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second parts of duodenum, but was held up again in thethird part of duodenum. No evidence of ulcer.

In this case there is no history of trauma exceptthat the pain started during defalcation, which mayimply some straining, though the patient denies it.If he did strain why did haemorrhage occur round theduodenum ? No haemorrhagic diathesis was indi-cated, and the bleeding-time was normal (platelet

count not done). The head and body of pancreaswere carefully exposed, but no abnormality wasfound ; there was no fat necrosis or sign of pancreaticinsufficiency or irritation. No gastro-duodenal ulcerwas found at the operation or was indicated byskiagraphy. The cause of the illness thus remainsundetermined. The patient is at present in excellenthealth.

MEDICAL SOCIETIES

WEST LONDON MEDICO-CHIRURGICAL

SOCIETY

THIS society met on Jan. 8th at the Vere Hotel withthe president, Mr. NEIL SINCLAIR, in the chair, andMr. ERIC PEARCE GOULD, president of the MedicalDefence Union, opened a discussion on the

Defence of Negligence ActionsA patient had a right, he said, to expect that hisdoctor would exercise reasonable skill and care ;the failure to do so was negligence. Complaintsof medical negligence were increasing, for variousreasons. The old-time mutual confidence betweendoctor and patient was unfortunately lessening ;lay people knew more about medical matters,particularly about X rays ; there was a certain newsvalue in the doctor’s peccadilloes, and the publicationof accounts of actions against doctors encouragedothers to complain. The gravity of negligenceactions was also increasing, partly because juriestended nowadays to award very high damages, andpartly because recent legislation had extended

liability for the results of negligence beyond the personof the doctor to his estate after his death. An actioncould be brought against a firm of partners for thenegligence of one member, and it was thereforeessential that each member should belong to a defencesociety, and convenient that all should belong to thesame society.

Negligence actions, he continued, fell into four

groups, the first of which comprised actions broughtout of pure malice, to avoid the payment of fees.A summons served by the defence society wouldoften bring payment, sometimes outside the courtimmediately before the hearing. Secondly, when theact was really negligent, a settlement must be madeon the best terms at the earliest possible moment.Third came the actions in which there was prima facieevidence of negligence but, from a medical point ofview, a good defence. If the plaintiff were reasonableit might be wiser to settle, or to deny negligence,prepare the defence, await a moment when thepatient’s demands were not quite as exacting as theyhad been, and then settle ; the defence might, on theother hand, be good enough to take into court with afair chance of success. One cause of such actionswas the transfer of a patient from one doctor toanother in the middle of a course of treatment-e.g., a plaster splint for a fracture-planned by thefirst doctor ; when it failed, the patient might blamethe second doctor without good cause. Sometimesthe society considered the defence to be excellentbut the doctor feared that even a successful resultwould injure his practice ; the society would thentry to meet his wishes.The fourth and last group consisted of cases in

which negligence had clearly been committed butthe doctor was not to blame, a class which seemed to

be multiplying. Until a generation ago it had beengenerally accepted by the profession that the doctorwas responsible for all that happened in a case, andnot so very long ago the protection societies hadsucceeded in establishing for practical purposesthe principle that an anaesthetist was responsible forhis own errors and had exonerated the surgeonfrom liability for injury in matters within theanaesthetist’s particular province. The time mighthave come for recognising the responsibility of otherassistants. Modern medical work increasingly neededthe cooperation of a team of workers, each trainedin his or her own particular duties. It was right andproper that such duties should be delegated to thecarefully trained assistants of to-day. While no

surgeon could be exonerated from seeing that themembers of his theatre team were properly trained,most medical men would feel that if he did this, hewas then entitled to rely upon his assistants for seeingthat the swabs and instruments were correctlycounted. A South African appeal court (Van Wyk v.Lewis, 1924, S.A.L.R. 438) had given a ruling exonerat-ing the surgeon in a case where a swab had beenleft in after the theatre sister had reported correct.A surgeon ought also to be entitled to rely upon theward sister not to burn the patient with hot-waterbottles after he returned to the ward, or to removein due course drainage-tubes inserted at the operation.A surgeon should not carry quixotry so far as to takethe blame for a nurse’s negligence merely because hershoulders were weaker than his.

In conclusion, Mr. Pearce Gould suggested that alldoctors ought to realise the many pitfalls of medicalpractice and be increasingly careful. A doctorwho felt conscience-striken should not commit theerror of telling the patient how blameworthy heconsidered himself. A doctor should never criticisebefore the patient or his friends the treatment ofanother doctor, and, most important, every practisingdoctor should belong to a medical defence societyand pay his subscription regularly ; 20 per cent. ofmembers were late every year in paying theirsubscriptions and therefore fell out of benefit for a time.A doctor faced with a complaint of negligence shouldconsult his society at once, and the first reply to anycommunication he received should be dictated bytheir experience rather than by his feelings of themoment. Finally, having consulted his society,the doctor should do what he was told.

Mr. C. T. LE QuESNE, K.C., said that the possibledefences to an action for medical negligence were,first, that there had been negligence but the doctorhad not committed it, as when a pair of forceps hadbeen left in a patient’s body at a previous operation(Crotch v. Miles 1). Secondly, the doctor mightplead that, although the patient was not satisfied,he had taken reasonable care and used reasonableskill and had therefore not been negligent; thisdefence particularly applied in cases where the

1 Lancet, 1930, 1, 643, 706.

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medical evidence conflicted. Thirdly, he mightplead that he was not responsible for the negligenceof another person. The court would always haveto hear the evidence, including evidence of thecustom governing the particular operation or treat-ment, and decide whether in all the circumstancesthe responsibility rested with the doctor or with oneof his assistants.

DISCUSSION

Mr. W. McADAM ECCLES said that many cases wereprevented from coming into court by the good officesof the defence societies. Nursing cooperations variedin the steps which they took to insure their nurses.Some, whose nurses were legally their servants,insured themselves against third party risks. Heasked who was responsible when a cooperation lenta nurse to a hospital for service in one of its privatewards : the practitioner who gave her orders, thehospital, the cooperation, or the nurse ? Othercooperations, besides insuring themselves, insistedthat each nurse should take out an insurance policy.,The routine of an operation became so much of ahabit that it was easy for the surgeon to detect

negligence in its performance by any member of theteam. He himself never left a nursing-home or

house without making sure that there was nothingin the patient’s bed likely to do damage. If a doctorwas called to give evidence against a colleague hemust not hesitate to tell the truth, as he was boundto do by his duty to his profession, the State, andthe law.

Mr. G. B. WOODD-WALKER said that the surgeonwas peculiarly open to complaints of negligence inhis treatment of fractures. The out-patient surgeon,treating a patient who was dissatisfied with the treat-ment of his general practitioner, often found greatdifficulty in communicating with the doctor withoutthe patient’s knowledge. It was very importantthat the hospital surgeon should stand by the privatepractitioner and not allow the patient to have accessto records and films which might possibly support acharge of negligence.

Dr. REGINALD PERKINS asked whether a doctorcould be charged with negligence for leaving withthe patient enough tablets of a hypnotic drug toenable him to commit suicide.

Prof. V. B. GREEN-ARMYTAGE related that a marriedwoman, a deaf mute, whose husband was also a deafmute, had been admitted to his hospital desiringligation of her Fallopian tubes on eugenic grounds ;her husband joined in the request. The hospitalgovernors had forbidden the operation, taking theview that it would constitute the criminal offence ofmaiming. Another hospital, however, had admittedher and had allowed an honorary surgeon to performthe operation, to the great and permanent satisfactionof the couple. On another occasion he had sterilised,with the consent of her husband, a woman whohad spent six months in Bethlem Royal Hospital withpuerperal mania. The man had later threatenedan action or prosecution but had been dissuaded bythe defence society. Prof. Green-Armytage expressedfear that he had offended against the law or againstthe husband’s legal rights, but mentioned that hehad safeguarded himself by performing only a

temporary sterilisation-burial of the fimbriated endsin the broad ligament-which could be undone atany time.

Mr. D. HARCOURT KITCHIN said that there waslittle authority in this country governing thevicarious liability of a surgeon. Perionowsky v.

Freeman (1866, 4 F. and F. 977) seemed to lay downthat the surgeon could not be held responsible if anurse carried out his orders negligently in circum-stances in which he could not supervise or controlher actions, when the duty was one which he couldproperly delegate to her. In the case of Van Wykthe court had found the practice of delegating thecounting of swabs to the sister to be reasonable, thatshe was an independent assistant, and that the surgeonwas entitled to rely on her count. Even that judg-ment had not, however, exonerated the surgeon forevery negligent act of one of the team, and it couldonly be applied to the particular circumstances ofthat case. In Ingram v. Fitzgerald 2 the New ZealandCourt of Appeal had decided that the surgeon wasnot responsible for the mistake of a nurse in paintingthe patient’s body with iodised phenol instead oftincture of iodine. Such decisions merely laiddown the principle that in certain circumstances asurgeon might not be responsible for the negligenceof an assistant ; they did not do more. He askedMr. Pearce Gould what measure of immunity theprofession demanded. He could not imagine Parlia-ment passing an Act exonerating all surgeons fromliability for all negligence of a member of the theatreteam, nor any decision of the House of Lords whichwould extend beyond the facts of the particular case.It seemed probable that the surgeon would alwaysbe open to actions for vicarious negligence, and thathis legal position would be gradually improved assuccessive decisions exonerated him in particularsets of circumstances. The liability of a cooperationfor the negligence of one of its nurses must, Mr.Kitchin thought, depend upon the contracts whichthe patient had made with the hospital, the hospitalhad made with the cooperation, and the cooperationhad made with its nurse. In Hall v. Lees (1904,2 K.B. 602), where a patient sued a cooperation becauseone of its nurses had burnt her with a hot-waterbottle, the court had found that the cooperation hadonly undertaken to supply a competent nurse, andnot to nurse the patient through her agency. Theanswer to Mr. McAdam Eccles’s question wouldtherefore probably be that the nurse was in any caseliable ; the cooperation was not liable if it only under-took to supply a competent nurse ; the hospital wasnot liable because she was presumably doing skilledwork which its governors could not supervise or

control; and the practitioner was not liable forthe same reason. He still maintained that the provisionof the Law Reform Act, 1934, which gave an aggrievedpatient a right of action against a doctor’s estate,was not likely to be quite so disastrous as had beenrepresented, because the estate could not claim

damages for loss due to the death itself. He could notsee what right of action a widow could have againsta doctor who entrusted her husband with a lethalnumber of medinal tablets, for she could not claimfor loss due to the death, and the patient could nothave claimed damages for injury caused by his ownact. He did not know of any enactment or provisionof law which would make a gynaecologist liable to acriminal prosecution for sterilising a woman on

medical or eugenic grounds, for the old offence ofmaiming had consisted only in impairing the efficiencyof a man as a soldier. A sterilising operation per-formed without the consent of the woman of coursegave her a right of action for assault, as would anyother operation.The PRESIDENT mentioned that he had himself

been sued for damages caused by a nurse with a

2 Brit. med. J. 1937, 1, 46.

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hot-water bottle, but the Lord Chief Justice haddirected the jury that he had no case to answer. His

practice had not suffered but had increased afterthis success.

Dr. H. H. SANGUINETTI asked what investigationsa doctor might reasonably be expected to performin deciding whether an operation was necessary, andsuggested that in many cases a white cell count shouldbe made.Mr. HOWARD STRATFORD asked how a doctor should

protect himself against an action for not orderinga radiological investigation when the patient hadrefused to have one.Dr. GERALD SLOT said that a prolific source of

complaints against physicians was notification ofinfectious disease. Many deaths attributed to theanaesthetic were really due to prolonged manipula-tion. Checks against wrong dispensing were in

many nursing-homes not carried out as carefullyas they might be.

REPLY

Mr. PEARCE GOULD deprecated the use of bankers’orders by members of defence societies, for the membermight change his bank and forget to make a neworder, and they were harder for the office staff tocheck. He considered that individual insuranceby nurses would lead to many actions being broughtwhich otherwise would not be heard of. Hospitalsshould take steps to prevent patients having accessto the notes of their cases. In every case in which thedoctor considered a skiagram should be taken andthe patient refused, he should at once put his opinioninto writing, either by sending a letter to the patientand keeping a copy or by making a note at the timein his own records. The doctor must always do whathe thought best for his patient, regardless of thepossibility of legal complaint. The Law ReformAct, 1934, was a serious danger to the relatives ofdeceased doctors, and both defence societies nowundertook to defend an action brought against theestate of a late member.

MEDICAL OFFICERS OF SCHOOLS

ASSOCIATION

AT a meeting of this association on Jan. 8thDr. JOHN LAMBERT (Wellington), the president, tookthe chair, and Dr. E. KAYE LE FLEMING opened adiscussion on the

Education of the Body in Public, Secondary,and Preparatory Schools

The first question likely to be raised, he said, was thatof nutrition. In schools of these three kinds it was

improbable that the food would be insufficient in

quantity; but even the best diet sheets failed todisclose its quality and the way in which it was cookedand served. Unfortunately there were still schoolsat which fresh fruit was an extra and had to be paidfor. Growing boys needed a lot of sugar, and oneexplanation of the popularity of the tuck-shop wasthat boys were conscious of the sugar deficiency oftheir ordinary diet. Spacing of meals was also ofprime importance ; yet he knew one large publicschool at which, after their 1 o’clock meal, the boysplayed Rugby football, had a shower bath, changed,re-entered school, took their work, and got nothingto eat until 6-which he regarded as monstrous. Asfor fresh air, its full value would probably not berecognised, even in the medical profession, withoutexperience of life in a sanatorium. The ordinary

school curriculum did not allow enough margin forthis, and there was still a great deal of unhealthyovercrowding in schools where there were dormi-tories and each boy did not (as at Eton and Harrow)have a room to himself. The main infections in schoollife were droplet infections, spread by coughing andsneezing, and in one school with a high sickness-rateinsistence upon three feet between beds had led to

great improvement. As to clothing, most peoplewore too much, though he must make a large excep-tion for the many girls and young women who hadadopted a minimum of clothing, to their great physicaladvantage. Impact of air on the skin was a real

healthy stimulant.The body, regarded as a machine controlled by

the will, was capable of an almost infinite varietyof development, especially during the plastic schoolage. But the object of physical training in schoolswas not to turn out contortionists or figure-skaters,but to produce a muscularly balanced body, capableof much purposeful energy with a minimum of fatigue ;or as the report of the British Medical Associationsaid, a balance of body, mind, and soul. This balancewas well seen in birds in flight, slow-motion picturesof which were very instructive. The first step towardsgetting the new ideas on physical education incor-porated into school life was to induce head mastersto believe in its value ; at present, generally speaking,they were insufficiently convinced. Who shouldeducate the educators ? The interesting attemptsnow being made to ascertain how much a boy willlearn in a given time devoted to mental education,compared with what he can learn if part of this timeis devoted to physical instruction, promised valuableresults. Head masters would say, and with justi-fication, that until parents wanted physical trainingit would be difficult for masters to supply it. Thefact was that the school doctor must educate hishead master, and the head master must educate theparents. Opposed as Britishers were to dictators,two dictators yet held sway : the head master andthe coroner.

Another difficulty concerned the relation of physicaleducation to games. The two should be linked

together ; they could not be carried out under twomasters, for these would probably be at loggerheads.Perhaps the greatest difficulty of all was to find theright teachers. Who was there who could go intoboys’ schools and teach physical education on modernlines ? Where could such teachers be trained ? Theanswer was, practically, " Nowhere in the country."It was very different in regard to girls’ schools. Itwas a dreadful thing to confess that the remedy wasto take a course in Sweden. All through the B.M.A.report on the subject it was made clear that physicaleducation needed close cooperation betweenteachers and doctors, since the medical was the mostimportant side. But the doctor had almost no

opportunity of getting acquainted with physicaleducation, though this was a very important partof preventive medicine. Science had been definedas measurement, yet there was no adequate measureor standard of physical fitness. In the simple matterof heart tolerance to exercise, each medical man hadhis own standard and method of test, which thoughof value to himself was of no value to others. It wasto the universities one looked for help in this matter,but so far in vain.

The PRESIDENT said that for many years therehad been four or five large schools for training teachersof physical education in girls’ schools, whereas formen he knew of only the Leeds Training College.