Timetable of Legal History logoDoctors, like lawyers, engineers, pilots etc., have their own black sheep.

Inevitably, it was to happen. When nepotism met surgery, the perfect storm befell the medical fraternity and attracted the scrutiny of the law.

The first record of medical malpractice being at the heart of a court action was in England in 1829. Thomas Wakley was the defendant but only because he reported on a butchered operation in his new medical journal, the Lancet (published since 1823; image is from the publication's 1829 book of the trial).

There was still no anaesthesia used in operations circa 1828. Even the King of France, in 1687, endured anal surgery without anaesthesia and was, according to Mary Roach's delightful book: "quite grateful for and vocal about his relief".

So it would seem that a whole set of superlatives could be used to describe the 53-year-old strong and healthy patient, Stephen Pollard, when he presented himself to the operating table at Guy's Hospital in London for a lithotomy (removal of a gall bladder stone) at 1 PM, Tuesday, March 18, 1828. Pollard had five children and a wife waiting for him back in Sussex.

lithotomy circa 1828Unfortunately for Pollard, the surgeon was incompetent in spite of his credentials as the nephew of Sir Astley Cooper, a famous anatomist, given a peerage by George IV for successfully operating on the king's scalp in 1821. In his 2008 article, Roger Jones wrote:

"Bransby Cooper was not a gifted surgeon, although Sir Astley insisted on his appointment at Guy's…."

What should have taken one to five minutes even in 1828, ended up taking 55. Until the surgery, there had never been a lithotomy at Guy's that had taken more than 30 minutes. Pollard was bound for his own good, at least in theory, with his knees to his neck and his hands to his feet. Cooper cut the perineum (the space between the anus and the scrotum), into the bladder, the urethra: scalpel, forceps, knife, forceps, cutting gorget....

Cooper, increasingly frantic, turned to the gallery and announced:

"It's a very deep perineum. I can't reach the bladder with my finger."

It was an OMG medical insurance moment.

He began looking for the bladder and then for the stone, all endured by Pollard. Hardly a surgical tool was not used and eventually Cooper decided to search for the stone with his bare fingers. That's when Mr. Pollard began to cry out for the surgeon to cease and desist. His recorded words were remarkably polite (others come to mind):

"Oh! Let it go! Pray, let it keep in!"

The increasing horror of the botched surgery was too much for some of the 200 spectators as some of them began to leave the hall, including some of the surgeons.

Cooper ignored Mr. Pollard's cries and instead responded to the growing crisis with panic. He turned to an observer and measured his finger against Dodd's saying:

"Dodd, have you a long finger?"

But he retreated back to forceps and finally found and triumphantly removed the small stone to mild clapping.

Leeches were applied to Pollard but the rest of the story can be surmised: he died the next day later, probably of infection and other unspecified causes, but likely related to the large hole Cooper had left in his arse to get at the small bean-sized gall bladder stone.

The autopsy revealed that Pollard did not have a deep perineum.

The fearless Lancet got wind of and described the entire botched event in issues 239 and 240. By sharing disaster with his readers, Wakley hoped, future unnecessary pain and suffering might be avoided. The sensational headline, especially for a medical journal:

"Guy's Hospital. The operation of lithotomy by Mr Bransby Cooper which lasted nearly one hour!"

Bransby Cooper sued for libel and sought £2000 in damages.

Wakley used the trial as a soapbox for standards of medical care. In the article, Bransby's surgery was called a tragedy and Bransby, a "surgeon because he is nephew". When Sir Astley Cooper gave evidence, he said of his nephew:

"I think he is already a very good surgeon, but I do not think he is a perfectly good surgeon. Give him time. Do not crush him at the outset of his career."

Wakley freely admitted the publication but fell short of proving the full truth of the incompetence alleged, at least to an 1828 jury with surgery still very much a hit and miss exercise, and without any anaesthesia. A reluctant jury obliged the point of law and sided with Dr. Cooper but awarded only £100 damages.

Wakley raised more than that in a defence fund campaign through his newspaper and was able to give some leftover funds to Pollard's widow.

Henceforth, the newlywed law and medicine would walk together awkwardly, seeing each other as little as possible, since one is social science and other applied.

The law can only ever imperfectly second-guess surgery or medicine in general. But that gap has been shrinking since that day in the Westminster Court of King's Bench in 1828.

References:

  • Cooper v Wakley, Court of King's Bench (Westminster), December 12, 1828.
  • Jones, Roger, Thomas Wakley, Plagiarism, Libel, and the Founding of The Lancet, 371 Lancet 1410 (2008, retrieved from the Internet on August 29, 2011 fromhttp://www.thelancet.com/journals/lancet/article/PIIS0140-6736%2808%2960615-7/fulltext)
  • Wakley, Thomas, A Report of the Trial of Cooper v. Wakley, For an Alleged Libel, Taken by Shorthand Writers Employed Expressly for the Occasion, (London: Office of the Lancet, 1829)
  • Roach, Mary, Stiff: The Curious Lives of Human Cadavers (London: W. W. Norton & Company, 2003), pages 28-29