BRITISH MEDICAL JOURNAL
22 FEBRUARY 1975
465
NEWS AND NOTES MEDICOLEGAL Medical Records and Confidentiality FROM OUR LEGAL CORRESPONDENT
Fears that the new procedure' whereby prospective plaintiffs in malpractice actions can insist on seeing medical records even before they have issued a writ have been somewhat stilled by Court of Appeal decisions2 that the records will be made available only to the plaintiff's medical advisers and not to his lawyers or himself. Not surprisingly, perhaps, this has not proved sufficient for some plaintiffs, who have wished to investigate further the basis on which their expert has formed his conclusions. In a recently reported case3 the Court of Appeal has laid down that a potential plaintiff is not bound by the opinions expressed in his expert's report and that if he wants to seek further explanation before deciding whether to bring an action the expert can answer his questions by himself referring to the medical records.
Facts of Case The potential plaintiff in the case was a girl who had been aged 12 in 1972 when she had developed severe abdominal pains and vomiting after eating sausages. Her father, who had also eaten them, had had less severe pains. A surgical registrar at Worthing Hospital w,ho saw the girl su,spected a ruptured ectopic pregnancy-and told her father as much. But when the girl was seen by a gynaecologist two hours later he dismissed the idea of there being a gynaeoological cause for her condition. A laparotomy was performed but no surgical abnormality was found. A fortnight later an x-ray film had suggested a duodenal obstruction. Again no surgical anomaly was uncovered. After another fortnight she was transferred to the Hospital for Sick Children, Great Ormond Street. There she settled down on a graduated bland diet and went home after 10 days. There was full recovery. The South-Western Metropolitan Hospital Board willingly disclosed the notes of treatment to the potential plaintiff's medical adviser, Mr. R. R. Kendrick. 'he lat-ter, after considering them, condemned4 the diagnosis of ectopic pregnancy in the absence of a la;boratory pregnancy test as "'very unwise." "Perhaps," he added, too, "the possibility of food poisoning was not sufficiently taken into account before the first laparotomy." However, Mr. Kendrick concluded that the fact that two laparotomies had been carried out unnecessarily could not be described as negligence. Nor were the set-backs of her protracted convalescence the result of negligence. The girl's advisers thought Mr. Kendrick's report insufficient, and they asked for the records to be shown to them and, if need be, to the girl's father. An app-lication
followed to the Master, who refused it, and to Mr. Justice Bristow, who allowed it. The judge considered that the aim of the 1970 Act was not being followed if legal advisers could not see the records "so that they could put their heads together with the medical expert and come to a joint conclusion on what was partly a matter of medical science and partly a matter of law." Otherwise, he thought, the plaintiff would not be able to make a sensible estimate of whether he had been wronged or not before committing himself to expensive litigation. Court of Appeal's View The day after Mr. Justice Bristow made his order, the Court of Appeal gave judgement in another case, and stated that the disclosure of records ought to be confined to medical advisers. That view was repeated by Lord Denning when Mr. Justice Bristow's decision came to appeal, but he emphasized that the potential plaintiff was not necessarily bound by his expert's report. If, said the Master of the Rolls, the plaintiff or his lawyers believed that the expert's report required explanation or reconsideration they were entitled to have a conference with counsel and the expert in the same way thait counsel saw other experts before an action. Counsel could then, in order to gauge whether there was a case, ask further questions, and in answering them the expert could refer to the records received from the hospital-but without any need to show them to the plaintiff or his lawyers. Orders for discovery under the 1970 Act will be made only where it is necessary in the interests of justice; and Lord Denning thought that it was necessary in the present
case at this stage. No doubt there will be more complicated cases in the future where justice will demand that the sort of joint consideration of the records by lawyers and doctors together (as envisaged by Mr. Justice Bristow) will be necessary. In the earlier case2 Lord Denning gave as an example a situation where there was disagreement among the experts over the diagnosis or prognosis. All the same, in interpreting section 32 of the Act of 1970, the courts have consistently shown themselves aware of the twin dangers emphasized by the hospital in this most recent case: namely that there are serious risks5 6 of inlibiting writers of medical records if they are to be available to the patient, his family, or lawyers, and equally serious risks of misinterpretation may arise if the records are read by laymen. 1 Rules of the Supreme Court, Order 24, rule
2 3 4
5
6
7A,
made under section 32 Administration of Justice Act 1970. Davidson v. Lloyd Aircraft Services Ltd.: (1974) 1 WLR 1042; Briti:h Medical Yournal, 1974, 3, 123. Deistung v. S.W. Metropolitan Hospital Board: (1975) 1 WLR 213. The Winn Committee in 1968 specifically foresaw the danger of misinterpretation if laymen had access to records containing "the ill-informed views of junior housemen of limited experience." See para. 293 Committee on Personal Injuries Litigation, Cmnd. 3691. London, H.M.S.O., 1968. In the Davidson case Lord Denning prophetically postulated that records mieht contain remarks such as "query-pregnancy?" about a girl of 12 which were just an examining doctor's fleeting idea. He thought that doctors should not be restrained from speculating in the records. The defence societies have pointed out that lighter "personal touches" in referring letters and hospital records will look out of place when scrutinized later in court. The tone should be "serious and precise." Patte-son, j., Leahy Taylor, J., and Brooke Barnett, J. W., British Medical Yournal, 1975, 1, 150.
PARLIAMENT N.H.S. Consultant Contract Statement by Mrs. Barbara Castle On 17 February the Secretary of State for Social Services made a Parliamentary statement about the consultant contract discussions. Most of her comments repeated what she had already stated in her letter of 11 February to Mr. A. H. Grabham, Chairman, C.C.H.M.S. Negotiating Subcommittee (p. 468). She also declared that the new contract was not being foisted on consuiltants against their will. "They came to me when this
Government took office and told me of their long-standing dissatisfaction with their contract. At their request I set up a working party to deal with their complaints. I was not then, and I am not now, forcingor even urging-them to take a new contract." Mrs. Castle maintained that she did not wish discussions on a new contract to '%old up the Review Body's repricing of the existing contract which we want to see completed if at all possible by 1 April." The Government recognized that ooDsultants had
466 had to wait 12 months for their substantive review. She was "ready to give the consultants the same assurances that I gave to G.P.s." FUNDAMENTAL CHANGES
After referring to the Government's evidence to the Review Body on improving the oDnsultants' incremental scale she condluded her statement: "Since agreement on more fundamental changes in the existing contract will necessarily take some time I have, as I have already told the House, offered to invite the Review Body to price the new arrangements without commitment and at a later stage. I am also prepared to ask them to do this within the context of the present review so that the arrangements could enter into effect within the same 12 months period. But it will clearly only be -possible to do tuhis if the Review Body has some indication of the lines of the new arrangements before it reports in April on the existing contract. This is another reason why the negotiations should be resumed imnediately. "Any decision to lift sanctions and resume negotiations rests with the professions' committees and I understand they are to meet on Thursday to consider my (letter and the replies I have received. I regret to inform the House that in these replies the profession's negotiators, wlhile recognizing that there is common ground between us on a number of points, conclude that a recommendation for the imxnediate lifting of sanctions is unlikely. I can only hope that after considering my letter and statement today the profession at their meetings on Thursday will decide to resume negotiations and to lift their sanctions which are daraging the Health Service and causing -hardship to thousands of patients. I will, of course, inform the House of the outcome."
MEDICAL NEWS Movement of Doctors in E.E.C. On 11 February the health ministers of the nine E.E.C. member states adopted in principle two medical directives. The first will allow the 400 000 doctors of the Nine to practise freely throughout the Communityprovided, of oourse, that they are fully qualified under ,their respective national rules; and the seoDnd will promote freer circulation of drugs. Officials of the E.E.C. in Brussels agree that this is a test case but insist that free movement wUll necessarily be limited by languge difficulties. The Belgians, however, have always been concerned that because Belgium is a bilingual country and their medical profession well paid there would be an inrush of foreign doctors. In addition the many foreigners in Belgium might prefer to be treated by doctors from their own country. With ths and other problems in mind the ninisters agreed to set up a supervisory commfnittee of senior officials in public health from the Nine to look at the difficulties which might arise from the implementation of the directives. The directives will not oDme into force
BRITISH MEDICAL JOURNAL
22
FEBRUARY
1975
immediately. Both will go to the Committee doctor. That was the kind of freedom his of Permanent Representatives and back to college would never surrender. the Council of Ministers for ratification and member states will have 18 months to adapt Vaccine Damaged Children their legisation accordingly. The Association of Parents of Vaccine Damaged Children has sent a report on a European Federation of Hospital Junior compensation scheme to the Department of Doctors Health and Social Security and to about 150 While ministers in Brussels were agreeing interested M.P.s. The association was to allow fully-t,rained doctors to move among formed in October 1973 to press the governthe states of the E.E.C. hospital junior ment to introduce a compensation scheme doctors were meeting in Edinburgh (7-9 as part of the National Immunization February) and agreed to set up a European Scheme. Federation of Hospital Junior Doctors. The The report illustrates how vaccine damge meeting was chaired by Mr. Patrick can arise, and why members and supporters McNally and eight of the nine countries of the association feel that these children were represented, with Austria as an ob- are the direct responsibility of -the Governserver. At present the opportunities for ment and why a compensation scheme is emp'oyment in other countries during train- urgently required. Records to date cover ing are not well publicized and standards 246 vaccine-damaged children. vary considerably. The new association's first task will be to collect information on "Handling the Handicapped" undergraduate training in Europe. Later on, Mr. McNally said, he hoped they would A 120-page guide on lifting and moving dishave details of postgraduate opportunities abled people has been prepared by the and of all E.E.C. health care systems. The Chartered Society of Physiotherapy. IlC,usnext meeting will be in Copenhagen in May. trated with many photos, the text gives straightforward guidance for the non-expert on how to assess a patient's disability and Mentally Handicapped Children in Hospital use to best advantage such mobility as he The care of some 8000 mentally handicappd still possesses, before going on to describe children and young people in hospital in specific manoeuvres. Types of hoists, beds, England and Wales is the suibject of a new and wheelchairs available are considered report by the Campaign for the Mentally and advice on selection given; there is also Handicapped. The report analyses why the a list of equipment manufacturers and children are in hospital-because there are organizations advising on many aspects of no residentiall alternatives available to them; disablement. Chapters on swimming and what kind of a life they have-unsatisfac- horse riding show how much these activities tory, since they require no "health care," are can be enjoyed by the disabled wlhen given segregated from daily life, and often in- proper assistance. Handling the Handicapped adequately educated because of the obvious may be obtained from the publisihers, difficulties involved; and finally, what should Woodhead-Faulkner Ltd., 7 Rose Crescent, be done-the provision of residential homes, Cambridge CB2 3LL at £1E95 (postage 25p) encouragement of fostering, and increasing or through booksellers. the support from local authorities to these children's families. All of this, according to ASH and the Royal Commission the Campaign, reauires a commitment to reform by the Government leading to closer In its submission to the Royal Conwrission co-operation between health and local on Civil Liability and Compensation for authorities and the development of new' Personal Injury, Action on Smioking and pattems of care. Whose Children? Report Health (ASH) has suggested that cigarette of the Campaign for the Mentally Handi- manufacturers should be liable for compencapped. Obtainaible from 96 Portland Place, sation for damge caused by smoki'ng, and that a smokers' compensation fund be estabLondon WIN 4EX, price 15p. lisihed, funded as a foem of compulsory inssurance by a levy of 3p or 5p on every Hunterian Festivals package of cigarettes. Such a fund could Both the Royal College of Surgeons of raise between £210m. and £350mn. a year. England and the Hunterian Society celebrated last week the 247th anniversary of Prize for Essay on Haemophilia John Hunter's birth. The society at its dinner on 13 February, chaired by its The French Association of Haemopiliacs president, Mr. Kenneth Owen, heard Lord offers a prize of F.15 000 (approximately Shawcross (a former M.R.C. chairman) £1500) for an essay on haemophilia. declare it would be fatal for medicine's pro- Registration must be by 15 March and ingress if the State became the sole empAoyer: formation, including rules of the competifreedom, independence, and courage to go tion, may be obtained from the Secretariat your own way were still vital. To the sur- of the Jury, Association Frangaise des geons the next evening, who earlier had Hemophiles, C.N.T.S., 6 rue Alexandre heard their president, Sir Rodney Smith, Crabanel, 75015 Paris. himself deliver the conmemorative oration, Lord Robens emphasized 'how necessary Incontinence on Exertion professional and industrial excellence was for Britain's survival. Sir Rodney, replying, Methods to regain bladder control in stress agreed that basic freedoms were now under incontinence and after major pelvic surgery severe pressure: no written contract, he told are described in a 25-page booklet written his hearers, must come between the un- for patients by a physiotherapist. After a written contract between a patient and his brief anatomical description of the bladder
BRITISH MEDICAL JOURNAL
22 FEBRUARY 1975
and pelvis exercises for strengthening pelvic floor and abdominal muscles are clearly described, and advice given on aggravating factors such as chest infections, obesity, and constipation. Regaining Bladder Control, Eileen Montgomery, published by John Wright and Sons, Bristol, price 65p.
467
under the auspices of the European Association for the Study of Diabetes, the W.H.O., and Zagreb University. Details from the secretary general, Institute for Diabetes, 41000 Zagreb, Petrinjska 34, Yugoslavia.
SOCIETIES AND LECTURES For attending lectures tnarked * a fee is charged
or a tlcket is required. Applications should be Order of St. John of Jerusalem made first to the institution concerned. Those recently appointed to, or promoted Monday, 24 February in, the Most Venerable Order of the Hos- INSTITUTE OF DERMATOLOGY.-4.30 p.m., Dr. J. Pegum: The Apocrine Glands. pital of St. John of Jerusalem include the following members of the medical profes- Wednesday, 26 February sion: CARDIOTHORACIC INSTITUTE, LONDON S.W.3.-5 p.m., As Knights: Sir William Ferguson Dr. E. A. Shinebourne: Pathogenesis of Coarctation with special reference to Fetal Flow patterns. Anderson, Professor C. L. Gosse, and Dr. INSTITUTE OF NEUROLOGY.- 6 p.m., Dr. P. S. W. Gove. As Commanders (Brothers): Harper: Myotonic Dystrophy-the Role of Genetics and Environmental Factors; 7 p.m., Dr. Major-General E. L. 0. Hood, LieutenantSarah Bundey: Genetic Counselling in Myotonic Colonel D. G. C. Whyte, Drs. D. C. Foster, Dystrophy. OF PSYCHIATRY.-5.30 p.m., Dr. J. R. M. R. L. Osmont, C. R. B. Richards, K. H. INSTITUTE Copeland: Syndromes of Depression-How Useful Walter, L. R. Whittaker, and Mr. I. B. Tait. Are They? As Commander (Sister): Dr. Edith M. Latto. ROYAL COLLEGE OF SURGEONS OF ENGLAND-5 p.m., John Keats memorial lecture by Lady Birkenhead: Jo-eph Severn-Friend of Keats. ROYAL POSTGRADUATE MEDICAL SCHOOL.-2 p.m., Mrs. E. A. Asheshor: Genetics and Mechanisms of Resistance to Antimicrobial Drugs in Staphylococcus aureus.
Salisbury Division.-At Salisbury Postgraduate Medical Centre, Tuesday, 25 February, 8 p.m., B.M.A. lecture by Professor R. G. Harrison: "Tutankhamen Postmortem." South Bedfordshire Division.-At Bedford Medical Centre, Thursday, 27 February, 8 p.m., joint meeting with North Bedfordshire Division. South Middlesex Division.-At Red Lion Hotel, Hounslow, Wednesday, 26 February, 8.30 p.m., B.M.A. lecture by Dr. Arthur Guirdham: "The Importance of Psychic Phenomena in Psychiatry." (Dinner, 7 p.m.)* Waltham Forest Division.-At Whipps Cross Education Centre, Wednesday, 26 February, 8.30 p.m., Professor A. W. Woodruff: "Tropical Disease in the Immigrant." (Buffet supper provided, 7.30 p.m.) Guests are invited.*
UNIVERSITIES AND COLLEGES ABERDEEN M.D.-J. Gaddie (honours), D. R. Harper (commendation). PH.D.-In the Faculty of Medicine: Valeri-e A.
Taylor. LONDON M.D.-K. G. A. Clark, M. R. Gooding, R. J. Hafner, Eileen M. Phillips, G. P. Sharratt, Mary Sibellas. PH.D.-In the Faculty of Medicine: S. K. Afo!abi, Joan B. Evans, G. A. Hopkins, Brigitte Huber, G. Janossy, Nazem N. Kadv, D. Kershenobich, Sanath P. Lamabadusuriya, G. Lentzos. C. A. Lingwood, Roseli E. L. Romano Roseili, T. W. Smith T. R. Varma, C. B. Wolff, E. Zeidi Fard. M PHIL.-In the Faculty of Medicine: J. G. Gouda, B. F. Williams. BIRMINGHAM HON. LL D.-Dr. A. Barker (medical superintendent, Charles Johnson Memorial Hosoital, Nqutu, Kwa Zulu, South Africa, 1945-74); Dr. C. W. Gordon (regional medical officer, We',t Midlands R.H.A.).
Amoebiasis: Diagnosis and Research A unit for research and diagnosis on amoebiasis has been established as part of Thursday, 27 February the department of microbiology at King's A-ERDEEN UNIVERSITY.-5 p.m., Dr. A. W. Asscher: Pyelonephriti'. College Hospital. The unit, whidh is sup- PHARMACEUTICAL OF GREAT BRITAIN.-7 ported by the Department of Health, is at p.m., Professor SOCIETY P. Turner: Man as his own Experimental Animal. St. Giles's Hospital, Camberwell. POSTGRADUATE MEDICAL SCHOOL.-4 o.m., T-he services offered include examination ROYAL Dr. J. J. Misiewicz: Oesophageal Disease and its T-eatmnent. of suspect faecal specimens, biopsy, APPOINTMENTS SOCIETY.-10.15 a m., Dav discussion meetnecropsy, or abscess aspirate specimens, and ROYAL ing: Treatment of Arthritis byJointReplacement.* sera testing for antibodies. Inquiries to Air MANCHESTER A.H.A.(T.).-The following consultants have been appointed: Dr. M. L. Chiswick Vice Marshal W. P. Stamm, St. Giles's Hos- Friday, 28 February (paediatrics); Dr. R. M. Rash (geriatrics). pital, St. Giles's Road, London SE5 7RN, INSTITUTE OF LARYNGOLOGY AND OTOLOGY.-5.30 NORTH-WEST THAMES R.H.A.-Dr. R. S. Elkeles of the A. S. Dr. G. Radio!o?y p m., Lloyd: ext. 117. 4221 tel. 01-703 (consultant in endocrinology and diabetes). Petrous Temporal Bone. ROYAL POSTGRADUIATE MEDICAL SCHOOL.-II a.m., Mr. K. Yeates: Injuries to the Pelvic Ureter.
COMING EVENTS Labour Campaign for Mental Health.- Public meeting, "The Labour Government's Policy for the Mental Health Services," Dr. David Owen, Minister of State for Health, will speak and answer auestions, 26 Februarv, 6 p.m., Westminster Hall, House of Commons. All interested are invited. Final F.R.C.S. Day-release Course.-27 February, 7, 10, 18, 26 March, 3, 11, 14, 22 April, Glantawe Postgraduate Medical Centre. No course fee. Details from the surgical tutor, Mr. J. E. Mitchell, at the centre, Morriston Hospital, Swansea, SA6 6NL. (Tel. 0792 71221, extn. 155.) Royal College of Physicians of London.Teach-in, "Pancreatitis," 4 March. For details see advertisement on page ix. 13-14 "Pulmonary Radiology."-Course, March, Cardiothoracic Institute, Fulham Road, Brompton, London SW3 6HP. Fee f 15. Details from the secretary of the institute. (Tel. 01-352 8144.) "Diseases of the Colon and Rectum."-Course of morning lectures, 17-21 March. Fee f 15. Applications to the dean of postgraduate studies, St. Mark's Hospital, City Road, London EC1V 2PS. (Tel. 01-253 8821, extn. 36.) "Future Trends in General Practice."Residential course for general practitioners, 22-23 March, Lancaster Postgraduate Medical Centre. Applications to the dean of postgraduate medical studies, Gateway House, Piccadilly, Manchester. Biochemical Society.-Scientific meeting, 24-25 March, Kensington, London W.8 Fee £5 per day. Details from the meetings officer of the societv, 7 Warwick Court, Holborn, London WC1R 5DP. (Tel. 01-242 1076.) Ophthalmological Society of the United Kingdomi.-Annual congress, 9-11 April, Dublin. Details from the honorary secretary of the society, at Royal College of Surgeons of England, 35/43 Lincoln's Inn Fields, London WC2A 3PN. 2nd European Postgraduate Course on Diabetology.-14-20 April, Dubrovnik, organized
Corrections
B.M.A. NOTICES Diary of Central Meetings FEBRUARY
26 Wed. Council, 10 a.m. 27 Thurs. Special Representative
Meeting,
10
a.m.
MARCH
3 Mon. 6 Thurs. 7 Fri. 13 Thurs.
Panel on Gaps in Medical Research (Board of Science and Education), 2.15 p.m. General Purposes Subcommittee (G.M.S.), 10.30 a.m. Board of Science and Education, 10.30 a.m. Central Committee for Hospital Medical Services, 10 a.m.
Normal Haematological Values In the article by Drs. Barbara J. Bain and J. M. England (8 February, p. 306) the figures for total leucocvtes in women in table II should have been as follows: Morning 3-839 - 10-135; afternoon 4-450 - 11-750. In table III the figures for total leucocytes from Osgood et al. should have been: Males 4-637 - 10-965; females 4 509 - 11-666.
Pseudopatients We regret that a printing error occurred in the letter from Dr. D. C. Wallbridge (8 February, p. 334). The title of the paper by Rosenhan quoted in the first paragraph should read "On Being Sane in Insane Places."
Clinicopathological Conference In the report of "A Case of Hypoaldosteronism" Members proposing to attend meetings marked* are (8 February, p. 316) we regret the transposition of asked to notify in advance the honorary secretary the legends to figs. 4 and 5. Fig. 4 showed tumour concerned. of thyroid and fig. 5 showed tissue from the wrist Birmingham Division.-At 36 Harborne Road, lesion.
Branch and Divrision Meetings to be Held
Edgbaston, Tuesday, 25 February, 8.15 p.m., Professor H. Ellis: "Royal Operations." (Buffet supper provided, 7.15 p.m.)* Dewsbury Division.-At postgraduate medical centre, Friday, 28 February, 8.30 p.m., lecture by Mr. D. J. E. Price. Eastbourne Division.-At Lamb Inn, Old Town, Wednesday, 26 Februarv, 7.30 p.m., business meeting. Preceded by food and wine (provided) and film.* East Dorset Division.-At postgraduate centre, Poole General Hospital, Friday, 28 February, 7.30 p.m., B.M.A. lecture bv Sir James Fraser: "The Regional Oncology Service." (Followed by buffet supper.) Guests are invited.* Gateshead Division.-At postgraduate centre, Queen Elizabeth Hospital, Monday, 24 February, 8 p.m., meeting to consider agenda for S.R.M. Islington Division.-At Royal Northern Hospital (consultants' sitting room), Tuesday 25 February, 8 p.m., first general meeting, election of officers, etc. Manchester Division.-At Boyd House, Tuesday, 25 Februarv, 8 for 8.30 p.m., Mr. I. G. Schraibman: "Surgery of Carotid Vertebral Artery Stenosis." (Buffet supper provided.)* Roehamoton Division.-At Queen Mary's Hospital, Monday, 24 February, 8.30 p.m., meeting with District Management team. Members who work outside the district are invited.
Notice to Authors When the original articles and letters for publication are not submitted exclusively to the British Medical J7ournal this must be stated. Correspondence on editorial business should be addressed to the Editor, British Medical Journal, B.M.A. House, Tavistock Square, London WC1H 9JR. Telephone: 01-387 4499. Telegrams: Aitiology, London, W.C.1. Authors wanting reprints of their articles should notify the Publishing Manager, B.M.A. House, Tavistock Square, WC1H 9JR, on receipt of proofs. C British Medical Journal 1975 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the British Medical journal.
22 FEBRUARY 1975
465
NEWS AND NOTES MEDICOLEGAL Medical Records and Confidentiality FROM OUR LEGAL CORRESPONDENT
Fears that the new procedure' whereby prospective plaintiffs in malpractice actions can insist on seeing medical records even before they have issued a writ have been somewhat stilled by Court of Appeal decisions2 that the records will be made available only to the plaintiff's medical advisers and not to his lawyers or himself. Not surprisingly, perhaps, this has not proved sufficient for some plaintiffs, who have wished to investigate further the basis on which their expert has formed his conclusions. In a recently reported case3 the Court of Appeal has laid down that a potential plaintiff is not bound by the opinions expressed in his expert's report and that if he wants to seek further explanation before deciding whether to bring an action the expert can answer his questions by himself referring to the medical records.
Facts of Case The potential plaintiff in the case was a girl who had been aged 12 in 1972 when she had developed severe abdominal pains and vomiting after eating sausages. Her father, who had also eaten them, had had less severe pains. A surgical registrar at Worthing Hospital w,ho saw the girl su,spected a ruptured ectopic pregnancy-and told her father as much. But when the girl was seen by a gynaecologist two hours later he dismissed the idea of there being a gynaeoological cause for her condition. A laparotomy was performed but no surgical abnormality was found. A fortnight later an x-ray film had suggested a duodenal obstruction. Again no surgical anomaly was uncovered. After another fortnight she was transferred to the Hospital for Sick Children, Great Ormond Street. There she settled down on a graduated bland diet and went home after 10 days. There was full recovery. The South-Western Metropolitan Hospital Board willingly disclosed the notes of treatment to the potential plaintiff's medical adviser, Mr. R. R. Kendrick. 'he lat-ter, after considering them, condemned4 the diagnosis of ectopic pregnancy in the absence of a la;boratory pregnancy test as "'very unwise." "Perhaps," he added, too, "the possibility of food poisoning was not sufficiently taken into account before the first laparotomy." However, Mr. Kendrick concluded that the fact that two laparotomies had been carried out unnecessarily could not be described as negligence. Nor were the set-backs of her protracted convalescence the result of negligence. The girl's advisers thought Mr. Kendrick's report insufficient, and they asked for the records to be shown to them and, if need be, to the girl's father. An app-lication
followed to the Master, who refused it, and to Mr. Justice Bristow, who allowed it. The judge considered that the aim of the 1970 Act was not being followed if legal advisers could not see the records "so that they could put their heads together with the medical expert and come to a joint conclusion on what was partly a matter of medical science and partly a matter of law." Otherwise, he thought, the plaintiff would not be able to make a sensible estimate of whether he had been wronged or not before committing himself to expensive litigation. Court of Appeal's View The day after Mr. Justice Bristow made his order, the Court of Appeal gave judgement in another case, and stated that the disclosure of records ought to be confined to medical advisers. That view was repeated by Lord Denning when Mr. Justice Bristow's decision came to appeal, but he emphasized that the potential plaintiff was not necessarily bound by his expert's report. If, said the Master of the Rolls, the plaintiff or his lawyers believed that the expert's report required explanation or reconsideration they were entitled to have a conference with counsel and the expert in the same way thait counsel saw other experts before an action. Counsel could then, in order to gauge whether there was a case, ask further questions, and in answering them the expert could refer to the records received from the hospital-but without any need to show them to the plaintiff or his lawyers. Orders for discovery under the 1970 Act will be made only where it is necessary in the interests of justice; and Lord Denning thought that it was necessary in the present
case at this stage. No doubt there will be more complicated cases in the future where justice will demand that the sort of joint consideration of the records by lawyers and doctors together (as envisaged by Mr. Justice Bristow) will be necessary. In the earlier case2 Lord Denning gave as an example a situation where there was disagreement among the experts over the diagnosis or prognosis. All the same, in interpreting section 32 of the Act of 1970, the courts have consistently shown themselves aware of the twin dangers emphasized by the hospital in this most recent case: namely that there are serious risks5 6 of inlibiting writers of medical records if they are to be available to the patient, his family, or lawyers, and equally serious risks of misinterpretation may arise if the records are read by laymen. 1 Rules of the Supreme Court, Order 24, rule
2 3 4
5
6
7A,
made under section 32 Administration of Justice Act 1970. Davidson v. Lloyd Aircraft Services Ltd.: (1974) 1 WLR 1042; Briti:h Medical Yournal, 1974, 3, 123. Deistung v. S.W. Metropolitan Hospital Board: (1975) 1 WLR 213. The Winn Committee in 1968 specifically foresaw the danger of misinterpretation if laymen had access to records containing "the ill-informed views of junior housemen of limited experience." See para. 293 Committee on Personal Injuries Litigation, Cmnd. 3691. London, H.M.S.O., 1968. In the Davidson case Lord Denning prophetically postulated that records mieht contain remarks such as "query-pregnancy?" about a girl of 12 which were just an examining doctor's fleeting idea. He thought that doctors should not be restrained from speculating in the records. The defence societies have pointed out that lighter "personal touches" in referring letters and hospital records will look out of place when scrutinized later in court. The tone should be "serious and precise." Patte-son, j., Leahy Taylor, J., and Brooke Barnett, J. W., British Medical Yournal, 1975, 1, 150.
PARLIAMENT N.H.S. Consultant Contract Statement by Mrs. Barbara Castle On 17 February the Secretary of State for Social Services made a Parliamentary statement about the consultant contract discussions. Most of her comments repeated what she had already stated in her letter of 11 February to Mr. A. H. Grabham, Chairman, C.C.H.M.S. Negotiating Subcommittee (p. 468). She also declared that the new contract was not being foisted on consuiltants against their will. "They came to me when this
Government took office and told me of their long-standing dissatisfaction with their contract. At their request I set up a working party to deal with their complaints. I was not then, and I am not now, forcingor even urging-them to take a new contract." Mrs. Castle maintained that she did not wish discussions on a new contract to '%old up the Review Body's repricing of the existing contract which we want to see completed if at all possible by 1 April." The Government recognized that ooDsultants had
466 had to wait 12 months for their substantive review. She was "ready to give the consultants the same assurances that I gave to G.P.s." FUNDAMENTAL CHANGES
After referring to the Government's evidence to the Review Body on improving the oDnsultants' incremental scale she condluded her statement: "Since agreement on more fundamental changes in the existing contract will necessarily take some time I have, as I have already told the House, offered to invite the Review Body to price the new arrangements without commitment and at a later stage. I am also prepared to ask them to do this within the context of the present review so that the arrangements could enter into effect within the same 12 months period. But it will clearly only be -possible to do tuhis if the Review Body has some indication of the lines of the new arrangements before it reports in April on the existing contract. This is another reason why the negotiations should be resumed imnediately. "Any decision to lift sanctions and resume negotiations rests with the professions' committees and I understand they are to meet on Thursday to consider my (letter and the replies I have received. I regret to inform the House that in these replies the profession's negotiators, wlhile recognizing that there is common ground between us on a number of points, conclude that a recommendation for the imxnediate lifting of sanctions is unlikely. I can only hope that after considering my letter and statement today the profession at their meetings on Thursday will decide to resume negotiations and to lift their sanctions which are daraging the Health Service and causing -hardship to thousands of patients. I will, of course, inform the House of the outcome."
MEDICAL NEWS Movement of Doctors in E.E.C. On 11 February the health ministers of the nine E.E.C. member states adopted in principle two medical directives. The first will allow the 400 000 doctors of the Nine to practise freely throughout the Communityprovided, of oourse, that they are fully qualified under ,their respective national rules; and the seoDnd will promote freer circulation of drugs. Officials of the E.E.C. in Brussels agree that this is a test case but insist that free movement wUll necessarily be limited by languge difficulties. The Belgians, however, have always been concerned that because Belgium is a bilingual country and their medical profession well paid there would be an inrush of foreign doctors. In addition the many foreigners in Belgium might prefer to be treated by doctors from their own country. With ths and other problems in mind the ninisters agreed to set up a supervisory commfnittee of senior officials in public health from the Nine to look at the difficulties which might arise from the implementation of the directives. The directives will not oDme into force
BRITISH MEDICAL JOURNAL
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FEBRUARY
1975
immediately. Both will go to the Committee doctor. That was the kind of freedom his of Permanent Representatives and back to college would never surrender. the Council of Ministers for ratification and member states will have 18 months to adapt Vaccine Damaged Children their legisation accordingly. The Association of Parents of Vaccine Damaged Children has sent a report on a European Federation of Hospital Junior compensation scheme to the Department of Doctors Health and Social Security and to about 150 While ministers in Brussels were agreeing interested M.P.s. The association was to allow fully-t,rained doctors to move among formed in October 1973 to press the governthe states of the E.E.C. hospital junior ment to introduce a compensation scheme doctors were meeting in Edinburgh (7-9 as part of the National Immunization February) and agreed to set up a European Scheme. Federation of Hospital Junior Doctors. The The report illustrates how vaccine damge meeting was chaired by Mr. Patrick can arise, and why members and supporters McNally and eight of the nine countries of the association feel that these children were represented, with Austria as an ob- are the direct responsibility of -the Governserver. At present the opportunities for ment and why a compensation scheme is emp'oyment in other countries during train- urgently required. Records to date cover ing are not well publicized and standards 246 vaccine-damaged children. vary considerably. The new association's first task will be to collect information on "Handling the Handicapped" undergraduate training in Europe. Later on, Mr. McNally said, he hoped they would A 120-page guide on lifting and moving dishave details of postgraduate opportunities abled people has been prepared by the and of all E.E.C. health care systems. The Chartered Society of Physiotherapy. IlC,usnext meeting will be in Copenhagen in May. trated with many photos, the text gives straightforward guidance for the non-expert on how to assess a patient's disability and Mentally Handicapped Children in Hospital use to best advantage such mobility as he The care of some 8000 mentally handicappd still possesses, before going on to describe children and young people in hospital in specific manoeuvres. Types of hoists, beds, England and Wales is the suibject of a new and wheelchairs available are considered report by the Campaign for the Mentally and advice on selection given; there is also Handicapped. The report analyses why the a list of equipment manufacturers and children are in hospital-because there are organizations advising on many aspects of no residentiall alternatives available to them; disablement. Chapters on swimming and what kind of a life they have-unsatisfac- horse riding show how much these activities tory, since they require no "health care," are can be enjoyed by the disabled wlhen given segregated from daily life, and often in- proper assistance. Handling the Handicapped adequately educated because of the obvious may be obtained from the publisihers, difficulties involved; and finally, what should Woodhead-Faulkner Ltd., 7 Rose Crescent, be done-the provision of residential homes, Cambridge CB2 3LL at £1E95 (postage 25p) encouragement of fostering, and increasing or through booksellers. the support from local authorities to these children's families. All of this, according to ASH and the Royal Commission the Campaign, reauires a commitment to reform by the Government leading to closer In its submission to the Royal Conwrission co-operation between health and local on Civil Liability and Compensation for authorities and the development of new' Personal Injury, Action on Smioking and pattems of care. Whose Children? Report Health (ASH) has suggested that cigarette of the Campaign for the Mentally Handi- manufacturers should be liable for compencapped. Obtainaible from 96 Portland Place, sation for damge caused by smoki'ng, and that a smokers' compensation fund be estabLondon WIN 4EX, price 15p. lisihed, funded as a foem of compulsory inssurance by a levy of 3p or 5p on every Hunterian Festivals package of cigarettes. Such a fund could Both the Royal College of Surgeons of raise between £210m. and £350mn. a year. England and the Hunterian Society celebrated last week the 247th anniversary of Prize for Essay on Haemophilia John Hunter's birth. The society at its dinner on 13 February, chaired by its The French Association of Haemopiliacs president, Mr. Kenneth Owen, heard Lord offers a prize of F.15 000 (approximately Shawcross (a former M.R.C. chairman) £1500) for an essay on haemophilia. declare it would be fatal for medicine's pro- Registration must be by 15 March and ingress if the State became the sole empAoyer: formation, including rules of the competifreedom, independence, and courage to go tion, may be obtained from the Secretariat your own way were still vital. To the sur- of the Jury, Association Frangaise des geons the next evening, who earlier had Hemophiles, C.N.T.S., 6 rue Alexandre heard their president, Sir Rodney Smith, Crabanel, 75015 Paris. himself deliver the conmemorative oration, Lord Robens emphasized 'how necessary Incontinence on Exertion professional and industrial excellence was for Britain's survival. Sir Rodney, replying, Methods to regain bladder control in stress agreed that basic freedoms were now under incontinence and after major pelvic surgery severe pressure: no written contract, he told are described in a 25-page booklet written his hearers, must come between the un- for patients by a physiotherapist. After a written contract between a patient and his brief anatomical description of the bladder
BRITISH MEDICAL JOURNAL
22 FEBRUARY 1975
and pelvis exercises for strengthening pelvic floor and abdominal muscles are clearly described, and advice given on aggravating factors such as chest infections, obesity, and constipation. Regaining Bladder Control, Eileen Montgomery, published by John Wright and Sons, Bristol, price 65p.
467
under the auspices of the European Association for the Study of Diabetes, the W.H.O., and Zagreb University. Details from the secretary general, Institute for Diabetes, 41000 Zagreb, Petrinjska 34, Yugoslavia.
SOCIETIES AND LECTURES For attending lectures tnarked * a fee is charged
or a tlcket is required. Applications should be Order of St. John of Jerusalem made first to the institution concerned. Those recently appointed to, or promoted Monday, 24 February in, the Most Venerable Order of the Hos- INSTITUTE OF DERMATOLOGY.-4.30 p.m., Dr. J. Pegum: The Apocrine Glands. pital of St. John of Jerusalem include the following members of the medical profes- Wednesday, 26 February sion: CARDIOTHORACIC INSTITUTE, LONDON S.W.3.-5 p.m., As Knights: Sir William Ferguson Dr. E. A. Shinebourne: Pathogenesis of Coarctation with special reference to Fetal Flow patterns. Anderson, Professor C. L. Gosse, and Dr. INSTITUTE OF NEUROLOGY.- 6 p.m., Dr. P. S. W. Gove. As Commanders (Brothers): Harper: Myotonic Dystrophy-the Role of Genetics and Environmental Factors; 7 p.m., Dr. Major-General E. L. 0. Hood, LieutenantSarah Bundey: Genetic Counselling in Myotonic Colonel D. G. C. Whyte, Drs. D. C. Foster, Dystrophy. OF PSYCHIATRY.-5.30 p.m., Dr. J. R. M. R. L. Osmont, C. R. B. Richards, K. H. INSTITUTE Copeland: Syndromes of Depression-How Useful Walter, L. R. Whittaker, and Mr. I. B. Tait. Are They? As Commander (Sister): Dr. Edith M. Latto. ROYAL COLLEGE OF SURGEONS OF ENGLAND-5 p.m., John Keats memorial lecture by Lady Birkenhead: Jo-eph Severn-Friend of Keats. ROYAL POSTGRADUATE MEDICAL SCHOOL.-2 p.m., Mrs. E. A. Asheshor: Genetics and Mechanisms of Resistance to Antimicrobial Drugs in Staphylococcus aureus.
Salisbury Division.-At Salisbury Postgraduate Medical Centre, Tuesday, 25 February, 8 p.m., B.M.A. lecture by Professor R. G. Harrison: "Tutankhamen Postmortem." South Bedfordshire Division.-At Bedford Medical Centre, Thursday, 27 February, 8 p.m., joint meeting with North Bedfordshire Division. South Middlesex Division.-At Red Lion Hotel, Hounslow, Wednesday, 26 February, 8.30 p.m., B.M.A. lecture by Dr. Arthur Guirdham: "The Importance of Psychic Phenomena in Psychiatry." (Dinner, 7 p.m.)* Waltham Forest Division.-At Whipps Cross Education Centre, Wednesday, 26 February, 8.30 p.m., Professor A. W. Woodruff: "Tropical Disease in the Immigrant." (Buffet supper provided, 7.30 p.m.) Guests are invited.*
UNIVERSITIES AND COLLEGES ABERDEEN M.D.-J. Gaddie (honours), D. R. Harper (commendation). PH.D.-In the Faculty of Medicine: Valeri-e A.
Taylor. LONDON M.D.-K. G. A. Clark, M. R. Gooding, R. J. Hafner, Eileen M. Phillips, G. P. Sharratt, Mary Sibellas. PH.D.-In the Faculty of Medicine: S. K. Afo!abi, Joan B. Evans, G. A. Hopkins, Brigitte Huber, G. Janossy, Nazem N. Kadv, D. Kershenobich, Sanath P. Lamabadusuriya, G. Lentzos. C. A. Lingwood, Roseli E. L. Romano Roseili, T. W. Smith T. R. Varma, C. B. Wolff, E. Zeidi Fard. M PHIL.-In the Faculty of Medicine: J. G. Gouda, B. F. Williams. BIRMINGHAM HON. LL D.-Dr. A. Barker (medical superintendent, Charles Johnson Memorial Hosoital, Nqutu, Kwa Zulu, South Africa, 1945-74); Dr. C. W. Gordon (regional medical officer, We',t Midlands R.H.A.).
Amoebiasis: Diagnosis and Research A unit for research and diagnosis on amoebiasis has been established as part of Thursday, 27 February the department of microbiology at King's A-ERDEEN UNIVERSITY.-5 p.m., Dr. A. W. Asscher: Pyelonephriti'. College Hospital. The unit, whidh is sup- PHARMACEUTICAL OF GREAT BRITAIN.-7 ported by the Department of Health, is at p.m., Professor SOCIETY P. Turner: Man as his own Experimental Animal. St. Giles's Hospital, Camberwell. POSTGRADUATE MEDICAL SCHOOL.-4 o.m., T-he services offered include examination ROYAL Dr. J. J. Misiewicz: Oesophageal Disease and its T-eatmnent. of suspect faecal specimens, biopsy, APPOINTMENTS SOCIETY.-10.15 a m., Dav discussion meetnecropsy, or abscess aspirate specimens, and ROYAL ing: Treatment of Arthritis byJointReplacement.* sera testing for antibodies. Inquiries to Air MANCHESTER A.H.A.(T.).-The following consultants have been appointed: Dr. M. L. Chiswick Vice Marshal W. P. Stamm, St. Giles's Hos- Friday, 28 February (paediatrics); Dr. R. M. Rash (geriatrics). pital, St. Giles's Road, London SE5 7RN, INSTITUTE OF LARYNGOLOGY AND OTOLOGY.-5.30 NORTH-WEST THAMES R.H.A.-Dr. R. S. Elkeles of the A. S. Dr. G. Radio!o?y p m., Lloyd: ext. 117. 4221 tel. 01-703 (consultant in endocrinology and diabetes). Petrous Temporal Bone. ROYAL POSTGRADUIATE MEDICAL SCHOOL.-II a.m., Mr. K. Yeates: Injuries to the Pelvic Ureter.
COMING EVENTS Labour Campaign for Mental Health.- Public meeting, "The Labour Government's Policy for the Mental Health Services," Dr. David Owen, Minister of State for Health, will speak and answer auestions, 26 Februarv, 6 p.m., Westminster Hall, House of Commons. All interested are invited. Final F.R.C.S. Day-release Course.-27 February, 7, 10, 18, 26 March, 3, 11, 14, 22 April, Glantawe Postgraduate Medical Centre. No course fee. Details from the surgical tutor, Mr. J. E. Mitchell, at the centre, Morriston Hospital, Swansea, SA6 6NL. (Tel. 0792 71221, extn. 155.) Royal College of Physicians of London.Teach-in, "Pancreatitis," 4 March. For details see advertisement on page ix. 13-14 "Pulmonary Radiology."-Course, March, Cardiothoracic Institute, Fulham Road, Brompton, London SW3 6HP. Fee f 15. Details from the secretary of the institute. (Tel. 01-352 8144.) "Diseases of the Colon and Rectum."-Course of morning lectures, 17-21 March. Fee f 15. Applications to the dean of postgraduate studies, St. Mark's Hospital, City Road, London EC1V 2PS. (Tel. 01-253 8821, extn. 36.) "Future Trends in General Practice."Residential course for general practitioners, 22-23 March, Lancaster Postgraduate Medical Centre. Applications to the dean of postgraduate medical studies, Gateway House, Piccadilly, Manchester. Biochemical Society.-Scientific meeting, 24-25 March, Kensington, London W.8 Fee £5 per day. Details from the meetings officer of the societv, 7 Warwick Court, Holborn, London WC1R 5DP. (Tel. 01-242 1076.) Ophthalmological Society of the United Kingdomi.-Annual congress, 9-11 April, Dublin. Details from the honorary secretary of the society, at Royal College of Surgeons of England, 35/43 Lincoln's Inn Fields, London WC2A 3PN. 2nd European Postgraduate Course on Diabetology.-14-20 April, Dubrovnik, organized
Corrections
B.M.A. NOTICES Diary of Central Meetings FEBRUARY
26 Wed. Council, 10 a.m. 27 Thurs. Special Representative
Meeting,
10
a.m.
MARCH
3 Mon. 6 Thurs. 7 Fri. 13 Thurs.
Panel on Gaps in Medical Research (Board of Science and Education), 2.15 p.m. General Purposes Subcommittee (G.M.S.), 10.30 a.m. Board of Science and Education, 10.30 a.m. Central Committee for Hospital Medical Services, 10 a.m.
Normal Haematological Values In the article by Drs. Barbara J. Bain and J. M. England (8 February, p. 306) the figures for total leucocvtes in women in table II should have been as follows: Morning 3-839 - 10-135; afternoon 4-450 - 11-750. In table III the figures for total leucocytes from Osgood et al. should have been: Males 4-637 - 10-965; females 4 509 - 11-666.
Pseudopatients We regret that a printing error occurred in the letter from Dr. D. C. Wallbridge (8 February, p. 334). The title of the paper by Rosenhan quoted in the first paragraph should read "On Being Sane in Insane Places."
Clinicopathological Conference In the report of "A Case of Hypoaldosteronism" Members proposing to attend meetings marked* are (8 February, p. 316) we regret the transposition of asked to notify in advance the honorary secretary the legends to figs. 4 and 5. Fig. 4 showed tumour concerned. of thyroid and fig. 5 showed tissue from the wrist Birmingham Division.-At 36 Harborne Road, lesion.
Branch and Divrision Meetings to be Held
Edgbaston, Tuesday, 25 February, 8.15 p.m., Professor H. Ellis: "Royal Operations." (Buffet supper provided, 7.15 p.m.)* Dewsbury Division.-At postgraduate medical centre, Friday, 28 February, 8.30 p.m., lecture by Mr. D. J. E. Price. Eastbourne Division.-At Lamb Inn, Old Town, Wednesday, 26 Februarv, 7.30 p.m., business meeting. Preceded by food and wine (provided) and film.* East Dorset Division.-At postgraduate centre, Poole General Hospital, Friday, 28 February, 7.30 p.m., B.M.A. lecture bv Sir James Fraser: "The Regional Oncology Service." (Followed by buffet supper.) Guests are invited.* Gateshead Division.-At postgraduate centre, Queen Elizabeth Hospital, Monday, 24 February, 8 p.m., meeting to consider agenda for S.R.M. Islington Division.-At Royal Northern Hospital (consultants' sitting room), Tuesday 25 February, 8 p.m., first general meeting, election of officers, etc. Manchester Division.-At Boyd House, Tuesday, 25 Februarv, 8 for 8.30 p.m., Mr. I. G. Schraibman: "Surgery of Carotid Vertebral Artery Stenosis." (Buffet supper provided.)* Roehamoton Division.-At Queen Mary's Hospital, Monday, 24 February, 8.30 p.m., meeting with District Management team. Members who work outside the district are invited.
Notice to Authors When the original articles and letters for publication are not submitted exclusively to the British Medical J7ournal this must be stated. Correspondence on editorial business should be addressed to the Editor, British Medical Journal, B.M.A. House, Tavistock Square, London WC1H 9JR. Telephone: 01-387 4499. Telegrams: Aitiology, London, W.C.1. Authors wanting reprints of their articles should notify the Publishing Manager, B.M.A. House, Tavistock Square, WC1H 9JR, on receipt of proofs. C British Medical Journal 1975 All Rights Reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the British Medical journal.
