Amina Shaheen & Anor v Dr Joanna Daish

The claimants in this case are the wife and son respectively of Mr Ajaz Ahmed deceased. He died of lung cancer on 23^rd February 2023 at the tragically early age of 49. It is clear from their statements how much he is missed by his friends and family. I shall refer to the deceased in this judgment as Mr Ahmed.

The claimants maintain that an opportunity to intervene and treat Mr Ahmed’s cancer was missed as a result of the negligence of his general practitioner, Dr Joanna Daish, who is the defendant. I shall refer to her as Dr Daish. Mr Ahmed saw Dr Daish once, at an appointment on 11 February 2019 (‘the appointment’). It is common ground that, at the appointment, Dr Daish requested a chest x-ray for Mr Ahmed using the ICE system (Integrated Clinical Environment). A request for an x-ray made via the ICE system is not acted on unless and until a patient attends a walk-in radiology department. There is no follow up to the request either to the doctor or the patient. To make it happen therefore, a patient has to know both that the request has been made and what he has to do. It is alleged by the claimants that Dr Daish failed to tell Mr Ahmed either that she had made the request or what he needed to do. Dr Daish is clear that she would have told him about the fact that she was requesting one and given him the necessary information. Indeed, she accepts it would have been a breach of duty not to do so. In relation to causation, the claimants invite me to find that, if Mr Ahmed had been given the necessary information, he would have had the x-ray. This is also disputed.

The parties agree that, if an x-ray had been done, it would have shown an abnormality and a CT scan would have been recommended. This would have led to treatment for cancer. The claimants argue that it is likely that that treatment would have been successful. The defendant does not accept that earlier identification would have altered the progress of the cancer.

On 7 July 2025 Deputy Master Skinner ordered the trial of three preliminary issues,

The evidence relevant to the preliminary issues can be divided into four. First, I have Mr Ahmed’s general practitioner records and correspondence from 2017 onwards. Both parties rely on these and there is no challenge to their contents. Second, I have Mr Ahmed’s signed statement dated 20 January 2022. It was provided nearly three years after the appointment and, understandably, Mr Ahmed could not give an account of what exactly had taken place. The third part of the evidence is the evidence of Dr Daish. She provided a statement in 2025 and supplemented it by her oral testimony. Like Mr Ahmed she cannot recall exactly what happened on 11 February 2019. Mr Ahmed was one of very many patients she had and she saw him some time before she was asked for her recollection. She has done her best to assist by considering her own record of the appointment and reflecting on what her usual practice was (and is). Finally, I have statements from the claimants, from a family friend, a colleague and from the claimants’ instructing solicitor who met him. These witnesses provide background information.

The key record is of course the record for the appointment. It confirms that a chest x-ray was requested by Dr Daish. It does not however contain an account of any exchange between Mr Ahmed and Dr Daish about that. Thus it is not determinative of whether the fact that an x-ray had been requested was communicated by Dr Daish to Mr Ahmed. Neither party offers a direct recollection of what took place in the appointment. Rather, they are each asking the court to accept one of two competing propositions:

(Mr Ahmed) If I had been told to get an x-ray, I would have remembered that and I would have taken the necessary steps to get one;

(Dr Daish) I have a usual practice when I order an x-ray for a patient, which is to inform him that that is what I have done and to explain the process he has to follow. I would have done that with Mr Ahmed as I have done with my many other patients in a similar position.

My primary task in determining this preliminary issue is to decide which is more likely to be true.

I start with the medical records because they are contemporaneous and agreed. The trial bundle contains copies of Mr Ahmed’s general practitioner records and correspondence from 2017 to 2021 and copies of the text messages sent to him by the surgery from 2014 to 2022.

The records from the period before the 11 February 2019 appointment show that, historically, Mr Ahmed had had bouts of asthma and had also suffered from chest and respiratory infections.

Of those records closer to the appointment itself the following are important. On 27 April 2018 Mr Ahmed saw Dr Saiyeesh. He complained of “intermittent odd symptoms” which he felt were related to stress. He was told to return in a month if they were not improving but sooner if they got worse. The consultation plan records that Dr Saiyeesh also sent Mr Ahmed for baseline blood tests. As Dr Daish told me in her evidence, the procedure for getting blood tests done is the same as the procedure for getting x-rays done. Although it is not recorded therefore, it is likely that Dr Saiyeesh gave Mr Ahmed similar information about the blood tests to the information Dr Daish says that she gave him about the x-ray.

Mr Ahmed did go and get the blood tests which Dr Saiyeesh had requested, but not until 3 August 2018. They were reviewed with him on that day by Dr Refaat. Dr Refaat’s consultation plan records that Mr Ahmed was offered further tests to rule out coeliac & IBD and that he declined because he just had the blood tests.

On 28 December 2018, Mr Ahmed had an appointment with Dr Rai. He gave a history of a chesty cough which had been ongoing for about a week. He was prescribed Amoxil and Salbutamol.

On 10 February 2019 Mr Ahmed got in touch with the out of hours service. He had chest/upper back pain and worsening breathlessness. He needed the help of his son to give his history to the out of hours doctor dealing with him. He was advised to speak to a primary care service within one hour. In fact, he arranged to go to the surgery the following day for the appointment with Dr Daish.

The record of the appointment on 11 February 2019 shows that it began at 11.14 a.m. The consultation note records that Mr Ahmed gave a history of breathlessness, worsening over the last few months, having started with the lower respiratory tract infection which led to his appointment with Dr Rai. Dr Daish explored whether there was anything in his environment which might aggravate his symptoms. She asked about his work, his home and about pets. She examined his chest and heart and took peak flow and Sats measurements, the results of which are all recorded. Dr Daish diagnosed an exacerbation of asthma.

The record of Dr Daish’s consultation plan reads,

“P: Add-in Symbicort 2 puffs BD can increase to QDS as needed, salbutamol R/w 2/52”

She had prescribed Symbicort, a combination inhaler, in addition to his salbutamol medication. She also advised that he return in two weeks. Dr Daish explained to me that the two weeks would allow sufficient time for Mr Ahmed to get his x-ray and for it to be available for review.

There are other records which are relevant to the appointment. Dr Daish’s chest x-ray request form for Mr Ahmed is a separate document. The form shows that she completed it at 11.28 a.m., 14 minutes after the appointment started. She gave the clinical details for the x-ray, “persistent cough, reactivation of asthma”. The x-ray request appears in the record of the consultation but it does so because it is populated to the record automatically on completion of the request, rather than because Dr Daish typed it in there.

There is a text message generated by the surgery reception at 11.29 a.m., which shows that Mr Ahmed was out of the surgery and a further appointment had been booked for him for 27 February 2019. By then therefore he had left the surgery and booked his follow up appointment. The appointment was at a nurse clinic.

Dr Daish saved and closed her record of the appointment at 11.32 a.m. She had included a further prescription, of prednisolone, a steroid. This was an afterthought, not something she had discussed with Mr Ahmed. To avoid Mr Ahmed being taken by surprise by the prescription, she sent him a text informing him of what she had done. That text was timed at 11.33 a.m.

Mr Ahmed did not attend his follow up appointment. We do not know why. It may be because his symptoms improved as a result of Dr Daish’s further prescriptions. He told Dr Ali when he attended with a flare up of his asthma on 29 October 2019, that Symbicort, medication which Dr Daish had prescribed, had really helped his symptoms. Mr Ahmed’s attendances at his surgery between the appointment and October 2019 were unrelated, for matters concerning a trip to Pakistan that he took and for a gastric complaint.

Mr Ahmed’s chest symptoms worsened over the winter of 2019. On 6 January 2020 he saw Dr Khan who sent him for a chest x-ray. His plan reads,

“Advised CXR- requested. Advised patient to book follow up with results.”

Mr Ahmed attended for this x-ray. It led to the cancer diagnosis.

There is nothing in the records made available to me, which include the usual summary histories in consultant referral letters, to suggest that Mr Ahmed had had an x-ray of any sort before.

Mr Ahmed provided a witness statement before he died which is endorsed with a statement of truth and which he signed on 20 January 2022. He recollected experiencing a variety of symptoms in 2018, including breathing difficulties. He attended his general practitioner between three and five times a year. He recalled that his symptoms got worse over the winter of 2018/19. His evidence was that he was not offered any investigations at this time and that none of the medications prescribed helped his symptoms. In the paragraph specifically devoted to the 11 February 2019 appointment, Mr Ahmed is specific in his recollection that he was not told about an x-ray but does not give evidence about what he was told. He dates the deterioration in his health to later that year. Understandably, much of his statement is devoted to the course his cancer took and its effect on his life and that of his family, matters beyond the scope of this trial. It is however a feature of the statement that it does not deal with the call to NHS 111, the day before the appointment, or with the progress of his symptoms after the appointment. I have already referred to the 29 October 2019 record which suggests that, contrary to Mr Ahmed’s 2022 evidence, Dr Daish’s prescription of Symbicort was helpful and alleviated his symptoms.

I turn to the evidence of Dr Daish. At the time of the February 2019 appointment she had been in practice as a GP since 2015. She was a partner at Mr Ahmed’s practice and had just been made an associate GP trainer. She has no recollection of the consultation with Mr Ahmed, which is not surprising. She is a touch typist and her practice is to type a patient’s history as it is given. The majority of her notes are recorded with patients still in the room. From the timing of Mr Ahmed’s appointment, Dr Daish draws the conclusion that he was added to her list towards the end of her morning surgery. In her statement she explained that the purpose of ordering the x-ray would have been to rule out any serious underlying pathology. She would have explained the process as she completed the form.

Dr Daish explained in her statement that she gave Mr Ahmed advice about timescales,

“I advised Mr Ahmed to attend for the x-ray as soon as he could and ideally within the next week as it would take about one week for the x-ray result to be returned to the GP service…I then advised him to return for review in two weeks’ time, which would afford him time to attend for the x-ray and the result to be returned to me and also for the medication to take effect and for us then to review not only the x-ray results but whether the medication was having a positive impact.”

In her oral evidence Dr Daish explained that consultations are allocated 10 minutes each. There is time pressure but it is what GPs are trained to do. She accepted that in the consultation she had had quite a lengthy discussion, done some examinations (chest, sats and peak flow) and completed most of her record. She did not accept that there was not enough time for her to have done all that was set out in there and to discuss the x-ray request as she said she would have done. She denied that the x-ray was something she had ordered after Mr Ahmed had left.

Dr Daish agreed that the more serious pathology which she had wanted to rule out by getting a chest x-ray included cancer. She would have told Mr Ahmed about its purpose. In her experience that usually generates questions from patients. She was asked about the absence of any reference to an x-ray in the consultation plan. She accepted that it was something she generally tried to put in the note.

The claimants rely on evidence from five witnesses: both the claimants, (his wife and son) a friend, Dr Sheikh, a colleague, Ms Jaho, and his instructing solicitor, Ms Savjani. They were not at the appointment but they have sought to give the court some idea of the kind of man Mr Ahmed was in case that is of any assistance to me in deciding whether or not he was told about the x-ray request and what he would have done if he had been told.

Mr Mudassar Ahmed, the second claimant, describes his father as meticulous and a man who, smoking apart, took a great deal of care over his health. He was efficient as a businessman and never missed an appointment. Mr Mudassar Ahmed noted a decline in his father’s health during 2018 and 2019. He recalls making the call to NHS 111 in February 2019, the day before the consultation with Dr Daish. Whilst Mr Ahmed answered some questions directly, Mr Mudassar Ahmed had most of the conversation as his father could not manage that amount of talking. Unfortunately, Mr Mudassar Ahmed’s statement contains no account of any discussions after the consultation with Dr Daish and he confirmed in his oral evidence that he could not assist on this issue or on whether her prescription improved Mr Ahmed’s symptoms.

In her statement Mrs Amina Shaheen, the first claimant, pays tribute to her late husband’s organisational skills. She recalls that Mr Ahmed would speak to her about his appointments but she does not provide details of exactly what he said about each. She recalls a conversation about the missed x-ray, some time before Mr Ahmed died but she it is not clear whether Mr Ahmed had any individual recollection of that meeting at the time. In her oral evidence she recalled that Mr Ahmed was always concerned about his health. As something got better, something got worse.

Dr Sheikh, a friend, recalls that Mr Ahmed was very worried about his health in late 2018 and early 2019, so at the time of this consultation. Ms Jaho’s evidence is similar. Ms Savjani did not meet Mr Ahmed until September 2021. He was to her recollection surprised to be told in December 2021 that an x-ray had been requested in February 2019.

The parties’ submissions on the issues can usefully be divided into submissions on the first two – whether Mr Ahmed was told about the x-ray and whether, assuming he was not told, he would have gone if he had been and submissions on contributory negligence.

I was greatly assisted by skeleton arguments from both counsel and by their submissions. In her closing submissions, Ms Webb, counsel for Dr Daish, reminded me that the burden of proof was on the claimants. It is common ground that the chest x-ray was ordered and Ms Webb submitted it was unlikely that Dr Daish would have ordered the x-ray and not told Mr Ahmed about it. If she told him, she would inevitably have given him her usual instructions about getting one. She prayed in aid the detail in the consultation note on other matters. She reminded me that Mr Ahmed was someone who did not always attend appointments. He did not attend the follow up appointment on 27 February 2019 which he himself had fixed, and he did not attend his asthma review clinics. He was a busy man and it can be inferred he had other priorities, which might have interfered with his attending for an x-ray. Ms Webb invited me to find, not only that Mr Ahmed’s evidence was untested but that his recollection that nothing had helped his symptoms is demonstrably inaccurate in the light of the agreed contents of the 29 October 2019 record. His analysis of his own symptoms provided to his solicitors in the form of a matrix could also be shown to be inconsistent with the records in certain respects. She submitted that the evidence of the other witnesses did not take matters any further forward. She commended Dr Daish as the sole individual who could give evidence about the appointment. The only inherently plausible answer was that Dr Daish requested the x-ray and told Mr Ahmed that is what she had done.

In relation to contributory negligence, Ms Webb invited me to find that Mr Ahmed’s failure to return for a review appointment was negligent as was his failure to attend for an asthma review in June 2019. Both appointments would have involved a review of Mr Ahmed’s condition and an x-ray could have been requested on each occasion. Ms Webb referred me to three authorities: Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 2019, Pidgeon v DoncasterRoyal Infirmary and Montagu Hospital NHS Trust [2002] Lloyd’s Rep Med 130 and Sims v MacLennan [2015] EWHC 2739 (QB). I will return to these cases below.

Ms Rodway KC, on behalf of the claimants, invites me to find that Mr Ahmed was a meticulous man who would have been scrupulous in attending for an x-ray and that the ground actually covered in the consultation, as evidenced by the records, did not leave time for the x-ray discussion. She argues that it is probable that this, like the prescription of prednisolone, was an afterthought on the part of Dr Daish but, unlike the prescription, Dr Daish omitted to inform Mr Ahmed about the x-ray. She made a parallel submission to Ms Webb: It was inherently implausible that Mr Ahmed would have been told by Dr Daish that she was requesting an x-ray to rule out cancer and then that he would not have followed that up. He would have done and he would have mentioned it to his family and friends. She submitted that the contributory negligence authorities were old cases, far removed from the facts here.

The respect and courtesy shown by the parties towards each other has been a feature of this trial, both in the documents and in the oral evidence.

There are reasons to find in favour of the proposition advanced on behalf of Dr Daish, that Mr Ahmed was told about the x-ray request and for whatever reason he did not go and get it done. Whilst he was meticulous in his daily life, family organisation and business dealings, he did not always attend medical appointments. In particular he did not attend the appointment which he himself had fixed for 27 February 2019 directly after he left the appointment with Dr Daish. I cannot therefore rely on his meticulous nature as a reason to find that he would have followed up Dr Daish’s x-ray request. Mr Ahmed did not recall that his symptoms had improved thanks to Dr Daish’s prescription of symbicort. I accept that the records show that to have been the case and I cannot therefore rely uncritically on him as a historian.

I have taken into account the matters urged upon me by Ms Webb, in particular the matters recited in the paragraph above. Nonetheless, my finding, on the balance of probability, is that Mr Ahmed was not told about the x-ray request. I have reached that conclusion for the following reasons:

Having found that Mr Ahmed was not told about the x-ray, I have no difficulty in finding that he probably would have got one done if he had been told that it had been requested. Many of the reasons I have set out in the paragraph above, apply equally to this. He would have been told that this was an investigation to exclude cancer. He was worried about his health and looking for answers. This would have been followed up.

Contributory negligence

Ms Webb very properly drew my attention to the observations of Yip J, as she then was, in Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 832 at para 33, that the circumstances where a claim for contributory negligence can be made in a clinical negligence case will be rare. She has however also drawn my attention to the decision of His Honour Judge Bullimore in Pidgeon v Doncaster Royal Infirmary and His Honour Judge Simpkiss, sitting as a Deputy High Court Judge, in Sims v MacLennan. The former case concerned a claimant who had been urged on seven separate occasions to have further smear tests to rule out cervical cancer. The claimant in Pidgeon accepted that she understood the risk she was taking in not having the tests and she was found two-thirds to blame. In Sims v MacLennan the judge considered the, by then academic, proposition that the claimant was negligent in failing to take the advice of his general practitioner and have his blood pressure checked in 2007. Had the judge found a breach of duty he would have apportioned liability 75%, 25% in favour of the claimant. This finding however cannot be divorced from the overall history of the case which included the finding that the claimant understood the significance of getting his blood pressure checked.

The burden of establishing contributory negligence is on the defendant. Both of the cases relied on by Ms Webb contain an element that, on my findings, this case lacks, namely evidence that each claimant understood the significance of a failure to follow the advice of the general practitioner. In this case the defendant cannot show that Mr Ahmed understood the significance of his failure to attend. Without that understanding it would not, I find, be unreasonable for a person in Mr Ahmed’s position, particularly if he was feeling better, not to attend the relevant appointments. In an ideal world he would have informed the surgery and cancelled the 27 February appointment but that is a different matter.

My findings on the preliminary issues are therefore those set out below: