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HILLYER v. THE GOVERNORS OF ST. BARTHOLO

MEW'S HOSPITAL,

(1909) 2 K. B. 820. Also Reported in 78 L. J. K, B. N. S. 958, 101 L. T. N. S. 368, 25 Times L. R.

762, 53 Sol. Jo. 714.

Negligence Public hospital Liability of governors Operation

- Injury to patient Hospital staff Relation of hospital to patients.

A public body is liable for the negligence of its servants in the same way as private individuals would be liable under similar circumstances, notwithstanding that it is acting in the performance of public duties.

A public hospital is not liable for an injury sustained by a patient while undergoing medical examination under an anesthetic in an oper: ating room, in the absence of proof that due care and skill have not been exercised in the selection of its medical staff.

The relationship of master and servant does not exist between the governors of a public hospital and its staff physicians, house physicians, or anesthetist, in as much as in exercising their profession they are in no way under the orders or bound to obey the directions of the hospital corporation,

The nurses and other attendants assisting at an operation, even

though they may be the servants of the hospital corporation for general

purposes, are not such for the purposes of operations or examinations,

in as much as they take their orders during that period from the operating surgeon alone, and not from the hospital authorities.

The legal duty which a hospital undertakes toward a patient to whom it gives the privilege of skill, surgical and medical, and nursing aid within its walls, is an inference of law from the facts.

(July 23, 1909.)

APPEAL from a verdict and judgment at a trial before Grantham, J., and a special jury which raised the question of the liability of the governors of a hospital for negligence in the treatment of a patient.

The action was brought by William Herbert Hillyer, a medical man, against the Mayor, Commonalty, and Citizens of the city of London (governors of the House of the Poor commonly called St. Bartholomew's Hospital, near West Smithfield, of the Foundation of King Henry the Eighth),” for damages for injuries from the defendants' negligence at their hospital.

The plaintiff's case was that on March 28, 1907, he entered St. Bartholomew's Hospital for the purpose of being medically examined under an anesthetic; that the examination was conducted by Mr. Charles Barrett Lockwood, a consulting surgeon attached to the hospital; that for the purpose of the examination he was placed on an operating table in such a position that his arms were allowed to hang over its sides; that his left arm was in contact with a hot water tin projecting from beneath the table, and the inner upper part of it was burned, and that the [821] inner upper part of his right arm was bruised by the operator or some other person pressing against it during the operation; and that the result of these injuries was traumatic neuritis and paralysis of both arms, and he had ever since been unable to exercise his profession as a medical man. It appeared that the examination was undertaken gratuitously, as the result of representations made by the plaintiff that after prolonged suffering from and treatment for sciatica he had come to the end of his resources. The defendants denied the alleged negligence, and pleaded that if they owed any duty to the plaintiff it was to exercise reasonable care in the selection of the hospital staff, in which duty they had not failed.

The plaintiff called none of the persons present at the operation as witnesses, and his case was mainly based on the defendants' answers to interrogatories, the material ones being Nos. 5 and 6, which were as follows:

5. “That the persons who in the ordinary course of their employment are servants or agents of the defendants, and who assisted in the operation and placing the plaintiff upon the operating table, and in administering an anesthetic to the plaintiff, and in securing the plaintiff in position on the operating table, and in conducting the examination of the plaintiff, were the following:" Three surgeons, an administrator of anesthetics, and three certified nurses were then named; then “two of the hospital staff known as box carriers and attached to the theater, whose duty was to bring the plaintiff to the theater and place him upon the operating table. As regards the part which the above persons took in the examination of the plaintiff in the present case their respective duties were as follows: (a) The plaintiff was placed upon the operating table by the box carriers. (b) The acting sister had to see that he was placed properly on the table, and that the part prepared for examination was uncovered, while the rest of his body was warmly and adequately covered. She had to stand at the side of the surgeon and hand him such things as he might from time to time require. (c) The examination of the plaintiff was carried out by the said Charles Barrett Lockwood, assisted by the said George Ernest Gask and the said James Ernest Helme Roberts. (d) The

(d) The house surgeon, [822] with the assistance of the nurses present, had to make such alterations in the position of the plaintiff upon the operating table as the operator demanded. (e) The said George Herbert Colt was responsible for the due administration of the necessary anesthetic. (f) The said nurses present had further to comply with the directions of the surgeons in charge as to the requirements of the moment during the course of the examination."

“6. That the plaintiff in the course of the said examination was burned on the left arm by the displacement of a hot water can in the course of undergoing the said examination under an anesthetic."

Grantham, J., refused to put the question of negligence to the jury, holding that, even if there had been negligence, the opera

tion was under the control of the operating surgeon, for whose action it was admitted that the governors were not responsible; neither would they be liable for the negligence of their staff, even if proved, and he therefore gave judgment for the defendants.

The plaintiff appealed.

J. B. Matthews, for the appellant. The refusal of the judge in the court below to leave the case to the jury is sufficient ground for a new trial. If the jury were satisfied that the injury to the plaintiff was caused by some negligence on the part of the hospital staff, then the defendants are liable for the negligence of their staff. For the purposes of this appeal it is admitted that the position of master and servant did not exist between the operating surgeon and the defendants, but the position of the staff is different. The answer to interrogatory 6 admits the plaintiff's case; indeed it is a case of res ipsa loquitur, for the plaintiff's arm was not injured before the operation. There must have been negligence on the part of some of those present at the operation, and unless the defendants can make out as a matter of law that they are not responsible for the negligence of some member of their staff, the plaintiff is entitled to a new trial and to have the question of negligence submitted to a jury.

The plaintiff, being under an anesthetic at the time, can give [823] no evidence, but the injured arm is prima facie evidence of negligence within Scott v. London Dock Co. (1865) 3 Hurlst. & C. 596, 159 Eng. Reprint, 665, 34 L. J. Exch. N. S. 220, 11 Jur. N. S. 204, 13 L. T. N. S. 148, 13 Week. Rep. 410; Christie v. Griggs (1809) 2 Campb. 79, 11 Revised Rep. 666, and Skinner v. London, Brighton, and South Coast Ry. Co. (1850) 5 Exch. 787, 15 Jur. 299. Where an inanimate patient, handled by eight people, meets with an injury, the injury is prima facie evidence against them all; all are jointly and severally liable for the negligence, and it is no excuse for the master of these eight people to say that the operating surgeon is responsible for the conduct of the operation, and therefore they are not liable. The duty of keeping the patient safely on the operating table was on the hospital staff who were present at the operation.

The cases which induced the judge to withdraw this action

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