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Medicine and the Law

A Novel Allegation of NegligenceAN unusual claim for damages in respect of the alleged

negligence of a surgeon was dismissed on July 2 byMr. Justice Gorman.! Mrs. Nickolls had sued the Ministryof Health and the Royal Free Hospital, alleging negligenceagainst the late Mr. C. A. Joll who performed an operationupon her for goitre in December, 1944. Mr. Joll died afew weeks after the operation. The plaintiff complainedthat he had been unfit to operate because he was sufferingfrom cancer at the time. She said that both her recurrent

laryngeal nerves were damaged and that her breathingwas thereby permanently affected with the consequencethat, some years afterwards, when she was expecting achild, it was considered necessary to ’terminate the

pregnancy and to sterilise her. Her counsel stated thatthe operation for goitre was " perfectly simple " ; toa man of Mr. Joll’s skill and experience it was reallychild’s play ; but " something had gone wrong " ; itwas a catastrophe which ought never to have happened :" Mr. Joll was so ill at the time that he ought never tohave operated." Counsel undertook to call a witnesswho would substantiate this last statement.

Mr. T. E. Piercy, surgeon in charge of the New EndHospital thyroid unit, said he had performed 2500

thyroid operations ; at one time he had assisted Mr. Joll.From the description of the patient’s condition there was,he said, no reason to expect that either or both recurrentnerves would be damaged. He agreed that Mr. Jollwas carrying out big operations up to Dec. 29, 1944.For the defendants the surgical registrar at the hospitalin 1944 said that during November and December inthat year she was assisting Mr. Joll and noticed no failureof his skill or technique. Dr. P. E. Thompson Hancock,Mr. Joll’s medical attendant, said he last saw him atChristmas, 1944 ; up to that time Mr. Joll was perfectlyfit to continue operating. Prof. D. W. Smithers, directorof radiotherapy at the Royal Cancer Hospital (whereMr. Joll was senior consulting surgeon), said that therewas no reason why Mr. Joll should not have carried onhis normal activity on the date in December when heoperated upon Mrs. Nickolls.Mr. Justice Gorman expressed himself as quite

satisfied that Mr. Joll was fit to perform the operation,even though he was suffering from cancer. He was a

surgeon of the highest reputation ; he had known fromearly in 1944 of his disease and had accepted it as beinghis fate. The evidence as a whole, said the judge, failedto make out a case of negligence against him. After

judgment had been delivered, counsel for the defendantsobserved that the case had attracted publicity whenfirst opened ; he hoped that, in fairness to Mr. Joll’swidow and brother, the press would feel able to giveno less publicity to the result.

Another Thyroidectomy ClaimDIFFERING in its facts (for at least it did not relate to

something which -happened some ten years ago) but

happily similar in its conclusion and in the moral to bedrawn therefrom, was another patient’s claim whichwas dismissed at about the same date .2 It was ademand for damages from St. Bartholomew’s Hospital,and from Dr. K. O. Black and Mr. E. G. Tuckwell.

The plaintiff, Mrs. Hatcher, aged 30, was employed bvthe B.B.C., primarily in secretarial work but occasionallyas a broadcaster ; between 1949 and 1951 she earned 230in broadcasting fees. Her voice, therefore, was of specialconcern to her. In January, 1952, she entered the hos-

1. Daily Telegraph, June 22, 23, and 24, 1954. Times, July 3.2. Times, June 29 and 30, July 1 and 2.

pital with the possible prospect of an operation forpartial thyroidectomy. Her counsel, in opening her case,said that she specifically asked the physician, Dr. Black,whether the operation involved any risk of damage toher voice and was told " No, none at all." Had she beentold the truth, she concluded, she would have chosenthe alternative medical treatment. In the operation,performed by Mr. Tuckwell, her left recurrent laryngealnerve was cut or so damaged that, though the qualityof her voice was only a little inferior after the operation,it soon became weak and her throat became painful.She complained that, after convalescence, she was toldthat there was nothing wrong with her voice, that shewas neurotic and hysterical and that, if she shouted,her voice would come back. Speech therapy had broughtno improvement : she was advised that her conditionwas permanent ; she vigorously denied that she wasneurotic and hysterical.

Giving evidence for the plaintiff, Mr. Mendel Gordon,surgeon to the ear, nose, and throat department, NationalTemperance Hospital, said that she was the niece of’hiscousin ; her voice was now weaker than formerly;there was more effort in talking ; one of the vocal cordshad been damaged and did not move. In cross-examina-tion he agreed that the incidence of damage to therecurrent, laryngeal nerve in thyroidectomy was wellknown among surgeons. Another witness for the plaintiff,Mr. C. P. Malley, surgeon to the Metropolitan Ear, Nose,and Throat Hospital, stated in cross-examination thathe did not think a patient should be told of every riskinvolved ; otherwise no-one would undergo an operation.He agreed that persons with toxic thyroid were particu-larly nervous.The first defendant, Dr. Black, stated in evidence

that in his opinion Mrs. Hatcher ought to have had the.operation ; medical treatment with thiouracil would,he said, have been dangerous ; in a proportion of cases-the gland was enlarged under the influence of the drug.Mr. Tuckwell testified that it was probably himself,and not Dr. Black, who told the patient that there wasno risk to her voice ; he said he would do the same thingagain. In cross-examination, he said the operation hadcured her disease but unfortunatelv there had been anuncommon complication. Miss Johanna Van Thal,speech therapist at St. Bartholomew’s and other hos-pitals, gave evidence that the plaintiff’s prospects ofrecovering her voice had been quite good ; the mostpropitious time for therapy was within three or fourmonths of the operation ; there was still a chance ofimprovement ; what was involved was the techniqueof learning to speak again.Lord Justice Denning, sitting as a trial judge, with

a jury, analysed in his summing up the allegations againstthe several defendants. The only complaint againstDr. Black, he said, was that he negligently advisedMrs. Hatcher that the operation involved no risk toher voice. The complaint against Mr. Tuckwell wasthat he performed the operation negligently and damagedthe laryngeal nerve, not that he gave her bad advice;Mr. Tuckwell had told the court that on the night beforethe operation he informed her that there was no risk-but no complaint was made against him in that respect.It was claimed against both the hospital and Mr. Tuckwellthat, after the operation, they were negligent becausethey ought to have discovered the palsy of the vocalcord by looking down the throat with instruments;instead, the plaintiff protested, she was told to shoutand not to be neurotic or hysterical ; there was no allega-tion that these defendants made her any worse.

Lord Justice Denning’s address to the jury, wellreported in the Times of July 2, deserves full attention.On a road or in a factory, he said, there should be noaccident if everybody used proper care. " But in a

hospital, when a person who is ill comes in for treatment,no matter what care is used, there is always a risk;it would be wrong and bad law to say that, simplybecause a mishap occurs, the hospital and doctors areliable ; indeed it would be disastrous to the community."It would mean that a doctor examining a patient, or asurgeon operating at the table, instead of getting on -with his work, would be forever looking over his shoulder

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to see’if somebody was " coming up with a dagger."The jury must not find negligence simply because oneof the risks inherent in an operation actually took placeor because there was an error of judgment. They shouldfind him guilty only when he had fallen short of thestandard of reasonable care.

On the question " What should a doctor tell a

patient " the lord justice had this to say. Mr. Tuckwellhad stated that it was for Mrs. Hatcher’s own good thathe told her there was no risk to her voice. This was nottrue ; there was risk, but it was of vital importance thatshe should not worry. There might be moral or theo-logical argument over the circumstances in which untruthwas justifiable, but the court was not a court of morals ;the law left the question to the conscience of the doctorhimself ; if doctors had too easy a conscience, theymight in time forfeit the confidence of patients whichwas the basis of all good medicine. Anyhow none of themedical witnesses had suggested that Mr. Tuckwell waswrong. He was charged with carelessness at the opera-tion ; but the doctors called by the plaintiff as well asthose called by the defendants had said the damageto the nerve was a well-known hazard, notwithstandingall care. Sir Alfred observed that he had heard no

suggestions that Mr. Tuckwell had done anything heought not to have done.

It would be unfair to urge that this important re-state-ment of the limits of professional liability could be bornein mind by all those who administer the public serviceof legal aid. The lesson is for the layman to learn. In

spite of the clarity of the direction, the jury deliberatedin private for more than four hours before finding averdict in favour of each of the defendants.

’

Parliament

World Health Organisation FundsIN the House of Commons on July 1, Mr. ARTHUR

BLENKINSOP raised the question of contributions madefrom this country to the World Health Organisation.There was a real danger that this vital work might beaffected by shortage of funds and the extreme irregularityof their payment. At present the contribution to theregular budget of W.H.O. falling on the vote of theMinistry of Health amounted to the miserly sum of£350,000. It was true that the organisation also securedfunds from the Technical Assistance Board. Last yearW.H.O. had twice to cut the programmes planned, whichupset the balance of their work. Last year UNICEF—the children’s fund-had to help W.H.O. out of its debts.It had been proposed that the budget of W.H.O. should beincreased to 10¼ million dollars, but the British delegatesopposed that proposal, which was turned down by 28to 22 votes. A compromise figure of 9¼ million dollars,which was agreed on the proposal of this country, wassome increase on last year, but a miserably small contribu-tion for work of the quality now being done by the organisa-tion. He understood that the argument put forwardby the Minister of Health was that the extra funds shouldbe made available from the Technical Assistance Board.That was all very well if these funds were going to comeforward, but, judging from past experience, there wasno reason to expect them to do so. Until this countryand other countries gave greater certainty as to thelevel of payments over a period of years it would bedifficult for W.H.O. to secure the technical skill thatthey wanted.Miss PATRICIA HoRNSBY-SMITH, parliamentary secre-

tary to the Ministry of Health, said that since 1950W.H.O. had taken on additional duties in relation to theexpanded Technical Assistance Programme for theeconomic development of the underdeveloped countries.The British Government had regularly paid their assessedcontribution of 11 % to the regular budget financed bycontributions from member States. The TechnicalAssistance Programme funds, however, were contributed

on a voluntary basis by a number of countries, includingthe United Kingdom. Of these funds W.H.O. drew about20 %. The T.A.P. had budgeted for money which theyhoped to get voluntarily but which had not been forth-coming. They must accept a dividing line between theregular activities of W.H.O. and those of the TechnicalAssistance projects which might overlap into the fieldof health, and it had been agreed at the recent WorldHealth Assembly that the director-general should keepthe two programmes separate.Our contribution had been fully met, and when the

appropriate increase for W.H.O. work, amounting to1 million dollars, was put to the assembly the Britishdelegation supported that increase. But they rightlyclaimed that work carried out by W.H.O. at the requestof member States under the T.A.P. was more properlydealt with under technical assistance. Since that pro-gramme started there had been a considerable increasein expenditure ; in 1948 the programme was 43 4 milliondollars, and this year it was 81/2 million dollars, of which theUnited Kingdom had contributed 11 %. She could givean assurance that, subject to Parliamentary approvaland to the exigencies of our financial situation, theGovernment would continue to support most whole-heartedly the central programme of W.H.O. providedthey were satisfied with the way in which such things wereadministered. She was informed that W.H.O. had notmet any insuperable difficulties in the recruitment ofstaff.

Care of Spastic ChildrenIn the House of Commons on June 28 Mr. HORACE

KiNG, PH.D., raised the question of the treatment ofphysically and mentally handicapped children. He saidthere were some 6000-10,000 such children with cerebralpalsy. It was important to coordinate all the depart-ments concerned with their well-being. Before beingclassified as ineducable a spastic child should be sentto a residential school or clinic for careful study. Morespecial schools and centres for these children were

needed at once ; not all need be residential.

Mr. IAIN MACLEOD, Minister of Health, agreed on theneed for coordination. He also emphasised the importancein this field of the general practitioner and the formationof parents’ associations. If properly guided these coulddo an immense amount of good. --

QUESTION TIME

University Grants

Replying to Sir HAROLD ROPER, Mr. R. A. BUTLER, Chancellorof the Exchequer, said that the University Grants Committeehad appointed a committee to report on the question whether,and if so what, changes were necessary to secure that uni-versities’ methods of contracting, and of recording and con-trolling expenditure from non-recurrent grants were reasonablydesigned and properly applied, to ensure effective safeguardsagainst waste, extravagance, or other abuse. This committee’sreport would be made available to the Public AccountsCommittee.

Deaf Children in Mental-deficiency InstitutionsMr. SOMERVILLE HASTINGS asked the Minister of Health

whether he- was aware that a number of children admittedto institutions for the mentally deficient had been proved tobe suffering from deafness only ; and whether, in view of theimproved methods now available for the recognition and treat-ment of deafness in children, he would give instructions thatevery child admitted to an institution for the mentallyretarded, who appeared to be hard of hearing, should beexamined by an aural specialist on admission and not lessthan once every five years during childhood.-Mr. IAINMACLEOD replied : I know of a few such cases, but I do notconsider that instructions on the lines suggested would behelpful. My officers have recently reviewed the circumstancesin which handicapped persons, especially the deaf, may beadmitted to mental or mental-deficiency hospitals. I under-stand that there is increasing medical interest in this subjectand that some research is being carried out. I am confidentthat the medical staff of mental-deficiency hospitals make useof improved techniques as they are developed and arrange forexamination by other specialists according to their patients’needs.