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I MUTHERN'SARM

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MUTHERN'SARM WAS IT PROPERLY i'' TREATED ? I Closing Scenes of Triall The Cardiff doctors' oase, Southern v. Skyrme and Thomas, was resumed (before ¡ Mr. Justice Bigham) in the High Court Divi- sion to-day. The action is one in which Mr. T. A. Southern, a mining engineer, of Cardiff, claims damages against Dr. Lynn Thomas, C.B.. and Dr. E. H. Skyrme, of Cardiff, alleging that they were negligent in treating him for a broken arm, in July of 1904. Mr. E. H. Duke, K.C., and Mr. Bailhaohe (instructed by Mr. G. Forsdike) appeared for the plain- tiff; Mr. Rufus Isaacs, K.C., M.P.. Mr. S. T. Evans, K.C., M.P., and Mr. colom (instructed by Messrs. Hempsons, solicitors to the Medi- cal Defence Union) defended. The case had already been before the court :an six previous days, and on Saturday Mr. Rufus Isaacs commenced his address to the .jury, and now continued his argument. JURYMAN ABSENT The proceedings in the court were delayed I on account of the absence of one of the jurymen. Inquiries by telephone were maae by the judge's order, but the first attempt Was unsuooeissful. As the name "Duncan" j w- looked up in the directory, other mem- bers of the jury, however, recommended that the missing man's firm, the name of which was Ellis. should be oommunicated. with- rhis led to a successful call, and upon a massage being conveyed to the judge. his lordship said: I am told that this juryman Is in bed with a poisoned foot, and is at Uxbridge, so cannot come. I think he might have communicated with us. However, it raises the question whether you will go on with a jury of eleven. The master spoke to the judge, who said: I am told t-hat the absent juryman, has sent ía, certificate. Mr. Rufus Isaa-cs said that the parties had (agreed to go on with it. The Judge: I certainly think you are taking the proper course. Mr. Rufus Isaacs was about to resume his address to the jury when the Judge asked: Do you desire in any way to distinguish between the two defendants, because if you do I want you to address yourself to the Point. I Mr. Rufus Isaacs said that he was about to address himself to that point. He was w?>tarIng: for each of the defendants, but, .Whatever there was to be said, if there was nrtt *1?' evidence that affected one and notthe -th??r, it was only right that he should Point ? the difference. Well, he had :,On SaturdayPointed out "MA they were on ?co mraon ground. to the txistence of a Dislocation .ur. &Kyrme was nni+« C° that when he diagonised the c?a °?? that when there was a dislocation a£ nd Ltw h\ ?rSt JlaC There was a. dislocation ainSd ??? ? red,Fu?ce?d it, but. apart from that ?  ?" from the medical evidence  ? w*s qnite jMssibIe to make a mistake^ SU quite ?v?n by men of experience But such cases, made a mistake, it w?d not STouW not justify the jury in ret?n?er??h ?f negligence against him. ng a. verdict shown that when he Wled was then Thomas by means of the telephone he-? M once that there were oomplicati he saId was nothing in the case as it had been m? tented so far to show that they would h? justified in saying that Dr. Skyrme had bv his negligence become responsible for tY present unfortunate condition of Mr Southern's arm. Referring to the evidence given by Mr. Sees as to the accident, learned counsel said that it would be idle to specu- late as to the precise moment at which the arm was broken, but they had heard from Professor Pepper that the same blow might have caused the fracture and the dislocation. The real point was whether the treatment of the arm was correct. He pointed out that he had been able to call as witnesses sur- geons who had had great experience-a life- long experience—in the Treatment of Fractures %ey had the evidence of Dr. Pepper and Dr. Battle for the plaintiff, and the evidence for the defendant entirely disagreed with them. The Judge: You must not exclude Dr. Rose, "'ho is a man of great eminence. ilr. Rufus Isaacs: Well, I thought that, in 1he circumstances, from some of the answers -be gave me, I was justified in not dealing ^ith the evidence that he gave. The Judge: I only thought that -you were studiously avoiding him. It is true that he Was labouring under some sort of annoyance Or vexation, but I do not think that we should dismiss his evidence upon that ground. We must remember that he is a man of great ^inenoe. Mr. Rufus Isaacs said that he was quite convinced that it was only for the moment .hat Mr. Rose was upset, for some reason )hat it wae difficult to explain. However, it :vas said that doctors differed, but how could it be said that the defendants were respon. sible when so many of the most eminent men of the day-men who stood at the head of their profession—said that the treatment adopted was right. It had been shown that there was no surgical skill in the world to get the bones in such a fracture in apposi- t" ex&ept by means of an operation— at was cutting the arm open and so dealing WIth the bone. There was otherwise no means of controlling the email upper frag- ment of the bones. That, he thought, was common ground. ~oSSSi poioted o"4 agree with that p,;POMtion. did not that his contentio wa l1l.ng, pointed. out evidenoo of Sir Frederi T rne out by the the other witre,,?, The reves, 36 well as (there was no means of k r had seen that together in position. the two bOnes Mr. Duke again ob' ?? ?? that what he contended wa« tt' and 8aid that cap would do that. was fc a poropla.sti Mr. Rufus Isaacs ny..M I evidence showed such a cap toed that the evidence Bhowed such a cap tot? ?? ?he purpose of protection. It wae r the purpose tiSF that the X-rays sho?? ? ?'' plain- but they had the evid?   "?d. but they had the evidence W that the; would have been of no value D:°w that they stances. If the defendant lD the circum- X-ray photo every day they w:u {:'ken a.n no nearer the aye been Solution of the Difficulty I Dr. Lynn Thomas pointed out at the first interview that it would be an unnecessary expense. sary The Judge: What would the cost be? Mr., Duke: Three guineas. M. Rufus Isaacs next dealt with the sug- gestion that an operation should have been performed. If that were persisted in, he said, there could be no complaint against Dr. Lynn Thomas. At the outset he told the plaintiff, that some surgeons would perform an operation, but that he did not agree in this <??, and would not undertake. Noth- ing could have' been more fair. It left plain- ?,? so elsewhere, but the learned counsel no ti ce cl th?t no one had been anxious to do it Mr ^86* for instance, agreed with Pro- fessor PEDD., that he would not urge such .%n OPeratiojfi Mr. Rose is quite clear Stuhat he AvOuld (to It. but would not urge, and the attach to su??t?? know what meaning to ,$tt,a,ch to such a- lmuMStMnC4eg. Since he was told tba-t bo, jr)r. 1,M-n Thomas, whose refusal evidenoe of aai D;, emtiola might be taken as evide]24De <) f lmre, Dl,%intiff ?? ?? ?- Cooke on—vtion had b??. dootors, but no „L»1 aspect be ,on PerfOrined. As to the gen-6r.l,l a&Pec" of theO,%9e, Jjf* hedged lip<>a the jury w-3 th&tit the ?bont je had been ?l-i J. in the eemtre. ? Rbouldetr, i.t "-Q1ld ru;,v'1Id. of i:n e th? ?rm in spLin? and to n e'a«Jy to brod satisf,actorry roco^ ver' v' but in this gainoo a I fracture ? h?h up, and the thIS case the Portion of the b? was embedded im th« shouJder, so tbot it was b.e:VQlJ1Jd edd'9d 1'Th t,be of any slylinu. That was a ve ontrol st?te of things to d?l wIth. 'The evidence' a? to the dagger of 9-9-ne ail(j tr?tm?t on that account was a.'Il'd the eive that the defendant adopted O<:IInClu- The Only Safe Course under the circumstances. -Uea-r^ied next turned lattention to the evraepce deal- in? w<th the possibility or impossibility getting an apposition of the arm. There was m n?re?ment th= this could not have bMn < done, and even if the plaintiff had been operated upon and the bone brok- ag?a,in, it w<>Wd a?a?n be impossible to S^t a Proper apposition and maintain it. There were some t?opi? who thought that when a bone was broken the sni?eon should set it, so that the patient should recover the complete use of his limb but Mr. Rufus Isa-Ms read a work upon ?e X-ray PhOt-8 .m which the author sa;id fiat when the P?? w'u scan the surgeon might be horror-etncken, and even oontempla?icg an a-oti,on at law. <?-??hter.) He then read extrtø from 90-P of the text-books exprem- 'n, favour of the case put for- ward for the defenoe Mr. Rafun Isa,acs thn, snmmarised his 3PEoSint*hat ithQ en an injury «hey ta'i^t ciroumsta.n tbwt baffled the surgeon's  ? økiU ?ce?t by 'tment "uoh <Ie ? employed in this ease. Ris snbmleeion that the defendants had OOMOlOW7 rndleatd t?mMlTea from the ab-PBCS 8'"Uft tbem. They ? eym- -NX??? .i?'?? -??M?r m t!MCMa. ha had been seized of the idea from some perfunctory study that something more might have been done for him. He was pos- sessed of that idea to such an extent that he had brought this act-ion, not realising that certainly, so far as some of the symptoms were concerned, he could not be the best judge. Had these two gentlemen, of admittedly distinguished career, suddenly and completely lost their skill and their care of the patient? It was known that Dr. Skyrme attended him, not as a man who stayed two minutes and then went away, but as a man who at the very first interview stayed and did all he could for three hours and a quarter. And why should Dr. Lynn Thomas, who had achieved such eminence, have become negligent all at 'once in this case? One oouki understand such charges in cases where the surgeons were not competent, but in t-hi.. case they had two men well versed in the science of their profession. He thought they had cleared themselves in the fullest possible manner. MR DUKE'S REPLY Mr. Duke then commenced his speech for the plaintiff. After the skilful mental exercise conducted in the effort to lead the jury away from the substance of the facts of the case he was afraid that the jury would be a little disappointed to be brought bMk to the facts and the allegations and the evidence in the case. So long as experts dealt with the case upon false and mistaken and incomplete assumptions they were unable to deal with the true state of it. He would not say that Dr. Skyrme or ajiyone else Should be made responsible for every mistake he made; but, he said, in this case the fault was that Dr. Skyrme had made a mistake, and never got away from it. Learned counsel then recapitulated the facts of the accident, and the treatment by the aoctors. In the flivt place, Dr Skyrme made the mistake that all the text books warned him against when he diagnoised a dislocation. They had been told that Dr. Skyrme had applied a certain treatment, and that the treatment wae proper for dis- location. It was true that. he said that it was also the proper treatment for a broken arm, but that missing was all the evidence of anything having been done to set the arm. No wonder it took Mr. Rufus Isaacs an hour and a half to explain the circum- stances in which his clients had placed him. It was a case in which it was impossible to make a mistake if proper care had been taken. But what came home to Dr. Skyrme was that he applied treatment recommended for and proper for dislocation and never departed from it. To try to explain that away in the manner they had heard only showed the heights to which-advocacy might soar. Whatever mistake Dry Skyrme might make the plaintiff knew that the Arm Had Not Been Set, and that is why he suggested in his well- grou'nded anxiety—well-grounded when they remembered the terrible blunder that had been made. That was why he suggested that a second opinion should be taken. I When Dr. Lynn Thomas arrived and at once commenced his examination his first remark was, "Oh, there is crepitus." That was a perfectly natural statement when <?ey con-¡ 8idered that there had been no previous con- sultation. However, he asked what treat- ment Dr. Skyrme proposed, and by some oversight he replied, that is quite right," although tho treatment was admit- tedly what would be proper for dislocation. One of the witnesses for the defence had admitted that the bone had been allowed to join in a bad position. They were told that Dr. Skyrme had pulled the plaintiff's arm. He might just as wetl have pulled his leg-daughter)- or ms e—' 1-aughter)—o>t an/ rate, that would not Lave ben playing an ^xtraord™aJ*^ prank with the plaintiff's arm. Plaintl5. had examined by Professor Pepper and Mr. Wm. Pvo?, with another surgeon who by??? means, had got into ^mmumcation with the Medical Defence Union, and who afterwards said that he would not 1°^ P although he concurred with Professor P-pper and Mr. Rose. What amazed him was that Mrgeons had not been called for the  to say that the practice of setting broken bones had been abolished. (Laughter. ) How- ever, they had not been called to go so far as that. He thought that what had happenea was due partly to the want of a p-per  sulfation between the two Surgeons. ^r- Skyrme aDPlied the wrong treatment, and Dr. Thomas failed to either discover or to connec it. Dr. Skyrme went in blind inattention, not having d?alt with the fracture in the first instance, and it wa? riot until the end of Ju'?V. when pJawtl1f ¡¡ arm was as big a6 his t-hir,g, tb._I,t he 'became alarmed, and weia to "bonias to ?ave an X-ray photo t aikl en. The ground upon which plain asked for d?ma?es was that he 'had been tl?lat-I in a manner that was contrary to all known praetwe. His arm had mended in the place where the accident had left it. to damages they should remember that Plaintiff was maimed in the use of his right arm. When they remembered that he wal di-bled in business and in pleasure for every hour of his life, and was condemned to go through life with his arm so disabled, they would say what they omght to give to man who had so suffered through the absenœ of the exercise of proper skill and attention. Mr. Dote then concluded his addree6 and the court adjourned for lunch. JUDGE'S SUMMING UP. The Judge, in summing UP, said that he hoped that the jury would return a verdiot, and not break up, as the jury in the pre- vious trial, without arriving at a. conclusion. In this opinion, the case had taken too long, but one of the beneficial results of long con- sideration by the jury and by counsel was that he was relieved from dealing with it at any great length. The jury should take care that they were not swayed by sympathy on either side. It was essentially a oase for the jury. There was some law in it, but not very much. What they had to consider primarily was that the plaintiff must satisfy the jury that the defendants had failed to bring to the case the care and skill that might reasonably be expected from them, and that by reason of that failure he had suffered. The defendants belonged to a special profession. Anybody who belonged to a special profession was bound to bring to the performance of his task reasonable skill. If a person went to a. young mail of 22, or 23, who had just set up in a country village, he would not exyect the s'ame treatment as if he wont to a man of greater experience. Now, if he went to a man with a big practice who was hurried, could he expect the same care as if he went to one who had plenty of time? He had already remarked that the defendants would not be liable for merely making a mistake in judgment. They would only be liable if it were shown that they had been negligent in giving reasonable care and skill. As to the facts of the case, it was said that when Dr. Skyrme was called in he diagnosed something that did not exist, and failed to diagnose something did not exist. It was worth while to remember what took pte-oe- According to plaintiff's own statement, from which his lordship read, the statement waa that Dr. Skyrme said that there wa& no fracture. But he must remind the jury that r. Skyrme contradicted this. At the same tim--e Mr. Skyrme admitted that he did not tell Plaintiff that there was a fracture gug- gestmg that he did not wish to a?rm the Patient. When Mr. L, Thomas arrived 'bl at once told plaintiff that there was a it^ireV ? to the ?1 on the telephone; Mr ^^own th?t Mr. SkYTmo did not tell ,Mr. Thomas that there was the more serious ini,ct,ry. This W«nt in some way to support fracture! 'They^h '?'d n?di?nosed a fra'otur,e. They had seen in evidence of ocher surgeons that iÏt .? ?<? to diagnose  "?????Q in suc; Y;cum- sfcuices, t « even If Mr.  fadled, it need not be because he ?f.ul. a.ud th«y "LSe S "LyZ J™, to a book Whioh Snta?? tabe  of 4iislomtion." That was nO fully ?plain?d, and it might mean tha?MT. Skyrme + had not quite i?,uisfied Mr. Thomas that there had been a dislocar tricm. Turning to the treatment, the Judge pointed out that the means adopted by Dr. Skyrme had been used for dislocation, but no one called had heard of it ae a. treat* ment for dislocation, when there was also a fracture of the bone of the arm. But, again, he warned the jury that if Dr. Skyrme bad made an error of judgment in not diagnosing the fracture,- that was not sufficient to warrant the jury in land- ing him in damages. He had how- ever, said that he diagnosed' both the fracture and the d is location. Dr. Skynne called in Mr. Lynn Thomas, I and b,e examined thO arm, and nliiiitnttiff cAid that he a.t once detected a. sldght, wepit-us. That wtaa the first time that plaimtiff bad heard of that. Plaintiff alleged, further, that Mr. Thomas said that there was a. small piece of borne broken off the BhorWder, and the plaintiff would be all right in a few weeks. His lortMiip thought that Mr. Hwroae must have detected that there was a dis- placement. Next ca.me the discussion about t&e X-Rays, but a photo was not taken, uufciil after-.t,rdo Upon that they found that the bone of the arm, was visible, and they had heard a/bout, wibat was said regarding a cut- tjng operation. There were three positive charges against Skyirme—first, that he made mistake, and ascertained, as he thought, yhat there was a dislooatton; eeoomdly, that he failed to diagnose what was there—i-e., a, fracture; and that he applied a treatment that was imappldcable to the real oomdatitoii 0If the case. These charges were of care- l'assmess of an active character. In addStteriv there ware charges of a negative kind of oarefessniees. The slotlive were as against Dr. Skyrme, but the negative charge against both the defendants were these: (1) That they did not nee A-rays, which would have shown exactly the poei- tion of the bone in the first instance; ø That they failed to WO an anasat^tio to. reduce the zmwaular oppoaBStm wznon g* Jillifl! mull II<ITmiWi '™tirrfii'>l™n was being set; and (3), and this was the whole point of the case, that they wholly failed to try to bring about apposition of the ends of the bone. Upon this last point his Lordship said that he need not drtell upon the necessity of apposition or the benefits to be derived from it. What they were told was that it was The First Thing to be Done and it appealed to one.s common sense that with a broken limb the first thing to be dene was to get the broken ends into posi- tion. What he understood the defendants to say, however, was that it would have been a useless operation, as the two ends of the bone in this case could not be kept together. One of the witnesses made a straiage statement, i.e.. that when the arm wa-i pulled it acted as a moans of getting the bone into apposition by a sort of lucky ohanoe. Mr. Coloam remarked that Sir Frederick Trervee gave evidence on that point. The Judge, continuing, remarked that he could not deal at length with tlio difficulty of maintaining the bones in position. In such a case most of the doctors called seemed to be agreed that there would be very great difficulty if not impossibility, in maintaining the bones in position; but, again, the real point was whether an attempt had been made in plaintiff's case to bring the bones into pcsition. They could not say whether if such a. thing had been done it would have had the result of reducing the amoun, of injury to the plaintiff's arm. Speaking of  witnesses and evidenoe given, he waid that, no doubt, the witnesses b?d he?d the court to the ca?e. but Sev ?oS not be o?rbome by mere matter cA numbers. No doubt the dcct? tod s'poken honestly, but ??-? was ? great St T tnith in w?t Mr. Duke h? Faid as to the difficulty for men in the position of Mr. Southern to get medical men to give evidence in suoh a case It w-is an action of er^t and serious importance to the defen- donts, whoso future would be affected con- siderably by the verdmt. The jury should, therefore, consider their verdict as carefully as possible. The jury then retired at five minutes past three o'clock JURY DISAGREE AND ARE SENTI BACK. After a long absence the jury returned into court, and said they could not agree. The Judge appealed to them to come to an agreement, and sen/t them back to make another effort. I

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