ACTION FOR INJUNCTION

Press, Volume XCVII, Issue 28540, 20 March 1958, Page 14

ACTION FOR INJUNCTION

Alleged Breach Of Covenant

Private practice was a form of medical enterprise, privately owned, and conducted for the profit of the owner, said Douglas Gordon Radcliffe, a surgeon, in the Supreme Court yesterday. He was giving evidence for the defence in a case in which Eric Robert Blakeley and Colin Graeme Anderson (Mr J. G. Leggat) are proceeding against Basil Marmaduke de Lambert (Mr E. P. Wills), seeking an injunction to prohibit him practising privately as a radiologist within 10 miles of the Chief Post Office, Christchurch, alleging breach of a partnership covenant by his acceptance of an appointment as a radiologist as Calvary Hospital. The case is being heard by Mr Justice Adams.

The three prime features of private practice, said Radcliffe, were private ownership, freedom of action and choice, and remuneration on a quantitative basis. Private Practitioner. Defined

The witness defined a private practitioner, in full, as “one who advertises his willingness to see patients by election; who, on being consulted, becomes entitled to a fee which shall be estimated by him and which shall be his own private reward for service rendered; who is his own master entirely free to determine the time and place of his service; who may in any given instance either agree or decline to be consulted; who may at any time, for reasons which seem good to him, cease his attendance on any case, except for possible humanitarian reasons; who is a direct competitor for personal gain with all other practitioners in the same branch of medicine; who creates by his own efforts a concern which he calls a practice; the proceeds of which are strictly proportionate to his efforts, and which m time become a saleable, leaseable or transferable asset which is called goodwill.” A salaried practitioner working for an. institution was not entitled to a fee, said the witness, cross-examined by Mr Leggat. He was paid a fixed salary for so many hours of work and did all work which was presented to him.

No such thing as a doctorpatient relationship existed between the radiologist and the person being examined, who remained the patient of the doctor who sent him; he was but another diagnostic aid and had no responsibility but to do his work to the best of his ability, said the witness. > Forms Produced The witness produced request forms for radiological examination at several institutions, including St. George’s Hospital (a form addressed to Dr. Blakeley), and Calvary Hospital (one addressed to Dr. de Lambert, and one of a more recent printing, on which his name was omitted), and to Doctors Blakeley and Anderson at 211 Gloucester street. A radiologist was but a diagnostic aid —one link in a chain of evidence that led to the doctor’s considered diagnosis, said the witness to Mr Leggat. “I sometimes do not accept the radiologist’s opinion, and ask him to repeat his examination, and that happens not infrequently.” He, as a surgeon, could send a patient to any radiologist he chose, said the witness. However, he denied that the radiologist was in direct competition, as he saw it, with all other radiologists in the city. The institution, which provided the services of a radiologist, was in competition, but the institution itself was not a radiologist.

If he in the fees on a quantitative basis a radiologist working in a private hospital could be deemed to be in private practice, said witness. Colin Thomas Bushby Pearson, a pathologist, said a person in private practice was one who worked entirely on his own account—one not in receipt of a salary. He would not regard a person working in a private hospital in a full-time salaried position as being in private practice. Even if that person was a radiologist and had to claim his fees from the Social Security Department, this would not show that he was in private practice. If working in a private hospital for a salary was not private practice what was it? asked Mr Leggat. He would describe it as

salaried practice, said Dr. Pearson. It was not his own practice—it belonged to the hospital. If, however, the radiologist was paid a fixed percentage of the profits of the radiological service he was essentially in private practice. If two medical practitioners were in partnership, and one was receiving a salary, that practitioner was not in private practice, said the witness.

The case, which had already been part heard, was adjourned without > date being set