Gallardo v Imperial College Healthcare NHS Trust

Whatever uncertainty there may have been in the past, the requirement of informed consent to medical treatment is now a fundamental and settled principle of the law in both England and Wales and Scotland (Footnote: ¹).

This case is concerned with what should happen following treatment and the duty to inform the patient of its outcome, the prognosis, and of any requirement for follow up and further treatment or monitoring.

The Claimant, Mr Guiu Gallardo (to whom I will refer throughout as “The Claimant”) underwent major abdominal surgery at the Charing Cross Hospital in 2001. A malignant gastrointestinal stromal tumour (GIST) was removed. It is his case that he was never informed of the malignancy and the risk that it might recur. Neither was he told that he would need regular monitoring and CT scans.

The cancer did recur and, in 2011, he underwent further major surgery. His condition is now closely monitored, and he is likely to have another operation in the near future.

The Defendant’s primary case is that the Claimant was properly informed after surgery of the malignancy and the risk of recurrence. The question of liability is further complicated, though, by the fact that in the post-operative period the Claimant moved from the NHS into a private room at the hospital and was thereafter treated by his surgeon, Mr Nikitas Theodorou, as a private patient.

Mr Theodorou died in 2014. He has played no part in these proceedings (Footnote: ²). The Defendant contends that any breach of duty occurred when the Claimant was a private patient and that it is not the responsibility of the hospital trust.

The Claimant maintains that he should have been informed of the outcome of his surgery before he became a private patient, but even if this is not found to be so, it does not absolve the Defendant from liability.

The Claimant is Spanish. He is now 46 years of age. He came to the United Kingdom in 2000, at the age of 28 to work in the computer software industry.

In late November 2000, he was admitted to Charing Cross Hospital and treated for a gastric ulcer. He is recorded as suffering from chronic anaemia secondary to a peptic ulcer. He was discharged from hospital after 12 days, on the 12^th December 2000.

On the 23^rd of January 2001, he was re-admitted having fainted at work and been taken by ambulance to the Accident and Emergency Unit.

He was initially treated conservatively but on the 30^th January 2001 a CT scan was carried out. This revealed a mass on his stomach. The radiological report concluded with the following comment: -

“The most likely diagnosis is that this is a GI stromal tumour. Particularly in the context of recurrent bleeding and non-healing ulceration.”

The Claimant was advised to undergo surgery. After some hesitation, and reflection overnight, he agreed to this. The operation was performed by Mr Theodorou on the afternoon/evening of the 31^st January 2001 assisted by his surgical registrar, then Doctor, now Mr Umughele.

While recovering from the operation, the Claimant suffered a rupture of the appendix and developed peritonitis. On the 6^th February 2001, he underwent a laparotomy and, three days later, a further operation to resection part of the small bowel. His condition was grave and he was moved into intensive care. For some time he was intubated and on a ventilator. His family came over from Spain to be with him. It was an anxious period and there were fears that he would not survive.

The Claimant left intensive care and returned to the ward on the 5^th March 2001. He was still in pain and had a wound infection that was resistant to treatment, but gradually he regained his strength and was allowed to mobilise. On the 30^th March, he was moved to the private wing of the hospital, on the 15^th floor, after it had been realised that he had private health insurance.

As a private patient, the Claimant continued to benefit from the nursing and other services provided by the Defendant, but was billed for these services (Footnote: ³). Mr Theodorou charged separately for his services.

The Claimant was finally discharged from hospital on the 9^th April 2001. His GP records include a copy of the proforma issued on discharge by the hospital. It is dated the 9^th April and bears a received date stamp of the 12^th April. The form is signed by Mr Theodorou. It reads –

“Diagnosis:

(1)

Gastric leiomyosarcoma

(2)

Post op acute perforated appendicitis

(3)

2 laparotomies for sepsis/obstruction

Recommendations for Future Management

See us in 10/7

3/12 B12 1000ug injections please

Drugs to be continued Folic Acid”

The form shows the Claimant as being discharged from the 15^th floor, but this is the only indication on its face that he was a private patient.

Also in the Claimant’s GP records is a letter dated the 19^th April 2001. It is on NHS notepaper, and is addressed in capital letters ‘TO WHOM IT MAY CONCERN’. The author of the letter was Mr Umughele, but it was signed on his behalf by someone else. The signature appears to be that of Mr Theodorou. An unsigned copy of the letter is in the Claimant’s NHS hospital records.

The letter gives a brief description of the Claimant’s admission and treatment. It refers to a diagnosis of “malignant gastric stromal tumour”, but later, in reciting the details of his treatment and stay in hospital, it includes the statement –

“CT scan carried out on admission showed a large stromal tumour about 7cm, the appearances were compatible with malignant leiomyosarcoma. He went on to have a sub total gastrectomy.”

It goes on to state that the claimant was discharged on the 9^th April 2001, and continues

“On discharge his medication include three monthly vitamin B12, daily folic acid and multivitamin preparations.”

It contains no reference to the need for regular check-ups or CT scans.

The Claimant saw Mr Theodorou privately, as an out-patient on the 23^rd April 2001. Mr Theodorou advised him that he was now well enough to travel to Spain to continue his recuperation. He left on the 26^th April 2001, returning to the UK in late June or early July and then resuming work.

The Claimant saw Mr Theodorou again on more than one occasion; possibly in September 2001 although no record of this has been traced, but definitely, on the 1^st February 2002, and the 1^st March 2002. Between the two appointments he had a further CT scan, and Mr Theodorou would have had the results of the scan at the consultation on the 1^st March.

One outstanding non-urgent matter that needed to be attended to when the Claimant was well enough was an operation to repair a hernia. The Claimant wished to have the surgery in Spain. On the 1^st March 2002, Mr Theodorou reviewed the new CT scan and advised the Claimant that he could now go ahead and arrange the surgery and to arrange to see him again on his return to the UK.

The operation was carried out in Zaragoza in July 2002. The Claimant believes that he saw Mr Theodorou for the last time when he came back to the UK (Footnote: ⁴).

In the period between 2002 and 2006, the Claimant lived for periods in London, Barcelona, Helsinki, and from October 2004 back in London.

In August 2006, he attended A & E at Charing Cross Hospital with abdominal pain. Subsequently, his GP referred him to New Victoria Hospital. An ultrasound was performed. This revealed no cause for concern.

In August 2009, he moved back to Spain and started a new job based in Gibraltar. In July, the following year he attended A & E at La Linea de la Concepcion in Spain complaining of abdominal pain. He subsequently saw his GP in Gibraltar. The GP arranged blood tests and an MRI scan. The Claimant was given a diagnosis of Pseudo myxoma Peritonei (Footnote: ⁵).

Doubting the diagnosis, the Claimant referred himself, first to a hospital in Vitoria, northern Spain, where the diagnosis was confirmed, and then, still doubting it, to a specialist cancer hospital in the UK, the Christie Hospital in Manchester.

The Christie Hospital were concerned to have access to the records of the Claimant’s treatment in 2001. By this time Mr Theodorou no longer worked at Charing Cross Hospital. It appears that contact was made with him and, on the 20^th November 2010, he sent the Claimant the following message by email. I quote it in full because it is central to the Claimant’s case.

“I received a call last night from Charing Cross Hospital to let me know your notes have been retrieved from archives. They are extensive but clearly there are important areas of information of which, with your permission, your doctors should be aware.

Perhaps you can let me know how best to communicate this information and to whom. I have already sent a copy of the histology of your appendix to Dr Deardon [the Claimant’s GP] but in the light of the new information received I think it is unlikely to be helpful.

We did not have the opportunity to discuss the nature of your current situation but in the light of the information I now have to hand it is possible that this might be related to the reason for your operation on the stomach in 2001 and it is important for your doctors to be aware that your original operation was for a large gastrointestinal stromal tumour (GIST).

I would be prepared to communicate in any way you feel would be appropriate. Please feel free to discuss this with your doctors and let me know what you would like me to do. If they wish to call me please give them my mobile number. Alternatively, I can prepare a short summary for them which I can forward by email.”

It is the Claimant’s case that the he was not aware of his diagnosis before receiving this email. He says in his witness statement, “I was shocked, angry and also confused, as I had spent years thinking that my problem was with stomach ulcers.”

In March 2011, the Claimant wrote to the Defendant’s Chief Executive. The relevant parts of the letter read as follows: -

The letter made no mention of the period when the Claimant was being treated as a private patient. Neither did the reply, dated the 21^st September 2011, which followed an investigation and review of the records by a consultant surgeon, Mr Krishna Moorthy. From its wording, it gives the appearance of having been written in ignorance of this fact.

In answer to the questions raised by the Claimant, the reply is as follows: -

“There is a letter dated the 19^th April 2001, which is most likely to be a discharge summary. This has been addressed “To Whom it may concern. Thus I am not sure if a copy of this letter went to your GP or not. This has been done by one of the doctors working for Mr Theodorou. The letter does state that ‘appearances were compatible with malignant leiomyosarcoma’. The letter does not state that you have been discharged from the clinic. However, it also does not state if there were any plans to review you again.

We apologise unreservedly for this communication breakdown, we would normally expect a doctor to notify a secretary or a GP to refer to a consultant or clinic to book an outpatient appointment, due to the time lapse we cannot ascertain who’s responsibility this was, we are very sorry, your records do not hold this information….

Mr Moorthy is extremely sorry to hear that you have now developed a recurrence of the tumour. From the notes he cannot determine why you were not reviewed again in the clinic. Ideally with a diagnosis of malignancy you should have been reviewed in the clinic on a regular basis, we are sincerely sorry for this oversite (sic) (Footnote: ⁶).

Mr Moorthy can only surmise that the reason this did not happen is that in 2001, we did not know much about these tumours. It is only in the past 10 – 15 years that we have really started to understand these tumours and their behaviour. Nowadays we would discuss a case such as yours in a cancer multi-disciplinary team (MDT) meeting with oncologists and clinical teams. As we have become aware of the possible risk of recurrence we now keep patients such as you under close observation and follow up.”

Fortunately, the new tumour was not inoperable. In June 2011, the Claimant had surgery at the USP Hospital de Marbella. The operation, carried out by a team of surgeons, led by surgeon from Barcelona who specialises in the treatment of GISTs, took between ten and eleven hours. Excision of the tumour involved re-sectioning of the caudate lobe of the liver, an extended left hemihepatectomy (Footnote: ⁷), removal of the gall bladder, and reconstruction of the portal vein using the left renal vein.

Since the operation, the Claimant has been monitored regularly with CT scans every six months. He has also been on medication - Gleevec until May this year, and Sutent since. In 2016 three areas of recurrent disease were detected, and the most recent scan has shown further metastatic GIST disease. A 3.5cm mass close to the inferior vena cava has been identified.

There has been understandable concern about the risks involved in attempting further surgery. The Claimant’s condition has, though, been responding to treatment, and the expectation is that he will undergo surgery led by the same surgeon as in 2011, and that this will take place in the near future.

GISTs are a relatively rare form of tumour found in the digestive system. They can be benign, but are nearly always malignant. They are found in only a small percentage of the population. Estimates vary, but the figure for large tumours is no more than about 4 – 5 cases per million population per year. As a result, general surgical teams are likely to encounter cases only infrequently.

In recent years the characteristics of GISTs have become much better understood. At one time, they were considered to be leiomyomas or leiomyosarcomas of the stomach (Footnote: ⁸).

It is now recognised that there are a several molecular subtypes of GISTs. This was not understood in 2001. At that time, it was a grim diagnosis, particularly for a young person, and life expectancy was severely curtailed.

The Claimant, fortunately, has a form which is known as a ‘wild’ type GIST. The cancer is less aggressive and the tumour described as towards the indolent end of the spectrum. Life expectancy, although reduced, is not so severely curtailed. Hence, the fact that the Claimant has already survived for more than sixteen years since his initial treatment.

Significant advances have, also, been made in developing new drug therapies to treat GISTs. One widely used drug, Imatinib, became available in the UK in 2004. With further understanding of GISTs, it has been recognised, though, that wild type GISTS do not respond well to Imatinib. Other drugs have since become available, such as Sunitinib and Regorafenib, which can be of benefit.

As amended, the Particulars of Claim make the following allegations of negligence –

The defence case, as pleaded, disputed the allegations and asserted that the Defendant had no continuing responsibility once the Claimant had ceased to be an NHS patient. It accepted that the Royal Marsden was already a specialist cancer centre in 2001, but stated that it was not standard practice at the time to refer to a specialist centre (Footnote: ⁹). Further, it contended that the responsibility for lack of follow-up was the Claimant’s own responsibility for failing to make appropriate arrangements for the monitoring of his condition.

The issues for the Court to determine can be defined as follows: -

There is common ground between the parties that the Claimant had the right to be informed that he had a malignant GIST, to be told what the prognosis was for his condition, and to be advised of the need for clinical surveillance.

The parties’ surgical experts, Mr Gardner-Thorpe for the Claimant, and Mr Deakin for the Defendant, are agreed that arrangements should have been made for CT scans at six monthly intervals for two years and annually for at least five years.

Although there are references to malignancy and GIST in the records, nowhere is the need for regular follow up and what it should comprise set out. Neither is there is anything to confirm that this was communicated to either the Claimant or his GP. Mr Theodorou did arrange one follow-up CT scan, but that was not until a year after the Claimant’s discharge from hospital.

Where the expert witnesses part company is as to timing; more specifically, as to when the Claimant should have been given all the information to which, by rights, he was entitled. Mr Gardner-Thorpe’s position is that it should be done as soon as the patient is sufficiently recovered to understand. Mr Deakin’s position is that it is perfectly proper to wait until the first follow-up appointment after discharge. He says that patients recovering in hospital may not take in properly what they are being told, in any event. Each recognises, though, that clinical practice varies and is dependent on the circumstances including the patient’s own anxiety to be told.

Linked to the question of timing is the question of whether, if the right time was after the Claimant became a private patient, that absolves the Defendant of any responsibility for a later failure to inform.

In 1998 the General Medical Council issued guidance on the giving of consent to investigation and treatment (Footnote: ¹⁰). No reference was made to the guidance by either expert in their reports. It was first referred to in the note of their joint meeting a week before trial, and then again extensively during the hearing itself.

Although some passages have wider application. The guidance is primarily concerned with issues of consent to prospective treatment, where timing will often be constrained by circumstances, and not to post-operative treatment, where there may not be the same degree of urgency. The guidance was revised and replaced by the present guidance (Footnote: ¹¹) in 2008, extended and redrafted in a form approved by Plain English.

Mr Mumford makes three basic submissions –

That there was no requirement for this discussion to take place before the Claimant became Mr Theodorou’s private patient.

Continued surveillance by CT scanning would have made no material difference. Further surgery would not have been avoided. It would have merely taken place earlier and the prognosis for future treatment and life expectancy would have been unaffected.

He also contends that, even if there was a breach of duty on the part of either the Defendant or Mr Theodorou personally, the Claimant must have learnt of his condition at some stage before 2010 during his subsequent treatment, and consequently the claim is statute-barred.

Mr Hallin submits that –

In both his opening and closing written submissions, Mr Hallin refers at length to the Supreme Court decision in Montgomery and argues that the Bolam (Footnote: ¹²) test, which was held in that case not to apply to the obtaining of consent to treatment, does not apply also to the provision of information post-operatively or post-treatment.

I propose to deal with the issues under the following four broad headings –

Attached as an annex to this judgment is a chronology extracted from the medical records. It is not intended to be comprehensive but to include entries that are of relevance to the issues. Certain entries are highlighted because of their possible significance. I am indebted to both counsel for their work on preparing their own chronologies on which the one attached is heavily based.

It is easy, on first impression, to form the view that the Claimant must have known before the email from Mr Theodorou in 2010 that he had been operated on for the removal of a malignant GIST. There are a number of entries in his medical records that refer to his diagnosis. There is also, though, a consistent pattern of him saying, when asked about his medical history, that he had had a gastrectomy followed by appendicitis. Had he known that he had a malignant tumour removed, that it was liable to recur, and that he needed to have regular check-ups, there is no sensible reason why he should have wanted to conceal this fact. He is someone who regularly sought medical attention when he experienced abdominal pain. It is incomprehensible that he should do so, but yet hold back vital details of his medical history.

It was information that should, ideally, have been given in a planned and sensitive way, with support available from family and friends. It would have been bound to have a profound impact on the recipient. It is not something that any patient is likely to forget.

There are a number of features of the evidence that have lead me to the firm conclusion and finding that the fact that the Claimant had been treated for the removal of a gastrointestinal stromal tumour, that there was a significant risk of recurrence, and that he would need regular surveillance in the form of CT scans was never properly explained to him at the time, and further that he did not subsequently become aware of the true nature of his diagnosis and its implications until the email from Mr Theodorou in November 2010.

The features of the evidence that have drawn me to this conclusion are multifarious but include the following: -

Finally, I should add that even if I had come to a different conclusion as to what the Claimant was told about his condition, there is no evidence at all that either he or his GP was appropriately advised of the need for future check-ups and CT scans. This information was vital both for the patient, for his GP, and for those caring for him in the future. The omission to set this out in writing is, in my judgment, a glaring failure in itself.

The question is who bears responsibility for what was a double failure in communication; a failure to inform the patient about his true condition, and a failure to advise him of the need for future check-ups?

Because of their respective positions, a good deal of attention was focussed by counsel during the hearing on the issue of timing.

Mr Mumford contends that the Defendant is not at fault because the responsibility for deciding when to provide the Claimant with a full explanation about his condition, prognosis, and the need for check-ups and regular CT scans was that of his consultant, Mr Theodorou, and that the appropriate time for that discussion to take place was not until the patient was well-enough which was close to the time of his discharge from hospital or at the first post-discharge appointment as an out-patient. By then, the Claimant was Mr Theodorou’s private patient and not, submits Mr Mumford, the responsibility of the Defendant.

Mr Hallin contends that the discussion should have been held before the Claimant left NHS care to become a private patient. In addition, he submits that regardless of when it should have been held, the Defendant is still liable. Relying on the decision of the Supreme Court in Montgomery he argues that the Bolam test has no application in this case.

There are two distinct aspects to the question of timing.

The first concerns the fundamental point of principle, decided in Montgomery, that the patient has the right to decide what, if any treatment, to consent to. In the exercise of this right, the patient must be informed of the material risks inherent in the proposed treatment and what reasonable alternative treatment options are available, if any. It is only in exceptional circumstances that a doctor is entitled to withhold information because disclosure would be seriously detrimental to the patient’s wellbeing.

By analogy, the same principle applies to the post-treatment discussion. It is the patient’s right to be informed of the outcome of the treatment, the prognosis, and what the follow-up care and treatment options are. Information should only be withheld in exceptional circumstances and for clear and persuasive therapeutic reasons.

In Montgomery, Lord Kerr, delivering the main judgment, said at paragraph 75 –

“One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services.”

At paragraph 81, he continued –

“The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.”

The second aspect relates to the question of when the discussion with the patient should take place. Plainly, prior to treatment, the timeframe for the discussion is constrained by the need for the patient to give informed consent before the treatment can take place. Following treatment, though, there is less urgency and a more flexible approach may be justified. It remains, though, the patient’s right to be informed.

There are several factors that may affect timing; for example, the anxiety of the patient to be told of the outcome, the patient’s condition and ability to participate in the discussion, the seriousness of the information which the doctor is obliged to impart, and the availability of close family members to offer support and comfort when difficult news has to be given. It may be appropriate in some cases for there to be a discussion in broad terms about the outcome of the treatment and a more in-depth discussion at a later stage about prognosis and follow-up.

Such decisions involve the exercise of judgment but it is not a judgment that turns on the exercise of expert medical learning or experience alone. The decision must be made with due regard to the patient’s right to be told.

In another significant passage in Montgomery, which has relevance beyond cases about consent to treatment, Lord Kerr said at paragraphs 83 and 84 –

“83.

…The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.

84.

Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to the question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.”

The point is well-illustrated by the evidence in this case. During the hearing, I heard evidence from both Mr Gardner-Thorpe and Mr Deakin as to their own (differing) practice and what they each consider to be acceptable.

In his report of the 19^th April 2017, Mr Gardner-Thorpe said –

“29.

In my opinion, it would have been standard practice for this discussion [concerning the Claimant’s diagnosis] to take place during the long inpatient stay. The Claimant would probably have been seen by a medically-qualified person every day while he was an inpatient.

“30.

In principle, there is no reason why the discussion could not have taken place in the outpatient setting. In my opinion, it would be unreasonable for a surgeon to have seen the Claimant in the first outpatient visit after discharge and not to have told him the diagnosis even then.

31.

There seem to have been many opportunities both as an inpatient and outpatient when he could have been sensitively informed of his diagnosis.

32.

About the timing, my opinion is that the diagnosis should have been conveyed to the Claimant during the second half of March 2001. There may be a range of opinion about this. In my opinion, no reasonable body of surgeons would say that delay beyond 23rd April 2001 would have been acceptable. That was the date of the outpatient consultation with Mr Theodorou.

…

36.

If it is a fact that the diagnosis of malignant GIST was not conveyed to the Claimant between 14^th March and 23^rd April 2001 then, in my opinion, that failure would be a clear and serious breach of duty.”

This passage demonstrates the scope for differing approaches to the timing of what can be a highly sensitive discussion.

Plainly, though, it is a discussion which must be held. It ought not to be postponed for longer than necessary without good reason. Otherwise the doctor risks losing the patient’s trust and confidence, and the patient’s right to be informed is not respected. The approach is in danger of becoming unduly paternalistic.

In the vast majority of cases, from a legal perspective, the point is academic. This is because, so long as the outcome of treatment and the patient’s needs for the future are properly explained and discussed with the patient, delay in holding the discussion will not be causative of any loss. Its relevance in this case arises because the patient left NHS care and the Defendant seeks to rely on that in its defence.

In Montgomery, in a short supplementary judgment, Baroness Hale quoted a passage from Medical Law and Ethics (Footnote: ¹⁶):

“the issue is not whether enough information was given to ensure consent to the procedure, but whether there was enough information given so that the doctor was not acting negligently and giving due protection to the patient’s right of autonomy.”

Baroness Hale continued, at paragraph 109:

“An important consequence of this is that it is not possible to consider a particular medical procedure in isolation from its alternatives. Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done.”

The fact is, on my analysis of the available evidence, that such a discussion did not take place in this case. There were two essential things which should have been made clear to the Claimant. First, that he had had a malignant tumour removed and that there was a risk of recurrence, and, secondly, that he therefore needed to have regular check-ups and screening by CT scan. It would have been a painful and difficult discussion as it would have involved telling the Claimant that his life expectancy was likely to be substantially reduced.

The discussion ought, it appears to me, to take place as soon as the patient is well enough to take in what he needs to be told and to participate fully in the discussion. It ought not to be delayed on therapeutic grounds unless it would be seriously detrimental to the patient’s health. It should be clearly recorded, to avoid future uncertainty, and it ought to be communicated in writing to the patient’s GP so that it is on the patient’s records.

Where the patient’s operation is routine, the stay in hospital a short one, and the first follow-up appointment a matter of only seven to ten days later, it may well be reasonable to postpone the discussion to the first out-patient appointment, as appears to be the practice of Mr Deakin. Different considerations, though, apply where the patient is, as in this case, in hospital for a prolonged period.

To borrow the words of Lord Kerr, “the assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient” (Footnote: ¹⁷).

The Claimant was an inpatient post-operatively for over eight weeks before moving to the private wing, and he was out of intensive care for the last twenty-five days of that period. In my view Mr Gardner-Thorpe is right to say that the discussion ought to have taken place during that in that twenty-five day period. I do not consider that it would have been right to delay it further on therapeutic grounds.

It is in the context of that finding that I turn to consider the responsibility of the Defendant.

The law on vicarious liability and non-delegable duties has been reviewed and explained by the Supreme Court in a number of recent cases (Footnote: ¹⁸).

In the most recent case of Armes v Nottinghamshire County Council [2017] UKSC 60 the Supreme Court restated the principle that there are certain duties of care that are non-delegable. Lord Reed, giving the main judgment, said at paragraphs 31 and 32 –

“31.

The expression “non-delegable duties of care” is commonly used to refer to duties not merely to take personal care in performing a given function but to ensure that care is taken. The expression thus refers to a higher standard of care than the ordinary duty of care. Duties involving this higher standard of care are described as non-delegable because they cannot be discharged merely by the exercise of reasonable care in the selection of a third party to whom the function in question is delegated.

32.

Tortious liabilities based not on personal fault but on a duty to ensure that care is taken are exceptional, and have to be kept within reasonable limits. Yet there are some well-known examples: it is well established that employers have a duty to ensure that care is taken to provide their employees with a safe system of work, that hospitals have a duty to ensure that care is taken, in the treatment of their patients, to protect their health, and that schools have a duty to ensure, in the education of their pupils, that care is taken to protect their safety. The question which arises in the present case is whether local authorities have an analogous duty to ensure that care is taken, in the upbringing of children in their care, to protect their safety”.

Mr Mumford contends that any such duty owed to the Claimant came to an end when the Claimant moved into the private wing of the hospital and that the duty thereafter was one owed only personally by Mr Theodorou.

I do not accept that submission. The Defendant owed the Claimant a duty to advise him of the outcome of his surgery, of his prognosis, and of the need for follow-up. The surgery had been carried out on the NHS. The histopathology report had been obtained on the NHS. The duty arose in consequence of his treatment. It was a necessary concomitant of it.

The duty had not been discharged by the time the Claimant moved to the private wing of the hospital.

It remained the Defendant’s duty to provide him with the appropriate advice, regardless of whether it could have been given before the move or whether it was reasonable to postpone it until later.

Had the Claimant moved, not to the private wing of the same NHS hospital and continued to be treated by the same surgeon, but to a different hospital and a new medical team, it seems to me that it could not possibly be argued that this relieved the Defendant of its responsibility to advise him on the outcome of his surgery etc. It was, in my judgment, a continuing responsibility which, on the facts as I have found them was never discharged.

In any event though, as I have already found, in my judgment, the duty ought to have been discharged before the 30^th March 2001 when the Claimant was moved to the private wing of the hospital. He had been out of intensive care since the 5^th of March. All the facts were known to Mr Theodorou and the hospital staff; that he had had a malignant tumour removed, that there was a high risk of recurrence, and that he would need to be closely monitored for a number of years were known. It was unreasonable to delay communicating this to him until later than the 30^th March.

To sum up, I find that the Claimant was entitled to be informed by the Defendant of the outcome of his treatment, of his prognosis, and of his continuing need for regular check-ups and CT scans, that he ought to have been so informed before the 30^th March 2001, and that the Defendant had a continuing duty to him to so inform him which it failed to discharge.

Mr Gardner-Thorpe and Mr Deakin agreed in their joint statement that if CT scans had been done annually after the first two years, the recurrence of the tumour is likely to have been diagnosed in 2006 and further surgery would have taken place in 2007, in other words four years earlier.

The experts agree that in 2007 the tumour would have been smaller, but they disagree as to the difference in size and as to whether the operation in 2011 was more complex than it would have been if carried out four years earlier.

Mr Gardner-Thorpe’s opinion is that the tumour in 2007 would have been significantly smaller than it was in 2011 and that the surgery would have been less extensive and complex. Mr Deakin accepts that the tumour would have been smaller but says that its growth is likely to have slowed and that by 2011 the blood supply was insufficient to support it and hence it would have stopped growing. He says that there would have been little significant difference in the surgery.

The surgery in 2011 was a highly complex major operation. It was complicated by the difficulties encountered in re-sectioning the portal vein. The whole operation took between ten and eleven hours.

I found Mr Gardner-Thorpe’s evidence on this aspect more convincing. He gave a clear explanation of the surgery and what it entailed, from his own professional experience. He has consistently expressed the opinion that had it been detected earlier and operated on then, the operation would have been likely to involve a left hemihepatectomy with caudate resection, and not to have involved an extended left hemihepatectomy and complex portal vein reconstruction.

The re-sectioning of the portal vein involved removal of the left renal vein to use as a graft to reconstruct the portal vein and re-suturing. Because of the growth of the tumour against the portal vein, some reconstruction of the portal vein may have been necessary whenever the operation had been carried out, but I am satisfied that the surgery would not to have been as extensive or difficult as it proved to be in 2011.

Mr Deakin appeared to me to struggle at times to justify his opinion that there would have been no material difference in the nature and complexity of the surgery between 2007 and 2011. He said in evidence that to be detectable the tumour would have had to be two – three centimetres in size, possibly four centimetres. With regular screening, it should have been detected at that stage of its development. By 2011 it was approximately twelve centimetres by six. Significantly, he conceded that although he might help plan and assist at such an operation, he did not have the experience in his own practice to take on the role of the lead surgeon.

It was necessary post-operatively to insert chest drains to remove fluid from the Claimant’s pleural cavity. The Claimant gave evidence that he found this a particularly unpleasant and painful procedure. There was some debate between the experts as to whether it would have been a likely consequence of the further surgery whenever it had taken place. Again, on this aspect, I preferred the evidence of Mr Gardner-Thorpe. He said that it was the length and complexity of the surgery, particularly in relation to the re-sectioning of the portal vein and the interruption in the blood supply to the liver, that is likely to have led to the collection of fluid, making the procedure necessary.

Furthermore, had the surgery taken place in 2007 rather than 2011, the Claimant would have avoided four years of added pain and discomfort.

There was a claim for reduced life expectancy resulting from the delay in surgery, but this was not pursued in the light of the most recent and more optimistic medical evidence.

Mr Mumford rightly recognises in his closing written submissions that there are no easy comparators.

I have had regard to the fourteenth edition of Judicial College Guidelines. They provide little by way of assistance but I have reminded myself of the suggested range of awards for cases involving the digestive and renal system.

Mr Hallin has referred me to a number of reported awards. They have the disadvantage that they are all out-of-court settlements, but they illustrate the sort of settlements that have been agreed in cases of delayed diagnosis and treatment. In none of the cases was the delay in treatment as great as in this case.

The award must, in my view, properly reflect the following –

Taking account of all these factors, I have come to the conclusion that the appropriate figure for general damages is £27,500.

In 2011, the Claimant was short-listed for a position as a Softwear Reliability Engineer with Google.

It was a highly attractive career opportunity. The Claimant got through the first competitive round of interviews and was one of the candidates chosen for the final selection exercise. This involved an intensive five-hour interview. At the time, he was still recovering from the extensive surgery on his liver.

The Claimant’s written evidence, which was not challenged, was that he “was not fit enough for the effort. I was weak and I could not eat full meals.” Inevitably, he feels that had he been fully fit, he would have been successful in his application for what he describes as a “dream job”.

Having got as far as he did, the Claimant had a more than speculative chance of success in his application. His prospects would have been materially hampered by the fact that he was not fully recovered from surgery.

Mr Hallin submits that this loss of a chance is one that can properly be compensated by a modest lump sum award (Footnote: ¹⁹). He suggests a figure of £7,500 is appropriate. Mr Mumford did not challenge the legal basis for making an award but submitted that the claim was speculative and the evidence to support insufficient. It is difficult to see, though, what further evidence the Claimant could have adduced.

I accept that it is probable that his performance at interview would have been materially affected and that this is likely to have reduced his chances of being selected.

I award £5,000 under this head.

These expenses relate to travel and accommodation costs involved in the misdiagnosis in Spain of Pseudomyxoma Peritonei and the referral to the Christie Hospital in Manchester.

These expenses would have been avoided had the Claimant been properly informed of his condition, and had he received regular check-ups and undergone further surgery in 2007.

The claim comes to £798.77 in respect of Vitoria and £1,139.98 in respect of Manchester.

The claim in respect of travel and accommodation in relation to the surgery in Marbella is not allowable as it has not been established that similar expenditure would not have been incurred had the treatment taken place in 2007.

A claim in respect of the cost of future medical treatment and ancillary travel and accommodation costs was not pursued. The need for future treatment is caused by the Claimant’s condition and the risk of recurrence, and not by the delay in treatment.

I do not allow the claims for loss of earnings and for gratuitous care. Had the Claimant had surgery in 2007 rather than 2011, he would have had a period off work and would have been cared for through his recovery by his partner and other family members.

He was off work in 2011 for two months. This was a creditably short period. Indeed, the evidence was that he returned to work remarkably quickly after such difficult surgery and could legitimately have taken a longer period off work. Although the surgery would have been less complex in 2007, there is no evidence that the period in 2011 was materially longer than it would have been had the operation taken place in 2007 or that he would not have needed the same amount of care.

This relates to the sums paid out by the Claimant’s insurers, AXA PPP, on his behalf for his medical treatment in 2011. The Claimant is required to bring the claim on AXA’s behalf and to repay the amount expended on his behalf if successful.

The amount claimed comes to £83,940.09 plus interest.

I have no comparative evidence of what the treatment would have cost had it been carried out in 2007. I am told that the Claimant did not then have private health insurance, and that the likelihood is that he would have been treated in Spain under the Spanish health care system. That is the basis on which the claim is pleaded in the schedule of loss.

Mr Mumford submits that the evidence to support the claim is slender and insufficient, especially so, when one takes account of the sizeable amount claimed.

There is force in that submission. AXA have simply asserted a right of subrogation in correspondence. They have played no active part in the proceedings.

It seems to me that there is a fundamental difficulty in the claim as it is put. To succeed, it must be established that it is the Defendant’s negligence that has caused the loss.

Had the Defendant discharged its duty, the Claimant would still have needed to undergo further surgery in the future. He would have been under an obligation to disclose his known pre-existing medical condition to any prospective health insurer.

The point was not explored in evidence, but it is self-evident that this would have been likely to have a material bearing on his ability to access health insurance. He may well have been unable to obtain health cover for treatment for a recurrence of his GIST. If cover was available, it might well have been subject to a hefty premium. Certainly, there is no evidence before me that it would not have affected his ability to access health insurance.

The claim has not been put forward on the basis that AXA were misled into providing insurance by the Defendant’s breach of duty and entitled to recovery through the Claimant on that basis. Such a claim, if advanced, might have raised some interesting legal issues.

Accordingly, it appears to me that the subrogated claim cannot succeed on the basis on which it has been advanced. It is not a loss that flows from the Defendant’s negligence.

What the Claimant can claim, though, in the alternative, if there is evidence to support the claim, is the additional cost of his private treatment in 2011 over and above what it would have cost had the treatment been carried out in 2007. Mr Hallin referred to this briefly in his closing submissions.

The supporting evidence is very limited. I have reviewed the material in volume F of the trial bundle. This section of the voluminous documentation was hardly referred to in the hearing. The identifiable evidence appears to be restricted to the cost of the treatment to drain the pleural cavity (Footnote: ²⁰). This comes to a total of £4,292.37. There may well be other charges resulting from the need for more complex surgery but these have not been clearly identified.

To this limited extent I allow the claim.

Accordingly, there will be judgment for the Claimant.

The damages comprise –

I invite counsel to calculate the claim as to interest and to draw up the order. Unless there are any outstanding issues, it will not be necessary for anyone to be in attendance when judgment is handed down.

CHRONOLOGY OF MEDICAL RECORDS