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Needle Broken During Injection: Allegation of Negligence Fails.
1318 allowed to call Mr. Hewson, who was present but who would probably not be able to attend next day. The Council refused. On Saturday morning Dr. Roche was questioned by the Legal Assessor and repeated his previous .evidence. He admitted that some club patients had come to him through the collector, and not vice versa, but maintained that in these cases the introduction had first been effected through a patient who was already a member, and said that he could give a satisfactory account of the way in which every member had come to belong. In the circumstances in which the club was conducted he did not think the shilling constituted a temptation to the collector to increase the membership by improper methods.
Mr. Shawcross : " Then it goes on to say,And in and what follows are merely particular
particular... ’ instances."
The Legal Assessor : " These are particulars of the charge, and they are so treated by this Council as being specific instances that have to be dealt with, and evidence on which has to be given." Mr. Shawcross : I quite appreciate that, but I am "
sorry to say that I did not appreciate that they were to be regarded as separate charges. My friend talks about separate charges, and not proceeding with such and such a charge and so on." The Legal Assessor : " You are probably familiar with the usual practice in other places : that where you make a general charge you are called upon to give particulars, and when you have given particulars you are bound by those particulars, and are not entitled to go beyond them. These are particulars of the general charge and the charge is therefore limited to these particulars ...." Mr. Shawcross : " I purposely interrupted my friend when he said there were six charges ; I may have been somewhat mistaken about that but, as I see it, there is one charge with respect to which there If that is wrong, then are six particular instances. I suppose I ought to deal with each charge separately." The Legal Assessor: "II think you ought to deal with each charge separately." Mr. Davis then continued to deal with the witnesses, and pointed out the contradiction of evidence and the confusion of recollection in each case. Mr. Shawcross then addressed the Council.
COLLECTOR’S EVIDENCE. Mr. Charles Edward Smith said that he had become collector for Dr. Roche about May, 1930, and he and his family had previously been patients. He had been supplied with names to call on by Dr. Roche, and as he had become better known he had been applied to from time to time by members of the club to enrol their friends. He had frequently been warned by respondent of the seriousness of approaching persons to join the club without such an introduction. He had heard of Mrs. Cherry from Mr. Hewson, who had told him that she wanted to join, and he had sent Jackson to call on her. He had never asked anybody to join the club or to transfer to Dr. Roche’s panel. He had never been instructed that a family could only join if a parent was on the panel. He had worked for Dr. Roche in his spare time, making on an average 10s. a week, about 2s. to 6s. of which came from new patients. He was also employed as agent and collector for a firm of coal merchants. He explained that Jackson,’who had been present the day before, was unable, on account of work, to attend that day to give evidence. Mrs. Florence Emily Roche confirmed her husband’s account of the episode of Mrs. Lester and the car, and said that she knew of no condition that to be a member of the club the family must have a parent on the panel. THE
THE JUDGMENT.
After deliberation in camera, the President announced the decision of the Council in the following words :"Mr. Thomas Francis Roche : I have to inform you that the facts alleged against you in items (1), (2), (5), (6), and (7) in the Notice of Enquiry have been proved to the satisfaction of the Council. In respect of these facts, the Council have now adjudged you to have been guilty of infamous conduct in a professional respect, and have directed the Registrar to erase from the Medical Register the name of Thomas Francis Roche."
SPEECH FOR THE DEFENCE.
Mr. Davis said: "An attempt has been made to throw such an atmosphere of prejudice round the case You as entirely to detract from the specific instances. have before you four specific instances, and those I ask you to deal with upon their merits ; I ask for nothing more. This is not a case where one professional man hears of an impropriety and makes his investigations impartially and then takes the usual steps. It is a case where patients have been definitely approached in order to try and track down any impropriety, not in one instance but in many instances. Indeed, the witnesses have admitted that doctors have been to ask them." Mr. Davis then dealt with the case of Cherry, concluding : " That comprises the evidence on the first charge." Mr. Shawcross : " There is only one charge, and these are particular instances." Later Mr. Shawcross said again, " I am under the impression that there is only one charge :That being a registered medical practitioner, you have .... canvassed with a view That is the charge ; if to obtaining patients.’ there is any other, I do not know of it." The Legal Assessor : "You had better read the rest of it."
MEDICINE AND THE LAW.
During Injection: Allegation of Negligence Fails. THE breaking of a needle in the process of injection is not necessarily negligence. The practitioner does not insure his patients against accidents ; if the needle is broken and injury is consequently suffered, the practitioner cannot be made to pay damages unless negligence is proved. At the Camelford county court on Nov. 18th last allegations of negligence were made ; but the judge, holding that they were not proved, dismissed the patient’s action for damages. The plaintiff was suffering from disseminated sclerosis. She was treated with intramuscular injections of sulfarsenol in the right buttock from July, 1927, onwards. At the thirty-fifth of the series (in May, 1929) the needle broke. It was common ground that Needle Broken
!
the doctor at once endeavoured to remove the broken piece. He immediately made a small incision under local anaesthetic. When this operation did not succeed, he forthwith had the patient removed to a nursing home where a larger incision was made the
1319
evening under a general anaesthetic. The consistent with neglect and with no neglect, the missing piece of needle was not found. Next day, plaintiff could not possibly succeed in her action. This claim recalls an Australian case, noted in and again two days later, X ray photographs were taken and further probing took place under local THE LANCET last year (August 23rd, 1930, p. 421) anaesthetic. These efforts were in vain. Two months where the defendant doctor attributed the breaking later the patient left the nursing home. Her treat- of a needle to a fit of coughing. It was a feature of the ment continued but it has not been possible to localise Australian case that the doctor, for reasons which he and remove the broken needle. Subsequently the gave, omitted to inform the patient of the accident. patient claimed damages for negligence, which were Such reasons may exist but a jury would probably resisted by the London and Counties Medical Pro- draw an adverse conclusion from non-disclosure. Earlier in 1930 (May 17th, p. 1083) THE LANCET tection Society. The claim was put forward in two ways. First, had published certain possible precautions for minimisit was said, the injection had been made in a hurry ing the risk of broken needles. The practitioner will and carelessly ; the doctor must either have used a naturally desire to avoid accident by all means in his same
defective needle
or must have struck a bone ; these would establish negligence in the act of allegations making the injection. Secondly, it was said that he negligently failed to remove the fragment. The patient in the witness-box said the doctor had been hurried in his manner and this particular injection seemed to have gone deeper and had given her much more pain than ever before. A general practitioner, giving evidence on the plaintiff’s behalf, produced X ray photographs proving the presence of the fragment in her body. His testimony was otherwise inconclusive. He said the needle might have been defective but he did not know what needle was used nor had he himself ever treated a patient for this disease. He said the needle might have been broken by striking a bone ; to strike a bone would, he considered, have been negligent. If the breaking was not due to defect or to striking a bone, it might, he thought, be due to a violent twitching of the muscle by the patient. On the second branch of the case (negligent failure to remove the fragment) this medical witness for the plaintiff said there should have been an operation for removal; the operation could have been-he would not say ought to have been-successful ; if it failed, it should have been repeated at the proper time, but he could not say what would have been the proper time. There was also a suggestion that if the defendant did not possess the best possible apparatus for localising the fragment, he should have sent the patient to Plymouth or any other large centre where special facilities existed. At the close of plaintiff’s case the learned judge was asked to rule that there was no evidence of negligence. With some hesitation he allowed the action to proceed. The defendant doctor then gave evidence describing what had occurred. He denied hurry and explained that, when the patient’s muscle was bunched up for the injection, there was a muscular twitch which had the effect of breaking the needle. The needle used As little now remained of the was a proper one. allegations of negligence, plaintiff’s counsel was reduced to arguing that the fact of the doctor having given free treatment to the patient in a nursing home was evidence of an admission of liability for negligence. The judge declined to accept this and said it was more easily explained as a generous act. The judge expressed sympathy for the plaintiff, but said he could find no want of the skill expected of a medical The mere fact of the needle breaking practitioner. is not necessarily negligence ; it might have been a defective needle ; it might have been broken by some movement of the patient ; it might have been broken because the defendant carelessly and clumsily reached the bone." This last possibility was not proved ; it could not outweigh the other two possibilities. He thought the defendant’s own evidence probably excluded the possibility of his being found negligent. If, continued the judge, the evidence was "
equally
power, but he is not liable for undiscoverable flaws in the instruments he uses nor is he expected to have expert metallurgical knowledge of the qualities and testing of a needle.
THE
(FROM
LÜBECK TRIAL.
OUR BERLIN
CORRESPONDENT.)
(Continued from
p.
1214.)
A post-mortem room attendant gave evidence that he was surprised to find intestinal tuberculosis in so many children. When the judge expressed astonishment at an unqualified attendant performing autopsies the expert witnesses stated that it was usual in certain cases for the routine work to be performed by an attendant whilst the pathologist gave his opinion on the condition found in the organs. Counsel for the parents thereupon remarked that nurses and other unqualified people, and the parents themselves, had from the beginning ascertained that the children had died from the B C G ; only the physicians had not become aware of it. He wanted to know whether the stock of human bacilli received from Kiel was highly virulent because, according to Prof. Deycke’s evidence, they had served for the preparation of the Deycke-Much partigen. Was it not in Prof. Deycke’s view useful to increase the effect of the B C G by the addition of a quantity of human bacilli Had not Prof. Ascoli of Milan called " super vaccine " the preparation produced by Prof. Deycke Dr. Wosnitza, a Lubeck practitioner, gave evidence that he could not say positively that he had remarked to Dr.. Jannasch : Your Calmette stuff is nonsense ; it makes the children ill." He admitted saying that the children had a bad complexion and skin rashes, and were put off their food. Dr. Jannasch replied that these were normal and expected reactions. Counsel for Dr. Altstadt then stated that up ta October, 1930, more than a million children in many countries had been treated with B C G vaccine without harm, and he asked for the production in court of the records of the German Health Office and testimony taken from medical men abroad Japan, Cuba, and Uruguay. The public prosecutor said that to do this a member of the court, have to travel over the world and it would years to obtain the evidence. If a million of children had been treated with B C G without harm why, asked Counsel for the parents, had this not been the case in Liibeck°z He proposed to prove that the reason was a spoiling of the original preparation. Dr. Rissen, president of the Lübeck Medical Society, said he had told Dr. Altstadt it would not be wise to introduce a preparation from abroad, especially with such speed, without a thorough "
including would require
Mr. Shawcross : " Then it goes on to say,And in and what follows are merely particular
particular... ’ instances."
The Legal Assessor : " These are particulars of the charge, and they are so treated by this Council as being specific instances that have to be dealt with, and evidence on which has to be given." Mr. Shawcross : I quite appreciate that, but I am "
sorry to say that I did not appreciate that they were to be regarded as separate charges. My friend talks about separate charges, and not proceeding with such and such a charge and so on." The Legal Assessor : " You are probably familiar with the usual practice in other places : that where you make a general charge you are called upon to give particulars, and when you have given particulars you are bound by those particulars, and are not entitled to go beyond them. These are particulars of the general charge and the charge is therefore limited to these particulars ...." Mr. Shawcross : " I purposely interrupted my friend when he said there were six charges ; I may have been somewhat mistaken about that but, as I see it, there is one charge with respect to which there If that is wrong, then are six particular instances. I suppose I ought to deal with each charge separately." The Legal Assessor: "II think you ought to deal with each charge separately." Mr. Davis then continued to deal with the witnesses, and pointed out the contradiction of evidence and the confusion of recollection in each case. Mr. Shawcross then addressed the Council.
COLLECTOR’S EVIDENCE. Mr. Charles Edward Smith said that he had become collector for Dr. Roche about May, 1930, and he and his family had previously been patients. He had been supplied with names to call on by Dr. Roche, and as he had become better known he had been applied to from time to time by members of the club to enrol their friends. He had frequently been warned by respondent of the seriousness of approaching persons to join the club without such an introduction. He had heard of Mrs. Cherry from Mr. Hewson, who had told him that she wanted to join, and he had sent Jackson to call on her. He had never asked anybody to join the club or to transfer to Dr. Roche’s panel. He had never been instructed that a family could only join if a parent was on the panel. He had worked for Dr. Roche in his spare time, making on an average 10s. a week, about 2s. to 6s. of which came from new patients. He was also employed as agent and collector for a firm of coal merchants. He explained that Jackson,’who had been present the day before, was unable, on account of work, to attend that day to give evidence. Mrs. Florence Emily Roche confirmed her husband’s account of the episode of Mrs. Lester and the car, and said that she knew of no condition that to be a member of the club the family must have a parent on the panel. THE
THE JUDGMENT.
After deliberation in camera, the President announced the decision of the Council in the following words :"Mr. Thomas Francis Roche : I have to inform you that the facts alleged against you in items (1), (2), (5), (6), and (7) in the Notice of Enquiry have been proved to the satisfaction of the Council. In respect of these facts, the Council have now adjudged you to have been guilty of infamous conduct in a professional respect, and have directed the Registrar to erase from the Medical Register the name of Thomas Francis Roche."
SPEECH FOR THE DEFENCE.
Mr. Davis said: "An attempt has been made to throw such an atmosphere of prejudice round the case You as entirely to detract from the specific instances. have before you four specific instances, and those I ask you to deal with upon their merits ; I ask for nothing more. This is not a case where one professional man hears of an impropriety and makes his investigations impartially and then takes the usual steps. It is a case where patients have been definitely approached in order to try and track down any impropriety, not in one instance but in many instances. Indeed, the witnesses have admitted that doctors have been to ask them." Mr. Davis then dealt with the case of Cherry, concluding : " That comprises the evidence on the first charge." Mr. Shawcross : " There is only one charge, and these are particular instances." Later Mr. Shawcross said again, " I am under the impression that there is only one charge :That being a registered medical practitioner, you have .... canvassed with a view That is the charge ; if to obtaining patients.’ there is any other, I do not know of it." The Legal Assessor : "You had better read the rest of it."
MEDICINE AND THE LAW.
During Injection: Allegation of Negligence Fails. THE breaking of a needle in the process of injection is not necessarily negligence. The practitioner does not insure his patients against accidents ; if the needle is broken and injury is consequently suffered, the practitioner cannot be made to pay damages unless negligence is proved. At the Camelford county court on Nov. 18th last allegations of negligence were made ; but the judge, holding that they were not proved, dismissed the patient’s action for damages. The plaintiff was suffering from disseminated sclerosis. She was treated with intramuscular injections of sulfarsenol in the right buttock from July, 1927, onwards. At the thirty-fifth of the series (in May, 1929) the needle broke. It was common ground that Needle Broken
!
the doctor at once endeavoured to remove the broken piece. He immediately made a small incision under local anaesthetic. When this operation did not succeed, he forthwith had the patient removed to a nursing home where a larger incision was made the
1319
evening under a general anaesthetic. The consistent with neglect and with no neglect, the missing piece of needle was not found. Next day, plaintiff could not possibly succeed in her action. This claim recalls an Australian case, noted in and again two days later, X ray photographs were taken and further probing took place under local THE LANCET last year (August 23rd, 1930, p. 421) anaesthetic. These efforts were in vain. Two months where the defendant doctor attributed the breaking later the patient left the nursing home. Her treat- of a needle to a fit of coughing. It was a feature of the ment continued but it has not been possible to localise Australian case that the doctor, for reasons which he and remove the broken needle. Subsequently the gave, omitted to inform the patient of the accident. patient claimed damages for negligence, which were Such reasons may exist but a jury would probably resisted by the London and Counties Medical Pro- draw an adverse conclusion from non-disclosure. Earlier in 1930 (May 17th, p. 1083) THE LANCET tection Society. The claim was put forward in two ways. First, had published certain possible precautions for minimisit was said, the injection had been made in a hurry ing the risk of broken needles. The practitioner will and carelessly ; the doctor must either have used a naturally desire to avoid accident by all means in his same
defective needle
or must have struck a bone ; these would establish negligence in the act of allegations making the injection. Secondly, it was said that he negligently failed to remove the fragment. The patient in the witness-box said the doctor had been hurried in his manner and this particular injection seemed to have gone deeper and had given her much more pain than ever before. A general practitioner, giving evidence on the plaintiff’s behalf, produced X ray photographs proving the presence of the fragment in her body. His testimony was otherwise inconclusive. He said the needle might have been defective but he did not know what needle was used nor had he himself ever treated a patient for this disease. He said the needle might have been broken by striking a bone ; to strike a bone would, he considered, have been negligent. If the breaking was not due to defect or to striking a bone, it might, he thought, be due to a violent twitching of the muscle by the patient. On the second branch of the case (negligent failure to remove the fragment) this medical witness for the plaintiff said there should have been an operation for removal; the operation could have been-he would not say ought to have been-successful ; if it failed, it should have been repeated at the proper time, but he could not say what would have been the proper time. There was also a suggestion that if the defendant did not possess the best possible apparatus for localising the fragment, he should have sent the patient to Plymouth or any other large centre where special facilities existed. At the close of plaintiff’s case the learned judge was asked to rule that there was no evidence of negligence. With some hesitation he allowed the action to proceed. The defendant doctor then gave evidence describing what had occurred. He denied hurry and explained that, when the patient’s muscle was bunched up for the injection, there was a muscular twitch which had the effect of breaking the needle. The needle used As little now remained of the was a proper one. allegations of negligence, plaintiff’s counsel was reduced to arguing that the fact of the doctor having given free treatment to the patient in a nursing home was evidence of an admission of liability for negligence. The judge declined to accept this and said it was more easily explained as a generous act. The judge expressed sympathy for the plaintiff, but said he could find no want of the skill expected of a medical The mere fact of the needle breaking practitioner. is not necessarily negligence ; it might have been a defective needle ; it might have been broken by some movement of the patient ; it might have been broken because the defendant carelessly and clumsily reached the bone." This last possibility was not proved ; it could not outweigh the other two possibilities. He thought the defendant’s own evidence probably excluded the possibility of his being found negligent. If, continued the judge, the evidence was "
equally
power, but he is not liable for undiscoverable flaws in the instruments he uses nor is he expected to have expert metallurgical knowledge of the qualities and testing of a needle.
THE
(FROM
LÜBECK TRIAL.
OUR BERLIN
CORRESPONDENT.)
(Continued from
p.
1214.)
A post-mortem room attendant gave evidence that he was surprised to find intestinal tuberculosis in so many children. When the judge expressed astonishment at an unqualified attendant performing autopsies the expert witnesses stated that it was usual in certain cases for the routine work to be performed by an attendant whilst the pathologist gave his opinion on the condition found in the organs. Counsel for the parents thereupon remarked that nurses and other unqualified people, and the parents themselves, had from the beginning ascertained that the children had died from the B C G ; only the physicians had not become aware of it. He wanted to know whether the stock of human bacilli received from Kiel was highly virulent because, according to Prof. Deycke’s evidence, they had served for the preparation of the Deycke-Much partigen. Was it not in Prof. Deycke’s view useful to increase the effect of the B C G by the addition of a quantity of human bacilli Had not Prof. Ascoli of Milan called " super vaccine " the preparation produced by Prof. Deycke Dr. Wosnitza, a Lubeck practitioner, gave evidence that he could not say positively that he had remarked to Dr.. Jannasch : Your Calmette stuff is nonsense ; it makes the children ill." He admitted saying that the children had a bad complexion and skin rashes, and were put off their food. Dr. Jannasch replied that these were normal and expected reactions. Counsel for Dr. Altstadt then stated that up ta October, 1930, more than a million children in many countries had been treated with B C G vaccine without harm, and he asked for the production in court of the records of the German Health Office and testimony taken from medical men abroad Japan, Cuba, and Uruguay. The public prosecutor said that to do this a member of the court, have to travel over the world and it would years to obtain the evidence. If a million of children had been treated with B C G without harm why, asked Counsel for the parents, had this not been the case in Liibeck°z He proposed to prove that the reason was a spoiling of the original preparation. Dr. Rissen, president of the Lübeck Medical Society, said he had told Dr. Altstadt it would not be wise to introduce a preparation from abroad, especially with such speed, without a thorough "
including would require