WAIT V. COLLIS.

Oamaru Mail, Volume IV, Issue 1319, 9 November 1880, Page 2

WAIT V. COLLIS.

This case once more came before the notice of the Resident Magistrate yesterday afternoon, when counsel on both sides addressed the Bench.

Mr. Hislop, for the defence, said that he did not think that the evidence required much comment. They had nothing to do with the effect the case might have upon the reputation of Dr. Wait. What they had to consider was whether or not the evidence was of such a nature as to satisfy the law that the plaintiff had done everything in his power and in accordance with his knowledge of his profession for the defendant to establish his claim to

fees. He quoted cases to show that where a medical man had shown carelessness in the treatment of a patient he was not entitled to recover fees. He would endeavor to show that the evidence for the plaintiff was not sufficient to establish the claim. He referred to the difficulties that had had to be contended against in arriving at the real facts of the case owing to Dr. Wait having allowed the claim to remain in abeyanae for five years, until the facts of the case had almost passed out of the recollection of many of the witnesses. Dr. Wait's evidence had done little to throw any light upon the case, for it had been impossible to get definite information out of him upon many essential points. On the other hand they had a relation of the facts of the case from other persons, and on those facts being related to two medical men, they obtained testimony that both those professional witnesses would have suspected fracture as the result of the accident to Collis. They had the statement of Dr. Wait that Collis had suffered from contusion, and his V/orship would remember that he could not say very clearly what treatment he had prescribed, thereby stating that he had done what a professional man would do. On the other hand they had the statements of Collis and Jennings that Dr. Wait had stated at the time to them that Collis was suffering from rheumatism and that he would be all right in a few days. Notwithstanding that for five weeks Collis had not shown any improvement, Dr. Wait had not taken the ordinary professional means of ascertaining if his diagnosis of the injury of Collis was correct. He had in his evidenceadmitted that the adoption of certain courses was necessary, and still he had not applied tests which he admitted were required to fully determine the extent of the injuries. He had not applied those tests and remedies which were at once applied by Dr. de Lautour immediately he was called in. Throughout his evidence Dr. Wait had shown a very defective memory as to the treatment he had applied, though, on being re-called and examined , for the defence, he had stated positively that he had ordered rest and fomentations ; but in contradistinction to this they had the clear and circumstantial statements of Collis, Jennings, and Nelson in proof that Dr. Wait had ordered Collis to get up and move about ; that Collis had done so, and that Dr. Wait had never made complaint with Collis for moving about on crutches. This went to show that Dr. Wait, whose memory was defective, had not ordered, as he stated, rest and fomentations. He (Mr. Hislop) maintained that from the first the conduct of Dr. Wait had been characterised by carelessness. Even when Dr. de Lautour had been called in and had applied the

tests necessary to ascertain if there was shortening of Collis' leg, with a view to ascertaining if there was a fracture, Dr. Wait had not taken the trouble to verify the result of Dr. de Lautour's measurement. Dr. deLautourhad at once stated that there wa,s butjQr. Wait had not paid any heed to this. He had not displayed courtesy towards a brother practitioner or interest in his patient by assuring himself that the statement was correct or

incorrect; he had merely denied the correctness of Dr. de Ijjvutour's statement. They had the evidence of two medical men thai a fortnight was sufficient for the cure of contusion, and still Dr. Wait had allowed Collis to go on week after week, calling upon him one day and missing another, without making any effort to ascertain actually what really was the matter with Oollis. If the Bench held that Dr. Wait was entitled to recover his fees, he (the learned counsel) must entertain the opinion that the public should have little faith in their medical men. He contended that Dr. Wait had not shown that care in ascertaining the extent of Collis'injuries, or in applying the remedies which were necessary to entitle him to recover for the so-called professional services. Mr. Newton said having regard to the of his plietit he would be

failing in his duty were he unduly to curtail his remarks. He looked upon this case as one of very grave interest to his client. So far as the defendant was concerned the result of the case would mean a mere matter of mqnev; but to his client the result had a still more serious effect. If judgment went against him his reputation would, to a greater or lesser degree, be ruined. He maintained that the defence amounted to a charge of malpractice op the part of the plaintiff, Now, he asked, if the defendant had suffered, as he had alleged, at the hands of Dr. Wait, would the remission of this claim of L 9 and some few shillings compensate him. His learned friend had expressed his surprise that the case should have remained in abeyance for five years. Well, if the defendant had suffered so seriously as he had alleged at the hands of Dr. Wait, did it not seem strange that for five years Mr. Collis had nursed his injuries. It had never occurred to him to bring an action for damages—and he would be entitled to exemplary damages if it could be shown that he had suffered iujury from the gross negligence of Dr. Wait. The defendant had had an opportunity of obtaining advice not only here but elsewhere during these live years, but had never availed himself of the opportunity. No, he quietly allowed the memories of his wrongs to continue until the olaim for professional services was rendered, and he then determined to repudiate payment of I the miserable claim of L 9 12s. He (the learned counsel) maintained that the defendant in this case, if he considered Dr. Wait had been guilty of negligence in his case, should have brought an action for damages, Then the present plaintiff would have had an opportunity, which had been denied him in this case, of calling evidence in defence of his professional He maintained that it was necessary in a defence such as that raised in the present case, to

prove not only" negligence, but r, r negligence. Ho quoted froni atHhorir to show that it was necessary t 0 * n gross negligence and gross want of aton* His contension was that it had not b shown in evidence that Dr. Wait h 6? been guilty of gross negligenco, n r he had displayed gross want of knowl of ], Even leaving this view of the questF*' out of consideration, he maintained a° n the judgment must be given f or plaintiff on tho ground that it had n ® been shown that the defendant (Cnir°\ was in any worse position than ho woulH have been had he been treated otherwi than as he had been treated by l>r. He contended, also, that the whole ca was simply a matter of difference of opinion between professional men. w I a single one of the medical witnesses ha I been able to go so far as to swear a 8 t the actual result of the accident Colli° had met with. Dr. Wait thought it wa' contusion ; Dr. de Lautour was of opinion that it was fracture. He contended that there had not been a fracture, and it wa impossible for his Worship on the evidenca to come to the conclusion that there wis fracture.

His Worship : If I have to docido whether or not there was fracture, it win have to be done in a way not very ploasant to the defendant.

Mr. Newton contended that if his Worship could not come to tho conclusion that there was fracture, he must arrive at tho conclusion that there was contusion aa there were only two hypotheses before' tho Court—fracture or contuson. He further maintained that, even though his Worship arrived at the conclusion that there was fracture, judgment must be given for tho plaintiff on the ground that it had not been shown that the plaintiff had beon guilty of gross negligence. Tho learned counsel then entered into a comparison of the evidence given by Dr. Wait and Dr. de Lautour, saying that the decision of the disputed point as to whether there was fracture depended very much upon what degree of credibility his Worship bestowed upon the evidence of those two witnesses. He pointed out that, though it might bo urged that Dr. Wait was biased a3 being a party to the suit, Dr. de Lautour was equally biased, as the result of tho caso must have some effect upon his professional reputation—almost as great as that which it would have upon the reputation of Dr. Waif. Dr. de Lautour, then a young man from college, with a small amount of practical experience, had set up a different theory to that of Dr. Wait in Collis' caso, and he was therefore greatly interested in maintaining his theory. He maintained that the evidence of Dr. de Lautour was fully counterbalanced by the evidence of Dr. Wait, while the latter was given greater intrinsic value by many circumstances. He referred to the face that Dr. de Lautour, while giving the opinion that | there had been fracture in Collis' caso, had declined to give a decided opinion as to whether it was intra or extra-capsular. Why was this ? First, because he knew i that if the fracture had been intra- ! capsular bony union was impossible ; and second, because the very nature of tho accident was of such a nature that if thero was a fracture it must have been intra-cap* sular. Thus, finding himself on the horna of a dilemma, he got out of the diflioulty by declining to say whether the fracture was intra or extra-oapsular. Thero was certainly another way out of tho difficulty—bv saying that there was not fracture, but Dr. de Lautour declined to accept this alternative and agree with Dr. Wait. Ha referred to the manner in which Dr. do Lautour had given his evidenoe, and said that this showed that he was strongly biased. He argued that there was no proof of the shortening of Collis 1 le<j, aa Dr. de Lautour's allegation that there was shortening was fully met by the statement of Dr. Wait that there was not shortening. Even supposing that shortening wan established.it had not been shown th. t before the accident one of Collis' legs was not shorter than the other. He contended that the fact of this being shortening was not proof or fracture, as they had it in evidence that shortening resulted from contusion. He then proceeded to show that the theory that there was a fracture of the hip joint in Collis' case was not tenable. He rjnofod from the evidence and medical authorities to show that if a fracture resulted from such an accident as that which befel Collis, it must be intra-oapsular; that extra-capsular resulted from direct violence. In this case Collis fell upon his foot and fraoture must therefore havo been intra-capsular. Then in intracapsular fracture union by bono was impossible. There was no doubt that there was union by bone in Qollis* case and this went to show that there was no fractmo, that the hone had never been broken, af>d that the result of tho accident was severe contusion. Tho symptoms of intra-capsular fracture and contusion were very similar, and it was laid down by surgical authorities and had beon admitted by Br, De Lautour, that it was difficult to distinguish between contusion and intra-oapsular fracture. He also pointed out that three of tho iwj symptoms of fracture, crepitus, total loss of power, and the diminution «f the arQ described by the were, absent in case- He Verged that even if there was a fracture it »°t been shown that Dr. Wait was guilty of gross negligence in not ascertaining that there was fracture. He quoted several ciroumstances to show that a cliargo gross negligence could not be maintained. He urged that the evidence of Dr t do Lautour and statements of medical authorities went to show that the treat-, ment applied by Dr, Wait was such™ proper in cases of contusion, which Dr, Wait still maintained was what Collis was suffering from. He ©ontended that thcia had not been fracture, but contusion, that even if there had been fracture, it had not been shown that thero was groia negligence ; and that it had not been shown that the defrnlant had suffered any detrimenial results from the treatment of the plaintiff. There had been no complaint until fl Vf > years after the accident, and tho oharfio made was extremely moderate, Be urged that if there was a dnubt in '>' B Worship's rnind with reference to case—ans he did not think there was. room for doubt—bis decision should no in favor of the plaintiff, the party to tno suit whose reputation was likely to ho blasted by an adverse decision. Tho de* fendant would still have the right to bring an action elsewhere for tho re* covery of damages, if he had suffered from the treatment of Dr. Wait. The result of this case, if against the defendant, would not act a3 a bar to auoh an action, and they would be willing and prepared to meet it. His Worship took time to consider hi® decision.