medicine and the law

1
844 Medicine and the Law The Uncounted Swab A RECENT inquest at Scunthorpe indicated that death was caused by a swab remaining in the patient’s body after an operation. As reported in the Yorkshire Post of May 17, the deceased woman had been admitted to a maternity home last February for a caesarean operation. She was discharged on April 19, but was readmitted 21/2 hours later and died early next morning from acute peritonitis. A swab was found in. the peri- toneal cavity. The coroner accepted the evidence of the county pathologist that, when the patient was discharged, there was no reason to anticipate the sudden relapse which followed ; peritonitis would be swift in its onset and severe. The coroner considered that the post-mortem evidence showed that no fault could be found with the operation itself or with the care taken of the patient. A verdict of " death by misadventure " was recorded. In the course of his summing-up the coroner commented- that there had been an oversight on the part of the sister. He added that the surgeon who performed the operation must bear some part of the responsibility for the sister’s lack of precaution, because the counting of dressings was an essential feature of an operation. This last statement is open to challenge. Nurses are nowadays accepted, as Lord Greene suggested in 1942 in Gold v. Essex County Council, as skilled members of a hospital’s staff, along with medical practitioners. Nurses are not mere automatons who carry out blindly the directions of a surgeon or doctor. From what Lord Justice Goddard (now Lord Goddard, L.C.J.) remarked in the Gold case, it may be inferred to be possible that a nurse could be regarded as negligent even though she were carrying out the orders of a surgeon. " If a doctor in a moment of carelessness, perhaps by the use of a wrong symbol in a prescription, orders a dose which to an experienced ward sister was obviously incorrect and dangerous, I think it might well be held to be negligence if she administered it without obtaining confirmation from the doctor or higher authority." Lord Goddard conceded that, in the stress of an opera- tion, the first thing required of a nurse would be an unhesitating obedience to the orders of the surgeon. A study of these and other judicial dicta may lead to some confusion. Lord Justice Kennedy’s judgment in the famous case of Hillyer v. Governors of St. Bartholo- mew’s Hospital (in 1909) has lost much of its former importance. The courts no longer suggest that in the operating-theatre the nurse is the servant of the surgeon. If she does exactly what he tells her, she will not be found guilty of negligence ; if she does something else, it may be otherwise. To return to the responsibility for counting swabs, is it not the accepted and proper modern practice for the surgeon to leave this to a sister known to be competent ’? Is he not entitled to rely, in matters within their com- petence, upon his trained technical assistants ? Is not a theatre sister perfectly capable of counting swabs, and is it not clearly regarded today as her duty ? If these questions can be answered in the a,ffirmative, does not the comment of the coroner at the Scunthorpe inquest need qualification ? ’? When the Departmental Committee on Coroners (over which Lord Wright presided) reported in 1936, it made some reference to the occasional practice of praise or blame being awarded at inquests in matters of pro- fessional treatment. Mr. (now Sir Herbert) Eason, with representatives of the British Medical Association, had drawn the committee’s attention to cases where coroners had sometimes censured or criticised hospital staffs and practitioners. Persons so attacked had no redress or remedy ; the comments, being made in a judicial proceeding, were privileged and protected, and there was no form of appeal. The committee thought it undesirable that an individual should find himself thus exposed to public censure without the chance of reply. The Wright report, however, made an exception in favour of riders or recommendations of a general character, designed to prevent further fatalities. The lesson of the Scunthorpe inquest, where the conduct of the proceedings was otherwise unexceptionable, may be accepted in that spirit. Public Health Smallpox CONTACTS are still under surveillance in connexion with the outbreaks at Barnsley, Yorks, and Bilston and Coseley, Staffs. A case, the first in the town, was detected at Wakefield on June 4. Ba-Ms.—The total of cases is now 15 (with 3 deaths in persons aged 75, 72, and 70). Of these, 9 were in the second generation, and 1 is probably in the third generation. The common lodging-house where the disease first appeared, and its occupants, have been disinfected terminally, but remain under surveillance ; the last case, removed on June 4, was in a man who had refused vaccination until June 3. St. Helen’s Hospital, from which the last case was removed on May 29, is now empty. Patients and staff from the affected ward have been transferred to the infectious diseases hospital. Other patients have been discharged home under surveillance. Bilston.-Recently 2 further cases have been reported. The 4th member of the family mentioned last week was removed on June 2. She is 12 years of age, vaccinated in infancy and revaccinated unsuccessfully on May 17, the day after her sister died. Further revaccination on May 23 gave a good take, but she developed modified smallpox rash on June 2 and was removed to hospital immediately. Her mother-another case in the same generation, with onset on May 29-died on June 5. The 2nd patient is a teacher at Villier School, aged 39, vaccinated in infancy and removed on June 4 (onset June 1, rash June 4). , Coseley.-There have been no further cases in this district. Contacts in two households remain under surveillance, and further cases, if any, should crop during the present week. TFa&e/!eM.—This is the only new focus of the disease during the past week. Here a man, aged 71, vaccinated in infancy, became ill on May 31 and was removed on June 4. The date of rash is uncertain, but the clinical state suggests that it appeared about June 2. The man, one of forty-five permanent residents in the Model Lodging House, 62, George Street, Wakefield, was employed as night watchman at the corpora- tion’s electricity works. There is evidence that no casual vagrants stayed at the lodging-house ; but passers-by frequently sat with the patient at work during the night. tSTi-eeM.—The last of 3 cases (in two generations) was removed on May 21. Surveillance of contacts has now ceased and the patients are awaiting discharge. Infectious Disease in England and Wales WEEK ENDED MAY 31 Notifications.-Smallpox, 14 ; ; scarlet fever, 886; whooping-cough, 1657 ; diphtheria, 194 ; paratyphoid, 7 ; typhoid, 1 ; measles (excluding rubella), 12,314; pneumonia (primary or influenzal), 512 ; cerebrospinal fever, 73 ; poliomyelitis, 18 ; polioencephalitis, 3; encephalitis lethargica, 3 ; dysentery, 46 ; puerperal pyrexia, 116 ; ophthalmia neonatorum, 56. No case of cholera, plague, or typhus was notified during the week. Of the smallpox cases, 11 were notified at Barnsley, 2 at Ooseley, Staffs, and 1 at Sheeld. Correction : For the week ended May 24, the number of scarlet- fever cases notified was 982. Deaths.-In 126 great towns there were no deaths from enteric fever, 1 (0) from scarlet fever, 1 (0) from diph- theria, 10 (2) from measles, 13 (4) from whooping-cough, 64 (3) from diarrhoea and enteritis under two years, and 7 (1) from influenza. The figures in parentheses are those for London itself. The number of stillbirths notified during the week was 273 (corresponding to a rate of 31 per thousand total births), including 32 in London.

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Page 1: Medicine and the Law

844

Medicine and the Law

The Uncounted Swab

A RECENT inquest at Scunthorpe indicated that deathwas caused by a swab remaining in the patient’s bodyafter an operation. As reported in the YorkshirePost of May 17, the deceased woman had been admittedto a maternity home last February for a caesarean

operation. She was discharged on April 19, but wasreadmitted 21/2 hours later and died early next morningfrom acute peritonitis. A swab was found in. the peri-toneal cavity. The coroner accepted the evidence ofthe county pathologist that, when the patient wasdischarged, there was no reason to anticipate the suddenrelapse which followed ; peritonitis would be swift inits onset and severe. The coroner considered that thepost-mortem evidence showed that no fault could befound with the operation itself or with the care takenof the patient. A verdict of " death by misadventure "was recorded. In the course of his summing-up thecoroner commented- that there had been an oversighton the part of the sister. He added that the surgeon who

performed the operation must bear some part of the

responsibility for the sister’s lack of precaution, becausethe counting of dressings was an essential feature of anoperation. This last statement is open to challenge.

Nurses are nowadays accepted, as Lord Greenesuggested in 1942 in Gold v. Essex County Council, asskilled members of a hospital’s staff, along with medicalpractitioners. Nurses are not mere automatons who

carry out blindly the directions of a surgeon or doctor.From what Lord Justice Goddard (now Lord Goddard,L.C.J.) remarked in the Gold case, it may be inferredto be possible that a nurse could be regarded as negligenteven though she were carrying out the orders of a surgeon." If a doctor in a moment of carelessness, perhaps bythe use of a wrong symbol in a prescription, orders adose which to an experienced ward sister was obviouslyincorrect and dangerous, I think it might well be heldto be negligence if she administered it without obtainingconfirmation from the doctor or higher authority."Lord Goddard conceded that, in the stress of an opera-tion, the first thing required of a nurse would be anunhesitating obedience to the orders of the surgeon.A study of these and other judicial dicta may lead to

some confusion. Lord Justice Kennedy’s judgment inthe famous case of Hillyer v. Governors of St. Bartholo-mew’s Hospital (in 1909) has lost much of its formerimportance. The courts no longer suggest that in theoperating-theatre the nurse is the servant of the surgeon.If she does exactly what he tells her, she will not be foundguilty of negligence ; if she does something else, it maybe otherwise.To return to the responsibility for counting swabs, is

it not the accepted and proper modern practice for thesurgeon to leave this to a sister known to be competent ’?Is he not entitled to rely, in matters within their com-petence, upon his trained technical assistants ? Is nota theatre sister perfectly capable of counting swabs,and is it not clearly regarded today as her duty ? Ifthese questions can be answered in the a,ffirmative, doesnot the comment of the coroner at the Scunthorpeinquest need qualification ? ’?When the Departmental Committee on Coroners (over

which Lord Wright presided) reported in 1936, it madesome reference to the occasional practice of praise orblame being awarded at inquests in matters of pro-fessional treatment. Mr. (now Sir Herbert) Eason,with representatives of the British Medical Association,had drawn the committee’s attention to cases wherecoroners had sometimes censured or criticised hospitalstaffs and practitioners. Persons so attacked had noredress or remedy ; the comments, being made in a

judicial proceeding, were privileged and protected, andthere was no form of appeal. The committee thoughtit undesirable that an individual should find himselfthus exposed to public censure without the chance ofreply. The Wright report, however, made an exceptionin favour of riders or recommendations of a generalcharacter, designed to prevent further fatalities. Thelesson of the Scunthorpe inquest, where the conductof the proceedings was otherwise unexceptionable, maybe accepted in that spirit.

Public Health

SmallpoxCONTACTS are still under surveillance in connexion with

the outbreaks at Barnsley, Yorks, and Bilston andCoseley, Staffs. A case, the first in the town, was detectedat Wakefield on June 4.

Ba-Ms.—The total of cases is now 15 (with 3 deaths inpersons aged 75, 72, and 70). Of these, 9 were in the secondgeneration, and 1 is probably in the third generation. Thecommon lodging-house where the disease first appeared,and its occupants, have been disinfected terminally, but remainunder surveillance ; the last case, removed on June 4, wasin a man who had refused vaccination until June 3. St. Helen’sHospital, from which the last case was removed on May 29,is now empty. Patients and staff from the affected ward havebeen transferred to the infectious diseases hospital. Otherpatients have been discharged home under surveillance.

Bilston.-Recently 2 further cases have been reported. The4th member of the family mentioned last week was removedon June 2. She is 12 years of age, vaccinated in infancy andrevaccinated unsuccessfully on May 17, the day after her sisterdied. Further revaccination on May 23 gave a good take, butshe developed modified smallpox rash on June 2 and wasremoved to hospital immediately. Her mother-another casein the same generation, with onset on May 29-died onJune 5. The 2nd patient is a teacher at Villier School, aged39, vaccinated in infancy and removed on June 4 (onsetJune 1, rash June 4). ,

Coseley.-There have been no further cases in this district.Contacts in two households remain under surveillance, andfurther cases, if any, should crop during the present week.

TFa&e/!eM.—This is the only new focus of the disease duringthe past week. Here a man, aged 71, vaccinated in infancy,became ill on May 31 and was removed on June 4. The dateof rash is uncertain, but the clinical state suggests that it

appeared about June 2. The man, one of forty-five permanentresidents in the Model Lodging House, 62, George Street,Wakefield, was employed as night watchman at the corpora-tion’s electricity works. There is evidence that no casualvagrants stayed at the lodging-house ; but passers-byfrequently sat with the patient at work during the night.

tSTi-eeM.—The last of 3 cases (in two generations) wasremoved on May 21. Surveillance of contacts has now ceasedand the patients are awaiting discharge.

Infectious Disease in England and WalesWEEK ENDED MAY 31

Notifications.-Smallpox, 14 ; ; scarlet fever, 886;whooping-cough, 1657 ; diphtheria, 194 ; paratyphoid,7 ; typhoid, 1 ; measles (excluding rubella), 12,314;pneumonia (primary or influenzal), 512 ; cerebrospinalfever, 73 ; poliomyelitis, 18 ; polioencephalitis, 3;encephalitis lethargica, 3 ; dysentery, 46 ; puerperalpyrexia, 116 ; ophthalmia neonatorum, 56. No case ofcholera, plague, or typhus was notified during the week.

Of the smallpox cases, 11 were notified at Barnsley, 2 at Ooseley,Staffs, and 1 at Sheeld.

Correction : For the week ended May 24, the number of scarlet-fever cases notified was 982.

Deaths.-In 126 great towns there were no deaths fromenteric fever, 1 (0) from scarlet fever, 1 (0) from diph-theria, 10 (2) from measles, 13 (4) from whooping-cough,64 (3) from diarrhoea and enteritis under two years, and7 (1) from influenza. The figures in parentheses arethose for London itself.The number of stillbirths notified during the week

was 273 (corresponding to a rate of 31 per thousandtotal births), including 32 in London.