TREATMENT BY X-RAY.

New Zealand Herald, Volume LXI, Issue 18799, 28 August 1924, Page 11

TREATMENT BY X-RAY.

JURY FAIL TO AGREE.

RESULTLESS SECOND TRIAL.

DEFENDANT GIVES EVIDENCE.

For the second time the X-ray treatment case has ended in the jury failing to agree upon a verdict. Yesterday was the third day of this Supremo Court action, and at 10 p.m., after the jury had been out four hours, the foreman announced that they were unable to arrive at a three-quarters majority verdict. Mr. Justice Stringer, before whom the action w2ss brought, accordingly dismissed them.

When the action was originally heard, on July 21 and 22, plaintiff, Peter Andrew Nairn Smith, motor engineer, of Ponsonby, sought to recover £800 general and £250 special damages, and £100 medical and hospital expenses from Dr. G. de Clive Lowe and August Brackebush, professional masseur, alleging negligence in the application of X-ray ' treatment. During the hearing Dr. de Clive Lowe was dismissed from the action. The claim was then continued against Brackebush, but the jury failed to agree upon a verdict. In the retrial Smith claimed the same amount of damages against Brackebush, on the ground of alleged negligent treatment. Mr. Leary appeared for plaintiff, and Mr. Singer and Mr. A. Moody for defendant. The defence was a general denial of the Defendant Gross-examined. Defendant. ' cross-examined by Mr. Leary, said he was a certificated masseur. He had been brought up with the X-rays, but had no certificate in connection with that treatment. Counsel handed defendant one of his bills, headed " Certified medical electrician and masseur." Defendant said he did not think that description was misleading. Proceeding, he admitted having made a mistake m regard to the thickness of a metal filter. It was a two millimetre one, whereas he thought it was one millimetre thick. He had used that filter for 12 years. Counsel handed defendant a sheet of paper, dictated certain data, and asked him what proportion of a pastille dose the details would work out at. Defendant stated that, from the data given, he could not work out the dose. Defendant, proceeding, said that from the record he had kept he could not calculate the doses, but, knowing the pastille he used, he was able to do so. He admitted that at the original trial he was at times mixed in his answers. He had used high frequency treatment to give plaintiff relief. Casement Gordon Aicken, medical practitioner and surgeon, stated that he saw plaintiff ,in April, 1921; he then had an ulcer on his hand, with surrounding irritated surface. The ulcer was not the result of X-ray treatment. The condition of the hand was consistent with the result of another trouble. Ulcers arising from such trouble might travel, or an ulcer might occur close to the original one. Cross-examined by Mr. Leary, witness said he had had no personal experience with X-ray treatment, and had very little experience with, X-ray burns. He considered that the surrounding inflammation might have been due to X-ray treatment, but he did not see how X-ray treatment could have paused the ulcer which preceded the redness. Examination of Tissue. Walter Gilmour. medical and pathologist to the Auckland Hospital, was recalled on behalf of plaintiff. Examined by Mr. Leary, witness said he had made microscopic examination of tissue from plaintiff, which showed a very chronic ulcer; "it did not show, any sign of another disease or of cancer, but a condition which indicated it had been caused by some irritating process. The microscopic examination was in favour of X-ray, and obviously it must have been more than mere irritation, as there was ulceration and the changes were deep seated. To His Honor, witness said he. presumed that must imply-excessive doses of X-ray. Cross-examined by Mr. Singer, witness said there might have been other irritating causes besides X-ray. Mr. Singer: Do you state that you can positively determine without question the presence of an X-ray burn without the history of the case?—No; I don't think I would like to go so far as that. Neil McDougall, medical practitioner, stated he had examined plaintiff, and the conclusion he came to> was that he had had a " full dose " of X-ray. There was no sign of an X-ray burn If plaintiff had received the treatment he described to witness, he would have had a very severe burn and would probably have lost his hand. In witness' opinion the ulcer was primarily due to his irfjury and secondly to the presence, of his other trouble, which prevented it healing. Judge's Summing Up. His Honor, in summing up, said it was not incumbent 'on a person giving X-ray treatment to possess the highest degree of skill, but he must possess a reasonable degree. Plaintiff had received at least 27 X-ray treatments during May, June and July, 1920, and tlien he began to suffer considerable pain, which culminated in such a condition of things that he was driven, in August, 1920, to consult Mr. Carrick Robertson and Dr. McDougall. It was vital to plaintiff's case to know what impression was created on the minds of those doctors at that time, because the X-ray burn, if inflicted at all, was inflicted before then. Plaintiff received no later X-ray treatment, but had high-frequency treatment. Under Dr. Brown's treatment the ulcer disappeared. Later it broke out" again, and the question was whether the recrudescence was due to plaintiff's other trouble or was a clear demonstration of the effect of an X-ray burn. The evidence seemed to indicate that certainly a considerable overdose of X-ray was given by the defendant. It seemed to His Honor that the difficulty in regard to ascertaining the amount of the doses was largely due to the imperfect records kept by defendant. Although it did not prove that an X-ray burn was inflicted, the suggestion was that defendant was working in a haphazard way, and that it was likely he would inflict an X-rav burn. After the jury had announced their inability to agree," His Honor said he would reserve ail questions as to further proceedings for later consideration.