A MEDICAL CLAIM

Southland Times, Issue 19332, 26 August 1924, Page 6

A MEDICAL CLAIM

ABOUT A LODGE AGREEMENT JUDGE RESERVES DECISION -At the Supreme Court yesterday, before His Honor Sir William Sim, Francis O. Mac Gibbon, medical practitioner, proceeded against the trustees of the late James Leggatt, for surgical services. Mr Eustace Russell appeared for the plaintiff and Mr W. Macalister and Mr Tait for the defendant.

In outlining the case Mr Russell said Dr Mac Gibbon had been practising in Invercargill since 1917. He was also a lodge doctor, of which the late James Leggatt was a member. Prior to 1913 an agreement was entered into between the lodge doctors and the lodge for the payment of a small fee for medical and surgical wants of members and their families. The position became so onerous to the doctors that in 1913 an agreement was made whereby the services required from doctors were limited. Dr Mac Gibbon called to see Leggatt, whose health was very low, and had to call in Dr McCaw. Leggatt was suffering from abdominal trouble which required the extraction of fluid. On the first occasion that was done no anaesthetic was used because Leggatt was in such a low state, of health that the use of an anaesthetic would have been dangerous. Altogether this operation had been performed on 89 occasions, and for these the plaintiff claimed on the lowest scale. The members of Leggatt’s family admitted that the plaintiff had been unremitting in his attention, but sought to escape payment by stating that his services had been given in his capacity as a lodge doctor. Under the agreement lodge doctors were required to give medical attention to lodge members and to perform minor operations of which a few instances were given. Medical evidence would be called which, he thought, would show that the operation in question could not come under the definition of a minor one.

Francis 0. Mac Gibbon said that he had performed 89 operations on the late James Leggatt. Because of the condition of the patient, the skill required and the time occupied, it could not be classed as a

minor operation. To Mr Macalister: He did not know whether it appeared to Leggatt as if he were performing these operations in his capacity as a lodge doctor. The lodge members had waited upon him in respect to the claim but he could not say that they disputed it. It was a rare and dangerous operation, incurring great risk from haemorrhage and septic infection. He did not know that it was an operation performed by house surgeons during their first year. He could not tell what distinction there was between minor and major operations. He always judged for himself.

Mr Macalister: You attended this man for three years and never gave him any indication that you intended to charge. Witness —Yes. But I kept a record of

everything. Mr iMacalister: You sent in Dr McCaw's account but did not send in your own. Witness: I had not concluded attendance.

Dr Ewart stated that no importance could be attached to the fact that Dr Mac Gibbon had not sent in his account. His Honor: How long would you carry on serious operations before sending in an account ?

W’itness: I would send in an account within six years. Continuing, witness said that he would not consider the operation carried out by the plaintiff as a minor matter. Dr Owen Johnston and Dr Young also gave evidence on similar lines to that given by the previous witnesses. This closed the case for the plaintiff.

Evidence was given on behalf of the defendants by Bruce Leggatt, son of James Leggatt. Witness said that he was present at most of the operations, which were of a very simple nature. Prior to commencing these operations the plaintiff had attended his father as lodge doctor and had given no indication that these had not formed part of his lodge duties. The members of the family had decided to recognise the plaintiff’s services by presenting him with £5O, but a week later received the account. For the first year the Doctor had not used even a local anaesthetic. Mr Macalister said that the question as to whether the operation was a major or a minor one did not much matter. The agreement between the lodge and the doctors had been loosely drawn up and there were a number of words which were superflous. He thought however that it was perfectly clear that the lodge doctors were required to perform all operations, with the exception of those set out. The operations classified in this agreement were intended to be operations which required the use of a general anaesthetic and those which did not. The other ground of defence was that if His Honor held that the operations were outside of the agreement and that the Doctor would be entitled to charge for them, he could not do so unless he made a contract with Leggatt to be employed, but not as a lodge doctor. There had been no evidence of such a contract having been entered into.

Mr Russell stated that both parties must be presumed to have known what was in the agreement. A doctor was entitled to claim fees without a contract having been entered into. Both the plaintiff and the defendants were parties to the agreement and Leggatt, knowing its conditions, could not have expected the plaintiff to do the work for nothing. If Leggatt did not want the plaintiff to continue he should have mentioned it. The real difficulty was created by the loosely drawn up agreement. It was made abundantly clear, however, that so far as the use of anaesthetics were concerned, it made very little difference and that they were used for both minor and major operations. It was obvious that the operations performed by the plaintiff had required very considerable care and that it could not be said to come within the definitions set out in the agreement as minor operations. His Honor reserved his decision.