- Email: [email protected]
Hospital, Doctor, and Patient
LEADING ARTICLES
series of articles in the Scotsman discussing the odd difference between the English and Scottish law of the relative liability of hospitals and their medical staff.1 In Scotland, it will be remembered, the responsibility of hospital managements is to provide an efficient hospital, to keep it warm, clean, and wholesome, to furnish it for the adequate reception of patients, to supply it with the necessary food and medicine, and to employ a competent staff. If the patient suffers through the negligence of the medical staff, the hospital is not liable. In England, at first, the courts took a like view. In 1909 the familiar case of Hillyer v. St. Bartholomew’s Hospital established that the governors of a hospital had no more responsibility in this respect than to use care and skill in selecting their physicians and surgeons. But twelve years ago the English courts changed their opinion. Thenceforth they applied to hospitals and hospital doctors the law of master and servant. Although the hospital managers could not direct their physicians what to diagnose or prescribe, or tell their surgeons whether and how to operate, the principle of vicarious liability was extended to them. This change of view, be it noted afresh, occurred before the National Health Service Act was introduced ; it had nothing to do with the advent of " nationalised medicine," though it becomes the more significant now because the patient no longer regards as, in Mr. Justice STABLE’S phrase, " an act of charity " the treatment which he receives in a
by. a
THE LANCET LONDON:SATURDAY, MAROH 20, 1954
Hospital, Doctor, and Patient IN the case of the plaster cast at Nottingham assizes (summarised on p. 619) it was established that a child of 6 went into hospital with healthy legs and came out a cripple, with the left leg withered. ilir. Justice STABLE held that the matron and the management committee of the hospital had been guilty of a high degree of negligence over a protracted period and he awarded 5000 damages against them. Throughout the hearing the learned judge laid emphasis on the change of situation created by the advent of a National Health Service : " When we had assisted voluntary hospitals, if I
brought in from the streets a dying pauper, any treatment I received (and no doubt the best that science could provide) was an act of charity. Now we have gone over to the State system, and it is a matter of right for which every citizen has paid. The hospital authorities are just as much his paid servants as anybody else ; if anybody has got a different idea, they had better think again." was
in the lamentable
Nottingham there had delay telling the parents the news that their child would be a cripple unhappy for life. "II would like to know," said the judge,
Incidentally
i
j
I
.
‘
case
at
public hospital. If hospitals can be sued for damages on the ground of the negligence of the doctors they employ, special forensic conditions arise. The hospital may want to "if this is the system under our State medical throw the blame on the doctor, or vice versa: juries, service." The answer, we believe, is that the people too, may be the more generous if they reflect that the who work in the N.H.S. are no more addicted to a supposedly bottomless purse of the State may be perverse secrecy than are the people who supply available to pay the damages awarded against the medical care privately. It should hardly be necessary hospital. But what chiefly matters is to decide to emphasise that the Act of 1946 did not invent which legal principle is preferable for the ultimate institutional treatment and its problems ; and long good of the medical profession and of the practice of before Parliament enacted it the courts were examin- medicine-the English or the Scottish. To relieve ing claims for damages based on allegations of the very real anxieties of casualty officers and others. negligence on the part of hospitals. On the other the English principle might be extended until the hand, the Act of 1946 has certainly made men and Ministry accepted full responsibility for all the actions the citizen’s of its " women more health-conscious, and employees " ; but if the doctor’s liability have treatment medical to may inspired the to answer for negligence were removed in this way right belief that the State guarantees him either a cure or he would gain security at the cost of his professional handsome compensation. He believes this perhaps freedom. It would be evident that his primary the more readily because he has been told so much responsibility was not to the patient but to a lay about the miracles of modern science. If his health committee and, through this committee, to a Minister is not restored and his disabilities are not made good, who undertook to treat patients and to answer for it must be somebody’s fault. Free legal aid, if he them. to How can the medical done everything needs it, will give him the means of enforcing the view that he is the employee tolerate practitioner whatever rights he claims to enjoy. or the servant of anybody but his patient ? At Nottingham the doctor in charge of the patient was not joined as a defendant, -but allegations of Coma negligence on his part were allowed for the purpose be WHATEVER may of establishing the case against the management thought of the relation of the to mind committee. Whatever the effect of any appeal from brain,. preservation of consciousness the decision, we face once more the problem of legal undoubtedly depends on the metabolic activities of liability in the triangle of hospital, doctor, and patient. cerebral cells. Reduction of the metabolism of Clearly we shall soon have to make up our minds on these cells results in impaired cerebration and possibly coma. Thus cooling of the brain leads to somnolence what is a far more important issue even than the encouragement of litigation-harmful though this merging into unconsciousness ; slowly developing anoxia causes a similar sequence (as was inadvertently can be. This larger issue is that of professional responsibility ; and it has lately been raised again 1. Scotsman, Dec. 28 and 29, 1953 ; March 8, 1954.
been
a
in
series of articles in the Scotsman discussing the odd difference between the English and Scottish law of the relative liability of hospitals and their medical staff.1 In Scotland, it will be remembered, the responsibility of hospital managements is to provide an efficient hospital, to keep it warm, clean, and wholesome, to furnish it for the adequate reception of patients, to supply it with the necessary food and medicine, and to employ a competent staff. If the patient suffers through the negligence of the medical staff, the hospital is not liable. In England, at first, the courts took a like view. In 1909 the familiar case of Hillyer v. St. Bartholomew’s Hospital established that the governors of a hospital had no more responsibility in this respect than to use care and skill in selecting their physicians and surgeons. But twelve years ago the English courts changed their opinion. Thenceforth they applied to hospitals and hospital doctors the law of master and servant. Although the hospital managers could not direct their physicians what to diagnose or prescribe, or tell their surgeons whether and how to operate, the principle of vicarious liability was extended to them. This change of view, be it noted afresh, occurred before the National Health Service Act was introduced ; it had nothing to do with the advent of " nationalised medicine," though it becomes the more significant now because the patient no longer regards as, in Mr. Justice STABLE’S phrase, " an act of charity " the treatment which he receives in a
by. a
THE LANCET LONDON:SATURDAY, MAROH 20, 1954
Hospital, Doctor, and Patient IN the case of the plaster cast at Nottingham assizes (summarised on p. 619) it was established that a child of 6 went into hospital with healthy legs and came out a cripple, with the left leg withered. ilir. Justice STABLE held that the matron and the management committee of the hospital had been guilty of a high degree of negligence over a protracted period and he awarded 5000 damages against them. Throughout the hearing the learned judge laid emphasis on the change of situation created by the advent of a National Health Service : " When we had assisted voluntary hospitals, if I
brought in from the streets a dying pauper, any treatment I received (and no doubt the best that science could provide) was an act of charity. Now we have gone over to the State system, and it is a matter of right for which every citizen has paid. The hospital authorities are just as much his paid servants as anybody else ; if anybody has got a different idea, they had better think again." was
in the lamentable
Nottingham there had delay telling the parents the news that their child would be a cripple unhappy for life. "II would like to know," said the judge,
Incidentally
i
j
I
.
‘
case
at
public hospital. If hospitals can be sued for damages on the ground of the negligence of the doctors they employ, special forensic conditions arise. The hospital may want to "if this is the system under our State medical throw the blame on the doctor, or vice versa: juries, service." The answer, we believe, is that the people too, may be the more generous if they reflect that the who work in the N.H.S. are no more addicted to a supposedly bottomless purse of the State may be perverse secrecy than are the people who supply available to pay the damages awarded against the medical care privately. It should hardly be necessary hospital. But what chiefly matters is to decide to emphasise that the Act of 1946 did not invent which legal principle is preferable for the ultimate institutional treatment and its problems ; and long good of the medical profession and of the practice of before Parliament enacted it the courts were examin- medicine-the English or the Scottish. To relieve ing claims for damages based on allegations of the very real anxieties of casualty officers and others. negligence on the part of hospitals. On the other the English principle might be extended until the hand, the Act of 1946 has certainly made men and Ministry accepted full responsibility for all the actions the citizen’s of its " women more health-conscious, and employees " ; but if the doctor’s liability have treatment medical to may inspired the to answer for negligence were removed in this way right belief that the State guarantees him either a cure or he would gain security at the cost of his professional handsome compensation. He believes this perhaps freedom. It would be evident that his primary the more readily because he has been told so much responsibility was not to the patient but to a lay about the miracles of modern science. If his health committee and, through this committee, to a Minister is not restored and his disabilities are not made good, who undertook to treat patients and to answer for it must be somebody’s fault. Free legal aid, if he them. to How can the medical done everything needs it, will give him the means of enforcing the view that he is the employee tolerate practitioner whatever rights he claims to enjoy. or the servant of anybody but his patient ? At Nottingham the doctor in charge of the patient was not joined as a defendant, -but allegations of Coma negligence on his part were allowed for the purpose be WHATEVER may of establishing the case against the management thought of the relation of the to mind committee. Whatever the effect of any appeal from brain,. preservation of consciousness the decision, we face once more the problem of legal undoubtedly depends on the metabolic activities of liability in the triangle of hospital, doctor, and patient. cerebral cells. Reduction of the metabolism of Clearly we shall soon have to make up our minds on these cells results in impaired cerebration and possibly coma. Thus cooling of the brain leads to somnolence what is a far more important issue even than the encouragement of litigation-harmful though this merging into unconsciousness ; slowly developing anoxia causes a similar sequence (as was inadvertently can be. This larger issue is that of professional responsibility ; and it has lately been raised again 1. Scotsman, Dec. 28 and 29, 1953 ; March 8, 1954.
been
a
in