A most serious case indeed

IN April 1902, Andrew Gillies, a joiner from the small Scottish town of Stewarton in Ayrshire, injured his left arm. He likely developed a haemarthrosis with adhesions which his GP, Dr John Cunningham, advised needed manipulation under anaesthesia. Hesitant about this course of action, Gillies sought a second opinion from a doctor in Glasgow who concurred with his GP.

Three months after his initial injury and with little sign of improvement, Gillies agreed to the procedure which would be performed in his own home under chloroform. Exactly what happened in the Gillies household that Sunday evening in July 1902 is open to question as those present subsequently disagreed on their stories. What is clear, however, is that Gillies, then aged 52, did not survive the procedure. His death certificate listed “syncope” as his cause of death, which was most likely a cardiac arrhythmia induced by the chloroform.

Five months later Gillies’ widow sued Dr Cunningham, demanding damages of £1,000 (approximately equivalent to 10 years’ wages of her dead husband). Dr Cunningham sought the support of the newly formed Medical and Dental Defence Union of Scotland (MDDUS), and indeed his was the first medico-legal case they considered at their inaugural Central Committee Meeting in January 1903.

The MDDUS had been set up in May 1902 in the interests of the medical and dental professions in Scotland. Cunningham had submitted details of the action against him on 14 January 1903 – the same day he had also applied for membership. As he had not been a member when the patient’s death had occurred some six months earlier, the MDDUS officers, concerned about the setting of precedent, understandably decided that they could provide no further assistance. Cunningham then chose to retain the Union’s law agents, Turnbull and Findlay, to represent him.

Utmost propriety

Two months later the case against Cunningham came to court and revolved around three grounds of fault: that he should have had a skilled medical assistant, that his method of chloroform administration was outdated and dangerous, and that he had anaesthetised Gillies without having resuscitation equipment at hand, including a hypodermic syringe and appropriate drugs.

These allegations were systematically addressed during the two-day trial and a parade of expert witnesses were brought forward to support Cunningham’s clinical approach to the problem. Although these men often stated they might have done things slightly differently, they found his actions, by and large, to be consistent with current practices. One expert witness, Dr Joseph Bell from Edinburgh, who had some years earlier served as the model for a fictional detective created by his former student Arthur Conan Doyle, even said Cunningham had treated the patient, “with the utmost propriety”.

The nature of Gillies’ death was scrutinised and a great deal of emphasis was placed on the post mortem findings which showed no evidence of asphyxia, but which were consistent with syncope. The method of chloroform administration used by Cunningham had involved not a mask but a towel applied to the face doused in the anaesthetic. Cunningham claimed to have used a method whereby his hands kept the towel above the face and allowed free respiration, but others present refuted this account.

The 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 influence 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”.

The judge instructed the jury at length and emphasised that this 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

The challenge at the centre of all medical history lies in the danger of judging past actions by present day standards. This 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. The 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 effective 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 suggested a modern jury, if presented with the same evidence and the same allegations, would likely also find in favour of Dr Cunningham. There would, however, be some differences. 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.

The 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 field, to define exactly what “ordinary skill” and “ordinary care” are.

The case of Gillies v Cunningham is notable for several reasons. Not only was it the first medico-legal case laid before the new MDDUS, it was also the first 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 finally, it should be a reminder to all practitioners that it is too late to join your defence union after the patient has died.

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 files.

Sources

• Levack ID. The first 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