DOCTOR SUED

Timaru Herald, Volume CXLII, Issue 20511, 1 September 1936, Page 11

DOCTOR SUED

PATIENT CLAIMS £7OO NEGLIGENCE ALLEGED By Telegraph—Press Association DUNEDIN, August 31. A claim by Isabel Daisy Ingram for £7OO damages against Dr. Henry Walden Fitzgerald was heard by Mr Justice Kennedy in the Supreme Court to-day, when it was contended that the doctor, being in charge of the operating theatre, was responsible for the alleged mistake of a sister in painting plaintiff with iodised phenol, an injurious liquid, instead of iodine before an operation. Mr E. J. Anderson appeared for plaintiff and Mr C. L. Calvert for defendant. Case for Plaintiff Mr Anderson said that plaintiff had gone into the Prospect House Private Hospital on October 28, 1932, and next morning she underwent an operation there. The doctors in attendance were defendant, plaintiff’s medical adviser, who was surgeon in charge of the theatre, assistant surgeon Dr. Gerald Fitzgerald and the anaestheticlst, Dr. James Fitzgerald. Also in the operating theatre were three sisters, Sisters Wicks, O’Meara and Leckie. A double operation was commenced, but when the second part of the operation was about to be commenced It was discovered that the patient had been painted with iodised phenol instead of iodine. lodised phenol was a substance having a drastic effect on the human frame and contained a high percentage of carbolic acid. Very prompt and active steps were taken to neutralise its effects, but it was not possible to proceed with the second operation. For five weeks the patient received treatment for burning, and then she had the second part of her operation. It had been anticipated that she would be in hospital for a fortnight, but altogether she was there for nearly six weeks. For six months after she went home she was a partial invalid and to-day she was highly neurasthenic. It was contended that the case raised the important and intersting point of vicarious liability. It would be submitted that if there were not proper facilities for care in the use of drugs, or if the sister was not properly experienced in their use, the doctor would be vicariously liable. The fact that the wrong bottle was there at a time when it was not required showed that there was want of strict supervision. Evidence was given by plaintiff and by several others, including Sister Leckie, who stated that she should have seen that the phenol was removed after the first part of the operation and put back in its cupboard.

Denial of Negligence

For the defence, Mr Calvert said that every case of'negligence depended upon the facts as proved. He submitted that there was no rule of law which could support the view that the relationship existing between the operating surgeon and the nurse assisting him in the operation was such as to Impose vicarious liability on the surgeon. The relationship of master and servant did not exist. The only negligence for which defendant could be made liable was for his own personal negligence, and this was not alleged. He also claimed that the burning was entirely superficial and was healed in four weeks.

Defendant, in evidence, detailed the measures taken to remedy the effects of iodised phenol. The danger of carbolic poisoning was over in about 36 hours, and the danger from burning a few days later. He did not expect any permanent disability from poisoning. Witness was still giving evidence when the Court adjourned till to-mor-row morning.