Medical Jurisprudence And Toxicology

RESPONSIBILITY OF A MEDICAL PRACTITIONER 415

lasted in the operating theatre.13 In deciding such cases the courts are
generally inclined to depend upon the practice of, the institution as to what
comes within the scope of a nurse's duties and to limit the surgeon's liability
for those matters over which he has direct personal control. Where a
woman died of peritonitis after csesarian section after a swab, 24" X 8", was
left in the body, it was held that the matron who failed to report to the
surgeon the fact that a swab was missing failed in her duty, even though her
attention was directed by the nurse counting the swabs.14

The managers of a public hospital cannot be held responsible for the
negligent acts of the members of the superior medical staff in matters
relating to the professional treatment of the patients in their charge, if it
can be proved that the managers exercised " the due care and skill" in
selecting the properly qualified and experienced staff. The physicians and
surgeons employed in the hospital are not the servants of the managers, as
the latter cannot interfere with the professional treatment of the patients,
nor can they issue any order to the medical staff in this connection. In re-
spect of the nursing staff the rule laid down in the case of Hillyer v. St.
Bartholomew's Hospital (1909, 2 K.B. 820) that the managers are liable for
the negligence connected with their administrative or ministerial duties but
not with their professional duties was regarded binding on judges in
England till the case of Gold v. Essex County Council (1942, 2 K.B. 293)
was decided by the Court of Appeal in the year 1942. In this1 case,15 where a
radiographer, while treating a child with Grenz rays for warts on the face,
omitted to protect the healthy parts of the face with a lead-rubber with the
result that the child's face was burnt and permanently disfigured, it was
held that a hospital was liable for the negligence of a medical auxiliary (a
radiographer, masseuse, occupational therapist, dispenser and the like), and
doubtless also of a nurse, in the performance of a duty otherwise than under
the direct supervision of a physician or surgeon. It is also understood from
the dicta of the judges that even if, as in the operating theatre, an auxiliary
"or'nurse is under the direct supervision of a medical practitioner, the hospital
may still be liable, if she carries out his orders negligently; she does not
cease to be the hospital's servant.

Hospital managers may be held responsible for the mistakes of house*
physicians and surgeons or resident medical officers. In a case16 where
Mrs. Collins of Lytton-Road, New Barnet, brought an action against the
managers of Wellhouse hospital, Barnet and the surgeon for damages for the
death of her husband from the injection of 80 mis. of 1 per cent cocaine anct
1 in 20,000 adrenaline solution in mistake for procaine just before an
operation on the jaw, Mr. Justice Hilbery of the King's Bench Division gave
judgment for the plaintiff for £2,500 damages against both defendants, and
he apportioned the damages equally between them. In his judgment the
Judge stated that the surgeon who performed the operation and injected
the anaesthetic was under a duty to ensure that he was getting what he
ordered although he expected the resident medical officer to use her skill
and reason and to bring her mind to bear" on what he was saying. The;
managers of the hospital had negligently failed to bHng to the attention of
the resident medical officer the rules covering dangerous drugs. If the
hospital had had a proper system, such a solution could not have reached
the operating theatre, let alone the body of the unfortunate patient. The
Judge took the view that part of the amenities which the hospital offered to
patients was the presence of a resident medical officer at all times, and that

13.. James v. Durilop : Brit: Med. Jour^ Vol: I, 1931, £. 730.
14. Lancet, July 5, 1947, p. 32.

1^. Med-Leg. and CriminalogicaL Rev^ 1942, Vol. X, Part IV, p. 187.
. 16,, Pharm. Jour^ Mfcrch 15, 1947, & 162; see also Mrs. Wood v. Board j
ike tharlng Cross Hospital^ SrCOrfckC 'Jour* Sep. 8, l$5l, p. 616.

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