SLATER V. BAKER AND STAPLETON (C.B. 1767): UNPUBLISHED MONOGRAPHS BY ROBERT D. MILLER ROBERT D. MILLER, J.D., M.S. HYG. HONORARY FELLOW MEDICAL HISTORY AND BIOETHICS DEPARTMENT SCHOOL OF MEDICINE AND PUBLIC HEALTH UNIVERSITY OF WISCONSIN - MADISON PRINTED BY AUTHOR MADISON, WISCONSIN 2019 © ROBERT DESLE MILLER 2019 BOUND BY GRIMM BOOK BINDERY, MONONA, WI AUTHOR’S INTRODUCTION These unpublished monographs are being deposited in several libraries. They have their roots in my experience as a law student. I have been interested in the case of Slater v. Baker and Stapleton since I first learned of it in law school. I was privileged to be a member of the Yale School Class of 1974. I took an elective course with Dr. Jay Katz on the protection of human subjects and then served as a research assistant to Dr. Katz in the summers of 1973 and 1974. Dr. Katz’s course used his new book EXPERIMENTATION WITH HUMAN BEINGS (New York: Russell Sage Foundation 1972). On pages 526-527, there are excerpts from Slater v. Baker. I sought out and read Slater v. Baker. It seemed that there must be an interesting backstory to the case, but it was not accessible at that time. I then practiced health law for nearly forty years, representing hospitals and doctors, and writing six editions of a textbook on hospital law. I applied my interest in experimentation with human beings by serving on various Institutional Review Boards (IRBs) during that period. IRBs are federally required committees that review and approve experiments with humans at hospitals, universities and other institutions. Upon my retirement from practice in 2013, I received an Honorary Fellowship appointment in the University of Wisconsin- Madison’s Department of Medical History and Bioethics in the School of Medicine and Public Health. In 2014 my study of the history of medical consent led me back to Slater v. Baker. Micaela Sullivan-Fowler, Curator/History of Health Sciences Librarian, of the Ebling Library of the University of Wisconsin-Madison, provided very helpful assistance. Accessing electronic databases that did not exist when I was in law school, I discovered contemporaneous news reports of the trial, background information on the identified participants in the treatment and lawsuit, and INTRODUCTION - Page 1 of 4 inaccuracies and anomalies in Slater v. Baker. My suspicion of a backstory grew stronger. I then discovered that the Wellcome Library in London had the only known copy of a report - FACTS AS THEY WERE - written by defendant Baker.1 I obtained a digital copy from the Wellcome Library in the spring of 2015. It is a handwritten report of the details of the case, providing the intriguing backstory. It disclosed that the plaintiff’s name was Richard Slatter and that what actually happened was very different from what was presented at trial. It explained why this occurred and explained most of the inaccuracies and anomalies in Slater v. Baker. It identified the device used and the names of more of the participants. I also learned that The National Archives (TNA) at Kew in London has the extant records of the Court of Common Pleas that decided the Slatter case and that the Wellcome Library has additional manuscripts by defendant Baker. To view these and to determine whether there was additional relevant information about the case, I spent two weeks in London in September 2015. I spent several days in TNA, reviewing original court rolls that were nearly 250 years old. Many were so fragile that they had to be reviewed in the Collection Care area with the helpful assistance and supervision of Holly Smith and other members of the preservation team. Unfortunately there were no detailed records of the case extant in the records of TNA. There were two documents that briefly referenced the case. A contemporaneous index document included the case name and the amount of damages:2 1 Thomas Baker, FACTS AS THEY WERE (London 1767 or 1768) [Wellcome Library (MS. 1037)]. 2 Index to Common Plea Rolls, 7-8 GEO. III Hilary to Michas (The National Archives IND 1/6533) [“T.7th G.3d” is the time of the case - Trinity Term of the 7th year of George III] INTRODUCTION - Page 2 of 4 Baker Thos late of London Surgeon and ant £ s T.7th G.3d To Ansr Richd. Slatter …….....Case 576. 5 Midds Stapleton Isaac late of Southwark in the County of Surry apothecary And another £ s T.7th G.3d To Ansr Richd. Slatter ……....Case 576. 5 Midds No roll number is given in this index entry. This indicates that detailed records of the case were never maintained in the court rolls. The other document was a court roll that lists the additional attorneys that the parties retained to handle the review of the case by the full court:3 Middlesex Richard Slatter appoints John Grace his Attorney agst Thomas Baker late of London Surgeon and Isaac Stapleton late of Southwark in the County of Surry Apothecary in a plea of Trespass on the Case Middlesex said Thomas Baker and Isaac Stapleton appoint Joseph Cruttenden their attorney agst Said Richard Slatter in the plea afsd At the Wellcome Library, I saw FACTS AS THEY WERE, as well as an account book that Baker maintained throughout his practice and a report that Baker wrote of his tour of France before he began his surgical practice. Baker’s account book gives his sources of income, total expenditures and net gain or loss for each year. In 1767-68 his total expenditure for the Slatter case is listed:4 This year I had a Lawsuit which cost 320=14-8 I visited several other libraries and archives in London, including the British Library, the Guildhall Library, the London Metropolitan 3 Common Pleas Rolls for the Trinity Term of 7 Geo III (1767) (The National Archives CP 40/3677). 4 Baker’s account book is in the Wellcome Library in London (MS. 5781). INTRODUCTION - Page 3 of 4 Archives, the Royal College of Surgeons Library, and the Local Studies Library at the John Harvard Library in Southwark. I also visited the West Sussex Records Office in Chichester to review a diary kept by defendant Baker’s brother. The staff members of the libraries and archives were very helpful. Some sites provided additional information related to the people and places involved in the case. The other sites performed an equally important function of confirming that they had no accessible information that would require major modifications in the account that emerged from the other research. I have continued to pursue the research and found more about the context of the case and the participants. I am now ready to share my research with others. I do not claim that the research is exhaustive. I hope that future researchers will uncover additional information to shed more light on this interesting and important case. I also thank Susan E. Lederer, Professor and Chair of Medical History and Bioethics, and my wife, Jan Miller, for their review of early drafts of the manuscript and helpful comments. Robert D. Miller, JD, MSHyg Madison, Wisconsin October 2019 INTRODUCTION - Page 4 of 4 ABOUT THE AUTHOR Robert D. Miller, J.D., M.S. Hyg, is a graduate of Iowa State University, the Yale Law School, and the University of Pittsburgh Health Law Training Program. He began his legal career as the in-house legal counsel to the University of Iowa Hospital and Clinics. He then was in private practice with the firm of Shutts & Bowen in West Palm Beach and Miami, Florida, where he advised Miami Children’s Hospital and other clients. He then served as an in-house legal counsel to the University of Wisconsin Hospitals and Clinics Authority in Madison, Wisconsin. Upon his retirement he was appointed an Honorary Fellow in the Medical History and Bioethics Department of the School of Medicine and Public Health of the University of Wisconsin - Madison. While in Florida, he was counsel of record in two of the case establishing the scope of the right to discontinue medical treatment, Corbett v. D’Alessandro, 487 So.2d 368 (Fla. 2d DCA 1986), and In re the guardianship of Browning (Fla.1990). He taught health care law at the University of Iowa and the University of Miami and lectured on health law issues at the University Of Wisconsin-Madison. Mr. Miller was co-author of HUMAN EXPERIMENTATION AND THE LAW (1976) and a co-author of the fourth edition of NURSING AND THE LAW (1984). He was author of the fourth through sixth editions of PROBLEMS IN HOSPITAL LAW (1983, 1986, 1990). After it was renamed PROBLEMS IN HEALTH CARE LAW, he was author of the seventh and ninth editions (1996, 2006) and co-author of the eighth edition (2000). LIST OF MONOGRAPHS AND INDEXES 1. OVERVIEW OF THESE UNPUBLISHED MONOGRAPHS RELATED TO SLATER V. BAKER AND STAPLETON (1767) 2. FACTS AS THEY WERE - THOMAS BAKER’S ACCOUNT OF HIS ENCOUNTER WITH RICHARD SLATTER 3. SLATER V. BAKER AND STAPLETON (C.B. 1767) - THE TRIAL 4. SLATER v. BAKER AND STAPLETON (C.B. 1767) - THE COURT DECISION 5. THE LAW OF MEDICAL CONSENT PART 1 - THE LAW OF MEDICAL CONSENT IN THE EIGHTEENTH CENTURY PART 2 - THE SIGNIFICANCE OF SLATER V. BAKER AND STAPLETON TO MEDICAL CONSENT 6. THE ROLE OF LEGAL PRECEDENT AND THE ACCURACY OF NOMINATE REPORTS 7. USES OF SLATER V. BAKER AND STAPLETON 1767-2017 8. JONATHAN WATHEN’S CONDUCTOR - A HEAVY STEEL THING THAT HAD TEETH 9. TREATMENT OF LEG FRACTURES IN MID-EIGHTEENTH CENTURY ENGLAND IN RELATION TO RICHARD SLATTER’S INJURY 10.