Problem:

On Monday morning when you enter your law office, you find Dr. Ben Heartache, the fastest scalpel in the West, waiting. He needs legal advice.

Two weeks earlier, Dr. Heartache explained, he emerged from the operating room after completing an exhausting three hour operation. He was immediately asked to go to the emergency room in order to assist with a diagnosis regarding an accident case. When the doctor arrived in the emergency room, he found an unconscious Professor Smith being attended to by his son, David

David was so upset it was difficult for the doctor to find out exactly what had taken place. Apparently, the professor and his son were out for a Sunday drive when his car was hit by a large truck. The doctor immediately concluded that the professor needed emergency brain surgery, and advised David that a request had already been made for a prominent brain surgeon from the State University to come and operate on his father. Unfortunately, the university medical facility was located 78 miles away, and the professor's condition was such that he might die before the surgeon arrived.

David pleaded with Dr. Heartache. "I know you're exhausted, but I'm begging you. I'll give you $45,000 if you will operate on my father. Please, please, operate!" The doctor, moved by David's plea, decided to operate. Fighting back fatigue, Dr. Heartache performed valiantly. I certainly earned that fee, the doctor said to himself, as he emerged from the operating room.

The doctor truly put everything he had into the operation, but the injury was too great, and the professor died a few hours after the operation. When David learned what had happened, he fainted.

Two days later, Dr. Heartache received an angry letter from David."Your incompetence was responsible for my father's death," he wrote. "Obviously, I'm not paying you a red cent. Try and collect, and I'll make your life a living hell!"

Dr. Heartache feels that a valid contract entitling him to $45,000 was entered into by both parties. He feels that he has earned the fee, and would like to collect. How would you advise the doctor?