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the patient to consciousness, and may be given without hesita- tion to the young; but it is not free from risk in elderly patients with coronary disease.

The other illnesses occurring in diabetics rarely call for imme- diate active treatment of the diabetes. Diabetic gangrene is a consequence of diabetic arteriosclerosis, and, when it occurs, as it often does, in patients who have not a ketosis, insulin treat- ment may do very little to help in recovery. The familiar ocular complications of diabetes too often occur in the mild elderly diabetic, and the prognosis is not improved by insulin.

Pulmonary tuberculosis is the commonest cause for gradual slow decline in health in the young diabetic. I t does not, like sepsis, provoke a ketosis. The results of treatment of the tuber- culosis in diabetics are excellent, because the patient usually consults his doctor at an early stage.

Finally, there is a considerable number of elderly patients with a true, but mild, diabetes, whose ill-health may be due not to the diabetes, but to some other ailment, e.g., arteriosclerosis; these patients are often just as well without treatment as with treatment, and undue fussiness on the par t of their doctor imposes on them the burden of constant apprehension, a burden which we should try to lift from the shoulders of every old man or woman who consults us.

SOME ASPECTS OF MEDICAL JURIS- PRUDENCE 1N RELATION TO PRACTICE. ~

By D. A. MACERL~.

h BRIEF survey ~)f some judicial decisions may enable us to form a clearer idea of the doctor's position at law when a charge of negligence is alleged against him. In

many respects the law is still vague and confused, but there are signs that a definite code of medical law is in process of evolution, gradually defining the respective liability of doctors, nurses and hospital authorities towards their patients and their responsi- bilities to each other.

No more important judgment has been delivered than that in the classic case of HiUyer v. St. Bartholame~'s Hospital (1909). In it certain fundamental principles were enunciated and certain distinctions drawn for the first time. The plaintiff, a medical man, was operated on in the hospital, and alleged that during the course of the operation his right arm had been pressed against the side of the operating table and badly bruised, while his left arm, which had been allowed to come in contact with a

~Delivered at Mater Misericordim Hospital, June 27th, 1939.

MEDICAL JURISPRUDENCE 685

hot ve~el, had been burnt. A traumatic neuritis followed, result- iag in paralysis of both arms.

In dismissing the claim the Court of Appeal laid down the following principles: (1) That the only duty of the Governors of a public hospital toward a patient undergoing treatment therein was to exercise care and skill in the selection of their medical staff; (2) that physicians and surgeons who serve at the hospital are not the servants of the governing body; (3) that an opera- tion creates a special set of circumstances, and that while nurses and attendants are ordinarily servants of the hospital, the moment the door of the operating theatre closes behind them, they cease for the time being to be the servants of the Governors inasmuch as they take their orders from the operating surgeon alone, and not from the hospital authorities; (4) that a clear distinctio~ exists between two classes of nursing duties, viz. : (,a) those entailing professional skill and training, and (b) those of a minis- ~erial, administrative or routine character; (5) for the discharge of skilled duties by nurses or attendants the Governors are not responsible, but for the discharge of the second class they are.

In l_,avelle v. Glasgow Infirmary (1932) the plaintiff had attended Glasgow Infirmary for ultra-violet treatment. She alleged tha t she had been directed by g nurse to undress, that she was then placed in the ultra-violet room and ordered to walk around the lamps, until she was told to come out. She remained for forty- five minutes (normal time ten minutes), but no one came to relieve her and she left of her own accord.

She claimed damages against the Governors for burning and blistering due to over-exposure. I t was argued on her behalf that the nurse in question was the servant of the infirmary " except when under the orders of a surgeon at an operation " as laid down in Hillyer's case, and that therefore the nurse had failed in an administrative and not in a skilled duty, and so the Governors should be held liable for her conduct. The Governors replied that their only duty was to supply a competent staff and proper apparatus, and further, that as the nurse was acting under the instructions of the superintendent of the electric depart- ment, who had ordered the treatment, they were not liable for her negligence, if any. The court decided against the plaintiff, for the following reasons: (1) there was no distinction between the position of a nurse at an operation and that of a nurse giving electrical treatment under the direction of the superintendent of the electric department; (2) that at the time the nurse was not acting as a servant of the Governors. The Appeal Court con- firmed the decision. I t is to be noted that one of the trial judges, Lord Alnes, delivered a strong dissenting judgment.

In Reidford v. Aberdeen Hospital the elaimant alleged that the nurses had failed to give him certain alkali powders as prescribed for him, and that he suffered in consequence of their negligence. The court dismissed the case on the grounds that the nurses

686 IRISH JOURNAL OF MEDICAL SCIENCE

were not acting as servants of the managers, but within a depart- ment in which their professional skill entitled them to act.

In Jaznes v. Probyn the plaintiff sued a hospital board together with one of its honorary surgeons for negligence, alleging that after an operation a nurse had left a piece of rubber tubing in his chest, and that the hospital authorities were responsible for her act as their servant or agent. The judge dismissed the case, saying that he was bound by the decision in Hillyer's case. He added, however, that he did not approve of that decision, but was bound by the law, which he could not change. The hospis authorities were successful on the plea that the act complained of was a skilled one (dressing the wound), and the surgeon on the ground that he was not present at the material time and so had not got the nurse under his personal control and supervision. Doctors, therefore, cannot be held liable for negligence on the part of a nurse whom they believe to be competent in ordinary nursing duties unless they are present at the time and can exercise personal control.

In Morris v. White the plaintiff claimed damages against the surgeo~ who had operated on him, alleging negligence. A piece of rubber tubing had been inserted into the urinary bladder, an6 the nurse had apparently let it slip back while dressing the ~vound and a painful sinus developed. A second operation had to be performed. The court held that the surgeon was not liable, that he had exercised reaso.nable care and skill in his treatment of the plaintiff, that the duty performed by the nurse was one that could be reasonably delegated to her, and that he was not present at the material time and so could not exercise personal control.

In James v. Dunlop a swab had been left in the abdomen and the patient had died after another operation to remove it. His widow sued the surgeon and the jury found in her favour: (1) because the surgeon did not make such a personal search as was reason- able and proper; (2) the evidence of an assurance given to him by the nurse that the count was correct was unsatisfactory. Lord Justice Scrutton is reported to have said: " I t was for the doctor to take out what he had put in."

In Mahon v. Osbor~ (1938) a boy had been operated on for a perforated duodenal ulcer and a swab had been left in the abdomen, resulting later in a second operation which ended fatally. His mother sued the surgeon and the nurse, and was awarded s damages. An appeal has been lodged.

ResponsibzTity for Diagnosis.

C~onnolly v. Rubra. In June, 1936, Mrs. Connolly sued Dr. Rubra for negligence in failing to diagnose pulmonary tuber- culosis in her husband so that he suffered prolonged illness and ultimately died. The deceased was a civil servant earning s a year, with pension rights at 60 years. He had been under the

MEDICAL JURISPRUDENCE 687

doctor's care for two years, suffering from " a raised tempera- ture, blood in the sputum, loss of weight, night sweats and cough." He was treated for bronchitis. No special diet or treat- ment had been given and no x-ray of the chest or examination of the sputum had been carried out. His health declined rapidly. I t had been suggested that a specialist should be called in, but Dr. Rubra dissuaded them, saying that he himself " was good on the chest ".

Later, a throat specialist was called in, and found advanced tuberculosis, from which the deceased died. During the course of the proceedings Dr. Rubra died and his widow was then sued under the Law Reform Act (1934). The court awarded Mrs. Connolly s damages, a verdict which was subsequently con- firmed by the Court of Appeal.

Anvasthetist and Surgeon.

Generally speaking, a surgeon cannot be held liable for an act of negligence on the part of his anaesthetist, the administration of an anaesthetic being work peculiarly within the anaesthetist's province, the latter being " an independent and skilled person ". The surgeon might, however, be held liable if he had the special duty imposed upon him of selecting the anaesthetist. He must in every ease be reasonably satisfied that the anaesthetist is eom- laetent; if he has any doubt about this he should not employ him.

LOC~t~.

Following the legally recognised principle that a doctor con- tracts to treat his patient with reasonable care and skill, he can only delegate these duties with his patient 's consent. If, there- fore, he selects his locum with reasonable care and the patient agrees to be treated by him, the doctor cannot be held liable for any act of negligence on the part of his locum tenens.

Privilege and Professional Secrecy.

Confinements.--Should a doctor be called in to attend a woman (usually unmarried) and be satisfied that she has been recentl:~ confined, his primary duty is to treat her even though he may suspect that she has done away with the child. He should not inform the police. Should she confess and indicate where the child is, and the latter be found to be dead, it would then be his duty to inform the authorities of the presence of the dead child.

Abort/on.---Should a doctor suspect that an abortion has been attempted or procured, his duty is to treat his patient and not to inform the police. He would be well advised, however, to have her removed to hospital. Should he find her dying, the question of obtaining a dying declaration arises, and he should inform the police. A strong ar~q~nent, and one commonly urged against maintaining professional secrecy in this type of case, is that to

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maintain secrecy assists the professional abortionist i~ carrying on his trade, and makes his detection more difficult.

Pregnancy.--In the case of girls under control of their parents or guardians the doctor's attitude must be guided by the patient 's age and mental state. If the girl be over 18 years and mentally sound he should not inform the parents, but should advise the girl to do so. If the girl be under 18 years, then a criminal offence has been committed, and his duty is to inform the parent~ and let them communicate with the police. If the girl be of unsound mind, then, irrespective of age, parents or guardians should be informed. If a mistress believes that her maid is pregnant and sends her to a doctor to verify her suspicion, before he is entitled to inform the mistress he must: (1) obtain the girl 's consent for examination, and (2) make it perfectly clear to her that the result will be communicated to her mistress. Lord Riddell expressed the view that if the mistress paid the doctor's fee the second condition was not essential and that the doctor could claim privilege, but on the whole the former course is the more prudent one to follow.

Venereal Disva~es.--These eases often present great difficulties, and tact and diplomacy must necessarily play a big part in deciding the best course to adopt. The seriousness of the illness must first be emphasised to the patient, and he should be advised r give up his work during his period of infectivity and treatment. If the nature of the work is such that there is a real danger of infection for others (e.g., a barmaid or a nursery maid or an employee in a dairy or creamery), and should the person refuse the advice tendered, it would then become the duty of the doctor to inform the employer--provided his report is made without malice and is delivered to those legally entitled to receive it.

MYOCARDIAL DEGENERATION.~ By HEnRy MOORE.

U P to comparatively recent times most physicians regarded the pathology of valvular disease of the heart as of greater clinical importance than the pathology of the myocardium. This is the

more remarkable because Corvisart, in his famous book on the heart, published in 1806, laid great stress on the state of the myocardium; and La~nnec (discoverer of the stethoscope and a pupil of Corvisart) declared that the condition of the myocardium was the key to cardiac pathology. Later, in 1834, Stokes stated that the symptoms associated with valvular disease depended more on the state of the myocardium than on the valvular lesions themselves. During the last two or three decades the pendulum

*Delivered at Mater Misericordim Hospital, June 27th, 1939.