- Email: [email protected]
NEGLIGENCE CLAIMS AT HOSPITAL
727
ingested from crockery and in other ways is being give notice to the other before delivery of defence by either examined, but there is so far no evidence that ill effects party that paragraphs 1-3 above shall not apply ; and the normal legal processes will then be open to all defendants. may be caused by this means. The committee do not think that corrosion will lead to widespread difficulties, Where either the hospital authority alone or a hospital particularly if sinks are well rinsed after each washing. doctor alone is cited as defendant in the action, the The most serious problem is the effect of detergents defendant will have discretion whether to be
_
on sewage treatment and the disposal of effluents. A number of methods for suppressing foam formation at sewage works have been tried with some success - notably in the U.S.A. But further research is necessary before any one method can be recommended for general use in this country. Meanwhile, foaming is not at present sufficiently serious to justify alarm, though it may become more troublesome with increasing use of synthetic detergents of the present types, and it certainly calls for speedy remedy. Moreover, the presence of detergents may be adding to the existing difficulties of producing an effluent up to the required standard ; and, if so, the report adds, this is cause for serious concern, and special attention is being given to this question. The committee sum up their deliberations as follows : " Available evidence ... does not justify any immediate alarm in users or the public health services. There is definitely nuisance at some sewage works, however, and there are other and more serious possibilities in relation to the efficiency of sewage treatment, the condition of rivers, and the purity of water-supplies. All these matters require and will receive most careful examination."
the action
complete attempt to settle
to
fight
it out of court. The - hospital or the doctor solely cited shall not take legal action to obtain a contribution from the other, nor cite the other unless requested so to do, when the request shall be conceded forthwith. The defence societies recognise, however, that there will be cases where, although one of their members has not been cited, they might properly be asked to make a contribution towards any payment made by the hospital authority to the plaintiff, because the action or inaction- of the practitioner in question was a material factor in the negligence complained of. Conversely, in actions in which a hospital doctor alone is cited, there may be circumstances in which the defence society asks the hospital authority to make In either case the procedure a similar contribution. should follow the principles set out in paragraphs (2) and (3) above, as if the party not cited were a defendant. The success of the new arrangements (the Ministry says) clearly depends on mutual confidence between the defendants and a fully cooperative attitude on the part of both parties from the beginning, and hospital authoriMedicine and the Law ties are urged to bear this in mind. There should be full consultation at the request of either party in the formulation of the defence. In any case where there is a NEGLIGENCE CLAIMS AT HOSPITAL of a contribution being requested from a WHEN the negligence of a doctor leads to a successful possibility or a doctor who has not been cited, authority hospital claim for damages against a hospital authority, that full information about the incident and the possibility 1 authority has been enjoined by the Ministry of Health of such a request should be exchanged at the earliest to take legal action to make the doctor pay part of the damages. Where doctor and hospital authority are both opportunity. accused of negligence, the authority, in exonerating itself, What is a Hospital ? has sometimes thrown blame on its own staff ; and this has Last December Mr. Justice Vaisey had to decide the been found to prejudice that successful conduct of the defence which is in the interest of doctor and hospital fate of the Royal Midland Counties Home for Incurables authority alike." Accordingly the Minister, after consulta- at Leamington,l If it was a "hospital" within the tion with the British Medical Association and the medical meaning of the National Health Service Act, it would rest in the Minister ; if it was not, it would preserve defence societies, has modified present procedure.2 In future, where the doctor is a member of a defence society its independence. The object of the home, it may be remembered, was to give relief to persons of good and that body accepts responsibility for him, any payment character and of limited or reduced income, suffering made to the plaintiff is to be apportioned between the from incurable or chronic diseases or incapacity due to doctor and the hospital authority as agreed privately injury or wounds. The rules refused admission to patients between them or, in default of agreement, in equal shares. suffering from insanity, imbecility, epilepsy, cancer, or and or both the one more Where hospital authority tuberculosis, past or present. Following the pulmonary the doctors are cited as defendants, following hospital of an arbitrator, the learned judge came to the findings arrangements will apply : conclusion that the Leamington home was not a (1) Any defendant may, on notifying the other(s), decide hospital " within the Act. On Thursday last, however, to settle the case out of court at any stage in the proceedings, his decision was reversed by a majority in the Court but if he does so, he must accept sole liability for payment of Appeal.2 of the whole sum for which the case is settled ; but each defendant shall pay his own costs. What, for the purposes of the Act, is a hospital’’? (2) If the defendants decide to explore the possibility Section 79 says it is any institution for the reception of settlement out of court (and a settlement is ultimately and treatment of persons suffering from illness..." effected), the payment made to the plaintiff shall be borne and " illness " is defined as including " any injury or between the defendants agreed to be liable in such proportion disability requiring medical or dental treatment or as they may agree between themselves or, in default of nursing." Mr. Justice Vaisey adopted the arbitrator’s agreement on the proportions, in equal shares. that the only treatment at the Leamington home If the the action in court finding defendants to defend (3) agree was the procedure should be as follows : palliative treatment and treatment for casual (a) the defendants should try to agree before the action ailments ; there were nurses but their nursing was not comes to court on the proportion in which any damages part of medical treatment. and costs which may be awarded to the plaintiff shall The Master of the Rolls has now held that the arbibe borne between them ; trator and Mr. Justice Vaisey took too narrow a view. (b) if this proves impossible, the defendants should try to "Treatment," he says, in relation to a "hospital" reach such agreement after the trial of the action ; (c) failing agreement under (a) or (b) the damages and costs means not only medical treatment but also nursing in the sense that patients are looked after by persons profesawarded to the plaintiff shall be borne in equal shares between such defendants as are held liable. sionally trained to look after the sick." Reading the (4) In exceptional circumstances where some important definitions of hospital and illness in section 79 legal or professional principle is involved, any defendant may together, the court could bring the Leamington home or
-
"
"
"
"
"
1. Circular R.H.B.(49)128. 2. Circular H.M.(54)32.
1.
"
"
Lancet, Jan. 2, 1954,
p. 54.
2. Times, March 26, 1954.
728 within the Act as an " institution for the reception and treatment of persons suffering from ... any ... disability requiring ... nursing." Lord Justice Romer agreed with the Master of the Rolls. A minority judgment, however, came from Lord Justice Denning, not for the first time. He dissented on the ground that a realistic view should be taken of what went on at Leamington. Most of the patients got about in wheel-chairs or on sticks ; they were folk who would be looked after in their own homes by relatives, if the relatives could manage it ; they stayed on at Leamington for years, and quite half of them went away for holidays. The staff did all they could to make life bearable for these incurables; they administered sleeping-tablets or aperients when necessary, but the amount of drugs and dressings was far less than would be used in an ordinary hospital. The Act, said the Lord Justice, drew a sharp distinction between " treatment " and care " ; care was the homely art of making people comfortable ; the arbitrator had found that " such treatment as was given was merely subsidiary to the real purpose of the home," and his finding ought not to be lightly disturbed. Lord Justice Denning ended by expressing the opinion that, as the case was on the borderline, the court should decide in favour of the The voluntary independence of the institution. charitable institutions have served the country so well
that Parliament could only have meant to take them over when the overriding public interest demanded it." Leave to appeal has been granted. At present two judges have voted for State vesting and two for independence. The House of Lords must tell us which two are
Parliament
Is the Minister aware that entries to the Scottish dental schools have dropped from 155 in 1946 to an estimated figure of 70 last year ? Replying to further questions, Commander GALBRAITH said that in December, 1953, there were 161 dental officers in the school dental service, the highest number ever reached.
"
"
QUESTION TIME Regional Hospital Boards-Administration Mr. STAN AWBERY asked the Minister of Health if he was that the areas covered by the regional hospital boards were unwieldy and too wide for maintaining the necessary close touch with the people and patients, and that it would be preferable to establish smaller all-purpose areas in which the local knowledge of committee members of conditions and circumstances could play a more important part ; and if he would consider this problem with a view to altering the administration.-Mr. IAIN MACLEOD replied : The close contact
aware
that needs to be maintained with local opinion and with patients is provided by hospital management committees, and I am not aware that the areas of regional hospital boards are too large for the purposes they are designed to serve. But this is a matter which will no doubt be considered by the committee now sitting under Mr. Guillebaud’s chairmanship.
Deaths from Coal-gas Poisoning a question Mr. MACLEOD said that provisional Replying figures of deaths from coal-gas poisoning registered in the 12 months ended Sept. 30, 1953, were 569 by misadventure and 2061 by suicide.
right.
The Case of the Plaster Cast On March 20 we summarised the proceedings at Nottingham when a child of 6 was awarded £5000 damages because her leg had suffered injury while enclosed during January in a plaster cast. A correspondent who was present in court takes issue with us on our statement that " the parents were not told of the serious condition of the child until the following June." to a newspaper report the judge remarked According that " not until six months after the plaster had been taken off were the parents told fully of the child’s condition " ; but in using the word " fully " the judge may well have been thinking of a complete explanation of the extent of the injury and the probable outcome. Our correspondent points out that soon after the orthopædic surgeon saw the girl on Feb. 24 she was transferred to another hospital for further treatment and the parents at this time were well aware that the condition of the legwas unsatisfactory, though the final disability could not then be forecast.
In October, 1951, the number was 100, and in June, 1948, it was 131. The number of dental courses given under the National Health Service in Scotland to expectant and nursing mothers and those under 21 years of age since the charge for dental treatment, from which these priority classes were exempt. was introduced in June, 1952, to January, 1954, was 855,300. The number of courses for the period June, 1950, to January. 1952, was estimated at 340,000.
Medical School Scholarships SOMERVILLE HASTINGS, Miss FLORENCE Replying HORSBRUGH, Minister of Education, said that 380 State scholarships were taken up in 1952-53 for courses leadmg to a medical degree at universities in England and Wales. to Mr.
Family Allowances
to
Sale of Worthless Products llr. W. D. CHAPMAN asked the President of the Board of Trade whether he was aware that worthless products claimed, respectively, to be a cosmetic lotion, a slimming aid, an eyelash grower, and a bust-improver, had been exposed for sale in Birmingham shops, and that their true contents had been described in a report of the Birmingham city analyst ; and whether he would institute proceedings against the manufacturers under the Merchandise Marks Act of 1953.-Mr. PETER THORNEYCROFT replied : If I can obtain satisfactory evidence of the offer of these goods for sale, I shall certainly consider instituting proceedings. Dental Service in Scotland Mr. GEORGE THOMSON asked the Secretary of State for Scotland what steps he was taking to arrest the decline in the number of dental students entering Scottish dental schools.-Commander T. G. D. GALBRAITH replied : I am afraid that the position cannot be influenced directly by any action open to the Government. The Dentists Bill, which will be reintroduced as soon as Parliamentary time permits, embodies a plan for expanding dental services for the priority classes. By giving the dental profession full self-government and thus raising its status, I hope the Bill will also Mr. stimulate recruitment to the profession. THOMSON :
Replying to a question Mr. OSBERT PEAKE said that. taking as children those within the age-limits laid down by the Family Allowances Act, it was estimated that the number of married couples with only one child was about
more than one child who received allowance for the eldest child was 3,200,000, and the total number of children including those who received family allowance was 11million. Mr. JOHN McKAY : Is the Minister aware that the 3 million who have only one child are half the married couples in the country who have children ; that within the first and second categories in the range of income there are P/4 million families with one child who are below the income-tax level and therefore in a bad economic position ? Is he further aware that there are 11/4 million families getting 8s., 16s., and 24s. per week who are far beyond the income-tax level ? Can nothing be done to achieve a fairer share of family allowances:’ Mr. PEAKE : All that seems well worthy of study and consideration.
3
million, the number with
no
family
Milk and Glandular Infection Mr. D. T. LLEWELLYN asked the Minister of Health how many cases in Glamorgan had been drawn to his department’s attention of children contracting tuberculous infection of the glands after drinking T.T. milk.-Mr. MACLEOD replied : Six children who had consumed milk from a tuberculin-tested herd came under the notice of the local health authority towards the end of last year. The one cow in the herd found to be infected was slaughtered.
ingested from crockery and in other ways is being give notice to the other before delivery of defence by either examined, but there is so far no evidence that ill effects party that paragraphs 1-3 above shall not apply ; and the normal legal processes will then be open to all defendants. may be caused by this means. The committee do not think that corrosion will lead to widespread difficulties, Where either the hospital authority alone or a hospital particularly if sinks are well rinsed after each washing. doctor alone is cited as defendant in the action, the The most serious problem is the effect of detergents defendant will have discretion whether to be
_
on sewage treatment and the disposal of effluents. A number of methods for suppressing foam formation at sewage works have been tried with some success - notably in the U.S.A. But further research is necessary before any one method can be recommended for general use in this country. Meanwhile, foaming is not at present sufficiently serious to justify alarm, though it may become more troublesome with increasing use of synthetic detergents of the present types, and it certainly calls for speedy remedy. Moreover, the presence of detergents may be adding to the existing difficulties of producing an effluent up to the required standard ; and, if so, the report adds, this is cause for serious concern, and special attention is being given to this question. The committee sum up their deliberations as follows : " Available evidence ... does not justify any immediate alarm in users or the public health services. There is definitely nuisance at some sewage works, however, and there are other and more serious possibilities in relation to the efficiency of sewage treatment, the condition of rivers, and the purity of water-supplies. All these matters require and will receive most careful examination."
the action
complete attempt to settle
to
fight
it out of court. The - hospital or the doctor solely cited shall not take legal action to obtain a contribution from the other, nor cite the other unless requested so to do, when the request shall be conceded forthwith. The defence societies recognise, however, that there will be cases where, although one of their members has not been cited, they might properly be asked to make a contribution towards any payment made by the hospital authority to the plaintiff, because the action or inaction- of the practitioner in question was a material factor in the negligence complained of. Conversely, in actions in which a hospital doctor alone is cited, there may be circumstances in which the defence society asks the hospital authority to make In either case the procedure a similar contribution. should follow the principles set out in paragraphs (2) and (3) above, as if the party not cited were a defendant. The success of the new arrangements (the Ministry says) clearly depends on mutual confidence between the defendants and a fully cooperative attitude on the part of both parties from the beginning, and hospital authoriMedicine and the Law ties are urged to bear this in mind. There should be full consultation at the request of either party in the formulation of the defence. In any case where there is a NEGLIGENCE CLAIMS AT HOSPITAL of a contribution being requested from a WHEN the negligence of a doctor leads to a successful possibility or a doctor who has not been cited, authority hospital claim for damages against a hospital authority, that full information about the incident and the possibility 1 authority has been enjoined by the Ministry of Health of such a request should be exchanged at the earliest to take legal action to make the doctor pay part of the damages. Where doctor and hospital authority are both opportunity. accused of negligence, the authority, in exonerating itself, What is a Hospital ? has sometimes thrown blame on its own staff ; and this has Last December Mr. Justice Vaisey had to decide the been found to prejudice that successful conduct of the defence which is in the interest of doctor and hospital fate of the Royal Midland Counties Home for Incurables authority alike." Accordingly the Minister, after consulta- at Leamington,l If it was a "hospital" within the tion with the British Medical Association and the medical meaning of the National Health Service Act, it would rest in the Minister ; if it was not, it would preserve defence societies, has modified present procedure.2 In future, where the doctor is a member of a defence society its independence. The object of the home, it may be remembered, was to give relief to persons of good and that body accepts responsibility for him, any payment character and of limited or reduced income, suffering made to the plaintiff is to be apportioned between the from incurable or chronic diseases or incapacity due to doctor and the hospital authority as agreed privately injury or wounds. The rules refused admission to patients between them or, in default of agreement, in equal shares. suffering from insanity, imbecility, epilepsy, cancer, or and or both the one more Where hospital authority tuberculosis, past or present. Following the pulmonary the doctors are cited as defendants, following hospital of an arbitrator, the learned judge came to the findings arrangements will apply : conclusion that the Leamington home was not a (1) Any defendant may, on notifying the other(s), decide hospital " within the Act. On Thursday last, however, to settle the case out of court at any stage in the proceedings, his decision was reversed by a majority in the Court but if he does so, he must accept sole liability for payment of Appeal.2 of the whole sum for which the case is settled ; but each defendant shall pay his own costs. What, for the purposes of the Act, is a hospital’’? (2) If the defendants decide to explore the possibility Section 79 says it is any institution for the reception of settlement out of court (and a settlement is ultimately and treatment of persons suffering from illness..." effected), the payment made to the plaintiff shall be borne and " illness " is defined as including " any injury or between the defendants agreed to be liable in such proportion disability requiring medical or dental treatment or as they may agree between themselves or, in default of nursing." Mr. Justice Vaisey adopted the arbitrator’s agreement on the proportions, in equal shares. that the only treatment at the Leamington home If the the action in court finding defendants to defend (3) agree was the procedure should be as follows : palliative treatment and treatment for casual (a) the defendants should try to agree before the action ailments ; there were nurses but their nursing was not comes to court on the proportion in which any damages part of medical treatment. and costs which may be awarded to the plaintiff shall The Master of the Rolls has now held that the arbibe borne between them ; trator and Mr. Justice Vaisey took too narrow a view. (b) if this proves impossible, the defendants should try to "Treatment," he says, in relation to a "hospital" reach such agreement after the trial of the action ; (c) failing agreement under (a) or (b) the damages and costs means not only medical treatment but also nursing in the sense that patients are looked after by persons profesawarded to the plaintiff shall be borne in equal shares between such defendants as are held liable. sionally trained to look after the sick." Reading the (4) In exceptional circumstances where some important definitions of hospital and illness in section 79 legal or professional principle is involved, any defendant may together, the court could bring the Leamington home or
-
"
"
"
"
"
1. Circular R.H.B.(49)128. 2. Circular H.M.(54)32.
1.
"
"
Lancet, Jan. 2, 1954,
p. 54.
2. Times, March 26, 1954.
728 within the Act as an " institution for the reception and treatment of persons suffering from ... any ... disability requiring ... nursing." Lord Justice Romer agreed with the Master of the Rolls. A minority judgment, however, came from Lord Justice Denning, not for the first time. He dissented on the ground that a realistic view should be taken of what went on at Leamington. Most of the patients got about in wheel-chairs or on sticks ; they were folk who would be looked after in their own homes by relatives, if the relatives could manage it ; they stayed on at Leamington for years, and quite half of them went away for holidays. The staff did all they could to make life bearable for these incurables; they administered sleeping-tablets or aperients when necessary, but the amount of drugs and dressings was far less than would be used in an ordinary hospital. The Act, said the Lord Justice, drew a sharp distinction between " treatment " and care " ; care was the homely art of making people comfortable ; the arbitrator had found that " such treatment as was given was merely subsidiary to the real purpose of the home," and his finding ought not to be lightly disturbed. Lord Justice Denning ended by expressing the opinion that, as the case was on the borderline, the court should decide in favour of the The voluntary independence of the institution. charitable institutions have served the country so well
that Parliament could only have meant to take them over when the overriding public interest demanded it." Leave to appeal has been granted. At present two judges have voted for State vesting and two for independence. The House of Lords must tell us which two are
Parliament
Is the Minister aware that entries to the Scottish dental schools have dropped from 155 in 1946 to an estimated figure of 70 last year ? Replying to further questions, Commander GALBRAITH said that in December, 1953, there were 161 dental officers in the school dental service, the highest number ever reached.
"
"
QUESTION TIME Regional Hospital Boards-Administration Mr. STAN AWBERY asked the Minister of Health if he was that the areas covered by the regional hospital boards were unwieldy and too wide for maintaining the necessary close touch with the people and patients, and that it would be preferable to establish smaller all-purpose areas in which the local knowledge of committee members of conditions and circumstances could play a more important part ; and if he would consider this problem with a view to altering the administration.-Mr. IAIN MACLEOD replied : The close contact
aware
that needs to be maintained with local opinion and with patients is provided by hospital management committees, and I am not aware that the areas of regional hospital boards are too large for the purposes they are designed to serve. But this is a matter which will no doubt be considered by the committee now sitting under Mr. Guillebaud’s chairmanship.
Deaths from Coal-gas Poisoning a question Mr. MACLEOD said that provisional Replying figures of deaths from coal-gas poisoning registered in the 12 months ended Sept. 30, 1953, were 569 by misadventure and 2061 by suicide.
right.
The Case of the Plaster Cast On March 20 we summarised the proceedings at Nottingham when a child of 6 was awarded £5000 damages because her leg had suffered injury while enclosed during January in a plaster cast. A correspondent who was present in court takes issue with us on our statement that " the parents were not told of the serious condition of the child until the following June." to a newspaper report the judge remarked According that " not until six months after the plaster had been taken off were the parents told fully of the child’s condition " ; but in using the word " fully " the judge may well have been thinking of a complete explanation of the extent of the injury and the probable outcome. Our correspondent points out that soon after the orthopædic surgeon saw the girl on Feb. 24 she was transferred to another hospital for further treatment and the parents at this time were well aware that the condition of the legwas unsatisfactory, though the final disability could not then be forecast.
In October, 1951, the number was 100, and in June, 1948, it was 131. The number of dental courses given under the National Health Service in Scotland to expectant and nursing mothers and those under 21 years of age since the charge for dental treatment, from which these priority classes were exempt. was introduced in June, 1952, to January, 1954, was 855,300. The number of courses for the period June, 1950, to January. 1952, was estimated at 340,000.
Medical School Scholarships SOMERVILLE HASTINGS, Miss FLORENCE Replying HORSBRUGH, Minister of Education, said that 380 State scholarships were taken up in 1952-53 for courses leadmg to a medical degree at universities in England and Wales. to Mr.
Family Allowances
to
Sale of Worthless Products llr. W. D. CHAPMAN asked the President of the Board of Trade whether he was aware that worthless products claimed, respectively, to be a cosmetic lotion, a slimming aid, an eyelash grower, and a bust-improver, had been exposed for sale in Birmingham shops, and that their true contents had been described in a report of the Birmingham city analyst ; and whether he would institute proceedings against the manufacturers under the Merchandise Marks Act of 1953.-Mr. PETER THORNEYCROFT replied : If I can obtain satisfactory evidence of the offer of these goods for sale, I shall certainly consider instituting proceedings. Dental Service in Scotland Mr. GEORGE THOMSON asked the Secretary of State for Scotland what steps he was taking to arrest the decline in the number of dental students entering Scottish dental schools.-Commander T. G. D. GALBRAITH replied : I am afraid that the position cannot be influenced directly by any action open to the Government. The Dentists Bill, which will be reintroduced as soon as Parliamentary time permits, embodies a plan for expanding dental services for the priority classes. By giving the dental profession full self-government and thus raising its status, I hope the Bill will also Mr. stimulate recruitment to the profession. THOMSON :
Replying to a question Mr. OSBERT PEAKE said that. taking as children those within the age-limits laid down by the Family Allowances Act, it was estimated that the number of married couples with only one child was about
more than one child who received allowance for the eldest child was 3,200,000, and the total number of children including those who received family allowance was 11million. Mr. JOHN McKAY : Is the Minister aware that the 3 million who have only one child are half the married couples in the country who have children ; that within the first and second categories in the range of income there are P/4 million families with one child who are below the income-tax level and therefore in a bad economic position ? Is he further aware that there are 11/4 million families getting 8s., 16s., and 24s. per week who are far beyond the income-tax level ? Can nothing be done to achieve a fairer share of family allowances:’ Mr. PEAKE : All that seems well worthy of study and consideration.
3
million, the number with
no
family
Milk and Glandular Infection Mr. D. T. LLEWELLYN asked the Minister of Health how many cases in Glamorgan had been drawn to his department’s attention of children contracting tuberculous infection of the glands after drinking T.T. milk.-Mr. MACLEOD replied : Six children who had consumed milk from a tuberculin-tested herd came under the notice of the local health authority towards the end of last year. The one cow in the herd found to be infected was slaughtered.