DennisBeaverOctober 18, 2008 (Original publish date) • By Dennis Beaver

“I practice medicine near a small farming town in northern California. People think of me as something of an old-fashioned doctor. With patients who have no health insurance and not much money, I don’t charge or have accepted more grapes and bags of potatoes than you can imagine,” his e-mail began.

“When I treat these patients, I tell them from the very beginning not to worry about paying. We have wonderful, close relationships with entire families. It is what makes medicine so rewarding. You can tell that money isn’t what motivates me, but now I am feeling like a sucker.

“Some feel a bit guilty about accepting our care without payment, insisting on paying it. When that happens, I tell them to just make a donation to one of our churches, a recognized charity, or, better yet, to a local scholarship foundation which helps to send kids from our area to college. I let them know what our bill would have been, and leave the amount of the donation entirely up to them, only asking to know when and to whom their gift was made. It’s our little bargain, and simply spreads good will and the spirit of giving back,” he continued.

“There is one family who I treated at no cost, and they promised to make that donation. It has been months since I last saw them, and while they have phoned to have prescriptions refilled, they have yet to keep their word. I am aware they have the means of making that contribution. This has me feeling used, and I wonder what the law is in this kind of a situation. Can someone be forced to make a charitable donation? Do you think I am wrong to feel this way? Thanks, Dr. Sam.”

“This is a much more common situation than most people would ever think, and it does raise a number of interesting legal issues,” Charlotte Dauphin told me when I read her Dr. Sam’s e-mail. The Virginia attorney has written extensively on enforcement of promised gifts.

“Strangely, these issues come up in the last places you’d expect: Churches, universities and museums. Someone makes a pledge to donate money for a church building fund, or to support her university. She changes her mind, and then instead of brotherhood and goodwill, you wind up with a nasty lawsuit.”

She began her analysis of Dr. Sam’s situation by asking a key question:

“Is the doctor asking his patient to make a gift, or is this a contract? The differences are huge and influence what the doctor can or should consider doing,” she pointed out.

“It’s pretty much common sense that you can’t force someone to make a gift. Suppose I tell you that next week it will be my treat for dinner at your favorite restaurant. Clearly, this is a promise to make a gift — I’ll pay for your dinner. But I never call. While a social disappointment, obviously it’s not something you would ever think of suing on. Why? Because it lacked the formality of a real contract, and you’ve lost nothing, in fact gained something — a better understanding of who I am, someone who just spouts nice offers with no intention of honoring them.”

Attorney Dauphin explained that the promise “I will give $5,000 to my church for its building fund,” may be enforced in some situations, but not in others.

“Churches, and universities typically advertise the names of donors to other members which encourages more donations. When enough pledged donations are received, assuring adequate funding, a construction contract is signed. If members were permitted to make these kinds of pledges and then just walk away, we would have law suits against charities popping up far too often. If a charity can demonstrate that it has relied on the promise, then many courts will hold a donor to his bargain.

“That’s why it is so important to think over carefully the consequences of making a pledge. There can be a great deal of subtle pressure to commit financial support, and there’s nothing wrong in taking time to reach a decision,” she recommends.

“Be really careful of television or radio pledge drives. Sure, supporting worthy causes is important, but I just don’t want people to get trapped by glitzy advertising. When you call those 800 numbers and pledge, if you later change your mind, you’ll be dealing with a collection agency and possibly being sued,” she warns.

What is a gift? What’s a contract?

A gift is generally seen as a voluntary transfer of property without any compensation. If it is a, “I will give you this, and you will do that for me,” situation, then it’s not a gift.

As Attorney Dauphin notes, “If the doctor is asking for something in return for his professional services, then it’s a contract. However, he gets himself into trouble because no specific amount of the expected donation is ever discussed. So, if this ever wound up in court, how could a judge render a decision for some amount? Courts do not speculate as to what services are worth.

“The doctor who reads your column has contributed a much needed service to his community. There is a certain type of person who will take from that doctor, making promises to give, and then walk away. Ultimately, the doctor needs to accept that human nature has an ugly side.

“This is not the type of situation which should ever find its way into court. Sometimes we are better off not knowing if that promised donation was ever made,” Attorney Dauphin concluded.

To that, I add the following: Life has a way of dealing with users, sometimes dramatically. Bad things happen to dishonest people, if we wait just long enough.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.