MEDICO-LEGAL HISTORY
whereby his hands kept the towel above the face and allowed free respiration, but others present refuted this account. T e relatively poor understanding of the toxicology of chloroform
at the time was revealed by the testimony of another expert witness, John Glaister, the Professor of Medical Jurisprudence at Glasgow University. He could shed no light on the exact cause of Gillies’ death and pointed out that “there was no subject which was giving rise to more controversy in the medical profession than the cause of death under the infl uence of chloroform”. Such was Cunningham’s personal belief that no malpractice was
involved that he claimed on the stand that he “would pursue the same course again in similar circumstances”. T e judge instructed the jury at length and emphasised that this
“What today would be malpractice may a century ago have been standard practice.”
was “a most serious case indeed,” especially to Dr Cunningham. In conclusion, he informed the jury that in law “a person was not liable in the exercise of his profession for a mere mistake...[t]here must be what in Scotland was called gross negligence, or in England crass negligence”. It was clear from his charge to the jury that he thought there was neither in this case. It took the jury only 45 minutes to decide unanimously in Cunningham’s favour.
Standards of the day
T e challenge at the centre of all medical history lies in the danger of judging past actions by present day standards. T is is especially true if those actions have an ethical or legal dimension. What today would be malpractice may a century ago have been standard practice. T e use of domiciliary anaesthesia, for example, is now a thing of the past, but in 1902 it was commonplace amongst GPs. Chloroform was the most readily available anaesthetic and although its dangers were well recognised, its use was widespread. Indeed, Dr Cunningham had treated at least two other patients of his with the same orthopaedic problem as Gillies and had done so successfully using chloroform anaesthesia.
Looking back at the details of this case it is easy to be critical of how the procedure was carried out. If Andrew Gillies was being treated today he might have been anaesthetised, but this would have taken place in a clinical facility fully equipped for modern resuscitation, the attending doctor would not have been alone and, of course, chloroform would not have been the drug of choice. But, if there is no understanding of cardiac arrhythmia and its eff ective treatment and if the standard and accepted practice of the day is to anaesthetise a patient on a Sunday evening in their upstairs bedroom using a towel and a bottle of chloroform, should we be so quick to condemn?
A re-evaluation of the case by a contemporary judge in 2000 AUTUMN 2014 15
suggested a modern jury, if presented with the same evidence and the same allegations, would likely also fi nd in favour of Dr Cunningham. T ere would, however, be some diff erences. Today, such a case would probably take not three months to come to court, but as much as three years due to the pressures of business in the Court of Session. T e same case today would also be heard by a judge alone,
rather than the judge and jury that presided in 1903. And the modern test of negligence would be whether the defender had adopted a course of action which no professional person of ordinary skill would have taken if he or she had been acting with ordinary care. However, as was the case with Dr Cunningham, the results of such a contemporary test would also depend upon the testimonies of other professionals in the same fi eld, to defi ne exactly what “ordinary skill” and “ordinary care” are. T e case of Gillies v Cunningham is notable for several reasons.
Not only was it the fi rst medico-legal case laid before the new MDDUS, it was also the fi rst medico-legal case in Scotland involving anaesthesia. It is also a useful example of how we might prejudicially review the past through modern eyes and with modern values. And fi nally, it should be a reminder to all practitioners that it is too late to join your defence union aſt er the patient has died.
n Dr Allan Gaw is a clinical researcher and writer in Glasgow
ACKNOWLEDGEMENTS I am indebted to Dr Iain Levack who has conducted much original research on this case and allowed me access to his fi les.
SOURCES
• Levack ID. The fi rst anaesthesia litigation in Scotland – Cunningham Case (1902). Proceedings of the History of Anaesthesia Society 29: 64-7, 2001
• Kilmarnock Standard April 4, 1903 pp 3&5
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