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DEATH AND DAMAGES
1177
DEATH AND DAMAGES
putting a figure upon the suffering. said the Lord Chancellor, it was a Supposing, celebrated surgeon who was killed : it would be hard to assess the loss which his death inflicted upon his estate. To laymen this explanatory argument may sound unconvincing. They are probably aware that, if the celebrated surgeon was merely crippled and not killed by the accident, a jury would be expected to fix the damages due to his enforced inability to continue his practice. Laymen may also be surprised that the Bill proposes to allow funeral expenses to be recovered in such cases but not the expenses of medical or hospital treatment. There is no difficulty in ascertaining medical fees or hospital payments if a patient is alive ; why is there to be any difficulty when the patient dies ? If the estate of the victim of a fatal motoring accident is to be entitled to recover the funeral expenses from the negligent motorist, why should not the latter also pay the doctor and the hospital as well as the undertaker ? Why does the law once more leave the doctor and the hospital to bear the loss ? the loss
THE
LANCET
LONDON:SATURDAY, JUNE 2, 1934
DEATH AND DAMAGES THE Lord Chancellor’s Law Reform- (Miscellaneous Provisions) Bill, designed to remove legal anomalies and uncertainties in the recovery of damages where one of the parties has died, has a special application to claims arising out of road traffic casualties. It proposes to abolish certain recognised injustices, yet apparently it will not take the opportunity to give a much-needed remedy to the hospitals and the medical profession. The origin of this new effort towards law reform is the curious survival of a legal maxim apparently peculiar to the English legal system-namely, the doctrine that a personal action dies with the person. The effect of the maxim has been alleviated by judicial decisions and by statute, and its application to claims based on contracts is incomplete. So far as claims for jdamages for negligent driving are concerned, the maxim means that the victim of a collision is debarred from all remedy if the negligent motorist dies. It follows that the liability of insurance companies under third-party-risk policies comes to an end with the defendant’s death and the principle of compulsory insurance is defeated. Conversely, if it is the victim of the motorist’s negligence who dies, his children are prejudiced at present in their effort to obtain damages. It is true that, if the father has been killed, they have a special remedy under the Fatal Accidents Act of 1846, commonly called Lord Campbell’s Act ; but this statutory remedy is not available for adopted or illegitimate children, nor does it cover medical or funeral expenses. Such are the admitted anomalies for which the Lord Chancellor invited the Law Revision Committee to find a cure. The distinguished lawyers who form the Committee lately presented a report (Cmd. 4540, H.M. Stationery Office. 2d.) and their recommendationswere embodied in a Bill which has already been approved by the House of Lords. If the Bill becomes law, death will no longer be a bar to legal claims ; all causes of action (except claims for defamation or seduction) on which the dead man might have sued or been sued will survive for or against the benefit of his estate. Nevertheless a notable limitation is to be allowed to remain. If dies as the result of a motorist’s anyone carelessness, the dead man’s estate will be able to recover only the funeral expenses and certain out-of-pocket payments incurred before death. It will still not be possible to obtain damages for the general loss caused by the death or for the mental and bodily suffering which preceded death. This limitation was officially explained during debate in the House of Lords as being due to the difficulty of calculating
or
RADIOGRAPHY OF THE MASTOID IN ACUTE OTITIS
operation in suppuration of perennial source of interest to general practitioners as well as to otologists. Prof. HUGO FREY, in a lecture reported in the THE indications for the middle ear are a
Journal of the American Medical Association of Vienna,1makes some wise comments on the factors which have to be considered. Apart from the very mild cases which do not go on to suppuration, acute otitis is always characterised by a purulent inflammatory process of the- mucous membrane which affects not only the mucosa of the tympanic cavity, but the coating of all the other spaces of the middle ear-namely, the Eustachian tube, attic, antrum, and mastoid cells. In most cases the inflammation becomes severe in the first few days after the onset, and spontaneous perforation of the drum membrane does not usually occur until the fourth or fifth day ; in such cases -it is advisable to incise the membrane as early- as possible, since the slight operation not only brings about a more rapid disappearance of the pain and the fever, but doubtless also has a good effect- on the intensity of the process. It is important to remember that there are forms of acute otitis in infants in which the temperature is almost the only symptom, and otoscopic examination shows only minimal changes ; but in these cases also must be performed. This acute inflammation usually subsides after three or four weeks, and operation is therefore not necessary for the cure of an otitis confined to the mucosa, but only when the process of inflammation spreads to the underlying bone. The usual clinical indication for operation is when, generally about the third or fourth week and after the temperature and pain have disappeared, they set in again; tenderness over the mastoid, which is nearly always present at the beginning of an otitis, comes on
paracentesis
1 Ars
Medici, 1934, No. 3, p. 99.
DEATH AND DAMAGES
putting a figure upon the suffering. said the Lord Chancellor, it was a Supposing, celebrated surgeon who was killed : it would be hard to assess the loss which his death inflicted upon his estate. To laymen this explanatory argument may sound unconvincing. They are probably aware that, if the celebrated surgeon was merely crippled and not killed by the accident, a jury would be expected to fix the damages due to his enforced inability to continue his practice. Laymen may also be surprised that the Bill proposes to allow funeral expenses to be recovered in such cases but not the expenses of medical or hospital treatment. There is no difficulty in ascertaining medical fees or hospital payments if a patient is alive ; why is there to be any difficulty when the patient dies ? If the estate of the victim of a fatal motoring accident is to be entitled to recover the funeral expenses from the negligent motorist, why should not the latter also pay the doctor and the hospital as well as the undertaker ? Why does the law once more leave the doctor and the hospital to bear the loss ? the loss
THE
LANCET
LONDON:SATURDAY, JUNE 2, 1934
DEATH AND DAMAGES THE Lord Chancellor’s Law Reform- (Miscellaneous Provisions) Bill, designed to remove legal anomalies and uncertainties in the recovery of damages where one of the parties has died, has a special application to claims arising out of road traffic casualties. It proposes to abolish certain recognised injustices, yet apparently it will not take the opportunity to give a much-needed remedy to the hospitals and the medical profession. The origin of this new effort towards law reform is the curious survival of a legal maxim apparently peculiar to the English legal system-namely, the doctrine that a personal action dies with the person. The effect of the maxim has been alleviated by judicial decisions and by statute, and its application to claims based on contracts is incomplete. So far as claims for jdamages for negligent driving are concerned, the maxim means that the victim of a collision is debarred from all remedy if the negligent motorist dies. It follows that the liability of insurance companies under third-party-risk policies comes to an end with the defendant’s death and the principle of compulsory insurance is defeated. Conversely, if it is the victim of the motorist’s negligence who dies, his children are prejudiced at present in their effort to obtain damages. It is true that, if the father has been killed, they have a special remedy under the Fatal Accidents Act of 1846, commonly called Lord Campbell’s Act ; but this statutory remedy is not available for adopted or illegitimate children, nor does it cover medical or funeral expenses. Such are the admitted anomalies for which the Lord Chancellor invited the Law Revision Committee to find a cure. The distinguished lawyers who form the Committee lately presented a report (Cmd. 4540, H.M. Stationery Office. 2d.) and their recommendationswere embodied in a Bill which has already been approved by the House of Lords. If the Bill becomes law, death will no longer be a bar to legal claims ; all causes of action (except claims for defamation or seduction) on which the dead man might have sued or been sued will survive for or against the benefit of his estate. Nevertheless a notable limitation is to be allowed to remain. If dies as the result of a motorist’s anyone carelessness, the dead man’s estate will be able to recover only the funeral expenses and certain out-of-pocket payments incurred before death. It will still not be possible to obtain damages for the general loss caused by the death or for the mental and bodily suffering which preceded death. This limitation was officially explained during debate in the House of Lords as being due to the difficulty of calculating
or
RADIOGRAPHY OF THE MASTOID IN ACUTE OTITIS
operation in suppuration of perennial source of interest to general practitioners as well as to otologists. Prof. HUGO FREY, in a lecture reported in the THE indications for the middle ear are a
Journal of the American Medical Association of Vienna,1makes some wise comments on the factors which have to be considered. Apart from the very mild cases which do not go on to suppuration, acute otitis is always characterised by a purulent inflammatory process of the- mucous membrane which affects not only the mucosa of the tympanic cavity, but the coating of all the other spaces of the middle ear-namely, the Eustachian tube, attic, antrum, and mastoid cells. In most cases the inflammation becomes severe in the first few days after the onset, and spontaneous perforation of the drum membrane does not usually occur until the fourth or fifth day ; in such cases -it is advisable to incise the membrane as early- as possible, since the slight operation not only brings about a more rapid disappearance of the pain and the fever, but doubtless also has a good effect- on the intensity of the process. It is important to remember that there are forms of acute otitis in infants in which the temperature is almost the only symptom, and otoscopic examination shows only minimal changes ; but in these cases also must be performed. This acute inflammation usually subsides after three or four weeks, and operation is therefore not necessary for the cure of an otitis confined to the mucosa, but only when the process of inflammation spreads to the underlying bone. The usual clinical indication for operation is when, generally about the third or fourth week and after the temperature and pain have disappeared, they set in again; tenderness over the mastoid, which is nearly always present at the beginning of an otitis, comes on
paracentesis
1 Ars
Medici, 1934, No. 3, p. 99.