Burnett v Lynch

The Appellant GP appeals, on breach of duty only, the order of His Honour Judge Gosnell (“the Judge”) sitting at Leeds County Court on 7^th April 2011 when judgment was given for the Respondent in a clinical negligence claim for damages arising from the delayed diagnosis of breast cancer.

The decision is said to be unjust since the Judge made findings of fact which were inconsistent and perverse, failed to take into account material parts of the Respondent’s evidence which he should have considered carefully before preferring her recollection and failed to give any or any adequate reasons for rejecting the evidence of the Appellant, supported by that of Mr Pugh, that no consultation with the Respondent occurred in February or March 2006.

The Respondent, a lady now aged 53, since 1995 had been a patient of the Appellant at the Grove House Surgery (‘the Surgery’) in Wakefield. She presented to the Appellant from May 2005 with a number of complaints concerning her menstrual cycles for which she received appropriate treatment with medication, albeit with unpleasant side-effects.

There then followed, over the ensuing months, a series of consultations with the Appellant. Virtually all are agreed to have taken place, save for that in February or March 2006, the crux of the dispute between the parties.

The Respondent’s case was that she attended the Appellant on a date the best particulars of which she could give as between 8^th February 2006 and 30 March 2006. She alleged that at that consultation she presented with a lump in her left breast, the Appellant performed a bilateral breast examination and reassured her that the lump was a blocked milk duct.

The Appellant denies any consultation in February or March 2006, that the Respondent ever complained to her of a lump in her left breast and that she would have advised the Respondent or any patient that a palpable lump in the breast was a blocked duct.

The Respondent told the Judge that the lump subsequently became bigger and there was dimpling of the skin around the swelling. She resolved to get a second opinion as the Appellant had kept telling her it was hormonal. She arranged an appointment with Dr Ratcliffe, a new female GP in the Surgery. On 9 September Dr Ratcliffe recorded (inter alia), “known lump left breast - adv (advised) blocked duct - recent increase in size, tender especially at period. Large mass left breast nil else” and referred her to the breast clinic on a non-urgent basis.

On 10^th November 2006 the Appellant was diagnosed with breast cancer, she had a mastectomy on 21^st November 2006 and, as the cancer had spread to her lymph nodes, chemotherapy between January and April 2007. She then began a five year course of Tamoxifen hormone therapy.

Chronology derived from medical records

HHJ Gosnell heard evidence from five witnesses as to fact over one and a half days. At the conclusion of the evidence he retired for some 1½ hours then gave an ex tempore judgment in which he found for the Respondent on the facts, from which breach of duty flowed by agreement between the GP experts. The Respondent’s primary case on causation - avoidance of chemotherapy - was rejected, but she succeeded on her secondary case, which resulted in the agreed award of £4,000. (The parties had agreed the quantum of the primary case in the sum of £23,000).

The Appellant accepts that she saw the Respondent on those occasions recorded in the handwritten notes, summarised as follows:

The Appellant also accepts that the Respondent was seen in connection with asthma on 17^th March 2006 by Dr Bham, a long-term locum. However, the Appellant denies she saw the Respondent in February or March 2006 and that the Respondent ever during an appointment with her complained of a left breast lump. Her evidence was that she did not advise the Respondent (nor would she any patient) that a palpable lump was a blocked duct.

The Judge encapsulated the evidence thus:

“6.

The claimant returned to the surgery two months later, on 7^th November 2005, and was seen by the defendant. On this occasion, the claimant says she saw the defendant with ongoing complaints regarding her periods, but also of a very lumpy tender left breast, which was getting worse, especially at the time of her periods, and could be painful. The claimant says the defendant briefly examined her left breast but not the right, and said there was no lump. The defendant attributed the claimant’s symptoms to the side effects of Duphaston.

7.

The defendant admits a consultation took place with the claimant on this date, and that the claimant reported tenderness but no lumpiness in her left breast. The defendant also says she performed a bilateral breast examination, during which no breast lump was identified. In her witness statement, the defendant goes further in stating as follows: “I also mentioned the possibility of a blocked duct, as this can be a common cause of breast tenderness. I would never suggest a diagnosis of a blocked duct if there was a discernible lump in the breast.” There is no record in the handwritten notes of a bilateral examination of the breasts, or the findings upon such an examination and the advice given thereafter, nor is there a written note of a mention by the defendant of the possibility of a blocked duct.

8.

On 20^th January 2006, the claimant saw the defendant again. In her statement, the claimant says she told the defendant that the tenderness in her left breast was much worse, her breasts had increased in size, and her weight had increased. Her evidence is that she was told by the defendant that these were side effects of Duphaston and consequently the claimant asked for this to be stopped. The handwritten record of this consultation reads in parts: “Side effects with Duphaston”, but no further details are given. The Duphaston was stopped. The defendant gives an account of this consultation in her statement, in which she states: “Although I do not specifically recall the nature of the side effects, the two main ones are nausea and breast tenderness.”

9.

A few weeks after stopping the Duphaston, the claimant’s evidence is that she felt a lump in her left breast whilst showering. It was above the nipple on the inner part of the breast and felt about the size of a pea. She arranged an appointment at the surgery and saw the defendant. She recalls being given a thorough breast examination by the defendant, who pressed on the lump and concluded it was a blocked milk duct and nothing to worry about. The claimant believes the appointment was between 8^th February 2006 and 30^th March 2006, by reference to her employment at a the time and discussions she had with her colleague there, Mrs Sondria Jones, and her daughter, Samantha Simpson. The defendant denies that any consultation took place with her in February or March 2006, and relies on the absence of any record of such a consultation.

10.

On 17^th March 2006, there is a handwritten note regarding an appointment the claimant had at the surgery. This was, according to the notes, in connection with her asthma. The defendant disclosed that the appointment was with a locum, Dr Barr [sic]. There was also a patient record of an appointment with the defendant on 20^th March 2006, though there is a computerised record that the claimant did not attend.

11.

On 13^th July 2006, the claimant was seen by the defendant complaining of heavy periods and also mentioned the left breast lump and tenderness, believing the lump to be a blocked duct, according to the claimant. The defendant denies there was any complaint of breast symptoms on this occasion, and there is no note of such a complaint.”

Having summarised the evidence, in his detailed judgment the Judge said:

“28.

Dr Lynch accepted that she had no actual recollection of the events at this stage, some five years after it happened, but could refer to the clinical records and confirm what her normal practice would have been. In November 2005 she would always have properly examined both breasts. I accepted her evidence on this point. It was somewhat unfortunate that the clinical notes did not record the fact that an examination had taken place. She said her practice was only to record positive findings.

29.

She had difficulty in explaining why she told the claimant on 7^th November 2005 that a blocked duct can be a common cause of breast tenderness. She had to concede that this was not a result of her recalling having said it on that day. There had been no February/March 2006 consultation so she presumed the conversation must have happened in November 2005. I accepted her explanation as truthful, but it did mean her statement was either inaccurate or misleading.

30.

Every patient had to be entered into the computerised diary. There was only one appointment with her between 8^th February and 31^st March 2006, when the record showed that the claimant had not attended. The consultation, which the claimant referred to, could not have occurred for three reasons. There was only one record of an appointment on the system during the relevant period, and the claimant had not attended. Secondly, there was no note of consultation in the cards, and she would always make some note of a patient’s attendance, for whatever reason. Thirdly, if a patient complained of a small lump the size of a pea, she would not diagnose a blocked milk duct and would refer the patient to the breast clinic…………

33.

This is not a case where one, or indeed any, of the witnesses are not telling the truth. It is not my task to be sure what happened, just to decide the issues on the balance of probability, remembering that the claimant has the burden of proof.

Relying on “This is not a case where I have reached the conclusion that one, or indeed any, of the witnesses are not telling the truth.” the Appellant submits that the Judge must have accepted the evidence of both parties but since they were in direct conflict his position was perverse and illogical.

The suggestion is that the Judge found each of the following two oppositional conclusions: The Appellant would always refer a patient with a palpable lump to the breast clinic and would not diagnose a blocked milk duct. The Appellant would not always follow this practice since she did not do so in the Respondent’s case.

To be seen by a doctor a patient had to be entered into the computerised diary and the Appellant could not envisage a scenario where this procedure would not be followed. Since the Respondent was somehow seen by the Appellant in the period 8^th February to 31^st March 2006 without being entered into the diary, this procedure cannot have been followed.

Directed to a more general criticism but under the same head of complaint, the Judge is said to have rejected the Respondent’s evidence that the Appellant only briefly examined her left breast but not the right at the appointment on 7^th November 2005 and accepted the Appellant’s evidence on the point. This it is argued cannot align with his conclusion that all witnesses were telling the truth or, at least, that the Respondent’s recollection is unlikely to be wrong and is to be preferred.

The Judge found the following unlikely:

Thus, so the argument goes, he found the Respondent’s case both unlikely and more likely than not. These inconsistencies in his findings render the judgment unjust.

I see nothing inconsistent in the findings. It is commonplace for a trial judge, and HHJ Gosnell, the DCJ of a busy court centre, is an especially experienced one, to conclude that he has not heard witnesses who failed to tell the truth in the sense that they deliberately lied. Rather, as here, he heard honest, that is, not untruthful, witnesses, whose recollections he did not accept as correct or accurate. Once he had decided that no witness was lying he correctly identified his task as “to decide the issues on the balance of probability remembering that the Claimant has the burden of proof”. He rehearsed the arguments supportive of each party’s case, explained his findings as to two clinical notes, and, having assessed the likelihood or otherwise of the competing cases, gave his reasons for finding as a fact “that there was a consultation with [the Appellant] in February or March 2006 at which the [Respondent] complained of a small pea-sized lump in her breast. There was an examination of the [Respondent] and she was told that the cause was likely to be a blocked milk duct”.

I cannot accept the arguments of the Appellant on this point. The evidence the Judge identified plainly entitled him to make such a finding of fact.

As to 7^th November 2005 the Judge accepted the Appellant’s evidence in relation to a specific clearly identified visit (tiredness, boils, L breast mastalgia, blood tests ordered, reassurance that likely cause was side-effects of Duphaston) but rejected it as to the key part of the case.

I do not accept that this demonstrated inconsistency. Judges are daily confronted with the unexceptional possibility, and often the likelihood, that the proper course is to accept part and to reject part of the evidence of the same witness. They are also routinely required to perform the same exercise in respect of the case advanced by a party, accepting in part and rejecting in part. Without that common exercise in discrimination it would be impossible to achieve resolution of many contests before the courts. There is nothing impugnable in the conclusion of the Judge, indeed it demonstrates, in my view, the scrupulous attention he paid to the entirety of the evidence as he reached his decision. His approach comes nowhere near inconsistency or illogicality.

Having, it is argued, accepted that the Respondent’s case was unlikely, it is suggested that the court had to look at the facts “more critically or more anxiously” and would require stronger evidence before it could be satisfied on the balance of probabilities that the Respondent’s case was made out: In Re D [2008] UKHL 33; [2008] 1 WLR 1499 Lord Carswell at para 27 said:

“27.

Richards LJ expressed the proposition neatly in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, 497-8, para 62, where he said:

“62.

Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.”

In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below.

28.

It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann's example of the animal seen in Regent's Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.”

In re D in my view has no application to the instant appeal in the way contended for. This claim did not require the ‘heightenedexamination’ referred to by Lord Carswell since the allegation against the Appellant is not inherently unlikely (in contrast to Lord Hoffmann’s Regent’s Park example) nor was it sufficiently serious nor do sufficiently serious consequences flow for the Appellant to merit such an approach. On the contrary this was a “routine” clinical negligence claim. In any event, the Judge gave careful consideration to and looked closely into the facts and, as Lord Carswell made clear, even were “heightened examination” required, a different standard of proof or a specially cogent standard of evidence before the trial judge can be satisfied of the matter to be established (paragraphs 28, 47 and 48 of the Opinion of Lord Brown) is not.

The role of the Court of Appeal in appeals on the facts was set out in the judgment of Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642, [ 2003] 1 W.L.R. 577 and approved by the House of Lords in Datec Electronic Holdings Ltd v United Parcels Service LTD [2007] UKHL 23, [2007] 1 W.L.R 1325, paragraph 46 per Lord Mance.

The principles which apply include a recognition of the advantage for the trial judge in hearing and seeing witnesses on questions of credibility and reliability and findings of primary fact. In such appeals, as in the instant which turns wholly on oral evidence at trial, an appellate court should be slow to interfere with findings of fact and will not do so unless satisfied that they were plainly wrong.

The Judge it is argued did not look critically or even carefully at the Respondent’s evidence, demonstrated by his failure to take into account and/or address material parts of her evidence when preferring her evidence notwithstanding those issues were raised by Counsel. In particular, he is criticised for a failure to address cross-examination of the Respondent about the appointment with Dr Bham. The Respondent in evidence said she could not recall the appointment on 17^th March 2006 with Dr Bham, thought she saw Dr B Lynch not Dr Bham, could not recall every appointment because she attended frequently, could not remember all those years back which doctor did what, and it was possible she was confused about which GP she had seen.

The Judge is said also to have failed to take into account obvious inconsistencies between her evidence and her pleaded case. Particulars of Claim alleged that on 13^th July 2006 the Respondent “further mentioned the breast lump again” an allegation repeated in her witness statement. However, cross-examined she said “No, I didn’t mention the lump. I just said that my breasts were still tender and she told me to take paracetamols”

The Judge is said to have believed the Respondent, Miss Simpson and Ms Jones and fashioned his findings around that belief without addressing the significant difficulties arising from the Respondent’s evidence and as a consequence falling into serious error. A rigorous consideration of material parts of the Respondent’s evidence could not, it is argued, have led to his conclusion that “it is unlikely that the [Respondent] would be mistaken about whether she ever told Dr Lynch about the lump in her left breast...” and that “the[ Respondent’s] recollection is to be preferred”.

In his detailed judgment the Judge said:-

“34.

The following arguments support the defendant’s case that no consultation took place in February or March 2006: Firstly, the diary entries show only one appointment with Dr Lynch, a DNA. Second, there was no clinical note, either in the cards or the computerised records, for the consultation with the defendant. Third, Dr Lynch’s view that she would not have advised a blocked milk duct when faced with the history of a pea sized lump in a lady of this age. Fourth, that in March 2006, the lump would only have been just or borderline palpable. Fifth, the claimant, in a letter from her solicitors, had suggested the consultation was on 20^th March, only to roll back when the Did Not Attend entry was revealed.

35.

The following arguments support the claimant’s case that a consultation did take place in the relevant period: First, the claimant’s firm recollection of the consultation and what was said. Second, the support given to her by her daughter and Ms Jones. Third, if her evidence is truthful, the lump was clearly palpable to her. Fourth, if her evidence is accepted, it is inherently unlikely that this somewhat demanding patient would not mention it to her doctor at the time. Fifth, the defendant did in fact conduct an examination of the claimant’s breasts in 2005 without recording it, although she did record that the consultation had taken place.

36.

Sixth, that she sought a second opinion, so she must have had a first opinion. Finally, Dr Radcliffe’s note of 9^th September 2006: “Known lump left breast, advised blocked duct”, and her referral to the breast clinic, seemed to me to be unlikely if Dr Radcliffe had herself diagnosed a blocked duct. Finally, the note in the Patient Care Management Record: “Noticed lump March ’06, GP thought milk duct, referred in September ‘06”.

37.

In respect of these last two I support the claimant’s interpretation: “Known lump left breast, advised blocked duct”, means the lump was known to both the patient and to the practice, and the advice was referring to advice previously given.

38.

The entry: “Noticed lump March ’06, GP thought milk duct”, can only mean that when the patient noticed the lump, she asked her GP, who thought it was a milk duct blockage. This is what the claimant said to a nurse approximately two years before the letter of claim was sent.

39.

If a consultation did happen this would mean that an appointment took place without it being recorded or the receptionist saying that the claimant had not attended on 20^th March, when in fact she had. This is unlikely. It is unlikely that Dr Lynch would see a patient without making any notes at all, and that she would fail to refer a patient with a small lump to a breast clinic. However, I also think it is unlikely the claimant would be mistaken about whether she ever told Dr Lynch about the lump in her left breast, given the evidence seems to be that it would be palpable from about February or March 2006, and she was not reluctant to seek medical treatment.

40.

I think it unlikely her daughter would be mistaken about whether her mother had told her twice about the lump, once when she noticed it, and again when it grew, and that she felt it for herself, or only once, just before she saw Dr Radcliffe. It is unlikely Ms Jones would be mistaken about when she had the conversation with the claimant about the visit to the doctor.

41.

Overall I find the evidence of the claimant, her daughter and Ms Jones utterly compelling. They gave three different reasons why the conversation must have taken place around March 2006, the short window when both the claimant and Ms Jones were working together, the arrangements for the memorial, and the disappearance of Ms Jones’ son. These reasons were too genuine and rooted in personal circumstance to be contrived. I also felt that this history would be more likely to be clearly recalled by the claimant and her daughter, whose lives it had utterly changed, than it would a busy GP, who had to continue seeing patients who themselves were often going through similar trauma, and would equally be demanding on her time.

42.

The notes of Dr Radcliffe and the history given to the nurse subsequently add weight to this compelling evidence and convinced me on balance that the claimant’s recollection is to be preferred.”

A trial judge is not obliged to refer in his judgment to every part of the evidence or every point raised by Counsel in closing submissions. As Munby LJ said in In the Matter of L,R,MH and C [2011] EWCA Civ 525 at paragraph 46:

“Findings of fact must, of course, be based on the evidence (including inferences that can properly be drawn from the evidence) and must, of course, be adequately explained and reasoned. But that said, and always assuming that he has met those requirements, a judge conducting a fact-finding hearing is entitled to explain his thought processes and his reasons in whatever seems to him to be an appropriate and illuminating way.”

Even if the Appellant’s contention, that the Judge did not recite all aspects of the Appellant’s evidence relied upon, were made out, in my view there was no need for him to do so. He would have heard them in closing submissions moments before he began to compose his extempore judgment. In any event he is obliged to set out in his judgment sufficient for the reader to follow his line of reasoning and his thought processes as he explains his findings of fact based on the evidence. The extract from his judgment which I have set out above shows, I hope, why I have had no difficulty discerning any of his routes to his conclusion

Marching, in my view, closely with her complaint as to failure to consider evidence is this final Ground. The Appellant argues that no reasons have been given for rejecting the Appellant’s evidence and that of Mr Pugh although she contends that such is the only inference from the findings of fact at paragraph 42, which I have set out supra and which it will be remembered read:

“42.

The notes of Dr Radcliffe and this history given to the nurse subsequently add weight to this compelling evidence and convinced me on balance that the claimant’s recollection is to be preferred. I therefore find as a fact that there was a consultation with Dr Lynch in February or March 2006 at which the Claimant complained of a small pea sized lump in her breast. There was an examination of the Claimant and she was told that the cause was likely to be a blocked milk duct.”

The judge gave detailed reasons, in particular in paragraphs 41 (also set out supra) and 42, as to why he was “convinced…..on balance that the Claimant’s recollection is to be preferred.” Having set out in detail the competing cases, though it was not necessary that he should “set out in detail his reasons for rejecting the Appellant’s case” in any event he did so in paragraph 41 where he found that relevant events “would be more likely to be clearly recalled by the Claimant and her daughter, whose lives it had utterly changed, than it would a busy GP, who had to continue seeing patients who themselves were often going through similar trauma, and would equally be demanding on her time.”

The Judge accepted as truthful the evidence of the Appellant and of Mr Pugh. Having found the Respondent’s, Miss Simpson’s and Ms Jones’s evidence compelling such that he preferred the Respondent’s recollection of events the argument is that it was incumbent upon him to detail his reasons for rejecting the Appellant’s case, particularly in light of his conclusion that the Respondent’s alternative case was inherently improbable and that the Appellant’s case was supported by objective evidence from the computer system. Consequently, so the submission goes, his failure to give reasons for rejecting the Appellant’s case is manifestly unjust.

The Judge addressed Mr Pugh’s evidence at paragraph 32 of his judgment which reads:

“32.Simon Pugh, a data analyst, supported Dr Lynch’s case. Examination of various screen shots showed that the entries were not always made in a consistent way in the same part of the computer records to record identical events.”

This was not a ringing endorsement of the computer evidence. What emerged from Mr Pugh’s evidence was that data could have been lost when the Surgery transferred it from the old Phoenix Visual to the new System One. He could not vouch for the integrity of the transfer process. Indeed referring to the print copy of the computerised records which he produced and at which we looked, under the entry “Dr M.P. Lynch, 20Mar 2006 Did not attend – no reason (XE2NM) dna dr m lynch” Mr Pugh deduced that “dna” [did not attend] had been entered by the receptionist, not by the Appellant.

The Judge in my view was entitled to conclude that no witness was telling a lie, or, to put the same thing another way, that every witness was truthful. “Truthful” is not a synonym for “accurate”. It was more than open to him, as it is to Judges up and down the country day in and day out, to conclude that oral evidence was couched in candour but that some of it did not achieve accuracy. Were it otherwise, many disputes would be incapable of resolution. This was, with the greatest of respect to the parties, a straightforward clinical negligence action. It required no application of evidential or other test of a heightened nature. Rather, it required what it plainly received, that is reasoned support for the permissible conclusions reached. The Judge was, ultimately, “convinced…..on balance that the Claimant’s recollection is to be preferred.” Having in the previous paragraphs set out in some detail the parties’ competing cases, he was under no obligation then “to set out in detail his reasons for rejecting the Appellant’s case” although, in fact, he did so.

I would dismiss the appeal.

I agree.

I also agree.