[medical attendance - medical qualifications - medical practitioner, action for fees]

Anonymous (No. 2)

Supreme Court of Van Diemen's Land

12 December 1838

Source: True Colonist, 14 December 1838

On Wednesday, a civil action was brought by a surgeon against a baker, for medical attendance during ten weeks, for which he claimed £74.

Jury, C. McLachlan, Esq.

         J. McRa, Esq.

         J. L. Murray, Esq.

        G. McKillop, Esq

Messrs. Stephen and Dobson were for the plaintiff, and the Attorney General and Mr. Crombie, for the defendant. We did not hear Mr. Stephen’s opening, but we heard Mr. Diggory Mill examined, who said that he practised as a surgeon -- that he had three times visited the defendant’s wife with his brother, who was her medical attendant -- that she was afflicted with ulcers all over her body. He considered all the medicines charged in the bill necessary, and the treatment proper, and the charge moderate. On his cross-examination, the Attorney General asked him at what College he had studied and what were his qualifications to practise medicine or surgery.  He said I have got them with me, and laid a large roll on the table. Mr. McDowell turned them all out, and at length discovered a certificate from the Apothecaries’ Company. The Attorney General, in asking him a question, made a very pointed allusion to the indelicate, and we must say somewhat ruffian-like manner in which Doctor Diggory, contrary to all professional delicacy, and in breach of all justly admitted professional confidence, designated the disease under which the woman laboured. For this His Honor reproved the Attorney General, and told him that the witness was under the protection of the Court and that he sitting there, would not allow the feelings of any witness to be unnecessarily hurt by questions put in an improper manner. If the witness had refused to answer the question of Mr. Stephen as to the state of the patient, the Court would immediately have committed him to prison. The Attorney General contended for his right to put the question as he had done, he would certainly bring under the notice of the Jury in his address to them the very indecent conduct of the witness, and shew them that a man professing to be a medical man, and shewing so exceedingly little of the proper delicacy and due regard to professional confidence as had been shewn by the witness was not to be believed as a witness on any medical question, and that his opinion was not to be received as to the nature of the decease which he had so unnecessarily, so indelicately, and with such evident bad feeling described. The question was answered by the witness without any reference to the sarcastic remarks with which it was accompanied. The observations of the Judge as to the protection of witnesses from the wanton insults, or impertinence of Counsel, were most proper as a general rule, and we regret that they are not more frequently acted upon by the Judges, at least the Magistrates in Sessions. But in this particular instance, the whole audience thought that the witness got a great deal less than he deserved. A female who nursed the defendant’s child, proved that the plaintiff had attended several times for ten or eleven weeks -- numerous attendances, and a most enormous quantity of medicine, particularly decoction of sarsaparilla and mixture of Hydriodate of potass, for the defendant’s wife, were proved by two assistants of the plaintiff. There was a great deal of amusement excited by the recital of the very formidable list of drugs proved to been given to the unfortunate patient, and by the administration of pills, sarsaparilla, &c., and bleeding on the same day.

Mr. Crowther junior, approved of the treatment, thought the quantity of medicine and number of visits very reasonable as well as the charges, both for the separate items and in the aggregate, -- he said that it was less than he would have charged in a similar case. On his cross examination Mr. McDowall asked him to what College he belonged, what hospitals he had walked, and finally what qualifications he had to practise as a surgeon, -- he said, that, he had served an apprenticeship of six years to his father, who was a member of the London College, in extensive practice here, that he had himself practised here for two years before the passing of the Act in Council to regulate the practice of medicine in the colony, which gave him a qualification under that Act, -- he had seen innumerable cases similar to that described by Dr. Diggory Mill, he approved of the whole treatment, sarsaparilla, hydriodate, bleeding and all, for reasons which he explained. Dr. Learmouth, could give no opinion of the disease or the proper treatment of it, from the description he had heard in Court, it might be what Mr. Mill termed it, or it might not. He is physician, but practises also as a surgeon, has never seen in this country any instance of the disease described by Mr. Mill, has such several cases of that disease in the hospitals at home, but never any so extensive and so virulent as that described by Mr. Mill. He thought the quantity of medicines and the number of visits unnecessary. He could not speak as to the value of the medicines here. He had not bought any here, he did not use sarsaparilla nor hydriodate of potass in his practice.

The hydriodate might be a very excellent medicine, but he thought that cheaper remedies might with equal effect have been applied, considering the circumstances of the patient. Sarsaparilla he thought perfectly useless. He admitted that Abernethy did sanction its use -- yes! he knew that he had spoken of giving it in hogsheads, but he was certain that a decoction of any other vegetable was as good. He had stated that he considered the amount of the bill absurd and ridiculous; it was particularly so with reference to the circumstances of the patient. It was his custom, and he believed the custom of every respectable member of the profession, to regulate their charges according to the circumstances of the patient.

Mr. James Westbrook, surgeon, gave similar testimony, as did Dr. Officer, the senior Colonial Surgeon. These witnesses were ALL called by the plaintiff.

The Attorney General, in his address to the jury, commented severely on the conduct of the plaintiff and his witness, his brother, which he described as an attempt to extort money from the defendant, by something like a threat of exposing his family affairs in a most cruel and indelicate manner, which, after all, he believed was without any foundation, for neither the jury nor the public could take the opinion on a medical case of any man who could be guilty of such a betrayal of all professional confidence as the witness Diggory Mill, nor the opinion of the plaintiff either, who had unnecessarily taken such a witness in such a case to visit his patient, as evidence to the disgrace of any person. A set of £11 and a tender of £19 was admitted. Verdict for the defendant, which was received with general satisfaction.