Liability to Prosecution for 
Damages in Abdominal 
Surgery. 
BY 
Cyrus A. Kirkley, M. Dv 
TOLEDO, OHIO. 
REPRINTED FROM THE 
American Gynaecological and Obstetrical Journal 
for July, 1896. [Reprinted from the American Gynecological and Obstetrical Journal 
for July, 1896.J 
LIABILITY TO PROSECUTION FOR DAMAGES IN 
ABDOMINAL SURGERY* 
By Cyrus A. Kirkley, M. D., Toledo, Ohio. 
However the verdict, a suit for damages is a financial as well as 
professional misfortune. Even the experienced and skillful operator 
may be compelled to defend himself against the malicious and 
greedy, and, on account of the discredit usually thrown upon expert 
testimony, the truth is not always ascertained, and justice at times 
may be defeated. 
While the‘moral responsibility is the same in every surgical case, 
the legal responsibility varies according to the gravity of individual 
cases and results of treatment ; therefore, when the abdominal surgeon 
is made defendant in a suit, the claim for damages is not likely to be 
insignificant. 
Priests once assumed to treat the sick, and even to perform sur- 
gical operations, their knowledge and power to do so having been 
regarded as a divine gift; therefore results were accepted whether 
good or bad. In some countries, as in Egypt, corporal punishment 
was inflicted upon those who ventured to depart from recognized and 
well-established surgical rules, though the results were favorable. In 
others (Roumania) unsuccessful results made the surgeon liable for 
damages, however skillfully he may have treated the case. In others, 
again (Goths), if the patient dies, the surgeon is delivered to the rela- 
tives and friends, who wreak vengeance upon him. In Germany 
the surgeon is held strictly accountable in the event of the death of 
the patient, unless he has exercised due care and taken proper 
precaution, though he may be incapable or unskillful and the patient 
may have employed him and agreed to pay him. While the law does 
not assume that the surgeon agrees to cure, it very properly demands 
of him reasonable skill and knowledge (Hamilton and o:hers). 
* Read before the American Gynaecological Society, May 26, 1896. 
Copyright, iSg6, by J. D. Emmet, M. D. Cyrus A. Kirkley, M. D. 
Women especially are horrified at the suggestion of a surgical 
operation, and are naturally averse to it. Exceptionally, however, a 
woman rather enjoys the prominence given her, regarding herself 
something of a heroine ; but in rural communities in which operations 
are only occasional, it is always difficult, sometimes impossible, to 
get the consent of the patient or her friends at all, she preferring to 
endure her condition to taking the unavoidable risks of an operation, 
however slight they may be. Sometimes consent is given condition- 
ally—that is, if unexpected conditions enhancing the risk are encoun- 
tered, the surgeon must promise to proceed no further. Though un- 
common, such an instance is the source of infinite trial and annoyance, 
and a violation of the promise if unfortunately made, may be the 
basis of a suit for damages. 
Mrs. T., aged thirty-five, of healthy appearance, came under ob- 
servation in December, 1894. She had never been pregnant, and 
menstruation had been regular up to October, since which time it had 
not reappeared. It began when she was fourteen years old, and had 
never been excessive. She had slight leucorrhoea. 
The abdomen was about as large as at seven months’ pregnancy, 
measuring 35.5 inches in its largest circumference, and due to an ab- 
dominal tumor of some kind, of distinct outline, resilient to the touch 
and movable, but fluctuation could not be detected. The surface 
of the tumor was smooth and regular, did not dip down into the pel- 
vic cavity, and could not be distinguished from the uterus ; it was ap- 
parently the uterus itself. 
The patient had never been seriously ill and had first noticed the 
tumor about two years ago, the growth of which had been slow until 
within the last six months. The attending physician had diagnosti- 
cated ovarian cystoma. She was informed that though the diagnosis 
might be correct, there was considerable doubt, which would disap- 
pear on opening the abdomen, but should the tumor prove to be an 
ovarian cyst, there would be less risk in the operation than if any 
other condition should exist. At this point she insisted that she 
would take no further risk than that involved in the removal of an 
ovarian cyst, and would consent to the operation only on condition 
that if the tumor were found to be other than ovarian the operation 
should proceed no further. While it is, of course, plain that the 
operation should have been declined under such restrictions, still 
there was a probability that before the operation she could be per- 
suaded that her greater safety would depend upon permitting the 
operator to use his best judgment and to do whatever seemed best Liability to Prosecution for Da?nages in Abdominal Surgery. 
3 
under the circumstances. There was a slight hope, too, that the tumor 
might be ovarian. All persuasion, however, was unavailing, and the 
operation was undertaken only as an exploration, still with the hope 
that the husband would allow to be done whatever might seem best. 
An explorative operation was performed December 24, 1894, reveal- 
ing an oedematous myoma. The husband, who was in another room, 
was informed of the result and of the favorable prospect for recov- 
ery should the operation proceed, but he absolutely refused to permit 
anything further to be done. Had the operation proceeded without 
consulting the husband and the patient recovered, all would have 
been well ; had the result been fatal, however, the avenue to a suit 
for damages would have been open and would probably have been 
speedily entered. The tumor could have been easily removed with 
but little greater risk, and the patient no doubt would have recov- 
ered as well from a completed as she did from the explorative 
operation. The course pursued in this case was in deference to 
the judgment of the patient’s physician, who was assisting in the 
operation. 
In contemplation of an operation, an understanding can usually 
be had with the patient and friends ; exceptionally, however, contin- 
gencies may arise making it impracticable, even impossible, to do so. 
The question arises whether under such circumstances an urgent 
operation should be undertaken with all the attendant risks. 
The following is a recent experience : Patient thirty-nine years 
old. mother of one child born twenty years ago. The uterus was dis- 
placed backward, partially fixed, and very tender to the touch. It 
was considerably enlarged, and there was a profuse muco-purulent 
discharge from its cavity. The general condition was fair, though the 
accompanying symptoms of chronic endometritis were present in a 
marked degree. Examination under anaesthesia failed to reveal either 
disease of the ovaries or tubes, both being of normal size. Curettage, 
irrigation, and drainage was the treatment employed. Not an un- 
pleasant symptom arose until the morning of the ninth day. About 
nine o’clock, having just eaten her breakfast, the patient was sud- 
denly seized with violent and excruciating pain in the region of the 
left ovary. She was seen within an hour after the onset of the attack, 
and though the nurse had given a quarter of a grain of morphine hypo- 
dermically and an ounce or more of whisky, she was almost in col- 
lapse. The countenance was anxious, nose pinched, lips livid, tem- 
perature 99°, and pulse 134, small and weak. There was not the 
slightest distention of the abdomen, but it was extremely sensitive 4 
Cyrus A. Kirkley, M. D. 
over its entire surface. Vaginal examination gave negative results. 
Evidently some terrible accident had happened within the abdomen, 
and the indications for immediate abdominal section were perfectly 
plain. When consultants arrived within about two hours after the 
onset of pain the symptoms were less urgent, and it was concluded 
that the chances for recovery would be better without immediate re- 
sort to operation. Improvement, though slight, continued through- 
out the day, but there was recurrence of pain, and symptoms of col- 
lapse came on about 9 p. M. The patient gradually grew worse until 
the following night, when she died. 
After much coaxing, the husband finally consented to a post-mortem 
examination, which was confined to the abdominal and pelvic cavi- 
ties. The peritoneal cavity contained about half a pint of pus. The 
right tube and ovary were normal. The left tube was normal, but 
the ovary, though of normal size, had ruptured along its convex bor- 
der, the rupture no doubt occurring at the onset of pain. The tunic 
was easily torn, and was as thin as peritonaeum. Whether the ovary 
had undergone cystic or purulent degeneration, its contents had been 
sufficiently irritating to produce a rapidly fatal peritonitis. When the 
patient had been examined under anaesthesia, this diseased ovary 
could be distinctly made out, and appeared as healthy as the other. 
During the first two hours after the onset of pain abdominal sec- 
tion might have been done, but the husband and friends were in a 
distant town, assistants were not at hand, and the patient was too ill 
to talk or to be consulted. Skilled nurses, however, were at hand, 
and the operation could have been readily done, and perhaps should 
have been done, notwithstanding all the attendant risks. 
When the attack of pain again came on, however, death was in- 
evitable. 
The average jurvman places the same estimate upon expert as 
upon any other testimony. One is of equal value with the other. 
The function of the witness is to testify in behalf of the side calling 
him. He is supposed to be biased in favor of that side. If an ex- 
pert, he is paid for his testimony. Parties to a suit select a witness 
with reference to his ability to strengthen their respective sides, and 
if an expert, they regard him in much the same light as the juror. 
He is expected to testify in their behalf. Courts, too, are inclined to 
underestimate the value of expert testimony. Lord Campbell has 
•said that “ skilled witnesses come with such a bias on their minds to 
support the cause in which they are embarked that hardly any weight 
should be given to their evidence.” There is much need of reform in Liability to Prosecution for Damages in Abdominal Surgery. 
5 
this direction. An expert witness should be considered as such only 
when he is known to possess special qualifications, and to have had 
sufficient experience to entitle his opinion to some weight. A chem- 
ist can not give reliable evidence in a surgical case, neither can a 
surgeon give valuable evidence in questions pertaining to general 
medicine. Instead of his selection on such a basis, his opinion as to 
the case in question is first sought, and, unless it strengthens that side 
or weakens the other, his evidence is not desirable. So-called experts 
are known to have been called because they would testify to anything 
desired. 
An attorney was recently asked if a certain witness knew anything 
on the subject in question. He replied that “he was not called on 
that account.” Until the time comes when courts shall fix the proper 
status for medical witnesses demoralization will exist. “ As the law 
is administered, many persons can be found who are ready to arrogate 
knowledge and position they do not deserve. The dignified alienist of 
experience and reputation is confronted by the impostor whose glib 
manner and bizarre ‘popular science ’ sometimes impresses the sus- 
ceptible juryman, as does the proprietary-medicine advertisment, 
and whose experience of medicine and its exponents is confined to 
the quack or cure-all. The law is largely responsible for this ” 
(Hamilton). 
In any case the sympathies of a jury govern them largely in de- 
termining a verdict. Sympathy that overcomes judgment and igno- 
rance generally go hand in hand. The jury naturally incline toward 
the side most in need of a favorable verdict, sometimes with little re- 
gard as to the merits of a case. It is a well-recognized fact that in 
suits against corporations the verdict is generally adverse. 
The following interesting case recently came before the Common 
Pleas Court of Lucas County, Ohio. The surgeon was threatened 
with a suit for twenty thousand dollars damages, whereupon he im- 
mediately sued for the balance of his fee, a part having been paid. 
The defense set up a counter claim for three thousand dollars, in 
which was included hospital expenses, loss of time, etc. Further- 
more, it was alleged that the operation was unnecessary, and, though 
the patient recovered from it, a broken-down nervous system, a ven- 
tral hernia, and a damaged eye resulted. The main points in the 
clinical history are as follows, and were kindly given by the surgeon 
himself : In August, 1893, tubal pregnancy of the right side was diag- 
nosticated. In January (1894) following he doubted the correctness 
of his diagnosis. Motion was felt in February, and was also detected 6 
Cyrus A. Kirkley, M. D. 
by palpation. The enlargement was mainly on the right side. The 
uterine sound had been introduced in October and again in Decem- 
ber, and the uterus found empty. Abdominal section was performed 
March 15, 1894—nine months to a day from the last menstruation. On 
opening the abdomen, the foetal mass could be distinguished from the 
uterus, which was about as large as at a six months’ normal pregnancy. 
At this stage of the operation tubo-uterinepregnancy was diagnosticated, 
and delivery by the vaginal route determined upon. The uterine cer- 
vix was dilated to the capacity of a Goodell’s dilator, and dilatation 
completed by the hand. The uterus was found to be empty. The sep- 
tum—consisting of the uterine wall—between the uterine cavity and 
the foetal mass was torn through and the foetus easily extracted. The 
placenta almost immediately followed, with scarcely any haemorrhage 
at all. The foetus was about as large as at six months—about sixteen 
inches in length though not well developed. The placenta, though 
small, was of normal appearance. To prevent the possibility of sub- 
sequent pregnancy, the ovaries and tubes, though normal, were re- 
moved. There was no lochial discharge until the ninth day, when it 
appeared, green in color, acrid and offensive. The claim for damages 
was based upon the allegation that an imposition had been practiced ; 
that instead of a tubo-uterine the case was one of normal pregnancy, 
which the operator should have known, and that, in addition, the ac- 
cidents following the operation, together with the shock and pro- 
longed convalescence, had made the woman a physical wreck. After 
the trial had gone on for two or three days a compromise was brought 
about and the case dismissed. 
Whatever may have been the merits of this case, the verdict would 
almost certainly have been in favor of the defendant. From the jury- 
man’s standpoint, a frail, nervous, and mutilated woman was entitled 
to whatever damage she could get. 
The difficulty of bringing out the truth by the usual method of 
examining witnesses, and the improbability of its recognition by the 
jury, could hardly have been made more apparent than in this case. 
It is a curious fact that each attorney brought out exactly the 
desired answers from the same witness. In stating a hypothetical 
case, counsel would, of course, make it favorable to his side, and 
put his questions accordingly, expecting and usually getting a favor- 
able reply. Expert testimony is in this way often made to appear 
inconsistent, and medical witnesses are compelled to disagree when 
opposite hypothetical questions are put to them. To this method of 
examining witnesses, perhaps more than to anything else, is due the Liability to Prosecution for Damages in Abdominal Surgery. 
7 
disrepute of expert medical evidence. Instead of the witness giving 
facts, by this very method he becomes more or less of a partisan. 
“ The hypothetical question is supposed to embody the facts 
of the case, but in reality is often distorted, disingenuous, and is 
roughly handled and more or less emasculated before the witness is 
allowed to pass judgment upon it. When the answer is given, the 
medical gentleman in the witness chair is obliged to consider section 
by section, and an attempt is made to elicit a categorical answer, which 
is often impossible” (Hamilton). 
Speaking of the plans for reform in calling expert witnesses, Mr. 
Lawrence Godkin, in his contribution to Hamilton’s work, says that 
“the plan suggested by Sir James Fitzjames Stephen in his History 
of the Criminal Law of England would seem to meet the situation, 
although it is one which requires a very high standard of medical 
honor and knowledge. Under this plan, which he says has existed 
for some time at Leeds, England, medical men refuse to testify with- 
out conference with the expert witnesses to be called on the other 
side of the case, and that as a result medical witnesses are rarely 
cross-examined at all, and not unfrequently they are called on one 
side only. He further says “ that if such a system could be adopted 
by the profession in America it would be of immense service in rais- 
ing the standard of expert testimony and increasing the reliance 
placed upon it by the courts and juries.” He still further suggests 
that the adoption of such a plan by the medical profession would 
solve the problem. “ And not its least merit lies in the fact that it 
may thus be brought about by the members of the profession taking 
the matter into their own hands and dealing with it upon the lofty 
and disinterested plane upon which the medical profession should be 
moving on to the great future which, as an instrumentality for the 
attainment of righteousness and justice, as well as the retarder of 
death and the alleviator of human suffering, is surely before it.” 
Mr. Clarence Brown, of Toledo, who was plaintiff’s counsel in the 
foregoing case, and whose legal qualifications and experience entitles 
his opinion to great weight, was asked the following question : Would 
a surgeon be liable for damages should he open the abdomen in an 
urgent case—one certain to die without it—were it impossible to get 
the consent of husband or friends ? 
Mr. Brown kindly wrote his reply, received when this paper was 
nearly completed, and which I have much pleasure in giving in full 
as follows : 8 
Cyrus A. Kirkley, M. D. 
May ij, i8q6. 
My dear Doctor: Only a very general answer can be given to 
your question as to whether a surgeon would be liable for damages 
should he open the abdomen in an urgent case—one certain to die 
without it—were it impossible to get the consent of husband or friends. 
The surgeon is held to the exercise of ordinary care in the perform- 
ance of an operation. Ordinary care in such matters, of course, means 
such care as one ordinarily educated and skilled in his profession ex- 
ercises under like circumstances, having in mind always the dangerous 
character of the operation. The degree of care required is always 
enhanced by the hazardous character of the operation to be performed. 
A surgeon does not guarantee success or recovery. He is bound to 
act in good faith. He is required to be competent and skillful. He 
must use those means and resort to those remedies and operations 
which the best intelligence of the profession adopt as proper under 
the circumstances. 
The placing of a patient under the care of a physician and sur- 
geon implies an authority in the surgeon to do that which is reason- 
ably necessary in the case ; and if, in the honest judgment of an ex- 
perienced and competent surgeon, such an operation were necessary, 
and a proper regard for the chances of the patient required that it be 
performed speedily and before opportunity for conference with, or 
obtaining consent from, the relatives or friends, I think a surgeon 
would not be liable for damages should he perform the operation in 
an urgent case such as you mention, even although it might result 
unsuccessfully. 
Concerning the other matters suggested in your letter, I do not 
know that I can speak with any great definiteness without knowing 
the general character and scope of your paper. I am clearly of the 
opinion that the present method of calling expert medical witnesses 
on either side of a case involving a medical question does not materi- 
ally tend to the elucidation of the truth upon that question in a pub- 
lic trial. In any important case of that character the medical question 
involved is usually one of such difficulty and importance that reputa- 
ble physicians might well differ in regard thereto, even were they re- 
liably advised as to the exact facts and history of the case. It is 
apparent, therefore, that where medical witnesses must be called to 
testify in response to hypothetical questions framed upon any theory 
of the facts which the testimony of either party tends to establish, 
reconcilement of opposing views of medical witnesses becomes an 
impossibility. Liability to Prosecution for Damages in Abdominal Surgery. 
9 
Not only that, but accordingly as questions may be framed by 
skillful counsel upon one side or the other, the same witness may 
appear in the attitude of having given directly conflicting views on 
what appears to the inexperienced to be practically the same hypo- 
thetical case. 
The medical question involved in such a case is often one upon 
which even an experienced and skillful physician could not venture 
an opinion without the most careful investigation into the history, 
condition, and treatment of the case. How much less, then, could it 
be expected that a jury, uneducated in the medical profession, unfa- 
miliar with even the medical terms, and incapable, in the limited time 
and opportunity that is afforded them, of even appreciating the testi- 
mony of medical experts—how much less could such a body of men 
be expected to intelligently pass upon such grave and uncertain prob- 
lems ? 
In my opinion, a much better way to try such questions would be 
to provide a medical commission, consisting, say, of three reputable 
and experienced members of the medical profession, to be appointed 
by the Court, to hear and determine the medical question involved in 
the case, and, upon their report, let the case proceed to final judg- 
ment, according to the usual processes of the law. The distinctions 
and refinements made in all such inquiries would be appreciated by 
such a commission. They can not be appreciated nor be made clear 
by the methods usually adopted in jury trials. With a determination 
by such a commission of the medical question involved in a case, 
there would be little difficulty in disposing of the other questions. 
Yours very truly, Clarence Brown. 
In the miscellaneous department of the Journal of the American 
Medical Association appears an item stating that a case has recently 
been decided in Brussels as to whether the husband’s consent to an 
operation is indispensable. Two prominent surgeons had been prose- 
cuted by the husband whose wife died from an operation unauthor- 
ized either by himself or his wife. The verdict was in favor of the 
surgeons.