- Email: [email protected]
Damages Awarded for Thalidomide Children
331
Royal College of Surgeons from his home in Basingstoke. Despite pain from a duodenal ulcer he walked on most days the full mile uphill from the station to his house, and he kept up his hobbies of gardening, wood-carving, and paintwere almost as active as his first-and As in others, the intensity of his urge to find things out brought disappointments and inevitable frustrations, but it may well be that just this burning and restless drive, combined with his modesty and brilliant dexterity, will be the things which will be longest remembered by his many admirers and colleagues."
ing. His last
years
perhaps happier.
Z. C. writes: With the death of Professor Pannett a great surgeon has passed away. His learning, his technical skill, his passion for research, and his constant and kindly devotion to the patients under his care, combined with his rare "
teaching qualities, made him a model professor. Though a brilliant operator and teacher, at the same time he always had some project of research on hand, and many of his ingenious suggestions will be found in his numerous contributions to the journals of surgery. A quiet and a modest man, he disliked controversy but what he said was always of value. He had high ideals but was generous in the appreciation of the work of others. He showed great interest and ability in working with instruments of precision, and the same care and precision were notable in his operative work. " As a writer on surgical subjects he always expressed his ideas and thoughts carefully. He belonged to the older group of general surgeons and believed that a surgeon should have a wide knowledge of all the branches of surgery. During the 1939-45 war he wrote and published a textbook of surgery, all of which he wrote himself in excellent English. I can still recall the delight with which I read his description of injuries of the head, ’for the facts were related, not in tabular form, but in language that was a pleasure to read. As a teacher, he will be remembered with gratitude by the many who attended his classes and clinics. His handsome appearance, his soft but distinct voice, his kindly manner, and his skill in the operating-theatre will always be remembered. To his colleagues he was friendly and helpful. His research laid the main foundation for the surgical iesearch for which St. Mary’s Hospital is noted." H. H. G. E. has sent this memoir: " The gentlest of surgeons, Professor Pannett was brilliantly perceptive of the principles and trends that lay far ahead of his own time. He made the way for those who followed, by training them in his safe, thoughtful, thorough ways, so that some of his young men have achieved a like distinction and a greater fame than their master who never wished it for himself. He saw, thirty years ago, that rectal cancer could often be treated by anastomosis in the pelvis without a colostomy; that radical pancreatic resection might be practical and safe; that the surgical cure of breast malignancy need not involve the utter mutilation of the female form; that viruses could be the cause of cancer; and that, for all the importance of special interests, in surgery the apprenticeship must be broadly based. In Pannett we had a living link with days that now seem to have been entirely golden and spacious-the vintage years of Almroth Wright, Fleming, Zachary Cope, and Spilsbury. But Pannett’s contribution was this: he built St. Mary’s
surgery." Dr. EDWARDS A. PARK
E. H. S. has
sent
this tribute from New York:
" Dr. Park’s modesty and humour were engagingly disarming. Even at the age of 90, he was interested in examining X rays and discussing the diagnostic possibilities. At that time, he remarked that he had lost interest in medical
other than those of the skeleton. He was an enormously warm man, whose objective evaluations of people were softened by affectionate appreciation of their strength. Conversation and correspondence with him were an educational joy, marked by literary and Biblical references that cast both light and fun." matters
Medicine and the Law Damages Awarded for A
Thalidomide Children
of children were born deformed after their mothers had taken thalidomide, a drug marketed by the defendant company, while pregnant. Writs were issued against the defendants and the actions were compromised, in terms approved by the court, under which all allegations of negligence against the defendants were withdrawn and the defendants undertook to pay 40% of the damages agreed or decided by the court. Two representative cases of two boys, David aged eight and Richard aged seven, were heard. David had severe deformities affecting all four limbs: he had no shoulder joints and each arm was represented by a short bone terminating in three digits; each leg was represented by one bone, both feet were grossly deformed, having six toes each, and he also had an underdeveloped scrotum and undescended testicle. He was at a special school for the disabled and would never be able to toilet himself, dress or achieve independence. For all practical purposes he was immobile. Richard had almost a complete absence of arms, a single digit protruding from his right shoulder, but he had normal mobility in that he could walk, run, kick, and climb stairs without difficulty; he could write well with his right foot but not well with his right artificial hand, and he could not dress or undress himself; he needed help in going to the lavatory and washing. It was hoped that he would be able to attain independence. He was at an ordinary school and might achieve a technical NUMBER
college. Mr. Justice HINCHCLIFFE said that the court had to determine on the evidence that it had heard, what, in all the circumstances of the case, was fair and reasonable compensation, not only for the plaintiffs but also for the defendants. The assessment of damages in cases of severe injury was not easy; mathematical accuracy was impossible and there was no yardstick by which the disability could be measured. Actuarial aids were sometimes useful but they were not the be all and end all of this difficult matter. The court had to take into consideration all the circumstances, the deprivation, the loss of earning capacity, and the special expenses and then decide what was fair compensation to both parties. The assessment of the global sum was based on experience, the application of reasonable common sense, and was in accordance with social standards as reflected by the court. In these two cases the problem was more difficult because there were no awards in comparable cases to guide the court. These children were born deformed; they had never known what it was to have their limbs or be accepted by their fellow creatures. Each had to tolerate his deformities for life, and each was fully aware that he was not like others. There could never have been a case in which there were so many imponderables. The court was asked to speculate on every aspect of damage. In his judgment, a fair and reasonable sum to award Richard for general damages would be E32.000 and for David E52.000, of which each child would receive 40% under the terms of the
compromise. S. and Others v. Distillers Company (Biochemicals) Ltd. J. and Others v. Same. Queen’s Bench Division: Hinchcliffe, J. July 30, 1969. Counsel and solicitors: Desmond Ackner, Q.c., and Percy Harris 1. See
Lancet, 1968, i, 428.
332 (Kimber, Bull & Co.); John Wilmers, son
Kimbers &
Q.c., and David Sullivan
(Wilkin-
Staddon).
H. WHICHER Barrister-at-Law.
L.S.D. and Manslaughter The defendant, a man aged 37, was charged with the murder of a girl, aged 18, who had suffered two blows on the head, causing cerebral hemorrhage, and had died from asphyxia as a result of some eight inches of sheet from a bed being crammed into her mouth. The defendant gave evidence that he had gone to her room where they had taken " L.S.D. and he had experienced a trip " which gave him the illusion of descending to the centre of the earth and being attacked by snakes, which he fought. It was not seriously disputed that he had killed her during the course of the experience, and he stated that he had no knowledge of what he was doing and had no intention of harming her. The summing up directed the jury to consider that, if they acquitted him of murder, it was sufficient to convict him of manslaughter if the Crown had proved that " he must have realised, before he got himself into the condition he did by taking drugs, that acts such as those he subsequently performed and which resulted in death were dangerous ". The jury convicted him of manslaughter, and he was sentenced to six years’ imprisonment. He appealed against conviction, contending that the jury should have been directed to consider the actual state of his mind at the relevant time. Firstly, because section 8 of the Criminal Justice Act, 1967, provided for the application of a subjective test in place of the previously applied objective test of recognition by sober and reasonable people that likely harm would result from the acts, and, secondly, because Regina v. Church (1966) 1 Q.B. 59, 70, for the first time had recognised that " even in relation to manslaughter a degree of mens rea " had become essential. He also applied for leave to appeal against sentence which he contended was too severe. Lord Justice WIDGERY said that, for the purpose of criminal responsibility, the court saw no reason to distinguish between the effect of drugs voluntarily taken and drunkenness voluntarily induced; it was well established that no specific intent was required to support a conviction for manslaughter based on a killing in the course of an unlawful act, so that self-induced drunkenness was no defence to such a charge. The flaw in the defendant’s argument lay in the wrong assumption that a new element of intent or foreseeability had been introduced into this type of manslaughter by Church’s case; that case had recognised a development relating to the type of act from which a manslaughter charge might result, and not in the intention (real or assumed) of the defendant. The reference in that case to mens rea was unfortunate. Manslaughter remained a most difficult offence to define because it arose in so many different ways and because, as the mental element (if any) necessary to establish it varied so widely, any general reference to mens rea was apt to mislead. The appeal could be disposed of by reiterating that, when the killing resulted from an unlawful act of the defendant, no specific intent had to be proved to convict of manslaughter, and self-induced intoxication was, accordingly, no defence. Since the acts complained of were obviously likely to cause harm to the girl and in fact killed her, no acquittal was possible and a verdict of manslaughter, at least, was inevitable. The sentence was fully justified to bring home the grave consequences which might result from the taking of drugs of that kind. The appeal and application were dismissed. R. v. Lipman. Court of Appeal, Criminal Division: Widgery and Fenton Atkinson, L.3’J., and James, y. July 29, 1969. Counsel and solicitors: Michael Eastham, Q.c., and Norman King (Kingsley Napley & Co.); John Mathew (Director of Public Prosecutions). L. NORMAN WILLIAMS Barrister-at-Law.
Notes and News RESPONSIBILITY FOR HOSPITAL SERVICE
CONSTITUTIONAL theorists have it that Ministers are responsible to Parliament, and thus to the people, for every last detail of their Department’s activities. In practice some Ministers of Health have tended to view the regional board as the point at which the buck should stop wherever possible. One of the troubling points brought out in the Ely Hospital report was that there had been some misunderstanding about the relative responsibilities of boards and management committees for the standards of patient care in hospitals. Publication of the report was quickly followed by action: regional boards were asked to look at the way their funds were allocated to see if more could be spent on the long-stay hospitals and an N.H. S. Hospital Advisory Service was announced (the directorship of this body was advertised last month). In his latest memorandum on the subject, the Secretary of State for Social Services clarifies the chain of responsibility in the following terms: regional hospital boards are agents of the Secretary of State, who is responsible to Parliament for the Hospital Service as a whole; hospital management committees are agents of the hospital boards. " The Secretary of State wishes Hospital Management Committees to exercise their functions without unnecessary intervention by the Regional Hospital Board or by himself ", but the boards are responsible to him for the service in their area, and they should exercise a general oversight of the administration and standards of care in hospitals in their region. DRUG ADDICTS
THE number of narcotic drug addicts in the United Kingdom known to the Home Office rose to 2782 in 1968 from 1729 in 1967-an increase of 61%. The most striking increase was in the number using heroin-2240, compared with 1299 in 1967. Many of those notified as addicts to heroin failed to appear at treatment centres after one or two attendances, but this might have been caused by transfer to the care of a general practitioner on drugs other than heroin, the use of false names to get a prescription, imprisonment, reversal to illicit heroin, and even death. The use of intravenous methylamphetamine accelerated after the restriction on prescribing heroin and cocaine in April, 1968, but this was almost eliminated in October, 1968, by an agreement between manufacturers to supply injection solutions of methylamphetamine only to hospitals. These figures are given in a report by the Government to the United Nations on the working of the international treaties on narcotic drugs. This report also shows that the number of known addicts under the age of 20 increased between 1967 and 1968 by 93% and that nearly all of these used heroin. 79% of all addicts to heroin in 1968 were under 25 years of age. This general rise in the number of addicts is partly attributable to the system of compulsory notification, introduced in February, 1968, and of allowing only specially licensed physicians to prescribe heroin for addicts, which reduced amounts individually prescribed thus forcing addicts to present themselves for treatment. GENERAL MEDICAL COUNCIL
AT a recent meeting of the Disciplinary Committee of the Council the names of Arthur George Bell, Noel Patrick Burns, Walter Rodolphe Chisholm-Batten, Parviz Faridian, Henry James Sloan, Herman Peter Tarnesby, and Karol Zawisza, were erased from the Register. These erasures are subject to appeal within 28 days.
Royal College of Surgeons from his home in Basingstoke. Despite pain from a duodenal ulcer he walked on most days the full mile uphill from the station to his house, and he kept up his hobbies of gardening, wood-carving, and paintwere almost as active as his first-and As in others, the intensity of his urge to find things out brought disappointments and inevitable frustrations, but it may well be that just this burning and restless drive, combined with his modesty and brilliant dexterity, will be the things which will be longest remembered by his many admirers and colleagues."
ing. His last
years
perhaps happier.
Z. C. writes: With the death of Professor Pannett a great surgeon has passed away. His learning, his technical skill, his passion for research, and his constant and kindly devotion to the patients under his care, combined with his rare "
teaching qualities, made him a model professor. Though a brilliant operator and teacher, at the same time he always had some project of research on hand, and many of his ingenious suggestions will be found in his numerous contributions to the journals of surgery. A quiet and a modest man, he disliked controversy but what he said was always of value. He had high ideals but was generous in the appreciation of the work of others. He showed great interest and ability in working with instruments of precision, and the same care and precision were notable in his operative work. " As a writer on surgical subjects he always expressed his ideas and thoughts carefully. He belonged to the older group of general surgeons and believed that a surgeon should have a wide knowledge of all the branches of surgery. During the 1939-45 war he wrote and published a textbook of surgery, all of which he wrote himself in excellent English. I can still recall the delight with which I read his description of injuries of the head, ’for the facts were related, not in tabular form, but in language that was a pleasure to read. As a teacher, he will be remembered with gratitude by the many who attended his classes and clinics. His handsome appearance, his soft but distinct voice, his kindly manner, and his skill in the operating-theatre will always be remembered. To his colleagues he was friendly and helpful. His research laid the main foundation for the surgical iesearch for which St. Mary’s Hospital is noted." H. H. G. E. has sent this memoir: " The gentlest of surgeons, Professor Pannett was brilliantly perceptive of the principles and trends that lay far ahead of his own time. He made the way for those who followed, by training them in his safe, thoughtful, thorough ways, so that some of his young men have achieved a like distinction and a greater fame than their master who never wished it for himself. He saw, thirty years ago, that rectal cancer could often be treated by anastomosis in the pelvis without a colostomy; that radical pancreatic resection might be practical and safe; that the surgical cure of breast malignancy need not involve the utter mutilation of the female form; that viruses could be the cause of cancer; and that, for all the importance of special interests, in surgery the apprenticeship must be broadly based. In Pannett we had a living link with days that now seem to have been entirely golden and spacious-the vintage years of Almroth Wright, Fleming, Zachary Cope, and Spilsbury. But Pannett’s contribution was this: he built St. Mary’s
surgery." Dr. EDWARDS A. PARK
E. H. S. has
sent
this tribute from New York:
" Dr. Park’s modesty and humour were engagingly disarming. Even at the age of 90, he was interested in examining X rays and discussing the diagnostic possibilities. At that time, he remarked that he had lost interest in medical
other than those of the skeleton. He was an enormously warm man, whose objective evaluations of people were softened by affectionate appreciation of their strength. Conversation and correspondence with him were an educational joy, marked by literary and Biblical references that cast both light and fun." matters
Medicine and the Law Damages Awarded for A
Thalidomide Children
of children were born deformed after their mothers had taken thalidomide, a drug marketed by the defendant company, while pregnant. Writs were issued against the defendants and the actions were compromised, in terms approved by the court, under which all allegations of negligence against the defendants were withdrawn and the defendants undertook to pay 40% of the damages agreed or decided by the court. Two representative cases of two boys, David aged eight and Richard aged seven, were heard. David had severe deformities affecting all four limbs: he had no shoulder joints and each arm was represented by a short bone terminating in three digits; each leg was represented by one bone, both feet were grossly deformed, having six toes each, and he also had an underdeveloped scrotum and undescended testicle. He was at a special school for the disabled and would never be able to toilet himself, dress or achieve independence. For all practical purposes he was immobile. Richard had almost a complete absence of arms, a single digit protruding from his right shoulder, but he had normal mobility in that he could walk, run, kick, and climb stairs without difficulty; he could write well with his right foot but not well with his right artificial hand, and he could not dress or undress himself; he needed help in going to the lavatory and washing. It was hoped that he would be able to attain independence. He was at an ordinary school and might achieve a technical NUMBER
college. Mr. Justice HINCHCLIFFE said that the court had to determine on the evidence that it had heard, what, in all the circumstances of the case, was fair and reasonable compensation, not only for the plaintiffs but also for the defendants. The assessment of damages in cases of severe injury was not easy; mathematical accuracy was impossible and there was no yardstick by which the disability could be measured. Actuarial aids were sometimes useful but they were not the be all and end all of this difficult matter. The court had to take into consideration all the circumstances, the deprivation, the loss of earning capacity, and the special expenses and then decide what was fair compensation to both parties. The assessment of the global sum was based on experience, the application of reasonable common sense, and was in accordance with social standards as reflected by the court. In these two cases the problem was more difficult because there were no awards in comparable cases to guide the court. These children were born deformed; they had never known what it was to have their limbs or be accepted by their fellow creatures. Each had to tolerate his deformities for life, and each was fully aware that he was not like others. There could never have been a case in which there were so many imponderables. The court was asked to speculate on every aspect of damage. In his judgment, a fair and reasonable sum to award Richard for general damages would be E32.000 and for David E52.000, of which each child would receive 40% under the terms of the
compromise. S. and Others v. Distillers Company (Biochemicals) Ltd. J. and Others v. Same. Queen’s Bench Division: Hinchcliffe, J. July 30, 1969. Counsel and solicitors: Desmond Ackner, Q.c., and Percy Harris 1. See
Lancet, 1968, i, 428.
332 (Kimber, Bull & Co.); John Wilmers, son
Kimbers &
Q.c., and David Sullivan
(Wilkin-
Staddon).
H. WHICHER Barrister-at-Law.
L.S.D. and Manslaughter The defendant, a man aged 37, was charged with the murder of a girl, aged 18, who had suffered two blows on the head, causing cerebral hemorrhage, and had died from asphyxia as a result of some eight inches of sheet from a bed being crammed into her mouth. The defendant gave evidence that he had gone to her room where they had taken " L.S.D. and he had experienced a trip " which gave him the illusion of descending to the centre of the earth and being attacked by snakes, which he fought. It was not seriously disputed that he had killed her during the course of the experience, and he stated that he had no knowledge of what he was doing and had no intention of harming her. The summing up directed the jury to consider that, if they acquitted him of murder, it was sufficient to convict him of manslaughter if the Crown had proved that " he must have realised, before he got himself into the condition he did by taking drugs, that acts such as those he subsequently performed and which resulted in death were dangerous ". The jury convicted him of manslaughter, and he was sentenced to six years’ imprisonment. He appealed against conviction, contending that the jury should have been directed to consider the actual state of his mind at the relevant time. Firstly, because section 8 of the Criminal Justice Act, 1967, provided for the application of a subjective test in place of the previously applied objective test of recognition by sober and reasonable people that likely harm would result from the acts, and, secondly, because Regina v. Church (1966) 1 Q.B. 59, 70, for the first time had recognised that " even in relation to manslaughter a degree of mens rea " had become essential. He also applied for leave to appeal against sentence which he contended was too severe. Lord Justice WIDGERY said that, for the purpose of criminal responsibility, the court saw no reason to distinguish between the effect of drugs voluntarily taken and drunkenness voluntarily induced; it was well established that no specific intent was required to support a conviction for manslaughter based on a killing in the course of an unlawful act, so that self-induced drunkenness was no defence to such a charge. The flaw in the defendant’s argument lay in the wrong assumption that a new element of intent or foreseeability had been introduced into this type of manslaughter by Church’s case; that case had recognised a development relating to the type of act from which a manslaughter charge might result, and not in the intention (real or assumed) of the defendant. The reference in that case to mens rea was unfortunate. Manslaughter remained a most difficult offence to define because it arose in so many different ways and because, as the mental element (if any) necessary to establish it varied so widely, any general reference to mens rea was apt to mislead. The appeal could be disposed of by reiterating that, when the killing resulted from an unlawful act of the defendant, no specific intent had to be proved to convict of manslaughter, and self-induced intoxication was, accordingly, no defence. Since the acts complained of were obviously likely to cause harm to the girl and in fact killed her, no acquittal was possible and a verdict of manslaughter, at least, was inevitable. The sentence was fully justified to bring home the grave consequences which might result from the taking of drugs of that kind. The appeal and application were dismissed. R. v. Lipman. Court of Appeal, Criminal Division: Widgery and Fenton Atkinson, L.3’J., and James, y. July 29, 1969. Counsel and solicitors: Michael Eastham, Q.c., and Norman King (Kingsley Napley & Co.); John Mathew (Director of Public Prosecutions). L. NORMAN WILLIAMS Barrister-at-Law.
Notes and News RESPONSIBILITY FOR HOSPITAL SERVICE
CONSTITUTIONAL theorists have it that Ministers are responsible to Parliament, and thus to the people, for every last detail of their Department’s activities. In practice some Ministers of Health have tended to view the regional board as the point at which the buck should stop wherever possible. One of the troubling points brought out in the Ely Hospital report was that there had been some misunderstanding about the relative responsibilities of boards and management committees for the standards of patient care in hospitals. Publication of the report was quickly followed by action: regional boards were asked to look at the way their funds were allocated to see if more could be spent on the long-stay hospitals and an N.H. S. Hospital Advisory Service was announced (the directorship of this body was advertised last month). In his latest memorandum on the subject, the Secretary of State for Social Services clarifies the chain of responsibility in the following terms: regional hospital boards are agents of the Secretary of State, who is responsible to Parliament for the Hospital Service as a whole; hospital management committees are agents of the hospital boards. " The Secretary of State wishes Hospital Management Committees to exercise their functions without unnecessary intervention by the Regional Hospital Board or by himself ", but the boards are responsible to him for the service in their area, and they should exercise a general oversight of the administration and standards of care in hospitals in their region. DRUG ADDICTS
THE number of narcotic drug addicts in the United Kingdom known to the Home Office rose to 2782 in 1968 from 1729 in 1967-an increase of 61%. The most striking increase was in the number using heroin-2240, compared with 1299 in 1967. Many of those notified as addicts to heroin failed to appear at treatment centres after one or two attendances, but this might have been caused by transfer to the care of a general practitioner on drugs other than heroin, the use of false names to get a prescription, imprisonment, reversal to illicit heroin, and even death. The use of intravenous methylamphetamine accelerated after the restriction on prescribing heroin and cocaine in April, 1968, but this was almost eliminated in October, 1968, by an agreement between manufacturers to supply injection solutions of methylamphetamine only to hospitals. These figures are given in a report by the Government to the United Nations on the working of the international treaties on narcotic drugs. This report also shows that the number of known addicts under the age of 20 increased between 1967 and 1968 by 93% and that nearly all of these used heroin. 79% of all addicts to heroin in 1968 were under 25 years of age. This general rise in the number of addicts is partly attributable to the system of compulsory notification, introduced in February, 1968, and of allowing only specially licensed physicians to prescribe heroin for addicts, which reduced amounts individually prescribed thus forcing addicts to present themselves for treatment. GENERAL MEDICAL COUNCIL
AT a recent meeting of the Disciplinary Committee of the Council the names of Arthur George Bell, Noel Patrick Burns, Walter Rodolphe Chisholm-Batten, Parviz Faridian, Henry James Sloan, Herman Peter Tarnesby, and Karol Zawisza, were erased from the Register. These erasures are subject to appeal within 28 days.