Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by a doctor of medicine in Glasgow, against The Northern Accident

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Insurance Company, Limited. The pursuer craved decree for £123 as due to him under a policy of insurance issued to him by the defenders, and dated 1st May 1894.

The facts sufficiently appear from the following note appended to the interlocutor of the Sheriff ( Berry):—“This is a most painful case, and I wish I could have been spared the necessity of entering into detail regarding it. The pursuer sues on a policy dated 1st May 1894, whereby the defenders agreed to compensate him according to a specified scale of payments if during the period of twelve months from 27th April 1894 he should sustain any bodily injury ‘caused by violent, accidental, external and visible means, operating accidently ( sic) on the person of the insured, and capable of direct proof.’ The policy bears an endorsement that it ‘covers compensation for blood poisoning which is the result of an accidental injury within the meaning of the policy.’ One of the conditions attached to the policy is that no compensation shall be payable unless such evidence as the directors may from time to time require be furnished as to any alleged accident or injury on the ground of which a claim is made.

The ground of claim is that the pursuer, who is a doctor of medicine engaged in obstetrical practice, was for some time during the latter part of 1894, through syphilitic blood poisoning resulting from accidental injury, disabled either totally or partially within the sense of the policy, and prevented from attending to his business. He says that on 14th August 1894, while operating on a female patient in a private nursing institution in Glasgow, he accidentally inflicted a slight wound on the middle finger of his left hand, and that through this wound syphilitic blood poisoning was communicated to him by inoculation.

That blood poisoning of that nature showed itself after the middle of August, and that he suffered more or less from consequent disablement is proved beyond doubt. The question, however, is seriously disputed whether it is sufficiently proved that it was through the wound in the finger that the poison was communicated.

The pursuer's averment on that point is contained in article 10 of the condescendence, as allowed to be amended by interlocutor of 11th January T895, after there had been a debate on the closed record. The averment is to the effect that the pursuer is medical officer of certain Magdalene institutions in Glasgow, and as such has to examine all the inmates immediately on admission; that on 17th August he examined a girl (whose name is given) who was suffering from syphilis; that the disease was communicated to him by accidental inoculation through the wound on his finger; and that this happened either at the operation at which the wound was inflicted or at his examination of the girl in the Magdalene Institution.

It has been clearly shown, from entries in the examination book of the Magdalene Institution and otherwise, that the examination there of the patient referred to could not have been the cause of the inoculation, and I think that the case may be regarded as narrowed down to the inquiry whether it is reasonably established that the disease was communicated at the operation on 14th August, when the wound on the finger was inflicted. It has been suggested in argument, and also in the course of the proof, that the infection may have come from some other operation or examination at which the pursuer may have been engaged, and which he is unable to specify, but as the record stands I doubt if that suggestion is open. I do not think that the insurance company were, especially in the circumstances to be mentioned afterwards, bound to accept it as satisfying the burden of proof which the pursuer has to meet, that it was through the wound on the finger that the disease was communicated, and as far as the proof is concerned no such other occasion of infection has been disclosed.

The claim on the policy was made on 29th August 1894 by the document No. 9 of process. In describing the injury it is there stated that the pursuer had in the operation of 14th August cut his finger, and that poisoning had appeared with local and constitutional effects. It is not stated that the poisoning was syphilitic, and the pursuer himself says in evidence that he had no idea at that time that it was of that nature. Dr Macphee, the medical officer of the Insurance Company, only learned for the first time that that was its nature when he saw the pursuer on the evening of 11th September. Before that time secondary symptoms had shown themselves fully developed, and the syphilitic rash was then all over the pursuer's body. In the meantime, between 1st and 8th September, the pursuer had been in Dublin.

It forms a serious difficulty in the way of the pursuer's case that from 14th August, when the pursuer wounded his finger, the time in which the disease developed itself was unusually short. The medical witnesses are not at one as to the period from the time of infection in which the different symptoms may be exhibited, but that in the present case, if the infection came from the wound in the finger, the development was more than ordinarily rapid seems beyond doubt. Dr Dalziel, who examined the wound on 26th August, and again more carefully a day or two afterwards, says that he thought it then very like a hard chancre, that is, a primary syphilitic sore. He says subsequently that at the end of August there was no doubt it was a typical hard chancre, and that statement is important. It would appear, however, from his evidence, that it was not from the appearance of the wound alone that he formed his conclusion. His opinion was influenced by the secondary symptoms which almost immediately presented themselves. The pursuer is himself an expert in syphilitic disease, and on 29th August, when he made his claim against the company, he says, as above mentioned, that he had no idea that the sore on his hand was syphilitic. It seems difficult therefore to believe that at

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that time it can have presented the undoubted appearance of a typical chancre. He says that it was when he was in Dublin that it first took the appearance of a Hunterian chancre, and that he began to be a little suspicious about 2nd September. The evidence of Dr Newman, who on 31st August crossed with him by the day steamer to Belfast, has been relied on in support of the case. Dr Newman says that the pursuer spoke to him then about his hand, and showed it to him, and that he (Dr Newman) then told him that he considered the sore to be a primary sore of true syphilis. It can hardly be supposed that Dr Newman is mistaken in giving this evidence. It is true that it does not consist with the statement of the pursuer, who says, in his examination-in-chief, that he did not show his hand to Dr Newman. I think that Dr Newman's recollection on this matter may be taken as correct.

A distinction, as appears from the proof, is taken by some medical men between a hard chancre and what is called a typical hard chancre, and it is said, as for example by Professor M'Call Anderson, to be quite possible to mistake a cauterised wound for a hard chancre, although not for a typical hard chancre. In the present case the wound on the finger had been cauterised more than once before it was examined by Dr Dalziel or any of the medical witnesses. I doubt if it can be held as sufficiently proved that it presented the characteristics of a typical chancre. Dr Dalziel admits that there is an undoubted difficulty ‘in distinguishing with certainty a cauterised wound from a hard chancre.’ He adds—‘My diagnosis was confirmed by the occurrence of secondary symptoms.’

The opinion referred to by the pursuer as having been given by two medical gentlemen whom he consulted in Dublin cannot in my view be treated as evidence in the case. To make their evidence competent they ought to have been examined as witnesses.

It is in the pursuer's favour that apparently there was no trace of a syphilitic sore on any other part of his body, but against this must be placed the evidence given by some of the medical experts that the disease may exist without the appearance of a sore. I may refer to the evidence of Dr Macphee and of Professor M'Call Anderson. The latter says that ‘it is not very uncommon for patients to say that they never noticed the primary sore, and that their attention was first called to the secondary symptoms,’ and again ‘there is sometimes a little scar left and sometimes none at all.’

The appearance of the wound on the finger, however, and the absence of any trace of a syphilitic sore elsewhere, tend to give substantial support to the pursuer's case. Still the important element of time has to be considered. If the wound was the channel of infection, the course of the disease was much within what, according to the evidence, must be regarded as the normal period. On 28th August, that is, only fourteen days after the date of the wound, secondary symptoms had begun to show themselves in the shape of a slight appearance of spots under the abdomen. Dr Dalziel says it is a common thing for the secondary symptoms to appear simultaneously with the development of the hard chancre. On the other hand, Dr H. Cameron, who is also a witness for the pursuer, says he does not think he has ever known a case of the hard chancre and the rash coming together. According to him there is usually an interval of from a fortnight to three months, and possibly more, between the two. Other witnesses substantially support this view.

Considering the unusually rapid development of the disease on the assumption that it came from the wound, the directors of the company hesitated to admit the claim, and they asked for further information. The pursuer refused to give to them the name of the patient on whom he operated on 14th August, and he has all along refused to do so. He refused to give it when under examination as a witness in the case. Before the action was brought, it appears that the directors were prepared to deal with any information given to them as confidential, and that they would have been satisfied if the name of the patient had been communicated privately either to Professor M'Kendrick, one of the directors, or to Dr Macphee. I think that, whatever effect the refusal might have on his claim for compensation, the pursuer acted in accordance with strict rules of professional confidentiality in declining to give the name to the directors. His right to withhold it when called upon in Court may not have been the same, but here again the only question is how far the refusal should affect his claim in the action.

As the case stands, there is no evidence, apart from the pursuer's statement, that at or after the operation on 14th August he had been in contact with any patient suffering from syphilis. The name of a certain married woman has been suggested by the defenders as that of the patient or whom the operation was performed, and ii she was the person, any independent evidence which we have is unfavourable to the notion that the infection was derived from her. She seems to be a respectable married woman with three or four children, living in family with her husband She has been attended by two medical gentlemen besides the pursuer and his father, and those two gentlemen give evidence to the effect that they never suspected her to be afflicted with syphilis in any of its forms. Dr Dunlop, who assisted the pursuer at the operation, could not, as a letter in process shows, state that the patient operated on was suffering from any disease of the kind, and the pursuer himself admitted in evidence that at the time of the operation he was not of opinion that she was. He had had at that time opportunity of judging regarding her health having had her as a patient for some three or four years. He says, no doubt, that she has since exhibited symptoms which he

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considers indicative of syphilis, and that he is treating her accordingly. He also says that his father, who had attended her for years before he did, and in consultation with whom he had first seen her about eight years ago, had given her anti-syphilitic treatment before the date of the operation, although he was unable to say when his father began to give her treatment of that kind. It is unfortunate that his father has not been called as a witness. It will be understood that the pursuer has declined to say if the person whose name has been suggested was the patient on whom he operated.

Assuming that the pursuer is not to fail in his case simply because he refused in Court to disclose the name of the patient, it is much to be regretted that his father was not called to confirm the statement as to his previous treatment of her. That might have been done without disclosing the patient's name. Had it been done, and if the father's evidence had borne out what the pursuer says, the claim in the action would have been much strengthened. As it is, the case seems to me surrounded with doubt, and when the doubt arises from the failure of the pursuer to produce available evidence which might have cleared it up, I am afraid that it is he and not the defenders who should suffer.

In coming to a conclusion on the case it is impossible to overlook the mis-statements made by the pursuer on various points. Some of these may be of minor importance, but that cannot be said of others. I may refer particularly to what he says with regard to the examination of the girl in the Magdalene Institution. It is averred in the condescendence that the date on which he examined her was 17th August, and to that date he adhered in giving his evidence. It is proved beyond doubt that the examination was not till the 23rd.

Again, he says in evidence that he was touching the patient when he examined her, and that he used his left or wounded hand for the purpose. Five days before the examination, viz., on the 18th, Dr Dalziel, in driving home with him from an operation, noticed the wound on his finger, having then, as Dr Dalziel says, the appearance of an inflamed sore about the size of a small split pea. Dr Dalziel advised him to put on a surgical dressing. He did so, and burned the wound with carbolic, and about the same time, or at all events as early as the 20th, the says that he began wearing his arm in a sling, and that he kept it in the sling till he returned from Dublin. The girl was examined as a witness, and she says that he had one of his hands tied up and in a sling when he examined her, and that he did not touch her with either of his hands. It is, I am afraid, impossible to accept his statement that he touched her, and indeed so untenable is the suggestion that this examination could have been the cause of the infection that it was frankly given up by his agent at the appeal.

It has been suggested, and may possibly be the true explanation of the mis-statement regarding the date, that the pursuer, in looking for a case that might serve to account for the infection, mistook in the book of the institution the entry of the girl's age (17) for the entry of the date, and so was led into the error. That of itself would argue a recklessness of statement which cannot be defended, and it fails to explain away the fabric of evidence as to personal contact with the girl without which the introduction of her name into the case was unmeaning.

Looking to the unsatisfactory state of the evidence, I have, with much reluctance and regret, found myself unable to give judgment for the pursuer. I hope I may not be supposed to imply that the blood poisoning may not have come from the wound on the finger. There are elements in the proof which favour the view that it did, and that it may not improbably have done so. But that is not enough for the case. Sufficient doubt remains behind to prevent me from finding it established in fact that that was the source of infection.”

On 27th August 1895 the. Sheriff-Substitute ( Balfour) issued an interlocutor by which he found in favour of the pursuer.

The defenders appealed to the Sheriff, who on 25th April 1896 issued the following interlocutor:—“Finds that the pursuer, a medical gentleman, was insured with the defenders for the period of twelve months from 27th April 1894, in terms of the policy, which provided for compensation being paid to him according to a specified scale in the event of his sustaining any bodily injury caused by violent, accidental, external, and visible means operating accidentally on his person, and capable of direct proof, and that the policy bore an endorsement that it covered compensation for blood poisoning, the result of an accidental injury within the meaning of the policy: Finds that the pursuer, in the course of performing an operation on 14th August 1894, cut his finger, and that about the end of the same month he showed symptoms of syphilitic blood poisoning, which he avers was communicated through the wound: Finds it not proved that the said poisoning was so communicated, or was the result of an accidental injury within the meaning of the policy: Therefore recals the interlocutor appealed against, assoilzies the defenders from the conclusions of the action: Finds them entitled to expenses, including those of the appeal.”

The Sheriff added to this interlocutor the note quoted above.

The pursuer appealed to the Second Division of the Court of Session, and argued—It was proved that the pursuer accidentally cut himself while performing an operation, and that he got syphilis by inoculation in the cut. The fact that the primary sore developed in the cut proved this concluclusively. From the nature of his practice it was not possible for him to say definitely when the inoculation took place. It was not reasonable to expect that he should. But he stated that to the best of his belief it was from the patient on whom he was operating when he got the cut on his finger.

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This was sufficient proof under the policy It was not reasonable or even admissible to demand in addition that the patient's name should be given up. This the pursuer was prevented from doing by the rules of his profession, and it must be taken that the defenders in granting this policy, granted it subject to the condition that such a disclosure would not be required. Even if that evidence was available there was sufficient evidence without it, and the defenders were not entitled to prevail simply because it had been withheld—See Ballantine v. Employers Insurance Company of Great Britain, Limited, December 15, 1893, 21 R. 305.

Argued for the defenders—The case was narrowed down to inoculation on the occasion when the pursuer cut himself. If that were proved, the defenders admitted liability. It was very improbable that inoculation could have taken place later. No subsequent occasion was even suggested which would not have been according to the medical evidence too late. But apart from that, if it did take place subsequent to the date of the cut, then there was no “external and visible means,” and the pursuer could only have contracted the disease through inoculation, by “wilfully or wantonly exposing himself to unnecessary danger,” which by one of the clauses of the policy was a bar to his success in this action. It was not proved that the pursuer got the disease by inoculation from the patient on whom he was operating when he cut himself. The evidence led by the pursuer was not sufficient under the policy to establish that. It might be that he had shown a prima facie case, but by refusing to give the name of his patient he had prevented the defenders from testing his story as they were entitled to do. Even though he was absolutely prevented from revealing the name, that was his misfortune, and if he was thus precluded from proving his case, he and not the defenders must suffer the consequences. Moreover, the evidence of the pursuer's father, which would have been of the greatest importance, had been withheld, and the other doctor who was present at the operation was not asked whether the patient was affected with the disease or not.

The Court made avizandum with the cause on 10th June. On 23rd June it appeared in the Single Bills by order, and the Court recommended the pursuer to obtain the patient's consent to be examined. On 14th July a minute was lodged for the pursuer to the effect that the pursuer was willing, after the recommendation of the Court, to divulge the patient's name to medical men to be named in order that she might be examined. On 15th July the case was continued in order that the defenders' consent might be obtained to a remit to medical men to examine the patient. On 17th July the defenders intimated that they declined to give their consent to this course, and the Court pronounced the following interlocutor:—“The Lords having heard parties on the minute for the pursuer, on the motion of the pursuer, allow him further proof, and appoint the same to proceed before Lord at such time and place as he may fix; and grant diligence against witnesses and havers.”

On 3rd November the pursuer lodged a minute explaining that there had been some misunderstanding on his part as to the patient's willingness to submit herself to examination; that he had now ascertained that she declined to be examined; that he did not propose to lead further proof under the interlocutor of 17th July, and that he desired to have the case decided as it stood at the close of the debate.

At advising—