MEDICINE AND THE LAW

969MEDICINE AND THE LAW

MEDICINE AND THE LAW

Claim for Negligence against Surgeon andCounty Council

Mr. Justice Finlay has an important judgmentto deliver in the present legal sittings in the actionbrought by Mrs. Dryden against Dr. John Stewartand the Surrey County Council. The plaintiffclaims damages for alleged negligent treatment duringand after an operation performed at the EpsomHospital in November, 1934. She alleges that

surgical packing was inserted after the operation andthat no proper precaution was taken for its removal.It is her case that the packing must have been insertedunder an anaesthetic when the doctor was in charge ;if inserted by a nurse, it could not have been donewithout the doctor’s knowledge. Against thedefendant county council she complains that her

symptoms were not properly reported to the doctorsin charge : she says she was discharged from thehospital as recovered when she was really a very sickwoman, and that in consequence she developedpyelitis and cystitis and suffered pain and that thistrouble was likely to recur at any future pregnancy.The case was opened at the Surrey assizes and

adjourned to the High Court in London. Thedefence is a denial of the alleged negligence. Dr.Stewart says he is certain he left no swab at the timeof the operation ; if any packing or plugging hadbeen used, the fact would have been noted on thepatient’s bed card. The county council says it isnot called upon to explain the presence of the packing :it denies that the hospital nurses were negligent, andit contends that the nurses were not, when takingpart in the operation, the servants of the hospital;the hospital and the nurses did not stand in the relativeposition of master and servant ; the hospital couldnot tell the nurses how to do their duties. On theother hand, the plaintiff’s counsel has asserted thatthis legal rule, whereby a hospital is not liable forthe negligence of its skilled staff, is based on the viewthat the services of the hospital are gratuitous.He says it could not be argued that a nursing-home(where patients are paid for) is not responsible forthe negligence of its staff. As 30s. per week were

paid for Mrs. Dryden at the Epsom Hospital, it iscontended by her counsel that she is in the same

position as if she had paid 20 guineas a week in anursing-home. It will thus be seen that the judg-ment which Mr. Justice Finlay is to deliver as soonas possible after the Easter vacation promises to befull of interest to the medical profession and to

hospitals.

Poor Prisoners and Their Witnesses

In commenting on the proceedings againstMrs. Harding (THE LANCET, April llth, p. 860)where fresh medical evidence was admitted in theCourt of Criminal Appeal with the result that herconviction was quashed, we suggested that it was

strange that the evidence was not available at thetrial. When this fresh evidence was tendered, hercounsel apparently explained its previous absence bystating that she was defended under the Poor Prisoners’Defence Act. A correspondent has written to pointout that, if Mrs. Harding’s counsel was briefed fromthe dock, he deserves all possible credit for havingultimately obtained the necessary evidence and forhaving successfully submitted it to the appellatetribunal. Nobody will wish to belittle the advocate’sunselfish work or the intervention of the medical

witness whose official position happily gave himan opportunity to serve the cause of justice. Exactlywhat happened in the appointment of a barristerto defend Mrs. Harding is not quite clear. A " dockdefence " is the name usually given to the directinstruction of counsel by an accused person. Thereis an ancient forensic convention that anybody whois tried on a criminal charge can produce a guineaand claim to be defended by any barrister who ispresent in court and is not engaged for the prosecution.This is one of the exceptional cases where a lay clientcan instruct a barrister directly without the interven-tion of a solicitor. It naturally follows that there isscant opportunity for obtaining witnesses, since thebarrister is acting on the spur of the moment andsince it is not the province of a barrister but of a

solicitor to seek out and mobilise prospective witnesses.Another method of extempore defence is illustratedwhen the judge asks some barrister in court to under-take the defence of an undefended prisoner. Thisthe judge will do if he sees a possible line of defence ;it is a chance for a young barrister to show his paces,and his services are given gratuitously. These twomethods existed long before the Poor Prisoners’Defence Act was passed. The statute has madea twofold difference : in the first place both solicitorand counsel can be assigned and will receive a

prescribed fee; secondly, since the solicitor is

assigned in advance of the trial, there should be nodifficulty in securing the attendance of necessarywitnesses.

Coroner on Medical Errors

Dr. R. L. Guthrie, the East London coroner,recently observed that, if every doctor was to blamefor every mistake, medical practice would be impossible.He was completing an adjourned inquest on a patientwho had undergone an operation for appendicitisbut whose appendix was found to be free from disease.It was clear that the surgeon had examined the

patient with all proper care ; a medical witness saidhe considered the operation necessary " even in thelight of after events." The surgeon was exoneratedfrom blame and a verdict of " death by misadventure "was recorded. Dr. Guthrie’s observation is a usefulreminder that medical science makes no pretence tothe exactness of the multiplication table and thatthere is certainly no liability in criminal negligencefor a mistaken diagnosis, made after a reasonablycareful examination of the conditions, if the resultanttreatment should unhappily end fatally.

UNITED STATES OF AMERICA

(FROM AN OCCASIONAL CORRESPONDENT)

A NEW SURGEON-GENERAL

Dr. H. S. Cumming having recently resigned assurgeon-general of the U.S. Public Health Service ongrounds of ill-health, after a long and most dis-

tinguished career, President Roosevelt named Dr.Thomas Parran, Jr., to succeed him. A few dayslater this appointment was ratified by the senateand Dr. Parran was getting ready to leave Albanyfor Washington. He will be the youngest surgeon-general in the history of the service. He was bornat St. Leonard, Maryland, in 1892 in a house built ofEnglish bricks ; one of his ancestors brought thesebricks across the Atlantic as ballast for a tobaccoship. After a successful career in the public healthservice Dr. Parran was appointed commissioner ofhealth for New York State. That was in 1930 when