LEWIS v. COLE. [ 19 ] 1862. [ 35 ] [ *36] bound to execute the warrant, and could not know whose the horses were; and, whether the premises were the plaintiff's or not, he would be bound to take any property on the premises which belonged to the execution *debtor. As, however, the entry into the plaintiff's premises could only be justified by the result, and it turned out that the horse was his (and not the debtor's), the entry could not be justified, and it was for the jury what damage it had done to him. Verdict for the plaintiff, damages 10l. RICH v. PIERPONT. (3 F. & F. 35—41.) To render a medical man liable, even civilly, for negligence, or want of due care or skill, it is not enough that there has been a less degree of skill than some other medical men might have shown, or a less degree of care than even he himself might have bestowed; nor is it enough that he himself acknowledges some degree of want of care; there must have been a want of competent and ordinary care and skill, and to such a degree as to have led to a bad result. DECLARATION, that the plaintiff retained the defendant to attend his wife as accoucheur, but that the defendant did not use due and proper care and skill in that behalf, but so carelessly conducted himself that his wife was injured, &c. Plea: Not guilty. Hawkins and Butler Rigby for the plaintiffs. Shee, Serjt., and Turner for the defendant. By particulars delivered under Judge's order the plaintiffs stated their complaint under four heads, thus: First, that the defendant, on the 10th, 11th, 12th and 13th of December, 1861, while attending the female plaintiff, did not use due skill and care in his capacity of accoucheur; secondly, that while he was so attending her he carelessly and improperly administered a certain drug or acid, and improperly used an enema; thirdly, that on two of the days, the 12th and 13th of December, he was, while so attending her, under the influence of intoxicating drink (this charge was abandoned); fourthly, that on the same days, the 12th and 13th of December, he neglected to attend the female plaintiff personally, though called upon to do so. The defendant was called, and, as already (1) mentioned, admitted his impatience when first sent for. He acknowledged that it was usual to ask certain questions, especially as to the need for aperients; but added that the nurse often mentioned such. matters to the medical attendant. He admitted that it would have been better to give more stimulants and support on the (1) Sic: it is mentioned at p. 808 below. He Wednesday and Thursday, but excused himself from so doing on the ground of the husband's aversion to the use of spirits, and the disagreement which would have arisen about it. declared that the small quantity of tartaric acid could have done no harm; that spirits would have done good, and that he had early in the case desired and directed it. He professed that he knew not how he could have arrested the nausea by medicine, or what other medical means he could have used. He declared that he had desired he should be sent for when required, that he had attended nine different times, and had used all such means. as to the best of his judgment he deemed desirable. The assistant was called, and proved the prescription made up. He also proved making up saline and cooling draughts, and it was not disputed that these were proper things to administer. Dr. Ramsbotham, Fellow of the College of Physicians and author of a work on obstetric medicine, and who had been in practice since 1823, stated that he had heard all the evidence on either side, and Shee, Serjt., then asked the witness whether he was of opinion that there had been any want of due care or skill on the part of the defendant. Hawkins, on the part of the plaintiffs, objected to the question, which, he said, it was for the jury to decide. ERLE, Ch. J., after considering the question, suggested that it should be modified. Shee, Serjt., then asked whether the witness had heard anything which was improper in the defendant's treatment of the patient in a medical point of view. It was a very The witness answered that he had not, and that there were no means which could have been resorted to by the defendant. Up to Thursday, he said, there was nothing to be done except to soothe the system. No medicine would allay the nausea caused by the patient's condition, as it arose from a cause beyond the control of medicine. He did not think that spirits were wanted before Thursday evening, nor did he think that the dose of tartaric acid had done the least harm. mild, harmless thing, and would make a pleasant glass of lemonade. The witness said he was decidedly of opinion that no surgical means ought to have been used. There were certain matters of which only the medical man in actual attendance could judge. To some extent the medical man, on certain matters, could rely on the nurse, who would usually tell him about them; and he said he thought he should tell the nurse RICH ፖ. PIERPONT. [ 37 ] RICH v. PIERPONT. [ *38] to send for him when he was wanted, and not to do so before. No material mischief could have resulted from the delay of the aperient. Dr. Steggall, a member of the Colleges of Surgeons and Physicians, who had been thirty-five years in practice, said he had heard all the evidence in the case, and was of opinion that there was nothing, speaking medically, which had been omitted or wrongly done, and that it would not have been desirable that the defendant should have attended oftener. also quite disapproved of the use of the ergot of rye, which had been ordered by the defendant's successor, Dr. Duncan. He The defendant, a member of the Royal College of Surgeons and of the Company of Apothecaries, had been twenty-five years in the profession, fifteen years as assistant and ten years. in practice on his own account; had attended hundreds of midwifery cases and had never been *charged with negligence before. The plaintiffs were teetotallers, and therefore objected to the use of ardent spirits, and when the defendant was first retained (in November) he was desired expressly not to give spirits, and said he should not unless he found it necessary. The defendant was first called in on Tuesday, the 10th of December, and, as he deemed, prematurely and without due cause. He acknowledged that he had been a little irritated on that account, and also that (probably on that account) he had forgotten to make certain preliminary inquiries, which he admitted were usual on such occasions, especially as to the necessity for aperients, &c. He desired to be sent for when really required. He had altogether attended nine times. It was admitted by the plaintiffs and the nurse that, although impatient at first, this impatience quite disappeared when the crisis really approached. During Wednesday and Thursday the lady retained nothing on her stomach, and became very much exhausted. On these days, however, the defendant had not directed stimulants or support. On Thursday, the 12th, at five o'clock in the morning, the defendant saw her, and left word that he should be sent for if required, and did not see her again until twelve o'clock at night, when he prescribed some medicine to allay the nausea. He deemed the use of a little stimulant necessary, and knowing that the nurse had some gin, desired that a little should be given to the patient in warm water. The nurse brought him a bottle containing some colourless fluid, of which, supposing it to be gin, he gave her a small quantity (half a drachm) in warm water, with sugar. The husband, supposing it was gin, remonstrated, and, it turning out to be tartaric acid which his wife had taken, it was explained to him that it was so, and afterwards the defendant, deeming spirits necessary, again suggested the use of a little gin and water. The husband still objected, and the defendant swore that he said he would rather his wife should die than take it. Disagreement ensued, the result of which was that the patient did not have the spirits. The husband meanwhile sent for a Dr. Duncan, who came on Friday, the 13th, and ordered spirits, and three times administered ergot of rye. Dr. Hall Davis was also called in. The delivery (on Saturday, the 14th) proved abortive, the child being dead, and the case for the plaintiffs was, that the bad result was owing to the defendant's want of care and skill in not effecting an earlier delivery. Dr. Duncan was called and examined in support of the plaintiffs' case. He was of opinion that aperient medicine should have been taken in the case, and that stimulants should have been taken, and means taken to allay the nausea and arrest the exhaustion, and surgical means taken to effect an earlier delivery. Dr. Murray was likewise called on hehalf of the plaintiffs, and gave a kind of hypothetical opinion that, assuming Dr. Duncan's account of the case to be correct, other means ought to have been resorted to. Dr. Lee, the eminent obstetric physician, was also called for the plaintiffs, but stated that, in his opinion, there was nothing medically to be done until Friday, the 13th, on which day, it will be observed, Dr. Duncan was called in. Dr. Hall Davis was called on the same side, but declined to say that there had been any negligence on the part of the defendant. At the close of the evidence for the plaintiffs, Shee, Serjt., submitted that there was no case to sustain a verdict for them. The LORD CHIEF JUSTICE asked the jury whether they thought that upon this evidence they could find the defendant guilty of such culpable negligence and want of ordinary care as alone would sustain the action. The jury appeared to be most of them in favour of the defendant, but one or two of them seemed to desire that the case should go on. The case accordingly went on. ERLE, Ch. J., in summing up the case to the jury, said the case had taken up a long time, but not longer than its importance either to the character of the defendant or the profession RICH t. PIERPONT. [ *41] to which he belonged most fully justified. It was It was not enough to make the defendant liable that some medical men, of far greater experience or ability, might have used a greater degree of skill, nor that even he might possibly have used some greater degree of care. The question was whether there had been a want of competent care and skill to such an extent as to lead to the bad result. As to the mistake about the tartaric acid, it turned out to be of no consequence, and the mere error of the nurse in giving it to the defendant instead of the gin. The medical evidence appeared to be greatly in favour of the defendant; and, considering how much the treatment of a case depended upon its varying phases, which changed as quickly as the shifting hues of the heavens, it was hard for one medical man to come forward and condemn the treatment of a brother in the profession, and say that he would have done this or that, when, probably, had he been in a position to judge of the case from the first, he would have done no better. Upon the whole of the case, if the jury thought that there had been culpable neglect or want of due care or competent skill, let them find for the plaintiff; if otherwise, for the defendant. The jury found a Verdict for the defendant. 1862. [ 49 ] ALLEN v. ENGLAND. (3 F. & F. 49-52.) A person using land as a garden for more than twenty years, under permission from the owner to do so, in order to keep it from trespassers, the owner from time to time coming on the land and giving directions as to cutting of trees, &c.: Held, that he had not got a title so as to enable him to sue a claimant under the owner for a forcible entry. FIRST Count, that the defendant, with workmen and others, broke and entered certain land of the plaintiff and prostrated the gates and fences, and broke down railings, &c., and dug up the soil, &c., and felled trees, and rooted up plants then there growing, &c. |