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Medicine and the Law

Can a Judge’s Preference for One Body of MedicalOpinion Justify a Finding of Negligence?

IN 1970, the plaintiff, a West Indian nurse, was admitted to EastBirmingham Hospital. Tuberculosis was judged to be the mostlikely diagnosis, but a consultant physician and a consultantsurgeon considered Hodgkin’s disease, carcinoma, and sarcoidosisas possibilities. They decided on mediastinoscopy or a biopsy,rather than wait for the result of sputum examination. It wasadmitted that mediastinoscopy was an operation with risk of damageto the left recurrent laryngeal nerve, even if performed correctly andwithout negligence. Although the surgeon performed the operationcorrectly, the left recurrent nerve was damaged. Biopsy results werenegative and it became apparent that the plaintiff had tuberculosisand not Hodgkin’s disease. She sued West Midlands RegionalHealth Authority for negligence, contending, inter alia, that thedecision to perform the mediastinoscopy rather than await theresults of the sputum examination had been negligent.At the trial of the action, a number of distinguished medical

witnesses approved the action taken by the physician and surgeon,while the medical evidence for the plaintiff disapproved of what hadbeen done. The judge, Mr Justice Comyn, said he preferred theevidence of the expert witness called for the plaintiff, who had statedthat her condition had almost certainly appeared to be tuberculosisfrom the start and should have been diagnosed accordingly. It hadbeen wrong and dangerous to perform a mediastinoscopy. He gavejudgment for the plaintiff, but the defendant Health Authorityappealed successfully (a majority of 2 to 1) to the Court of Appeal.

Appeal to House of Lords

The plaintiff appealed unsuccessfully to the House of Lords. Inthe leading judgment, Lord Scarman said that the test to be appliedwas that formulated by Lord Edmund-Davies in Whitehouse vJordan (1981) (1 All ER 267): "The test is the standard of theordinary skilled man exercising and professing to have that specialskill. If a surgeon fails to measure up to that standard in any respect(’clinical judgment’ or otherwise), he has been negligent ..." Thiscase was concerned with clinical judgment. The trial judge hadfound that the operation was unnecessary, wrong, and in thecircumstances unreasonable and a breach of the duty of care. Hefound that the consultant physician instigated the operation andthat the surgeon, in failing to object to it and in sharing in thedecision, was also in breach of his duty of care. The judge preferredthe evidence of the plaintiffs medical expert to the opinions ofdefence witnesses. Lord Scarman said that "a judge’s ’preference’for one body of distinguished professional opinion to another alsoprofessionally distinguished professional is not sufficient to

establish negligence in a practitioner whose actions have receivedthe seal of approval of those whose opinions, truthfully expressed,honestly held, were not preferred. If this was the real reason for thejudge’s finding, he erred in law even though elsewhere in hisjudgment he stated the law correctly. For in the realm of diagnosisand treatment negligence is not established by preferring onerespectable body of professional opinion to another. Failure toexercise the ordinary skill of a doctor (in the appropriate specialty, ifhe be a specialist) is necessary". Lord Scarman then examined theCourt of Appeal’s criticisms of certain parts of the trial judge’sjudgment, and he stated that the Court of Appeal had been justifiedin treating the issue of negligence as being at large for them to drawthe appropriate inferences and to reach their own conclusion. Thefinal conclusion, as expressed by Lord Justice Cumming-Bruce, hadbeen that the judge’s finding on the decision to operate wasunreasonable and could not be supported. Having reviewed theevidence, the House of Lords held that the Court of Appeal wasright to reverse the trial judge’s finding of negligence.Maynard v West Midlands Regional Health Authority, House of Lords,

liay 5, 1983. (1984) 1 WLR 634. Lord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Scarman, Lord Roskill, and Lord Templeman.

DIANA BRAHAMS, Barrister-at-Law

Notes and News

POSTGRADUATE TRAINING OF OVERSEAS DOCTORS

PROPOSALS for the improvement of postgraduate training inBritain for doctors from other countries, without discriminationagainst either the overseas trainee or the British graduate, have beenapproved by the Council for Postgraduate Medical Education inEngland and Wales. An agreed proportion of College-approvedposts in NHS hospitals would be reserved for the training ofoverseas candidates, who, in order to qualify, must have supportfrom an overseas sponsor and acceptance by the appropriate UKCollege or Faculty. The scheme aims to provide a four-year trainingin medicine (and related specialties) and surgery (and relatedspecialties), after which the doctor must return home. An

appropriate number of places would be reserved for membersparticipating in the scheme in England and Wales. The Scottish andNorthern Ireland Councils are developing similar plans. TheDepartment of Health and Social Security is to study the proposals.

THE OXYGEN DEBATE

Dr David Hopkin Maddock, president of the PharmaceuticalSociety, and Mr David Sharpe, chairman of the PharmaceuticalServices Negotiating Committee (PSNC), speaking at a pressbriefing in London on July 16, sought to maintain the role of thecommunity pharmacist in the provision of domiciliary oxygen. Atpresent the 40 000 or so patients in England and Wales requiringhome delivery of oxygen receive their supplies from the BritishOxygen Corporation (BOC) via community pharmacists. Mostpatients require intermittent oxygen at short notice, and thepharmacists can ensure prompt service and give advice and support.However, many pharmacists have found BOC to be unrealistic and,on occasions, only professional cooperation between pharmacistshas maintained essential supplies.BOC now wants the DHSS to agree to direct delivery to patients, a

proposal, which, according to BOC, will save the NHS up to D 1million annually. Delivery would be by the company’s transportpersonnel, who have no health-care training. The PharmaceuticalSociety and PSNC are concerned that patients would be put at riskby such a proposal, especially in view of the possibility of industrialaction.The issue has been further stimulated by the introduction of

oxygen concentrators. These portable electronic machines filternitrogen from the air, thereby concentrating oxygen, and would befar cheaper than cylinders for those patients requiring a continuoussupply of oxygen, but back-up supplies would be needed in case ofelectrical or mechanical failure. Although these patients (about1500-2000) consume 80% of the total domiciliary oxygen, theyreceive it from cylinders at present. All this is, of course, at greatexpense to the taxpayer.BOC is seen as seeking to monopolise the supply of oxygen

concentrators and it has, along with several other companies,tendered an offer to the DHSS to this effect. PCNS maintain thatsuch a monopoly might endanger prompt supply to the intermittentusers and back-up supplies for patients with oxygen concentrators.They have tendered their own offer for the supply of all domiciliaryoxygen via the 4000 pharmacists in England and Wales, a proposalwhich they say is competitive with BOC’s offer.A decision is awaited from the Minister of Health on the report by

the accountancy firm of Arthur Andersen & Co, which is evaluatingthese offers.

CARING FOR THE CARER

JusT about half a dozen people serve to illustrate, in a video

produced by the DHSS, the appalling life led by the informal carer.One woman admitted going to bed with a bottle every night, untilshe stopped drinking for fear that her severely mentallyhandicapped son would be removed from her care. A pair of elderlywomen wept as they recounted years of unmitigated and unaidedstress caring for heavily dependent husbands. And another womanconfessed her resentment at her handicapped husband, who sheoften felt ready to strike in flashes of anger-but would always make

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sure to bid him a friendly goodnight in case he died suddenly and shewas left with guilt at her illwill. The Social Work Service

Development Group has produced the 50-minute tape’ in an effortto stimulate professional concern about the carer’s existence.

Inevitably, the video barely scratches the surface of the situation. AsMr Jim Hodder, principal social worker service officer of the

Development Group, pointed out, everyone now is as likely tobecome a carer as to become a parent. And once someone becomes acarer, the prospect is bleak. What comes over most clearly on thevideo is the carer’s absolute lack of freedom. A simple expedition outof the house can entail a whole army of substitute carers to hold thefort, arrangements which require complicated organisation. All careand attention is directed towards the dependent person while thecarer becomes isolated and exhausted, receiving no thanks for thededication. One man related his frustration at failing to offer hiswife any therapeutic help or recreation-his time was totallyabsorbed by the, frequently heavy, physical side of caring. The filmemphasises the importance of collecting all available benefits, thehelp that can be derived from sharing experiences with other carersin support groups, and the vital necessity of holiday breaks. Howthe video can help remains to be seen. The special needs of ethnicminorities, for example, who are particularly vulnerable to thelabyrinthine nature of the health service are not mentioned. Nor isthe position of people caring for young emotionally disturbedpeople. It is to be hoped that the film will generate a responsethroughout the community to the heartbreaking situation of theinformal carer.

POISONS UNIT AT NEW CROSS HOSPITAL

THE National Poisons Information Service, set up some 20 yearsago, operates 24 hours a day from centres in Edinburgh, Cardiff,Belfast, and Dublin which answer urgent inquiries from doctors andemergency services in the UK and the Republic of Ireland. In 1983the centre in London received 35 000 calls. The centre began life atGuy’s Hospital, but since 1967 it has been based at New CrossHospital, one of the Guy’s group. It has now acquired a two-storeypurpose-built building to house the information service, the

laboratories, a library, an animal house, and a seminar room. Theinformation service collates details from various sources, monitorscases of poisoning reported to it (as well as unwanted effects ofproducts whose manufacturers wish to be kept aware of hazardsassociated with their wares), and coordinates epidemiologicalsurveys. Its first survey was on analgesic poisoning; its second aimsto determine the efficacy of child-resistant containers in preventingpoisoning, and the third will be on occupational poisoning. Thelaboratories provide services for toxicological screening of casessuspected of poisoning; drug dependence screening; metals

analysis, and monitoring of therapeutic drugs (anticonvulsants,digoxin, anti-arrhythmic agents, anti-asthmatic drugs, and

analgesics). The unit at New Cross is also a designated regionaltreatment centre, whose staff will, if invited, travel to other

hospitals to assist in management. It holds stocks of infrequentlyused antidotes and antivenoms. The unit’s emergency telephonenumber (not for calls from members of the public) is 01-635 9191.For other calls the number is 01-407 7600.

New Cardiothoracic Centre in London

A cardiothoracic centre is to be built close to the BromptonHospital, Chelsea, at a cost of 15 million and providing 200 beds(including 50 for children), an intensive care unit, and six operatingtheatres. The cost of the new complex of the Brompton Hospital,the National Heart Hospital, and the Cardiothoracic Institute hasbeen met by the NHS, the University of London, and voluntary andprivate interests.

International Review of Sarcoidosis and Other Granulo-matous Diseases

The 10th Congress of the International Committee on

Sarcoidosis, to be held at the Johns Hopkins University School of

1. Time To Be Me. Available for hire, free, on VHS and U-matic format, from theDepartment of Health and Social Security, Alexander Fleming House, Room B301,Elephant and Castle, London SE1 6BY (01-407 5522 ext 7083).

Medicine, Baltimore, on Sept 17-22, will be marked by tl ,jissue of International Review of Sarcoidosis, a journal spons. ’q

the international committee and supported by Camillo Corvi. <1

Milan. It will appear twice a year and its editors are Dr D. GeraintJames (Royal Northern Hospital, London N7) and Dr GianfrancoRizzato (Via Vanvitelli 8, Milan).

Preregistration House-officer Posts

The latest information available to the "safety net" of the Counofor Postgraduate Medical Education in England and Wal,indicates that there were sufficient preregistration house-offic f

posts to meet the requirements of newly qualified doctors and the would be a small surplus of surgical posts. The safety net knew ofnew graduates who were seeking posts and of 130 available posts (. ’Bin England, 7 in Wales, 31 in Scotland, and 10 in Northern Ireland)

Medical Research Council

Dr A. David Smith, professor elect of pharmacology in the

University of Oxford, has been appointed honorary director of thenew MRC anatomical neuropharmacology unit, attached to theuniversity department of pharmacology.

University of EdinburghAn honorary degree of doctor of medicine is to be conferred on

Prof Archibald Duncan, formerly professor of medical educationand executive dean of medicine at the University, and Prof VictorMcKusick, professor of medicine at Johns Hopkins Hospital,Baltimore.

Mr S. J. Steele will speak on Audit in Infertility at St George’s HospitalMedical School (obstetrics seminar room, 3rd floor, Lanesborough Wing),Cranmer Terrace, London SW17, on Monday, July 23, at 12.30 pm.

Dr A. J. Levi will speak on Sex and Salazopyrines at the Royal FreeHospital School of Medicine (academic department of medicine), LondonNW3, on Wednesday, July 25, at 5 pm.

Mr D. M. Hunt will speak on Congenital Dislocation of the Hips atQueen Charlotte’s Maternity Hospital (ground floor conference room,

Institute of Obstetrics and Gynaecology), Goldhawk Road, London W6, onThursday, July 26, at 12.15 pm.

The closing date for the University of Aberdeen’s correspondence course inHealth Economics is July 31: Mrs I. Tudhope, Health Economics ResearchUnit, University of Aberdeen, Medical School Buildings, Foresterhill,Aberdeen AB9 2ZD.

A scientific meeting of the Royal College of Obstetricians and Gynae-cologists on Fundamental Aspects of Gynaecological Cancer will takeplace at the College on Sept 19: RCOG Postgraduate Secretary, 27 SussexPlace, Regent’s Park, London NW1 4RG (01-262 5425).

A weekend scientific meeting for members and associate members of theInstitute of Psychosexual Medicine will be held atNottinghamUmversttyon Sept 28-30: the Secretary, Institute of Psychosexual Medicine, 11 ChandosStreet, Cavendish Square, London W1M 9DE (01-580 1043).

A seminar on Management for Geriatricians organised by the

University of Liverpool and Manchester Business School will be held on Oct15-19: Prof Michael Lye, Department of Geriatric Medicine, University ofLiverpool, Royal Liverpool Hospital, PO Box 147, Liverpool L69 3BX(051-709 0141 ext 2630).

The first joint meeting of the Royal College of Surgeons of Edinburghwith the Chapter of Surgeons of the Academy of Medicine, Singapore,will take place in Singapore on Nov 1-4 and will represent the 4th overseasmeeting of the College: Academy of Medicine, Singapore, 4-A College Road,Singapore 0316 (2238968 2245166).

The Urotec’84 symposium on high technology urology and urophysics willtake place in London on Nov 7-9. Course Secretary, Institute of Urology,172 Shaftesbury Avenue, London WC2 (01-836 5361).

A three-day course for anaesthetic registrars on Obstetric Analgesia willtake place at Queen Charlotte’s Maternity Hospital, London, on Nov 21-23:Anaesthetic Secretary, Institute of Obstetrics and Gynaecology, QueenCharlotte’s Maternity Hospital, Goldhawk Road, London W6 OXG (01-7418351 ext 17).