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A foreign body lying within the coils of the intestinemight penetrate it. In answer to the Lord ChiefJustice, he said that perforation was necessarilyaccompanied by irritation and ulceration. A foreignbody would inevitably cause the formation round it offibrous tissue, and adhesions were the result ofinflammation. Blood in the faeces might be caused bythe presence of a foreign body. An abscess mightform around a foreign body even if it were sterile.

Mr. MORRIS. After the gall-bladder has beenalmost entirely removed, ought not the symptoms todisappear ?-It is most desirable that they should, butthey do not always do so. There is no " ought

"

Iabout it. ’

If there were a persistence of some pain identicalwith pain that had been existing for a long time,would not the irresistible inference be that thatpain was not one of the gall-bladder pains ?-Notirresistible.Would it be a most probable inference ?-If, as I

understand it was, the gall-bladder in this case wasvery grossly diseased, I should think it would beoptimistic to expect a hundred per cent. freedom fromdiscomfort after its removal.Would it be a most probable thing for the persisting

pain to discontinue ?-I should hope persistent painwould disappear if the diagnosis had been correct.

If a pain which had been persistent disappearedafter forceps were removed, would the interference beirresistible that the pain was caused by the forceps ?-Your word " irresistible " is one with which we are notfamiliar in medicine, but if you will talk in terms ofprobabilities, then I should say that if the patient hadcomplained consistently of a pain, and that a pair offorceps such as I have seen had been removed from theabdominal cavity, then even I should be optimisticenough to hope that the pain would disappear.The witness was not re-examined.

MISS SARAH JANE KINGMAN.

Examined by Mr. RAYNER GODDARD.

Miss Kingman said that she was a State-registerednurse. Between 1920 and 1924 she had attended manyoperations at the Hydro. She remembered the opera-tion upon Mrs. Crotch quite well; it was the firstoperation performed by Mr. Miles at which she had beenpresent. She had worked with Nurse Brown, whowas a very competent theatre sister. She had helpedto wash the instruments after the operation, but ithad been the duty of the theatre sister to count them.There had been ample time to count them, as thetheatre sister had very little to do at such an operation.The instruments had been counted after this operation ;this was a sacred duty. The sister knew how manythere should be, because she had sterilised them beforethe operation and had then counted them with thesurgeon. That also was a sacred duty.

Cross-examined by Mr. MORRIS.Miss Kingman said that she had been employed

at the home and had not come in specially for theoperation. The average number of operations at theHydro was not one a day.

DR. HENRY EDMUND GASKIN BOYLE.

Examined by Mr. DICKENS.This witness stated that he had given anaesthetics

for Mr. Miles for about twenty-five years at manyoperations. He testified that Mr. Miles was a veryskilful and careful surgeon indeed. Mr. Miles alwaysused large forceps inside the peritoneum and smallones at the beginning of the operation for picking upthe vessels before the peritoneum was cut. The largeforceps were called Kocher forceps. By the time theperitoneum had actually been severed the smallforceps had been removed from the table. This wasthe invariable practice at Mr. Miles’s operations. He had been struck many years ago by Mr. Miles’s 1

practice of putting out his instruments in multiplesof three, a practice from which he had never known himto depart. He would hand them to the theatre sister inthrees or multiples of three and she would put them intothe steriliser. At the end of the operation he would askthe theatre sister if the count was correct ; he hadnever known Mr. Miles fail to do this. Mr. Milesbrought his instruments to the theatre in a regularbag, and would lay out only those which he required.

Cross-examined by Mr. MORRIS.The witness stated that even if a patient’s heart

was reported to be failing, he did not allow panic. Headmitted that the anaesthetist could not always followevery step of an operation.

This witness was not re-examined.

DR. JOHN SOUTHERDEN BURN.

Examined by Mr. DICKENS.

Dr. Burn stated that he had given the anaestheticat the operation on Mrs. Crotch. Before and sincethis time he had given many anaesthetics for Mr. Miles.He corroborated the testimony of other witnessesconcerning Mr. Miles’s practice in counting his instru-ments with the theatre sister. The theatre sister, hesaid, would be able to say at any stage of the operationhow many instruments were in the body. Mr. Mileswould never sew up the wound without gettinginformation from the sister that all the instrumentshad been accounted for, and according to the witness’srecollection he had never departed from this practice.Mrs. Crotch had not borne the operation very well,but had collapsed somewhat towards the end. Thewitness remembered this particularly, having a

particular reason to do so. He had seen English-madeforceps, including Spencer-Wells, sold in Etaples atthe end of the war ; they were surplus Army storesand were going very cheap.

Cross-examined by Mr. MORRIS.Dr. Burn said that the only structure removed at

the operation had been a fibroid uterus ; no othertumours had been removed.

If the patient was not taking the operation very well,what would be the effect upon the remaining course ofthe operation ?-The operation would be completedas soon as and as safely as possible.Would the termination of the operation be in any

way expedited ?-Yes ; Mr. Miles might be able toput on a little extra speed which he would not use ifthere were no hurry.

This witness was not re-examined.

THE LORD CHIEF JUSTICE’S SUMMING-UP.

Counsel on either side having addressed the jury,THE LORD CHIEF JusTlcE said that this was a caseof no little importance and difficulty. The case for thePlaintiff could not have been more elaborately andemphatically presented than it had been by learnedcounsel, but he warned the jury against being misled bythe appeal to the emotions which had been quitelegitimately made by her advocate. The task thejury had to perform was a scientific, not an emotionalone. He continued :-

" Let me refer to one expression used yesterdayby the Counsel for the Plaintiff. I do not know whatimpression was conveyed to your minds, but it seemedto me to be intended that should this action result ina decision adverse to this eminent surgeon it wouldinvolve no reflection on his general skill and standing.Can you accept that suggestion ? It is quite idle to saythat the reputation or the skill of the Defendant is notinvolved in this case. But the question is not whetherit is desirable or permissible that a patient who under-goes an operation should afterwards be going about witha forceps in her body-nobody suggests that, andeveryone must have the greatest sympathy with this.lady-but the question here is, who did it ? When

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something which excites strong feelings of passion orindignation has happened, if the mind is allowed to befilled with those feelings, do they help it in a strictlyscientific inquiry ?

" The learned Counsel for the Plaintiff began the lastpassage of his speech by a rhetorical enumeration ofthe points he conceived to be strongly against theDefendant. He said in effect,’ You are told that theseinstruments and swabs are not counted when anoperation is done in France ? What does that matterif you are satisfied that these were the forceps of theDefendant ? ’ I choose that question as indicatingto you the kind of fallacy into which it would be mostunfortunate to slip. You are inquiring whether theseare the forceps of the Defendant. How can you besatisfied that these are the Defendant’s forceps whenyou now know by the mouth of the Plaintiff’s ownwitnesses that forceps and swabs are not counted inFrance ? Of course, if you are satisfied that these arethe forceps of the Defendant, what was done in Francedoes not matter. But it is vital to have regard to whatwas done in France in order to know whether you mayproperly inquire whether these are the Defendant’sforceps. Let us put the matter the other way round.Suppose that the evidence about the operation con-ducted by Dr. Prat in France was that for years hehad been conducting operations with the assistanceof a careful method deliberately designed by himselfto prevent an error about the number of instrumentsor swabs; suppose that Dr. Prat had been able to say,4 I have designed a system of multiples of three.I count myself, the theatre sister counts, I check thecounting of the theatre sister.’ Suppose that hadbeen the evidence about Dr. Prat’s operation, andsuppose when it came to Mr. Miles’s operation hehad had to say, ’ I never count at all, and nobodycounts for me, it is not done,’ how indescribablystronger the case against the Defendant would have ebeen. Now, you see, the position is reversed. The

evidence of care in counting and of method in countingis the evidence of the Defendant and the evidencegiven on his behalf, and it is conceded that in Frenchoperations there is no counting by the surgeon or byanother. You may think it right to say that themeasure of the additional strength that wouldhave been given to the case against Mr. Miles ifthe position had been reversed is the measure of theassistance which his case derives from the knowledgewhich you now have that in the French operationthere is no counting."His Lordship then laid down the questions which the

jury had to decide :-(1) Is it established that the forceps were left in the

Plaintiff’s body in the course of the operation per-formed by the Defendant ?

(2) If so, was that fact due to negligence on thepart of the Defendant or for which he is responsible ?

(3) The question of damages, if it arises.He then discussed the question of damages. In

addition to the medical fees and expenses incurred,he pointed out that the Plaintiff claimed £500 lostby her through having to leave Paris because of herill-health. He asked the jury whether it was rightto attribute that loss to the presence of these forceps.There was also a claim for £100 loss on profits in thePlaintiff’s business, an antique shop at Vence, nearNice, which she had had to give up. This, however,related to the period antecedent to the followingon the operation carried out by Dr. Prat forgall-stones. Two things were involved in thisclaim-namely, that the trouble in the gall-bladder wascaused by the presence of the forceps, and that inconsequence of the necessity of that operation thisloss of £100 was incurred. The question with regardto these and other figures was whether the jurythought it clear that these losses had been incurredand were attributable to what had been done oromitted at the operation in 1920.

The Liability of the Surgeon.Lord HEWART continued :-Nobody denies for a

moment that if a surgical forceps is left in the body

of the Plaintiff in the course of a surgical operation,that patient ought to have a remedy in damagesagainst somebody. The whole question here is,however : Is the liability of this Defendant madeout ? If you are satisfied that it is, you will nothesitate by your verdict to give expression to thatview. There are few things so extraordinarilydifficult to trace with certainty and assurance as

the relation of cause and effect. What you are

invited to do here is to say that it is establishedbeyond reasonable doubt that this surgical instrumentwas left in the Plaintiff’s body in November, 1920,under circumstances which involved the operatingsurgeon in personal liability. What is the personalliability of the surgeon ? It is not quite a simplequestion. As the case went on and the evidenceaccumulated, the question underwent a certaindevelopment, and it is necessary to distinguishbetween different things. Let me remind you of apassage in the evidence that was given on commissionon behalf of the Plaintiff by Dr. Fay, the surgeonwho carried out the final operation for the removalof the forceps in September, 1928. He stated thatfor operations of this kind the surgeon must beassisted by a team-an assistant, an anaesthetist, andone or two sisters, and each member of that teamhas his or her particular part in the operation.Dr. Fay was asked, " If the surgeon knows and truststhe members of the team, he will not interfere withtheir particular part in the operation ? " Theanswer was

" Yes." " He will not interfere withthe giving of the anaesthetic ? " " Quite so."Dr. Fay was further asked, " Is it not the practiceof the surgeon to leave the counting of the instrumentsand swabs to a sister ? " Dr. Fay answered, " Itought to be like that." A further question was," Then it is possible for the surgeon or his assistantto leave instruments or swabs in the body withoutpersonal negligence ? " and the answer was " Yes,it is possible."

Let me remind you of what was said by Mr. Milesas to the usual practice. He described to you indetail his method based on an enumeration of threes,and how when he arrived at the scene of the operationhe handed over the instruments to the theatre sister." I count them out to her and show her that theyare in threes and multiples. She sterilises themand lays them out on the special table. This isdone while I am making myself aseptic. In an

abdominal operation like this the incision is madebelow the navel ; it goes through the skin and thesubcutaneous tissue and fatty tissue, and alwaysthere are three or four bleeding points. I use

Spencer-Wells 5-inch pressure forceps to seize thesevessels to enable me to tie them. I generally dothe tying and my assistant removes the forceps.Sometimes it is the other way round."Lord HEWART then read other portions of Mr.

Miles’s evidence, showing the method whereby thecarefully trained theatre sister carried out the

counting of the instruments and swabs. He con-tinued : All the evidence on this question of therelative responsibilities and liabilities of the theatresister and the surgeon has come from the Defendant’sside. The Plaintiff’s evidence is extremely interestingfor what it says. You may think when you applya critical eye to it that it is in some places not lesssignificant for what it does not say. The evidenceof the doctors in France taken on commission, andon this particular point the evidence of Dr. Fay, isthat you look to the theatre sister. Not so withthe evidence adduced on behalf of the Defendant.Sir Hugh Rigby stated that in attendance at theoperation are the surgeons, the assistant, the theatresister, generally two nurses, and the anaesthetist,that the theatre sister is responsible for theinstruments, the sterilisation of the instruments,the towels, and the swabs, and that she is veryhighly trained for this work. Sir Hugh Rigby said," In our country she is something quite apart.She is especially trained for this duty, and has

responsibilities which sisters in other countries are

717

not given because they are not trained. I do not thinkone person can be responsible for all the details ofthe operation. The duty of counting instruments orswabs falls, according to the usual practice in thiscountry, upon the theatre sister." Then came this

passage, of no little importance in this case. " Myown practice is to do nothing "-this is Sir HughRigby speaking, the King’s surgeon-" and if thesister finds that she has not the right number she tellsme. If I hear nothing I take it that all is correct.It is very seldom that I myself inquire. If I were

working in a strange place, or did not feel confidencein the sister, I might do so." Sir Hugh Rigby alsosaid that it was in the interests of the patient that theduty of counting should be left to the sister. He saidthat unless he was warned by the sister he was notexpected to make a search. It would be against theinterests of the patient for the surgeon to have extramanipulations to perform. He went on to say thatthe standard of care in this matter of enumerationwhich was set and observed by the Defendant was astandard higher than the ordinary and a standard towhich the ordinary surgeon could not be expected toattain.Then came Sir Thomas Horder. Sir Thomas

Horder is a physician, and he expressed the physician’spoint of view. He regarded the ultimate respon-sibility as depending upon the surgeon. He said," I agree that the surgeon’s responsibility is at the closeto check the counting. I regard the surgeon as ulti-mately responsible in all these matters." Whatemerges from that evidence, and from other evidencelike unto it ? You may think it is right to draw adistinction between what is done in the course of theoperation and what is done immediately at its close.It may well be that in the actual course of the operation,while the surgeon is cutting and opening and attendingto his surgical task, it is not to be expected nor desiredthat he should be busying his mind with the countingof instruments or swabs or with the question ofwhether a swab or instrument is missing. But youmay think that other considerations apply at the closeof the surgery itself. It may well be that any delaymight be highly prejudicial if it occurred before thebody of the patient was stitched up, but after thatyou may think that before the surgeon departs it isreasonable that he should personally satisfy himself Ithat the number is correct, and that there is nothingmissing. Mr. Miles says that he does that. Sir HughRigby said that it is not usual, and he himself does notdo it. These questions are very material as regardsthe second question I have put to you, but that ques-tion, of course, does not arise at all unless you aresatisfied that the forceps were left in the body of thepatient at the operation of 1920. If you are satisfiedas to that, the question then arises as to whether thiswas due to negligence on the part of the Defendantor negligence for which he was responsible. This isnot quite a simple question. What is it that thesurgeon undertakes ? I quote the words of LordChief Justice Tyndall a hundred years ago, butunimpaired in their effect :-"A person entering a learned profession undertakes to

bring to the exercise of it a reasonable degree of care andskill. He undertakes to bring a fair, reasonable, andcompetent degree of skill, and you will say therefore inthis case that the injury was occasioned by the want ofsuch skill in the defendant."

Skill must be also accompanied by diligence, andyou have to decide (if this question arises) whatexactly are the position and the responsibilities of thesurgeon in the matter. Of course, you and I are lookingback upon this matter after the event has happened.There are few things so unhelpful as the wisdom thatfollows the event. You have to put yourselves forthis purpose at November, 1920. Was it in November,1920, part of the duty of the surgeon personallyto count the instruments and satisfy himself thatthe number was correct, or was he entitled to saythat there was present a skilled theatre sister,that this was her job, and that he was entitledto act upon her report ? She is not his servant, she

is one of the team. We can all make mistakes. Isuppose it is quite conceivable that somebody in anindividual case might miscount a certain instrument.You have to address your minds to this question :suppose the theatre sister did miscount and thoughtthere were six of these instruments when there wereonly five, is the Defendant responsible for thathappening ? Is it a breach of duty on his part thatthe theatre sister made that mistake ? You maythink it is linked up with the question as to whathe did afterwards. If the evidence given on behalfof the Defendant in this case is accepted, it isexceedingly difficult to entertain the view that thisforceps got into the Plaintiff’s body in November,1920.

Apropos of that observation, let me remind you ofthis, that when in these Courts a Plaintiff is seekingto recover damages for something wrongful which is saidto have been done actively or by omission, then theburden of proof is on the Plaintiff to show that thatcomplaint is made out, and is made out against thevery Defendant. The proof is not the other wayround. It is not for the Defendant to prove a negative.Indeed, as this case has gone on, you may havereflected how wise our ancestors were in devisingStatutes of Limitations, preventing some kinds ofaction being brought after four years, and most kindsof action from being brought after six years. Why ?Because it is so uncommonly difficult to recollect withaccuracy what precisely was done so many years ago.It would be intolerable if, when an allegation was madeabout something done nine or ten years ago, the burdenof proof were upon the Defendant. In the extremelydifficult question of tracing cause and effect we mustnever lose sight of the fact that the burden of proofis upon the Plaintiff. If you are satisfied that thatburden has been discharged, the conclusion is clear,but if you are not satisfied, if you are left in realdoubt, equally the conclusion is clear, that the caseis not established."Lord HEWART then remarked that this type of

accident, revolting to the mind as it was, was a sortof accident that happened very rarely. In morethan thirty years’ experience of courts of law hehimself had never known anything like it. Itwas something very rare, but if there was no

counting by the surgeon or by anybody on behalfof the surgeon, was it difficult to understand thatsuch a thing might conceivably happen ? Mightnot the absence of counting explain how it came tohappen ? P The thing which was being dealt withhere was a thing called a forceps, superficially likea pair of scissors, but having a very different function.The function of the forceps was to hold firmly. Whenthe bleeding points were exhibited in the course ofthe operation the forceps were used to take up eachpoint, pinch it, and stay the bleeding. The forcepshaving played its part, there followed the use of theligature, and when the ligature was put on the forcepsmight be removed. The effect of this was that theforceps might be there for an appreciable time;there might be a row of forceps, and when the forcepswere removed, if there was no counting, and especiallyif the patient was rather stout, the loss of a pairof forceps was a thing which might possibly happen.The fundamental contrast between the practice incounting on this side of the Channel and on theother was the first thing that leapt to the eye. Thenext thing was the remarkable contrast in thePlaintiff’s evidence as between the amount of medicalevidence relating to 1926 and the paucity of suchevidence during the period from 1920 to 1926.Mr. Miles, in his evidence, had said that when thepatient came to him in May, 1921, to the best ofhis recollection there had been no hernia, becauseif there had been he would have reported it to thepatient’s doctor, Dr. Wadd, and would havesuggested a belt. Dr. Wadd had testified that hehad seen the patient in January and February, 1921,that she had had insomnia and nervous exhaustion,as well as domestic worry, but that she had neverled him to think that she had anything wrong with

718

the abdomen. There had been no swelling, no

hernia, no bulging; she had never directed hisattention to any lump. The Plaintiff had after-wards gone to Margate and stayed there till the endof September. She gave a poor account of hercondition, but no doctor who had seen her at Margatehad been called to give evidence. In India andin Paris there was again no medical evidence. Ifthat forceps had been in the lower part of her abdomenduring those five and a half years, how came it thatthere was this gap in the medical testimony ? P Therewas, of course, the evidence of Dr. Stevens, whomthe Plaintiff consulted in 1921, 1922, and 1923.Altogether, spread over those years, there were

21 occasions on which Dr. Stevens had his attentiondirected to the Plaintiff. He had said that thePlaintiff was complaining of pain low down in theabdomen, swelling in the middle line of the abdomen,attacks of nausea and vomiting. He knew of heroperation, and said that she had had a ventral hernia.Ventral hernia was a very common sequel to anabdominal operation in a fat subject. Dr. Stevenshad never suggested that it was a case for an X rayexamination to see if there was some foreign bodyleft in the abdomen. Was it to be supposed that if,by manipulation or otherwise, Dr. Stevens haddetected the presence of a foreign body, he wouldnot have called for an X ray examination ? Hisconclusion had been that that which he saw wasconsistent with the ordinary consequence of an

abdominal operation. How came it also that nobodywho had examined the Plaintiff in Bombay hadsuggested an X ray photograph ? The Plaintiffhad said that the lump had always been there,about the size of a small cocoanut. The doctorsin the hospital at Bombay had examined her and,presumably, noticed a lump. Was it to be supposedthat these medical men, if they had suspected thepresence of a foreign body, would not at once havetaken steps to see whether there was not some foreignbody there ? The Plaintiff had said that the painhad continued daily for eight years until the removalof the forceps. The question was whether thatwas not an exaggerated statement. She had alsosaid she had felt as if she had been eating rustynails. That expression threw a good deal of lighton this story. Who knew what it felt like to haveeaten rusty nails ? Was it not the very sort ofpicture which might occur to a somewhat imaginativeperson looking back after a period of time whenshe knew that a pair of forceps had actually beendiscovered in her abdomen ?Lord HEWART then asked whether it was credible

that if during all this time she had been sufferingin the way she had described, and had had a lumpof this kind, she would not have seen the surgeonwho had performed the operation. She had explainedthe fact that she was silent about it by saying thathe had assured her on her visit in May, 1921, thatthere was nothing vital the matter and that shemust regard this sort of thing as a necessary conse-quence of the operation. Finally had come theoperation of June, 1926, by Dr. Prat, and the Defendanthad suggested that this forceps had been left inthe Plaintiff’s body by some inadvertence on thatoccasion. The proof that this was so did not fallupon the Defendant, but what he said was that,when all the surrounding circumstances were con-sidered together with the actual course of the operationof 1926, it could not be said that these forceps hadentered the patient’s body during the operationwhich he had performed in 1920.

IJUDGMENT.

The jury, after a short absence, found that ithad not been established that the forceps had beenleft in the Plaintiff’s body in the course of theoperation performed by the Defendant.The LORD CHIEF JUSTICE thereupon entered

judgment for the Defendant, with costs.

Special Articles.MEDICAL INVENTIONS AND PATENTS.

VIEWS OF THE BRITISH SCIENCE GUILD AND THE JOINT

CHEMICAL COMMITTEE.

A REPORT on reform of the British patent system,recently issued by the British Science Guild (6, John-street, Adelphi, London, W.C. 2. 2s.), dealt incidentallywith the patenting of biological inventions. TheCommittee was appointed by the Guild in April, 1927,to consider what changes could advantageously bemade in British patent law, and only reported afterholding 18 full meetings and preparing and circulatingmany memoranda. Its chairman was Mr.W. H. Eccles, F.R.S., President of the PhysicalSociety, and its hon. secretary Capt. C. W. Hume,B.Sc., joint hon. secretary of the Guild. In anintroductory note the fundamental object of thepatent system is described as an encouragement tothe establishment of new industries and the improve-ment of old ones by the granting of temporarymonopolies, owing to the protection afforded bywhich manufacturers and financiers are induced torisk their energy and capital. In the absence of apatent system the practice of secret working growsapace, and this may well cost the manufacturer morethan the open working of a patent system, and havethe further objection of postponing or even preventingpublication. Holland, which abolished its patentsystem in 1869, reinstated it in 1912 owing to thedecline in its manufactured exports. The patentsystem, it is held, is useful to the community in avariety of indirect ways ; inventors are encouragedto embody their ideas in specifications which promotethe free circulation of new ideas, while the collectedspecifications record the growth of applied sciencehardly possible in any other way.

Research and Invention.Modern research has, however, altered the volume

of invention, notably in the chemical and biologicalsciences, and has made it harder than it was beforeto define an invention, for invention may be a flash ofintuition or it may be the result of a system of researchby a scientific staff. It is difficult to draw a cleardistinction between such a process of research and theuse by a skilled workman of the known rules of hisart-ancl in law no patent is valid unless the inventioncontains " subject matter." In practice the Guildsees no reason why patents should not be grantedto protect improved biological products, and considersit desirable to extend the interpretation of the word" manufacture " so as to permit of the patenting ofa wider range of biological inventions. In view of thestrong contrary opinion of the medical professionthe Guild considers that biological inventions sub-serving medical treatment should not be patentable.Taking this report as the basis of consideration,

the Joint Committee, including eight of the principalchemical associations of the country, has formulatedits own proposals, which have now been issued in amemorandum (from the Joint Chemical Committee,116, Piccadilly, London, W.1. Is.). Mr. A. Ree, Ph.D.,andMr.F.H. Carr, D:Sc., have acted as chairmen of thisCommittee, which had Mr. J. Davidson Pratt, F.I.C.,for its secretary. The Joint Chemical Committeeacknowledges the services rendered by the Guildin indicating clearly the need for changes in our

present system and in submitting constructiveproposals to this end. Medical inventions are dealtwith in a short section of the memorandum, and ingreat detail in an appendix thereto.The subject of patents for inventions subserving

medical treatment has received long and detailedconsideration from the Joint Chemical Committee.While it is at present permissible, the memorandum