Pugh v Haygarth, 1843

[malicious prosecution – medical practitioner, criminal prosecution of – surgery – medical negligence]

Before Sir John Pedder, Chief Justice; and the following special jury: G.B. Skardon, Thomas Walker, William Archer, James Cox, Phillip Oakden, R Pringle Stuart, Henry Bennett, Edward Archer, W. G. Walker, Frederick Palmer, James Flexman and J. H. Campbell, P. A. Mulgrave, Esq., was also on the bench.

For malicious prosecution: damages laid at £1000. Counsel for the plaintiff, Mr. Macdowell; for the defendant, the Attorney-General.

Mr. Macdowell said - I am now to give you the circumstances that preceded a charge made before Mr. Breton, the police magistrate here, relative to the surgical operation alluded to in the indictment. On the evening before, Mr. Williams returned home very unwell and retired to bed; Dr. De Dassell was sent for, he was the family physician; on his examining the patient he saw it was necessary to call in other doctors, and requested Drs. Beson and Gaunt to be sent for, at the instance of a friend of Mr. Williams, Dr. Pugh, who performed the operation, was also called in; another medical gentlemen from Perth was present. It was an operation of extreme difficulty, and much depended upon the skill of the operator. All the authorities, I have heard, say that the disease was of so long standing, that unless it was immediately relieved it would be fatal. A protrusion in the right groin had taken place, and required to be returned. It will strike every one, that if the gut were not returned it would become paralysed, and death would ensue, and no matter how skilfully the operation was performed, death was probable. The operation was performed, at the request of all the doctors present, and also of the patient. Dr. Pugh, in presence of all the doctors, performed the operation, and hardly had the operation been performed when the patient was relieved and slept well that night; on the following day he was attended by Dr. De Dassell and Mr. Bartley, to whom he spoke of the kindness of Dr. Pugh. The operation I say, was performed to the satisfaction of all the doctors present; it was done at four o’clock, on the night after he was attacked, but he was also long subject to severe sufferings from that disease; the operation under these circumstances was attended with great danger, and Dr. Pugh requested Mr. Williams’s friend to get him to make his will. Sir Benjamin Brodie, in speaking of a similar operation, said “that the issue of life and death rest not with the physician, but with one who is greater,” Relief immediately followed the operation, and it was not until two or three days after that the symptoms shewed themselves of which he died. On the Saturday, Dr. Pugh and all his friends lost hopes, of which Mr. Williams was informed; he died next day. A post mortem examination took place; all the doctors who were at the operation were present, also Dr. Doughty, Count Streleski, and others; I am told and you will be told by all the gentlemen, that there was no appearance of tumour, but on opening the body there was a small discolouration of the intestines; all this took place in November, 1841. At that time one man saw that the operation was unsatisfactorily done, and forgetful of what was due to the public, he did not make it known to the operator. If he appear to-day and detail to you that he saw any such appearance, and did not mention it to Dr. Pugh; and if he should now come and say he did so, what protection is given to any family from such an assertion? It throws the greatest professional discredit on that man. It was his bounden duty to have pointed it out to Dr. Pugh, and others who were present, but gentlemen, you will know how to appreciate such evidence. At that time nothing was said about the operation, all were satisfied that it was not the cause of death. After Mr. Williams was consigned to the tomb six months, in the month of June the defendant arrives, and now let us inquire how it comes to pass that he, Dr. Haygarth, should take so much interest in the death of Mr. Williams, whom he had never seen nor heard tell of before. He arrives in the month of June, and in August he goes to the police-office and gives an information, charging Dr. Pugh manslaughter; this either shows an extreme instance of philanthropy, in leaving his own country to come here, to do good, or you must impute it to a very different feeling towards a man he could never have known. But in a month or two after he arrives, and nine months after the operation he goes to the police-office and charges Dr. Pugh with manslaughter, not on his own knowledge, for he himself could have known nothing but from the information of Dr. De Dassell. The charge made against Dr. Pugh was malicious; I will show by the evidence of medical men that the operation was skilfully performed. And can it be tolerated that his Dr. Haygarth, in virtue of a roving commission, is to have full permission to prosecute with impunity every surgeon who has performed an operation years before? He entertained a malignant feeling against Dr. Pugh, and it is not difficult to arrive at the secret. He had little practice, and Dr. Pugh had a large share. He thought his abilities splendid, while an ungrateful public could not perceive his superiority; he could not bear to see so much talent neglected while Dr. Pugh’s was appreciated, having nothing to lose and everything to gain he was like a bad bold man, determined at all hazards to go forward against Dr. Pugh, regardless alike of widow and children - no matter how the feelings of friends were wounded, so long as the prosecution brought grist to his mill. I know nothing of the motives that could induce the defendant to come from such a distance, and in two months after his arrival, to appear at the police-office, and charge another medical practitioner with manslaughter, in a case which occurred when Dr. Haygarth must have been at the distance of sixteen thousand miles, if he was not influenced by malice. This of itself clears, to my view the motives by which he was actuated. I may not have an opportunity of again addressing you, and I now ask you to mark, by your verdict, the conduct of the defendant. It is needless to refer to his circumstances, and he has got nothing to pay. It is a motion in law, that if a man cannot pay with his purse, he must suffer in person. I now call the evidence for the plaintiff.

W. H. Breton. - I am justice of peace and police magistrate of this place, was so in August last; know both the parties, recollect the defendant appearing at the police-office in August for the purpose of laying an information against Dr. Pugh; this is the information now produced, the first and last parts of it is in the handwriting of Mr. Turner, the middle part in the defendant’s own writing it was read over to him in my presence, and I saw him sign it, he swore to it; in consequence I issued a summons to Dr. Pugh to attend at the police-office, upon that summons Dr. Pugh attended and was accompanied by an attorney; Dr. Haygarth conducted his case himself and examined his witnesses, and cross-examined the others; the case occupied about twelve hours, it ended a little after twelve o’clock at night, it was dismissed by me, I mean I acquitted Dr. Pugh, I thought there was not case made out; Dr. Haygarth’s manner was very improper both in addressing the bench and examining witnesses, his manner appeared very malignant both against Dr. Pugh and the other doctors.

Cross-examined by the Attorney-General - I have got the record; I said I dismissed the case, I had no power to acquit; I considered Dr. Haygarth did it from a malignant feeling by his general way of speaking, and had great difficulty in getting him to give his information in strict legal terms. I had latterly to do it myself; cannot say Dr. Haygarth was acquainted with Dr. Pugh, he had not been long in the colony; if I thought a brother magistrate had acted improperly I might treat it with contempt, I doubt whether I would act indignantly; Dr. Haygarth demurred at the paragraph where it was stated as “gross ignorance, negligence, and rashness;” if he had not inserted these words I should have refused to grant a summons, because if Dr. Pugh did not choose to obey, I would have had to issue a warrant which I would not do on slight grounds; the whole of the information was read over to Dr. Haygarth. The following was then produced in evidence.:

“The information and complaint of Burton George Haygarth, who deposeth and saith - I am a doctor of medicine; it has become known to me that a death occurred some time since in the town of Launceston under very questionable circumstances; there are circumstances of a very questionable character connected with the death of Thomas Williams, of Launceston, merchant; my information respecting these circumstances I derived from the medical attendant of the family, Dr. De Dassell, of Launceston, and from Mr. surgeon Doughty, who was called in to inspect the body; I allege that due and suitable professional measures were not adopted, and were neglected to be used, in order to the surgical relief of the said Thomas Williams, by the party under whose professional charge he was at the time of his disease, and had been previously thereto - this party was Mr. Pugh, of Launceston, surgeon; I have been informed that, for the relief of the said Thomas Williams, a surgical operation was deemed necessary; which operation was inadequately performed, to the extent of a culpable failure, for the relief of the said Thomas Williams, and that culpable and ignorant neglect, in not renewing other, or similar, medicochirurgical means, for the relief of the disease, characterised the mode in which the case was conducted, until the death of the said Thomas Williams took place; which death was due, so far as human probability can discern, to the culpable neglect, of the professional measures which belong to the case in question. The said Mr. Pugh, whose name I understand is William Ross, was, I allege, acting surgically in the operation which he performed upon Thomas Williams with gross negligence, ignorance, and rashness, and thereby occasioned his death.

Dr. Matthias Gaunt. - I know Dr. Pugh, I know the defendant by name but not by description; I knew the late Mr. Williams, saw him on Tuesday early in November, 1841, he died on the Sunday following; having been requested to go to see him, I went in the early part of Tuesday, went to see him professionally, I am a legally qualified practitioner; I found there Dr. De Dassell and Dr. Benson; Mr. Williams was suffering extremely from strangulated hernia, saw Dr. Pugh there about two o’clock he was not in attendance before I went; I had made several examinations of the tumour that day, no proposition had been made to operate on him before I saw Dr. Pugh, an operation was performed about five o’clock, there were present Drs. De Dassell, Benson, Salmon, and myself, Dr. Pugh performed the operation; I mentioned to Mr. Williams before I saw Mr. Pugh that if we could not reduce the kernia a surgical operation must be performed; there was a consultation held among the medical men present as to the propriety of performing that operation, we were unanimously of opinion that it was necessary; Mr. Williams was suffering from strangulated hernia, from pain all over the abdomen - more particularly round the umbilicus - and from a tumour on the groin in which the pain was more particularly manifest, he was also suffering from vomiting and constipation, the swelling was about the size of a pullet’s egg; several attempts had been made to reduce the tumour before Dr. Pugh came but without success; the usual remedies had been used, viz - warm bath, bleeding, tobacco injection, &c and it was then determined the operation should take place; Dr. Pugh performed the operation, because he was deemed the most capable of doing so; it was told Mr. Williams that an operation was to take place, I am not certain whether the danger was told him; in performing the operation considerable obstruction took place, but the tumour was ultimately returned into the abdomen, a cessation from pain almost immediately took place, and to a great extent all those symptoms of anxiety and distress that were manifest before; I should say that the whole of the unbearable symptoms were removed, excepting constipation; I have seen several operations for strangulated hernia, in my opinion is both difficult and dangerous; the operation was performed very adroitly and, for a person having so few operations, very desirously.

The remainder of the evidence of this witness went to show that the operation had primarily done all that could be attained by such an operation, that it was necessary as the only means of saving life; that it was successful as far as the operation itself went, but that death was occasioned by paralysis of the bowel owing to its strangulation, and as was probed by a post mortem examination, by obstruction of part of the bowel itself, and that at that time there was no tumour visible.

Samuel Watson swore that he had washed and laid out the body, and that there was no tumour in the groin then.

The Attorney-General for the defence addressed the jury on the impossibility of imputing malice to the defendant, who did not even know Dr. Pugh. If Dr. Haygarth as a medical practitioner, or private person came to the knowledge of facts that required investigation if he had learned that circumstances of a questionable character attended the death of another individual, he did right - it was his duty to promote enquiry. It had not been shown that Dr. Haygarth was influenced by malicious motives - that indispensible ingredient, malice, had not been proved. The defendant did not even know the plaintiff when proceedings were instituted at the police-office. He was invited by a brother medical practitioner to a social party. He was the guest of Dr. John Doughty, and the conversation naturally turning to medical subjects, he was informed by Dr. Doughty and Dr. De Dassell of the treatment Mr. Williams had received. He stated at once that an investigation ought to take place; he upbraided the company for not prosecuting the charge; he flew to the coroner, but the coroner could not interfere; he applied to a magistrate, and that gentleman referred him to Mr. Breton, with whom he lodged his information. In that information there is not the slightest indication of malice. The object of his client was to force Drs. De Dassell and Doughty forward; it was not to injure and degrade another medical practitioner; indeed, the conduct of his client showed him to be the real friend of Dr. Pugh; he did everything a friend of Dr. Pugh’s would have done; he did not countenance the secret whisper of slander, but proceeded at once to have it investigated; and when he appeared at the police-office, he stated that he derived his information from others - from Dr. De Dassell and Mr. Surgeon Doughty. If he was actuated by malice, why did the magistrate entertain the information? He knew his client’s informants, and might have refused to sanction the proceedings, if he suspected the veracity of Drs. De Dassell and Doughty. The last clause in the information laid at the police-office was inserted at the request of Mr. Breton. His client declined to designate the charge. He left that to the bench, he “demurred” to the last paragraph, and it was only when his object could not be otherwise obtained, that he consented to make it his own. The learned counsel concluded by remarking that the termination of the trial at the police-office, he was happy to say, was highly honourable to Dr. Pugh, and equally so to his client, Dr. Haygarth.

Dr. John Doughty (by the Attorney-General). - I am a medical practitioner in this place, know the plaintiff Dr. Pugh, also Dr. Haygarth; knew the late Mr. Williams; recollect having some friends at my house in the month of July last - Drs. De Dassell, Salter, Fitzpatrick, Haygarth and myself, the conversation was upon medical subjects; I was at the post mortem examination on Mr. Williams, immediately the sheet was removed I saw an elevation of tumour on the part where the operation was performed, I did think the operation improperly performed, there was something peculiar about the tumour, though it had not been properly returned; I told Dr. Haygarth that it was my impression the hernia was not properly reduced, in some cases of hernia the tumour cannot be reduced, what I told Dr. Haygarth, was in the presence of Drs. De Dassell, Fitzpatrick, and Salter; I stated that from what I had heard and seen the operation was not properly performed, Dr. Haygarth said that it was a lamentable circumstance and ought to be investigated, I did impute to Dr. Pugh bad treatment of the case and should have done so in the room if I had been called on as a medical man; I was called in by Dr. Pugh, a day or two after the examination I asked Dr. Pugh how it was the gut had not been returned, and if Mr. Williams had died with the symptoms of strangulated hernia, he said it was from the constriction of the part, and then made an allusion to a case of mine at the hospital, I told him that I had nothing to do with that case.

Mr. Macdowell rose to reply. There are some topics presented by the Attorney-General which their novelty recommends to our notice. If we felt called upon to imitate Dr. Haygarth, there was an ancient and well-known saying, peculiarly applicable- “Save me from my friends, I’ll take care of my enemies.” In the fondness of friendship he prefers a charge of manslaughter, and because he bears and misbelieves, he prosecutes that charge. There is a line of defence adopted by the opposite counsel which does not tell much in favour of his client, whose head is made the recepticle of a mass of absurdities. First, the medical witnesses are cross-examined at great length, and then it is found to be unnecessary, as the defendant did not mean to cast the slightest blame whatever on Dr. Pugh. Then the defendant is represented as the innocent victim of Dr. De Dassell, who imposed upon him at the social party. The subject of conversation was, that which Dr. Doughty so classicly termed, “the medical rows,” and more in sorrow than in anger, the defendant mentioned the distressing accounts he had heard of the treatment of the late Mr. Williams, thus giving a turn to the conversation, and provoking the conversational abilities of Dr. De Dassell, who may have peculiar powers in that way. But it seems the defendant has taken an oath, like the hero of La Mancha, and this Doughty knight proceeds in quest of adventures, promoting prosecutions and attacking windmills opposed to his progress. The resemblance to Quixote is tolerably close. One is anxious to know what has become of this “nice” party. Dr. De Dassell is no where to be found - one is defendant in this case - and we have had Dr. Doughty before us. But what has become of Dr. De Dassell, Dr. Fitzpatrick and Mr. Salter - they are non est inventus. From a question put by a juryman, it appears that Dr. Doughty’s opinion was founded not upon what he saw himself, but upon what Dr. De Dassell old him. Of the treatment of habits of Mr. Williams he could know nothing, and when the defendant proceeded on the information obtained from such a source, there is not the least excuse of extenuating circumstances admissible. Yet, he immediately prepares for a campaign. He calls on the coroner, visits Mr. Sams, and Mr. Sams not liking his customer, hands him over to the police. Then if we refer to the information it speaks too intelligibly to admit misconstruction. In his eagerness for the prosecution, rather than not have it, he adopts the words necessary; he does not even believe the charge which he prosecutes, and yet he comes forward to degrade a gentleman, who is distinguished in his profession, to a level with himself, or, if possible, below it. All the evidence, or the sole evidence for the defence is utterly unworthy of credit. If Dr. Doughty saw, what none else could, a tumour at the post mortem examination, it was his duty to have pointed it out - but he was the friend of Dr. Pugh - he did not know in what capacity he was there! If he had been called in as a medical man, he would have expressed his opinion, but because he was the friend of Dr. Pugh, he considered he ought not to disclose the circumstances! We are obliged to bestow unbounded confidence in our medical men, and if such trickery to conceal opinion were generally sanctioned by the profession, confidence would be destroyed. That man has no right estimate of moral feeling, who in a protean capacity would act differently on the same occasion. The story about recrimination, when he says he spoke to Dr. Pugh on the subject, is improbable, foolish, strange, and childish. Mr. Macdowell said, I am not bound to find motives for the defendant, it is sufficient if I show prima facie that his motives were malicious. One of the most eminent judges that ever adorned the bench, held that in such cases profound ignorance implied malice. I need not refer to conjectures of my own as to probable motives. Notice how the defendant gives a turn to the conversation of the “select party,” how he expresses his sorrow and propounds his distress, how implicitly he relies on the known veracity of Dr. De Dassell, and trusts to the opinion of Dr. Doughty. Is a man rushing into the street and attacking child, woman, and man, and calling himself a reasonable creature, (and I am not aware that any defence to the contrary has been set up for the defendant) to be allowed to plead that some one told him to make the attack? No. There is the absence of all laudable motive in the case of the defendant; the utmost stretch of charity will not allow you to suppose but that he acted from discreditable motives! his own position shows malevolent and bad feelings, and I hope, by your verdict this day, you will teach this gentleman, and others who may be disposed to follow his example, that character is not at so low an ebb but that it will have ample protection at your hands from calumny.

His Honor then summed up this long case, which he said might be contained in a nutshell. The charge in the information plainly amounts to manslaughter. It must be proved that the defendant acts with malice, which is inferred if he had no reasonable cause. The law is, if a man will act on the information of others, he must abide by the consequences. He must prove the facts to be true; and it is no excuse to say, I was informed that such and such was the case. Thank God it is so; and that a man is not at the mercy of every scoundrel and assassin of character, by calumny. His Honor feelingly referred to the painful nature of cases of his description. We were obliged, he said, to go into the sufferings of this poor gentleman, the late Mr. Williams, in order that justice may be done to Dr. Pugh. The oath, said to be taken by the defendant, can be no justification; - no body of men by their bye laws can authorise another to do injury. His Honor referred particularly to the evidence of Watson, who washed the body after death, and dwelt for some time on the evidence of Dr. Doughty; he made a statement which was contradicted by every other witness; but even supposing that Dr. Doughty’s evidence was to be relied on, yet his opinion rested not alone on what he saw himself, but what Dr. De Dassell told him. His Honor thought there was not a title of ground on which the defendant had to rest his case.

The jury, after an absence of about fifteen minutes, returned to their places. Verdict for the plaintiff; damages £250.

[1] See also Cornwall Chronicle, 7 January 1843. Pugh was the first doctor in Australia successfully to use anaesthesia in surgery, see C. Craig, ‘William Russ Pugh (1805?-1897)’, ADB, vol. 2, p. 355.