THE WELLINGTON "EVENING PRESS" LIBEL ACTION.

Timaru Herald, Volume XLIII, Issue 3584, 26 March 1886, Page 3

THE WELLINGTON "EVENING PRESS" LIBEL ACTION.

♦ STEWART v. ROYDIiOUSE AND ANOTHER. [Condensed from tho Lyllellon Times.'] (At the Supremo Court, Duneiin, Wednesday, March 21th, beforo Mr Justice Williams and a special jury o'" twelve.) The cause of action was certain comments published by tho Wellington Evening Pre-*, rclativo to tho professional conduct of Dr 1 Stewart, m hia capacity ns a member of the medical staff of the Christchurch Hospital. Mr Stringer (Christchurch), with Mr Fitchctt appeared for plaintiff, Francis W. Stewart, nnd tho Attorney-General, with Mr Wilding (Christchurch), for defendants, Win. F. Roydhouae nnd Edward Wakefield, proprietors of the Wellington Press. Mr Fitchctt rend the statement of claim, ns follows : — 1. That on nnd beforo May 21st, 1835, the plaintiff was, and still is, a duly-qualified modioli practitioner, residing nnd practising m the City of Christchurch, m the Canterbury judicial district, nrd the defendants on tho said day were, nnd still are, the ' printers, publishers, nnd proprietors of a newspaper called tho Evening Pi-ess. i 2. That m the month of December, ISSI, tho plaintiff wns a member of tho medical staff of a public hospital m Christchurch aforesaid, known ns tho Christchurch Hospital; and during the said month of December, 18SI, o patient m tho said Hospital wns suffering from a disorder known ns hernia, and tho plnintiff, ns a member of tho said medical stuff, treated the said patient for tho euro of the said iti-'urder, and m course of such treatment it. became necessary and proper, according to the plaintiff's judgment, to perform on tho said patient au operation, and the plaintiff accordingly performed such operation, and subsequently to the performance of such operation the said pntiont died m the said Hospital. 3. That on or about the said 21st day of May, 1885, at riiriet-'-uivh aforesaid, the defendants pubiUhed m tho said newspaper of aud concerning tho plaintiff, and of ami concerning the conduct, and practico by the plaintiff of his said profession, and of and concerning tho treatment by the plaintiff of the said patient, ll:o words following, that is to sny : — (Then followed the whole of Evening Press article which farmed tho basis of the action.) 4. Tho defendants by the said publication meant that tho plaintiff was incompetent by reason of ignorance, unskilfulness, and inhumanity to practise his euid profession, and also meant that, m his treatment of tho said patient and of his said disorder, the plaintiff through, and by reason of ignorance, unskilfulnesa, crimin'ul negligence and inhuman conduct, tormented ond killed the said patient, ond also mennt that subsequently to tho death of tho said patient tho plaintiff, with the view of concealing his alleged acts of misconduct m the treatment of tho said plaintiff, wilfully mado and gavo a false statement and certificate of tho cause of the death of the said patient, and that the plaintiff was thereby guilty of a misdemeanour. 5. Tho Baid publication was false and malicious. 6. The plaintiff prays judgpicnt for £2000 damages for the cause of action above stated. Tho statement of defence is as under — 1. Tho defendants admit tho allegations of fact contained m tho first nnd second paragraphs of tho plaintiff's statement of claim, save that thoy deny that it was nccossary or proper to perform on tho patient therein mentioned tho operation performed on him by the plaintiff. 2. Thodefendants admit that on or about May 21, 18£)5, thoy published m tho eaid newspaper, at Wellington, tho words set out m tho third paragraph of tho statement of claim, but thoy deny that thoy published tho samo at Christchurch, or within tho limit's of the Canterbury district of t' 10 Supremo Court. 3. The defendants deny the meaning sot upon tho said publication by paragraph 4 of tho statement of claim, ond they did not mean thereby that tho plaintiff was incompetent by reason of ignorance, unskilfulnesa, and inhumanity, or m any other way to practico his said profession, nor did they mean that m his treatmont of tho said patient the plaintiff by reason of ignorance, unskilfulnesa, criminal negligence or inhuman conduct, tormented and killed the said patient, nor did thoy mean that subsequently to the death of tho said patient tho plaintiff, with a view of concealing his alleged acts of misconduct m tho treatmont of the said patient, wilfully mado and gave a falso statement and certificate of tho cause of tho death of tho said patient, or that tho plaintiff was thereby guilty of a misdemoanour. 4. The defendants further say — By rulo 6 of the rules aud regulations m force at tho Christchurch Hospital for tho purpose of protecting the lives and health of tho inmates, no Burgeon is allowed to perform a major operation without a previous consultation. 5. In defiancp and m breach of this rub, the ploiutiff proceeded to operate upon th# said patient, without informing any or either of hia medical colleagues at the Hospital, or holding any manner of consultation with

any othor medical man, though the plaintiff had never operated for hernia before, and had never seen tho particular operation which ho attempted conducted by any other person. 6. The operation attempted to bo performed by the plaintiff was a major operation, and one of an extremely speculative, rare and dangerous character, involving greut risk to the patient operated upon, even when conducted by Burgeons of experience m that particular operation. 7. Tho whole of tho allegations of fact contained m the Baid publication having reforenco to the want of experience, ignorance, incapacity, and misconduct of the plaintiff m his conduct of the particular operation referred to, aro truo m substance, and m fact that tho death of tho said patient was caused by tho improper, ncgligem, and unskilful conduct of tho plaintiff m conducting the said operation, and by his neglect of proper precautions against hemorrhage after the operation. 8. That it is truo m substance and m fact that tho plaintiff did not hold the said post mortem examination on tho body of the said patient, whoso death took placo on December 22, 183 d. 9. That it is true that tho plaintiff did m effect give tho certificate of the cause of death referred to m tho statement of claim, inasmuch as he held tho post mortem for tho purposo of ascertaining tho real causo of death, and ho declared that the cause of death was hemorrhage from hernia subsequent to tho operation, which declaration was accepted by Dr Robinson, tho House Surgeon of tlio said Hospital, whoso duty it was to sign tho said certificate, and who thereupon with the knowledge and approval, aud at tho suggestion of tho plaintiff, signed tho certificate of death, m which the cause of death is stated to bo " hernia hocmorrhago." 10. That at a meeting of tho Hospital staff, held to enquire into the circumstances attending the death of tho said patient, the plaintiff stated to tho meeting, as a result of his post mortem examination, that tho said patient died from " hemorrhage caused by slipping on the ligature." 11. That at a special meeting of the Christchurch Hospital and Charitable Aid Board, held for the purpose of enquiring, inter alia, into tho circumstances attending tho said operation, and subsequent death of tho said patient, tho plaintiff publicly stated, on oath, that ho was convinced that the said patient did not dio from hemorrhage, as ho had caused to bo stated m the certificate of dentil, or from his disease, hernia, but from somo other causes which tho plaintiff mentioned, among them "bad condition and want of vitality, couplod probably with a certain amount of shock." 12. That Iho wholo of tho proceedings of tho preliminary enquiry by tlio Hospital staff, nnd of tho subsequent enquiry by the Hospital and Charitable Aid Board, including tlio aforesaid corlradictory statements by tho plaintiff as to tho cause of tho dcntli of tlio said patient, were fully reported m tho newspapers, und wero the subject of much correspondence and comment. 13. That tlio Christchurch Hospitnl is a public institution, and the management and tho conduct of tho officio's thereof, tho proceedings of tho medical staff thereof, and the enquiry held by the Hospital and Charitable .did Board, nnd tho evidence taken thcrent, nnd tho conduct of tho plaintiff m performing the enid operation, and m his, previous aud subsequent, treatment of the paliout, and the plaintiff's evidence and statements at nnd about the said operation and enquiry, uro matters of pjhlic in'erest nnd concern, and tho allegod libellous matter contained m the said nrliclo was fair comment thereon, nnd tho same was published m goo 1 fail li for tho public benefit, without any snister or iiinlio'ons motive niul wihout negligence, and m the h'-r.csl and reasonable belief of the- truth thereof und i-verv part thereof. The amended ttnlrnii'iit of defouoo wns ns follows;— Wi'hout m any way limiting Iho statements contained m the previous statement of defence, and without admittiiu; tlio ri^ht of the plaintiff to ask for further particulars, tho defendants say — 1. That thoy admit that I hey published the article set out m tho statement of claim. 2. Tint the plaintiff was guilty of negligence m holding no consultation prior to tho operation, 3. That tho various blood vessels cut during tho operation wero uot properly and securely ligatured. ■1. That portions of the patient's bowels were improperly [Hilled down out of the abdominal c-ivity. 5. That the sue wns not properly tied nor dissected prior to its being cut. fi. Tint generally the operation was conducted m an unaiirgiciil and unskilful nuuuur. Mr Stringer opened tho caso nt considerable length, and called Bichard Brown, chief wardsman of tho Christchurch Hospital, who m tho courso of his nvidenco, said : — I first met William Strickland ot the Hospital m December, 1884, and had conversations with him. He was on out-door patient. lie said that ho had been m for rupture, which they could not keep up. He snid that they wanted tj operate, but he would sooner come to Christchurch nnd have it done there. Ho said he could not work.. If ho got on operation performed he could then earn his living. Ho further stated that if lie did not have something done he would miiko a ho'o m tho river. He was a good strong man, but rather stout. Ho saw Dr Robinson, tho House Surgeon, m my presence. Dr Robinson said ho would let Dr Stewart «-'c him. He saw T!r i'tcwart, who cautioned him about tho gravity of the operation. Strickland seemed to know a great deal about it, saying that ho had been m tho Sydney Hospital ns wardsman. He wns put m No. G ward as an in-patient, and he was put under treatment— that is, ho was dieted for a fortnight, m order to be propared for the operation. Ho grumbled at first about the operation not being porfovmod before. I have soon tho operation for hernia performed. I wns present at tho operation on Strickland., and that morning I gnvo him a hath and an enema. I served tho notices, including Dr Ned will's, informing the doctors of the operation to bo performed onj Strickland. This operation wns witnessed by Drs Stewart, Micklo, Robinson, Huut, Patrick and Ncdwill ; tho nurse of No. Q ward, Mis? Madlaui, v.iv also present. The Houso Surgeon usually administers chloroform, and tho other surgeon on the staff (it wns Dr Nodwill on this occasion) assists tho operator. Dr Ncdwill wns thero at the appointed time, but ho did not assist. He went out of tho room just as wo wero giving tho man chloroform. Dr Micklo took his placo, but ho was back beforo tho operation was commenced. Dr Micklo put on ono of tho operating coats. Dr Micklo asked Dr Ned. will, when he returned, to tako his placo, but tho latter said " No, you go on." I did not notico anything unusual iv Dr Stewart on this occasion. Thero was nothing m the operation for anyone to lose his head over. Mr Fitcljctt i Did Dr Stewart loso his head?

(Continued on fourth page.)

Witness : Certainly not. I did not see any bowel. I saw Dr Stewart cut tho boo. I handed him the bowl, which held the sac and a little blood. The bowl stood for an hour and a half on tho wash-hand stand, and was open for general inspection. About au hour and a half afterwards, when I had cleaned up tho instruments, I burned tho sac. .There wero sharp hemorrhages onco or twice during tho operation. I saw Dr Stowart take the forceps to hold tho artery while it was being ligatured by Dr Miekle. After the sac was cut thero wos o little hemorrhage, and Dr Nedwill proposed to put ov a clamp. Ihe ligature stopped tho bleeding. 1 did not see any omentum m the operation ; none was cut off. The wound was closed up m tho usual way. 'I ho antiseptic precautions wero followed on this occasion. Carbolio steam spray was used beforo the operation. This was at 11 a.m. on December 19th. Witnesß then described the aftor treatment of tho patient, who died m the hospi al on tho morning of December 22nd. Tlio. cross-examination was conductod by tho Attorney-General, but, though it was of considerable length, nothing of great importance was elicited. Dr Miekle, being sworn, said : I was, for about two years, ono of tho honorary staff of the Christchurch Hospital, and I was so m December, 1884. I remember Strickland's caso perfectly well. I was present at the operation performed on him by Dr Stewart. I receivotl tho usual notice by card, and attended m consequence All tho staff wero present excopt Dr Townend. Thoro were also present Dr Patrick, Er Hunt, Dr Robinson (the Houso Surgeon), Mr Hobden, tho Dispenser, Brown, ond ono or two nurses. I assisted at tho operation ; ordimrily, Dr Nedwill, tho other surgeon of tho staff, should havo assisted. While chloroform waa being administered, Dr Nedwill, Dr Hunt, ond some others left the operating room, to sco about somo other caso, 03 I understood. Beforo they returned, the patient was fully under chloroform, and Dr Stewart being ready to commence, I offered to assist. I was not asked to do so. Dr Nedwill returned after tho preliminary incision had been made, I think, but I could not swear to that. On his entering tho room I offorcd to givo way to him,, becauso it was the custom for the other surgeons to assist m an operation of that kind. He intimated to mo tint 1 should continue, and I did so. Neither by word or manner did he, ot any timo during the progress of the operotion, moke any objection to tho operation, but he mado several suggestions during tho operation. At one stage he advised a clamp to bo used, and ut another stngo advised a ternaculum to be used. It was not required m this operation because tho ligaturo could be applied quite easily without it. An ordinary puir of forceps would do just as well. Tlio suggestion was not acted on, as fur as I remember. Dr Stowart used tlio forceps. The clamp was removed after tho removal of the sac and after thore had been somo hemorrhage. The clamp wns suggested by him to stop tho bleeding, and he sevorat times advised its use, both beforo and after the second ligaturo had been applied. A second lig;ituro was put on nearer tho abdominal cavity than tho other, and it completely suppressed the hermorrhage, Thore are very serious objections to tho uso of tho clamp. Its u:o is condemned by all the best practitioners of the daj on abdominal surgery. In this caso tho clamp would have been attached to tlio oxtornnl wound, and would havo dragged up on the stump. It would have dragged tho stump downwards to the outlet, whereas the object is to keep the stump up as high as possiblo m order to closo the abdominal opening. Another ai:d more serious objection is that there would be moro danger of inflammation subsequently. Theso are tho two principal objections. I have never seen a clamp used. It is very seldom used. In my opinion tho adoption of the clamp would hnve been a mistake The ligaturo was the proper method to adopt. An incision was made over tho centre of tho swelling, commencing a little abovo the abdominal ring. The length of tho incision was threo to four inches. Tho tissues wcrj then divided down to the sac. Any bleeding during tho dissection wns controlled by a few ligatures. A little dissection took place ou each sido, m order to lay a broider surfaeo to view, and then the sac waa opened. Tho bowel was found to tc adherent to the inner surfaeo of tho sac. These were carefully separated, tho head of the bowel being separated from tho adhesion, partly by tho handle of the scalpel, partly by the finger?, and somo bands were cut. If there wns ony bleeding at the timo, it would havo been attended to. lam certain thero was no bleeding allowed to go on without proper attention. When tho bowel was quite free, Dr Stewart attempted to return it through the abdominal ring, or canal, but there wos some difficulty m doing this. He then drew a portion of the bowel down by gentlo traction, and agaip attempted to replace it ; this timo with success, tho bowel returning with a rush, aa it always does m such cases. The ligature was noxt applied round tho neck of tho sac, as near the abdominal ring as possible. lam not sure how much of the body of tho sac waa freed beforo the ligature waa applied, but the nock was quite free. The ligature having been applied, tho neck of the sac was divided close to the ligaturo. The body of tho sac was then dissecteJ, and I think that this was tho order, but I am not positive. Tho dissection might have been more complete, but, to the best of my recollection, a littio dissection had lo he dono beforo tho ligature waa applied. The division of the sac had taken place rather too near the ligaturo, causing somo hemorrhage. Dr Nedwill theu suggested the clamp. Dr Stewart seized tho ond of the stump with the forceps, and I applied a second ligature far back from the first, and thus completely controlled the hemorrhage. Next I Baw Dr Stewart take a long needle, thread it, and pass the aucker deoply through tho abdominal wall, and out through the other side, close to the abdominal opening. I don't know that it pierced the stump, which lay m its course, but it must havo been passed through or behind it. His Honor : Was it a proper thing to do ? It should pass through it. Witness continued : I havo not the slightest doubt that Dr Stewart, succeeded. He saw wlrit ho was doing, and was quite competont to do it. Tho ligature was tied ; the external, wound closed, and the usual antiseptic precautions w.ere, used. Dr Stowart was perfectly cool and steady during the operation, which was a difficult one, and it was a trying position for anyone to be m. Tho difficulties aro the return of the bowels, and tho removal of the adhesion. I mean it ia a difficult operotion for an ordinary anrgeon, hut not for one who has many, such cases to deal with. I will say that it would have been o difficult oporation for any member of tho Christchurch Hospital staff because they ore oil m general, and not special, practice, and the opportunities for their operation aro not frequent. Tliis was the first timo I had seen this particular operation. I did not understand his object clearly at tho time, though I followed tho steps that he took. I did not know at the time that it waa an oporation for tho radical cure of hernia. Shortly afterwords I mado a study of the modern methods of radically reducing hernia. With the knowledge thus gained I am perfectly ablo to identify the Bteps taken. I did not sco any omentum removed. A piece might be removed with stains of blood without my seeing it. No large quantities wero removed, or I must have seen it. Omentum is fat, and easily recop . Disable. Very little of tho bowel was pul'.ed down, and it waa done very gently and \n a skilled manner. I don't think the bowel could have been returned without its being pulled down. Tho difficulty m hernia is to get the bowel to commence to return. Once it begins, it goos back with a gurgle and a rush. Strickland's waa an irreducible hernia, because the sac was attached to the cellular tissues of tho scrotum, and the bowol attached to the sac by adhesion during the operation. The question was asked whether tho hernia waa irrreduciblo hernia, but I understood that Dr Stewart, whose head was vory low at llie timo, said it waa reducible. But I am now satisfied ho did not say so. No per Eon who saw it could say so. From the commencement the operation was for irreduciblo hornia, which it was. Tho sac was very- carefnily- dissected, tho Becond ligaturo was perfectly safo, and proporly tied. Until t had read a description of this operation m Mr Aniiiiitlale's paper, I did not understand it, but having studied that, I am satisfied that the operation was skilfully and correctly performed. I have acen Dr Stowart

operate several times. I think him a very competent surgeon, and hove had ample opportunities of judging as to that. Tho witness then related what took place place nt a meeting of the medical staff of tho hospital on December 23rd. Tho meeting was held at the instance of Dr Ncdwill. Dr Stewart explained why lie had not called a consultation before performing tlio operation. The mot-ting, with tho exception of Dr Nedwill, seemed perfectly satisfied with tho explanation, and it waa agreed that there waß no necessity to take any further steps m the matter. Tho remainder of tho witness' examination m chief was directed to show that the operation was ono recognised by the best modern surgeons. On cross-examination by tho AttorneyGeneral, witness said : —I cannot say at what stage Dr Nedwill suggested the uso of the tenaculum. I think Ur Nedwill, beforo ho left the operating room, made some statement to tho effect that sufficient precautions had not been taken to prevent hoemorrhago. At tho staff meeting Dr Stewart said ho thought the cbubo of death was hoimorrhago. I cannot contradict Dr Deamer or anyone elso who says that Dr Stewart said thero was something wrong with the ligature. I tied tho ligature very tight. Haemorrhage will occur under the best of operators, and whero the utmost precautions aro taken. When I say the Btaff approved of what had been done, I mean that Dr Stewart, of the honorary staff, bo approved. I repeat that the opinion of the staff was that thero was nothing requiring to bo done. At 5.30 the Court adjourned till 10 o'clock noxt morning.