unwilling to pay.

Such a direct involvement of the protomedici in the drawing up of cure agreements, however, was already rare at the end of the sixteenth century and became even more so from then on.  Starting around this period, we notice a dramatic shift in the medical authorities' attitude toward cure agreements.  Such agreements were increasingly frowned upon by the medical authorities and rejected as incompatible with the professional definition of medical practice.  This change of attitude would have important consequences for the relationship between patient and healer.  Cure agreements implied the presence of a magistrate who endorsed them as legally binding.  When no longer sanctioned by the medical authorities, as we shall see, such agreements would slowly disappear.

The judicial records of the Protomedicato display an intricate pattern of shifting rules and relationships.  As will become clear when we analyze the patients' claims and the court's response, there was a complex interaction between different perspectives:  what the patients denounced as a broken promise of a cure, the protomedici redefined through the seventeenth century as illegal medical practice -- as a violation of professional norms rather than

Promising a Cure 53

as a betrayal of the patient's trust.  Throughout this process, the relationship between practitioners and patients changed dramatically.  This change can be partly related to the pressure that each party in the medical system exerted on the others.  There was, first of all, the mutual pressure between healers and patients, which had reached a sort of equilibrium point in the balance of power expressed by the cure agreement.  Pressure on the healers was exerted not only from below, by the patients, but also from above, by the medical authorities, who set the rules for orthodox medical practice.  Thus, the healers had to meet two different sets of expectations -- those of the patients, who expected treatment to be effective, and those of the medical authorities, who expected it to be orthodox.  At the top of the medical system, the protomedici themselves were not exempt from pressure, and they also had to respond to two different sets of expectations.  It was incumbent upon them, as supreme medical authorities, to protect the professional interests of the various groups of medical practitioners, who shared common goals despite their intraprofessional rivalries.  However, as public magistrates, the protomedici were supposed to defend the patients' right to equity in the therapeutic transaction.  It was their difficult, therefore, to represent both professional interests and patients' rights -- a task particularly difficult at the end of the sixteenth century, when patients' rights were still based on the nonprofessional model of the cure agreement.