A v Enskat [2009] EWHC 1630 (QB)

[2009] EWHC 1630 (QB)

Case No HQ07X03605

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Sitting at Bristol Crown Court

Small Street

Venue Bristol

Date 10/07/2009

Before

THE HONOURABLE MRS JUSTICE COX DBE

Between

A (the father and administrator of the estate of X deceased)Claimant

Dr A R D ENSKATDefendant

Harry Trusted (instructed by Anthony Gold, Solicitors) for Claimant

Gerard Boyle (instructed by Gordons, Solicitors) for Defendant

Hearing Hearing dates: 22 April 2009 – 1 May 2009

Judgment

Introduction

[1]The particular cruelty of testicular cancer is that it targets the young. Whilst it is still a relatively rare type of cancer it is, as the medical literature shows, the most common malignancy in young men aged between 15 and 35 (Campbell’s Urology, Eighth Edition, Volume 4).

[2]Despite improvements in survival rates, resulting from increased awareness and more effective diagnostic techniques and treatment, some men will succumb. Tragically the Claimant’s son, referred to throughout this trial as Ian, lost his life to it on 21 August 2008, four years after it was diagnosed. He was just 25 years of age.

[3]This sad event has led to litigation, because the Claimant contends that his son’s death could and should have been prevented. In this claim it is alleged on Ian’s behalf that the primary tumour in his right testis was, in fact, present and palpable on 3 October 2002, when he consulted his GP, the Defendant, about a lump. Dr Enskat, it is said, should have regarded it as being suspicious and should then have referred Ian for urgent ultrasound examination, which would have revealed the presence of the tumour. Had the disease been diagnosed at around that time, when in its earlier stages, rather than two years on in August 2004, it is likely that Ian would have survived. His death is therefore said to have been caused by the Defendant’s negligence, in failing to refer him for further examination.

[4]Dr Enskat denies that he was negligent. It is his case that on 3 October 2002 he conducted a careful and thorough examination, found no abnormality in either testis, and correctly identified the reported “lump” as a “thickening” of the right epididymis, the densely coiled tube which sits on top of and somewhat behind the testis, extending downwards to cover much of the posterior surface of the testis in its middle part and lower pole. Since this was a benign condition, referral for further investigation was unwarranted. The Defendant’s case is that the cancer subsequently diagnosed in 2004 was within the testis and, therefore, in a different location from the area of concern indicated in October 2002. Further, this cancer is of a particularly aggressive kind. It develops rapidly and it is extremely unlikely, therefore, that the tumour would have been detectable back in 2002, upon either clinical or ultrasound examination. The Claimant cannot demonstrate to the contrary on the evidence and the claim therefore fails.

[5]These issues fell to be determined at a trial, at which the following evidence was adduced. In relation to the facts, in addition to the various medical records, there was evidence from three witnesses. The Defendant gave evidence and referred to his contemporary note of the consultation. I read Ian’s signed witness statements, dated 23 May and 5 July 2008. Unusually, and poignantly, Ian had given evidence by way of deposition shortly before he died. The transcript of his evidence, given before Master Chism on 3 July 2008, was before me. The proceedings were also recorded, however, and the DVD was played, allowing me to see and hear Ian and to assess him as a witness. He was clearly an intelligent, articulate and brave young man, much loved and much missed by his family.

[6]Mr Trusted, representing the Claimant, applied at the outset for permission to call Ian’s former girlfriend, Natalie Wyan. Mr Boyle, for the Defendant, objected. The location and description of the lump which led Ian to consult the Defendant in October 2002 is a crucial factor in this case, and a matter of much dispute. Ms Wyan’s witness statement dealing with this topic was served only on 8 April 2009, less than two weeks before trial, and long after exchange of the other witness statements and of the expert evidence in the case. Further, Ian had by then already given his evidence by deposition, so that Ms Wyan’s account could not be put to Ian for his comments. Mr Boyle also submitted that it was plain from the content of her statement that she had been shown Ian’s statement and deposition before making her own witness statement. Her evidence, he submitted, was therefore contaminated and the Defendant was prejudiced by the Claimant’s delay in serving her statement.

[7]It appears that the decision to call Ms Wyan was made by Mr Trusted, instructed late on in this litigation, and although her separation from Ian had not been amicable she had agreed to come forward and assist, albeit late in the day. Her evidence, as to the existence of a lump before Ian saw the Defendant in October 2002 is plainly relevant to the issues; and the experts, who were in court to hear the factual evidence, would be able to comment on her account. I therefore decided to allow Ms Wyan’s statement to be admitted and her evidence to be called. The matters referred to by Mr Boyle would be matters to be considered when assessing her evidence.

[8]In the event, having heard her, I accepted her evidence that she had never been shown any written account given by Ian himself before she made her own statement, though it appears that, before she signed it, she was shown a diagram that he drew at a case conference in 2007, a document which has received considerable attention in this trial.

[9]There were six experts called, from the fields of general practice, oncology and urology. The GP experts, Dr Andrew Burton and Dr Malcolm Lewis, were called on behalf of the Claimant and Defendant respectively. The parties also called Consultant Oncologists, Professor Michael Cullen (Claimant) and Dr Graham Mead (Defendant); and Consultant Urological Surgeons, Patrick Smith, for the Claimant and John Reynard, for the Defendant.

[10]In his report Mr Reynard described this as a difficult case, and it is one that I have not found easy to resolve. I am grateful for the assistance given by all the experts and by both counsel, in enabling me to arrive at a decision based on all the evidence before me. The Facts

[11]Ian was born on 5 July 1983. Before 1998 the GP notes refer to episodes of abdominal pain and bowel trouble in late 1990 and early 1991, when constipation was diagnosed, and again in 1995, when the GP was uncertain of the diagnosis but considered that no further action was necessary.

[12]On 2 February 1998 the GP recorded in the notes:

“(? Tense ?? Tender) left testicle Incidental right epididymal cyst – > paediatric assessment unit.”

Incidental right epididymal cyst – > paediatric assessment unit.”

Incidental right epididymal cyst –

[13]The discharge letter from the paediatric unit, following assessment, stated:

“Diagnosis: Left testicular pain Investigations: surgical review. Normal left testicle Small epididymal cyst right testicle. Dipstick urine  NAD.”

Investigations: surgical review. Normal left testicle Small epididymal cyst right testicle. Dipstick urine  NAD.”

Investigations: surgical review. Normal left testicle

[14]These records indicate that, although Ian reported pain in his left testicle in early 1998, the testicle was found to be normal. He was apparently not referred for ultrasound, but both the GP on that occasion (not the Defendant) and the surgical doctor on call at the unit detected, and were able to palpate, what they considered to be a small cyst in the epididymis on the right testicle. No further treatment was advised and three months later, on 24 May, the GP notes show that both testes were checked and no abnormality was noted. There is no further reference on that occasion to an epididymal cyst or to any further complaint of scrotal pain or discomfort.

[15]No further, relevant entry appears in the records until that made at the consultation on 3 October 2002, though I note that in November 2001 Ian was once again consulting his GP about bowel problems.

[16]Ian himself makes no reference to these earlier consultations or to the finding of a cyst. It was plain from his answers in cross-examination before Master Chism that he had no recollection of attending the unit in 1998, complaining about his left testicle; and he appeared to be unaware of, or had completely forgotten, that a cyst had been found and noted in his right epididymis. Dr Enskat too was unaware, at the time of the October 2002 consultation, of Ian’s previous hospital attendances in 1998/9 with testicular discomfort, and of the existence of a cyst.

[17]I mention here, and will be returning to this later on, that the ultrasound scan report dated 26 August 2004, when Ian’s tumour was diagnosed, referred in addition to “a small right epididymal cyst” having been observed on examination. It has not been challenged in this trial that the cyst detected in 1998 was still in the same location in 2004.

[18]In about late September 2002 Ian was 19 years old. His account is that his then girlfriend, Ms Wyan, was the first one to notice a lump “in his right testicle”, which he had been unaware of until she drew it to his attention. Ms Wyan agrees that she felt a lump and spoke to Ian about it, but she is sure that Ian told her that he had spotted it himself earlier that day.

[19]Whoever it was that discovered it first, when Ian examined himself he described finding a lump, which was painless, “towards the bottom of my right testicle and near the front, about the size of a pea. As far as I can remember it could not be separated from the testicle itself, but was part of it.” Ms Wyan was worried about testicular cancer and told him that he should get it checked. He therefore made an appointment and attended the surgery within a few days on 3 October, where he was seen by Dr Enskat, whom he had seen a few times before over the years. He attended the surgery alone and had said nothing about this concern to his parents.

[20]It is pleaded that, after discovering the lump “in the base of his right testicle” Ian told Dr Enskat “that he had a lump that was towards the bottom of his testicle and towards the front. He described the lump, at the time, as ‘pea sized’ and not separable from the testicle and said that it moved with the testicle.”

[21]A number of the experts observed that these were unlikely to be the words actually used by a young man, without medical knowledge, consulting his GP about a scrotal lump, and Ian agreed during his deposition that he had not used them. He had not referred to the lump as being hard or pea-sized, and he had said nothing about it being separable or non-separable from the testicle, or about it moving or not moving with it. Rather, as might be expected, he said that he simply told Dr Enskat that his girlfriend had found a lump and was worried that it could be cancer. Dr Enskat then asked him to point to it and he did so.

[22]The crucial question is what he then identified and where it was located, about which there is substantial dispute.

[23]Dr Enskat’s contemporaneous, computerised note, written, as he stated and as I find, immediately after the consultation with Ian, reads as follows:

“E: O/E – testicles normal S: Thought he could feel lump behind R testis O: Slight thickening at site of epididymus but otherwise normal P: Reassured”

S: Thought he could feel lump behind R testis O: Slight thickening at site of epididymus but otherwise normal P: Reassured”

but otherwise normal

[24]For understandable reasons Dr Enskat now has little, if any, recollection of this particular consultation and he gave evidence as to what his normal practice was in such cases. However, save for the nature and location of the lump, there is in fact no dispute as to the examination he undertook.

[25]As he explained “S” stands for symptoms, namely the patient’s own subjective comments or complaints, which would precede any examination. The note, to him, indicates that Ian expressed concern at the time that he could feel a lump behind his right testis, as opposed to in, on or at the bottom of the testis.

[26]The letter “O” refers to the objective findings on examination, and this took place immediately after Ian had explained his concerns. Ian undressed and lay on the couch. Dr Enskat asked him to show him exactly where the area of concern was and Ian agreed that he pointed to the lump.

[27]The note indicates that Dr Enskat, consistent with his usual practice, then examined both testicles. I accept his evidence that he did so on this occasion and that he would always do this, even though the complaint was about the one on the right, in order to see whether he could feel any difference between the two – an important part of the examination. On examination (O/E) the note indicates that both testicles appeared normal. It is agreed that Dr Enskat examined them twice, firstly as Ian was lying down on the couch, and then again when he was standing up, when they would present a different aspect.

[28]Dr Enskat referred in general terms to the firmness of the testicle, apparent on palpation, which is to be contrasted with the softer structure of the epididymis which overlays it. In this case he stated that the reference to “slight thickening at site of epididymis” meant that the epididymis felt rather more prominent than he would expect and, therefore, much easier to identify. This, he considered, was a significant, negative finding because it meant that he had identified the cause of the concern.

[29]Having satisfied himself that both testes were normal, his case is that the abnormality he identified was outside the testicle. The importance of that, as the experts agree, is that if it is outside the testicle and in the epididymis, a painless lump or “thickening” does not necessitate referral for further investigation. Dr Enskat’s case is therefore that his finding, namely an area of thickening which was separate from the testis, meant that there was no necessity to refer Ian for further investigation, including ultrasound examination.

[30]It is agreed that, following Dr Enskat’s examination, Ian sat down at his desk and Dr Enskat drew a diagram of the structures concerned, to illustrate the anatomy and to help in explaining to Ian what he had found and where. It is agreed that the diagram, which was not retained, was of a cross-section of the testicle, showing the close, proximal relationship of the testis and the epididymis and illustrating the area of slight epididymal thickening. Ian states that Dr Enskat told him that it was just “a thickening of the epididymis”, that “the lump was separate from the testicle but moving with it” and that there was nothing for him to worry about. Dr Enskat states that, at the time, the Claimant did not suggest to him that the lump he was concerned about was different from that he had illustrated, or that it was located in a different position and was in or on the testis itself.

[31]The letter “P” refers to plan or prescription, and in this case it is agreed both that Dr Enskat simply provided reassurance, and that Ian was relieved and reassured by what was said. Dr Enskat explained that there was no cancer and that what there was was a condition that did not warrant any treatment.

[32]The main conflict in the evidence therefore relates to the nature and location of the abnormality which led Ian to go to his GP in the first place. Ian’s clear description in his witness statement and deposition was of a lump towards the bottom of his right testicle and near the front, which was about the size of a pea and which he thought was part of the testicle itself.

[33]It is correct that he referred to it as a “lump” throughout his deposition and he clearly described the abnormality as a “lump” to Dr Enskat as his note shows.

[34]Some caution is required as to the reliability of a patient’s description of his abnormality as a lump. The experts agree that different individuals might use different terminology to describe the same finding, and the GP experts agree that “what a doctor might describe as thickening a patient may describe as a lump”. Caution is also necessary, for the same reasons, in placing reliance on general descriptions by patients of having found a lump “in” or “on” the testis and in accepting it as indicating any more than the fact that an abnormality of some kind has been observed in the scrotal area.

[35]The fact remains, however, that Ian referred specifically in his witness statement to having found a pea-sized shape near the bottom and front of his right testicle, and which appeared to be part of the testicle. His evidence is that this is what he pointed out to Dr Enskat at the consultation.

[36]This is clearly at odds with what Dr Enskat says that Ian described to him and what he identified on examination, despite the fact that Ian and he appear to have agreed at the time as to the location of the lump that Ian was concerned about. Ian confirmed that there was only ever one area of concern, and he stated that on examination he could feel Dr Enskat “touching the actual lump and running it through his fingers”.

[37]Determining this issue lies at the heart of this case. If, as the Claimant alleges, Ian had found and reported to Dr Enskat a pea-sized lump, on or not separable from his testicle, and this had been confirmed upon clinical examination, the GP experts agree that an urgent ultrasound scan or specialist referral should have been arranged. If, on the other hand, the abnormality described and then identified was in fact an area of thickened epididymis, separate from the testicle, they agree that it would have been reasonable to discount the possibility of a testicular tumour and that neither arrangement for ultrasound scan nor specialist referral was warranted. Reassurance would have been reasonable in such circumstances.

The Factual Conflict – the Location of the Abnormality

[38]Listening to Ian’s evidence before Master Chism, I have no doubt that he was giving an entirely honest and unexaggerated account of events as he recalled them. Despite the severity of his illness he was both thoughtful and careful in answering the questions put to him from both counsel.

[39]Ian referred, in both his supplemental witness statement and his deposition, to having himself drawn on a diagram, which indicated the location of the lump as he recalled it. He did this at a case conference held on 14 June 2007, attended by his counsel (not then Mr Trusted) and solicitors, and by two of the experts instructed on the Claimant’s behalf. This was, he said, the first time that he had been asked to illustrate diagrammatically the location of the lump.

[40]During the discussions, and approximately halfway through the conference, Professor Cullen drew an ovoid shape representing the testicle and then asked Ian to indicate upon it the position of the lump in 2002. Ian drew a small semicircle at the bottom and in the centre of the ovoid shape, giving the appearance, on a frontal view, that the lump was attached to the surface of the testicle.

[41]On 26 August 2004 ultrasound scan revealed the primary tumour in the right testis, the report referring to it as “an irregular calcified mass in the lower pole of the right testis that measures 1.8 X 1.5cm”. On specimen examination following orchidectomy, the tumour was noted to measure 22mm x 19mm x 21mm. It was noted as comprising malignant teratoma undifferentiated with vascular invasion. The tumour was noted to be confined to the testis, that is, within the testis itself and not extending into the scrotum.

[42]Mr Trusted places considerable reliance on the fact that Ian, when invited to illustrate the site of the lump, drew it at the precise location where the primary tumour had, in fact, been found on diagnosis. Allowing for the fact that this was a lay, unsophisticated representation of the lump, he submits that it is nevertheless remarkable that Ian illustrated it to be in precisely the same position where the primary tumour was discovered in 2004.

[43]It is pleaded that, before producing this sketch, Ian had not been shown the scan and had not been informed of the report upon it, save to be told that the scan had revealed the presence of a primary tumour in his right testicle. Ian confirmed this in his supplemental statement and at his deposition, stating that he was not told of and had not asked about the position of his tumour before he had drawn this diagram.

[44]Ian’s description of Dr Enskat’s examination in his witness statement is that, after he had pointed out to him where the lump was, he could feel Dr Enskat “touching the actual lump and running it through his fingers”. He referred again on deposition to Dr Enskat “Rolling his fingers through the testicle” and said that he had also “run down the back of the epididymis” where, so far as he recalled, there was no tenderness or swelling.

[45]Later on, during cross-examination, he recalled that the lump Dr Enskat was touching was the lump that he was concerned about. Asked again to describe it, he referred to it as being “something that was separate to the testicle really …” and that that was “because it was different to the other side”.

[46]It was put to him in cross-examination that what in fact he had felt in October 2002 was the small epididymal cyst towards the back of the testicle, to which he responded:

“It wasn’t the back, it was down towards the front – it’s more … it’s lower.”

On further questioning he described it as being “almost at the bottom” and “more towards the front”. There are then the following relevant passages in the transcript (pages 358 – 9). “Q In his record which he made at the time of the consultation Dr Enskat says this:

‘(S) thought he could feel lump behind right testes.’

That is what you complained to him of, was it not? A Mm. Q I will ask you that again because you might want to think about the question that I am asking you, okay. He has recorded that you said, ‘… thought he could feel lump behind right testis’. Is that an accurate record of what you said to Dr Enskat? A I don’t recall saying that exact phrase. All I remember is pointing to where the lump was. Q In pointing to it do you think that you could have pointed to an area which was to the back of the testicle? A I just pointed to exactly where I felt the lump was, yes. Q But do you accept that that could have been more towards the back than to the front? A I don’t know. Q His record of his examination is ‘slight thickening at the site of the epididymis but otherwise normal.’ That would appear to be consistent with – if you did tell him this – you saying that you thought you could feel a lump behind the right testis. A Mm. Q So I am suggesting to you that, whether you said it to him or whether you pointed it out to him, it is more likely than not that you pointed to an area which was more towards the back of the testicle than to the front of the testicle. A No. Q Do you agree with me that that is what you have done? A All I did was point to where the lump was and said this is where I felt there was some abnormality, and that’s when I got examined. … Q When Dr Enskat said to you … that the lump was separate you did not disagree with him, you did not say, ‘No, it doesn’t feel that way to me,’ did you? A No, I don’t believe; no. Q Just in terms of your recollection, where you say, ‘ I recall that he explained that the lump was separate … but moving with it’, are you absolutely clear that that was something which was said at this consultation way back in October 2002? A Mm; yes. Q How can you be so certain of that? A That’s what I put here, I recall he explained that the lump was separate from the testicle and moving with it and re reassured me, which is why he drew the diagram.” Q Do you agree with me that that is what you have done?

Q How can you be so certain of that?

[47]In re-examination the following questions and answers are also of relevance:

“Q The lump itself. For example, when you were feeling it could you put your fingers all the way round the lump and get your fingers between the lump and the testicle? A Mm, yes. Q You could? A I couldn’t squeeze and feel it, but I could feel it was separate to the testicle. Q Did it move away from the testicle? A No. Q I am trying to understand what you mean by ‘separate’; you had better explain. A Well, separate, separate to the mass of the testicle. … Q What I want to find out is was it fixed to the testicle or was it floating around, as it were? A I believe it was fixed to the testicle, yes.”

Q You could? Q Did it move away from the testicle? A I believe it was fixed to the testicle, yes.”

Q Did it move away from the testicle?

[48]Ian’s girlfriend in September 2002 was Natalie Wyan, then aged 18. Ian was the first boyfriend with whom she had had a sexual relationship. She was first asked to make a statement about this matter at the beginning of April 2009 and, therefore, over six years after the event. Asked on the telephone by Ian’s solicitor to provide a description of what she herself had seen, she gave her own, independent account of where she thought the lump had been in an email to the solicitor, before being shown the diagram that Ian had drawn at the case conference. By the time she signed her witness statement she accepted that she had seen that diagram and that she had been party to some discussions as to Ian’s own description; but I accept her evidence that she had not seen any statement that Ian himself had made. Ms Wyan too I found to be an honest and straightforward witness, who was seeking to assist the Court. Her relationship with Ian had ended in 2005 and I reject any suggestion of collusion. Indeed, none is suggested.

[49]It is her account that on a day in late September 2002, during intimate relations with Ian, she had noticed “a hard pea-sized lump on the underneath of the bottom of the right testicle”. She pointed it out to Ian and he then told her that he had noticed it himself earlier that day. The diagram that Ian drew in 2007 accords with her recollection of its location. She said that she could not see the lump on looking at the testicle, but that she could feel it when she touched it with her hand.

[50]Pressed to give further details in cross-examination, she agreed that she was touching the area gently and that they were both lying down at the time. She said that she could feel a lump “on the outside surface of the sac”. It felt slightly different to that on the left side. She described moving her fingers across it, demonstrating by moving the fingers of her right hand flat across the back of her left hand. The lump, she said, “was raised and distinct … there wasn’t anything else around it, that’s why it stood out”. She went on to say that she had not touched the area sufficiently so as to feel the actual testis within the sac or to examine the testis further. This was, she agreed, a “momentary touching”, in that she did not go on to examine the lump further and could not say whether the lump was at the front or the back, only that it was underneath the testicle. She did tell Ian of her concern, however, and say that it was unusual and that he should get it checked out.

[51]The clear and consistent accounts of the nature and location of this lump, given independently by both Ian and Ms Wyan, simply cannot be reconciled with the account given by Dr Enskat, relying on his contemporaneous note of the consultation.

[52]It is necessary, therefore, to examine with care the criticisms made of Dr Enskat’s evidence by Mr Trusted, on behalf of the Claimant, to see to what extent they assist in resolving the dispute.

[53]Firstly, however, this conflict cannot be explained as the result of an over-hasty or superficial examination by Dr Enskat. There is, as I have stated, little dispute as to what in fact took place at this consultation. Ian accepted in cross-examination that Dr Enskat had listened carefully to what he had said and had carried out a reasonably thorough examination, examining both his testicles and the epididymis when he was lying down, and again when he was standing up; and checking with Ian that he had correctly identified the area he was concerned about. He had also drawn a diagram to explain his findings. Both Dr Burton and Dr Lewis agreed that, whatever Ian had reported to him, this was an adequate investigation and examination. The evidence, in my view, shows this to have been a thorough and competent examination.

[54]Was there, nevertheless, error on Dr Enskat’s part such as to amount to actionable negligence? Did he wrongly take the lump that he palpated to be harmless, benign pathology in the epididymis, indicative as Mr Trusted suggests of an “overconfident attitude to what ultimately turned out to be malignant pathology and for which he should have referred for further investigation”?

[55]Dr Enskat had been working full time at this surgery for over 20 years. Whilst cases of testicular cancer are, fortunately, relatively rare it was not unusual for him to see men concerned about a lump or swelling in or around their testes. On average he would perform at least one or two testicular examinations each month.

[56]I accept his evidence that in general he had “a low threshold for referrals for ultrasound examination”; that he tended to refer more men than the other partners at the surgery; and that he would do this whenever he detected any lump or swelling on the testis itself, or other lumps within the scrotum where he had any concern as to possible malignancy, or where the patient still remained worried or anxious, notwithstanding an explanation and reassurance. None of this evidence was disputed. In the six years between January 2000 and April 2006 he referred on average one patient each month for scrotal/testicular ultrasound.

[57]Experience, of course, is not of itself determinative of the question whether an error was made on a particular occasion. In the present case, however, and relying on that experience and his note, Dr Enskat stated that he was certain that Ian had neither described nor pointed to a pea-sized lump in, on, or underneath his testicle. Had he done so, he states that he would have referred Ian for ultrasound, even if he had been unable to detect a lump himself on clinical examination. He would have done so because the description Ian had given would itself have been sufficiently, clinically suspicious to warrant further examination.

[58]In the event, having found no abnormality to be present in either testicle, he stated that he detected an unusual prominence of the right epididymis, which Ian confirmed as the area he was concerned about. Dr Enskat could not now recall whether this prominence was at the top or bottom of the epididymis. However, no other lump or abnormality had been drawn to his attention either during the examination or subsequently, when he drew the diagram to assist in explaining his findings.

[59]The lump depicted on the diagram drawn by Ian subsequently and the description by Natalie Wyan of the lump that she observed was, Dr Enskat accepts, completely different from the pathology that he considered he had found.

[60]He did not accept Mr Trusted’s suggestion that there was generally a danger of confusing the testis and the epididymis, anatomically, and I agree that this suggestion was not made out on the evidence. The structures are different and the testis, being firm to the touch and with a smooth outline, is readily identifiable. Whilst Dr Enskat accepted in cross-examination that there might be occasions when it is difficult to separate the epididymis from the testis, to which it is loosely attached, he was confident in this case that the abnormality he detected was outside and separate from the testis itself.

[61]There was, in the event, little expert evidence to support Mr Trusted’s suggestion. Dr Burton accepted that, although separating the two structures and moving them apart could be difficult, it is not normally difficult to tell them apart. Mr Smith observed that he would expect a student to be able to tell the two structures apart. Dr Lewis considered that they are anatomically distinct structures and that moving them apart was not as difficult as Dr Burton suggested.

[62]The question is whether, in the course of an otherwise adequate examination, Dr Enskat failed to separate the two on this occasion, therefore wrongly placing in the epididymis the lump underneath his testicle about which Ian was complaining; and failing to elicit accurately from Ian, who may have been nervous and embarrassed, the nature and location of the lump which Mr Trusted suggests was in fact the primary teratoma.

[63]Both GP experts accepted that the relevant, urgent referral guidelines for urological cancers (March 2000) referred to “swellings in the body of the testis”, not in the epididymis. Both agreed that, if there was any doubt about it, then further investigation by ultrasound scan should be arranged. The question is whether Dr Enskat was mistaken in his findings, or should have been in doubt as to what he had found?

[64]The experts agreed that epididymal thickening would be expected to be in close proximity to the testicle and would generally move with it. Dr Lewis considered that a thickening of the epididymis would be anatomically distinct on examination, and that a trainee would not confuse a lump in the lower pole of the testis with a lump in the epididymis. Dr Burton considered that epididymal thickening would not be easily separable, in the sense of the examiner being able to move it away from the testicle. The scrotal structures tend to move during the examination and the testicles are tender, which renders examination difficult. He accepted, however, that if Dr Enskat was sure that the lump was in the epididymis, it would be reasonable not to refer. Dr Lewis agreed that it was the location of the lump that was important.

[65]It is not in dispute in this case that Ian accepted the advice and reassurance he was given. He did not display continuing anxiety such as to warrant referral on that ground alone, even if Dr Enskat was confident as to his findings on examination.

[66]In criticising Dr. Enskat, Mr Trusted relied, further, on what he submitted were unsatisfactory omissions in Dr Enskat’s note-taking, such as to undermine the reliability of his account.

[67]Firstly, during the examination, Ian states that Dr Enskat asked him how the lump felt when he touched it and that he told him that it was tender but not painful. Dr Enskat agrees that Ian reported no pain and he concedes that he made no note about this. Whilst it was a negative finding, he fairly accepted that it can be important to record negative findings on examination. Dr Burton thought it would be good practice to do so in 2002, though he accepts that note-taking practice varies.

[68]Secondly, there is no note indicating how long the lump had been present. Dr Enskat thought that he would have asked Ian about this during his examination and he accepts Ian’s account that he told him he thought it had been there for about a week.

[69]Dr Enskat’s explanation for these two omissions is that, once he had concluded that the abnormality was outside the testis and that there was no condition which warranted further investigation or which could cause further problems, it was no longer important to note either that it was painless or the time when Ian had first noticed it. Further although Ian thought it had only been there for a week, it could in fact have been there for a much longer time and he may only recently have become aware of it.

[70]Thirdly, Dr Enskat states that as part of his reassurance he would have advised Ian to return for a further examination if he remained worried, in accordance with his usual practice. This too is not noted, but both GP experts agreed that note-taking practice varies and that this advice is not always specifically recorded. Ian does not recall being given this advice, but I find on balance, and having regard to the nature of this consultation as a whole, that it was.

[71]It is correct, fourthly, that Dr Enskat did not record precisely where the lump was and, fifthly, that he did not record a specific diagnosis. Dr Enskat’s explanation was that although a cyst (either early benign cyst formation or an old cyst) was one of the differential diagnoses, he could not say this for certain, given that there was no gross thickening and that what he was feeling may have been too small for him to identify as a definite cyst. However, once he had satisfied himself that this was a benign pathology outside the testis he no longer regarded it as necessary to record a diagnosis for the slight thickening he had identified, which he considered was not sufficiently obvious to call a cyst. He considered that a cyst would need to measure between 1 and 2cm to enable him to identify it with certainty.

[72]In this he was supported by the GP experts who at paragraphs 2 and 3 of the joint statement said:

“We agree that if diagnosing an epididymal cyst we would refer in the note to an epididymal cyst but we would also recognise that if we recorded epididymal thickening this might be caused by one or more small epididymal cysts. … We agree that epididymal thickening would be used to describe a part or all of the epididymis which was found at examination to be anatomically more prominent and/or firmer than expected.”

[73]Dr Lewis agreed with Dr Enskat that any cyst which measured less than 1cm would be described as “thickening”. Mr Reynard also considered that a small epididymal cyst would not be palpable as a cystic structure but would feel like “thickening”, that is, there would be an increase in calibre or density such as to warrant the description of thickening given by Dr Enskat.

[74]I prefer the evidence of the GP experts and Mr Reynard on this matter to Mr Smith’s view, that he would not expect a clinician to describe a small cyst as thickening, or that he would be “disappointed” by such a description. His view, at paragraph 20.3 of his report, that it was unlikely that the small cyst detected on ultrasound in August 2004 would be palpable, is in any event untenable, given the undisputed evidence that it had in fact been identified and palpated in 1998. We know that in 2004 the cyst identified measured 3.8 mm.

[75]Mr Trusted, in opening the case, and referring to these criticisms, described Dr Enskat’s note-taking as “woefully inadequate”, but the joint GP expert opinion did not support such an assessment. As Dr Lewis pointed out, Dr Enskat did not record the fact that he had examined Ian twice, first when he was lying down and then standing up. Nor did he note that he had drawn a diagram for Ian to assist in his explanation, though the fact that these events occurred and that they represent good practice is not in dispute.

[76]In my view these criticisms do not render Dr. Enskat’s account unreliable and do not advance the Claimant’s case any further. There is, in any event, no pleaded allegation of negligent deficiencies in note-taking or of a negligent failure to advise Ian to return if worried. Other Evidence in the Case Events following the Consultation

Other Evidence in the Case

[77]Given the factual conflict as to events in October 2002, it is necessary to examine the other evidence in the case, to see what light it throws on the matter.

[78]Firstly, Ian gave evidence as to the events which followed the consultation. The lump itself, he states, did not change between October 2002 and August 2004. It did not appear to increase in size and it did not cause him any pain. Ian did, however, suffer from other symptoms.

[79]At around Christmas time 2002 he had stomach pains and diarrhoea, and he saw another GP at the surgery on 2 January 2003 complaining of intermittent pains for the past two to three days. On abdominal examination nothing abnormal was detected and there was no tenderness. He was given advice to return if his symptoms worsened or changed.

[80]Ian continued thereafter to suffer intermittently from such symptoms, varying from diarrhoea to constipation, with stomach cramps. He saw another GP about lower abdominal pain and diarrhoea on 26 March 2003 when, once again, on abdominal examination nothing abnormal was detected and there was no tenderness noted. He followed dietary advice and took painkillers to help him sleep. The symptoms ebbed and flowed and he had some longer periods of normality. He states that he just resigned himself to the problem.

[81]In early 2004 the pains became more frequent and intense and he consulted Dr Enskat about them on 23 January 2004. Dr Enskat noted tenderness mainly in the LIF (left iliac fossa) region, that is the left, lower part of the abdomen. He considered that this might be gastroenteritis or irritable bowel syndrome, and prescribed Buscopan tablets. The symptoms then settled but, on 3 February, Dr Enskat referred Ian to Dr Hine, Consultant Physician at Ashdown Hospital, because of his concern as to the recurrent abdominal symptoms.

[82]Ian saw Dr Hine on 12 March 2004. The records show that Ian complained of having suffered abdominal pain on and off since 2002, which had started on the right but had moved to the left. On examining the abdomen nothing abnormal was detected. Rectal examination however revealed a loaded rectum, and abdominal X-ray confirmed the presence of faeces all the way round the colon to the caecum. Dr. Hine considered Ian’s problem to be constipation, and he gave advice appropriate to treatment of that condition. A full blood count, ESR, biochemical profile, serum calcium and thyroid function tests, all showed indices to be within normal limits. Ian saw Dr Hine again privately on 14 May 2004, when he was complaining of continuing pain and was given further dietary advice.

[83]Ian did not ever refer, during any of these investigations, to the lump he had consulted Dr Enskat about in 2002. He stated that the lump had not increased in size or become painful, and he did not consider there to be any association between that lump and his abdominal symptoms. No criticism is made in this case of the treatment he received for these symptoms during this period.

[84]On 18 August, he saw Dr Dunstan at the surgery about his abdominal symptoms. On examination of his abdomen on this occasion Dr Dunstan found a “mobile mass … resonant to percussion” and referred him for an ultrasound scan. Later on that day Ian’s pain became very severe and he attended A & E, where a palpable abdominal mass was identified, firm to the touch and just to the right of the umbilicus.

[85]Ultrasound scan on 19 August confirmed an abdominal mass, believed to measure 3cm in diameter, but a body CT scan on 20 August showed a 9.5cm diameter spheriodal mass, arising just below the pancreas and extending inferiorly for about 12cm. Its origin was retroperitoneal and it was compressing the aorta to the left and markedly compressing the IVC to the right. There was right hydronephrosis (kidney obstruction) and proximal hydro-ureter to the level of the lower pole of the right kidney. The liver was normal. The impression was one of “a solitary retroperitoneal tumour … probably a sarcoma”.

[86]Ian was readmitted to hospital for blood tests and testicular ultrasound examination on 26 August. Following the CT scan report testicular cancer was considered as part of the differential diagnosis. The scan report, dated 26 August reads as follows:

“There is an irregular calcified mass in the lower pole of the right testis that measures 1.8 X 1.5cm. It shows minor increase in vascularity. The appearances are in keeping with primary testicular neoplasm. The left testis appears normal. A small right epididymal cyst is also noted.”

The left testis appears normal. A small right epididymal cyst is also noted.”

[87]On 27 August Ian underwent right radical orchidectomy. The histopathology report, on orchidectomy specimen examination, shows that Ian’s testicular tumour measured 22 x 19 x 21mm. Its features were described as “Haemorrhage and necrosis” and it was confirmed as a non-seminomatous germ cell tumour, comprising “malignant teratoma undifferentiated(embryonal carcinoma)”. The tumour was noted to be confined to the testis, that is within the testis itself and not extending into the scrotum. It had not invaded the tunica albuginea – the testicular capsule, a tough and collagenous outer layer which surrounds the soft inner part of the testis made up of the sperm producing semniferous tubules. The question whether there were “areas of scarring only” was answered in the negative. There was also noted to be vascular space invasion.

[88]The details of the lengthy, intensive and painful treatment which Ian then underwent between August 2004 and August 2008, for both the primary testicular and secondary abdominal tumours, are set out in the medical records and experts’ reports. It is unnecessary to refer to them here because they are not relevant to the issues in this trial. Despite the treatment, Ian remained chronically unwell, with persisting right abdominal pain and anaemia. A final scan in June 2008 revealed the presence of new, multiple predominantly necrotic liver secondary cancers and palliative care was provided until, tragically, Ian died on 21 August 2008.

The Expert Evidence – Oncology and Urology

[89]The case advanced by the Claimant relies heavily on the fact that the diagram drawn by Ian during the case conference in 2007 corresponded to the location of the primary testicular tumour, seen on ultrasound scan in August 2004 to be in the lower pole of the testis. Mr Trusted contends that this tumour was there to be found in October 2002, and should have been found on examination.

[90]Much of the evidence given by the oncologists and urological surgeons therefore addressed this issue, about which there was disagreement.

[91]In summary this disagreement, reflected in the reports and joint statements is as follows.

[92]Dr Mead’s view, as set out in his report dated 15 August 2008, is that it is highly unlikely that the testicular lump eventually diagnosed in August 2004 would have been palpable 22 months earlier. The lump was not large (measuring 2.2cm at pathology); and malignant teratoma undifferentiated with vascular invasion is an aggressive and rapidly growing cancer, which would have been either microscopic or absent altogether in October 2002. Even if ultrasound scan had been arranged in October 2002, therefore, it is unlikely that a malignant tumour would have been identified.

[93]In his report of 11 August 2008 Professor Cullen also described malignant teratoma undifferentiated as a “rapidly progressing malignancy”. However, commenting in his letter of 1 September 2008 on Dr Mead’s view, Professor Cullen said as follows:

“Certainly I would agree that in cases where a 2cm tumour in the testis is diagnosed then in fewer than 50% of cases would anything have been detected twenty-two months previously. However, in the case of Ian something was detected in the same area that the tumour was ultimately demonstrated. Furthermore, it is well known that primary tumours can remain very small in testicular cancer whilst the secondaries grow much bigger. Indeed in Ian’s case when the primary tumour was 2cm in diameter his secondary abdominal tumour was about 10cm in diameter. It is also occasionally the case that a primary tumour will actually resolve spontaneously, leaving a scar within the testicle, despite the secondary tumours growing actively.”

[94]Mr Smith, referring in his report to Ian’s description in his witness statement of the lump in October 2002, expressed the view that a scrotal ultrasound scan at that time would on the balance of probabilities have shown “an organ-confined tumour” in the lower pole of the right testis. Further, if the onset of abdominal pain from early 2003 is an indication of tumour spread, he considers it likely that the primary tumour of the right testis would have been of sufficient size to have been identified “by an experienced urologist on scrotal palpation” and in any event by way of ultrasound scan. He considers it likely that the undiagnosed malignant tumour of the right testis had spread to the abdominal lymph nodes by March 2003.

[95]The Claimant, relying on the opinions of both Professor Cullen and Mr. Smith, advances the proposition that inadequately treated tumours like Ian’s (embryonal carcinoma) could remain stable for long periods of time, and that his probably did so in this case.

[96]Mr Reynard, however, considered it improbable that the highly aggressive cancer diagnosed in August 2004 was palpably present in October 2002, when said by Ian to be pea-sized, and yet remained indolent for the next 22 months, by which time we know that it measured just over 2cm in size (at orchidectomy). Necrosis of the tumour was very unlikely to have led to a reduction in the tumour’s size. Further, whilst it was theoretically possible that the tumour found would have been detectable on ultrasound examination in October 2002, he considered that improbable, even if it had then been present at a microscopic level.

[97]Whilst he considered this to be a difficult case, in which “it is not possible to be absolutely sure one way or the other” precisely what either the lesion felt by Ian in October 2002 or the slight epididymal thickening described by Dr Enskat represented, it was most unlikely to be a lower pole testis cancer. An ultrasound scan in October 2002 would probably have identified some benign form of para-testicular lesion, such as an epididymal cyst. Discussion of Expert Opinion

[98]In the witness box Professor Cullen acknowledged the two competing hypotheses. The first, as advanced by the Defence, is that there was no clinically detectable lump within Ian’s testicle in October 2002, and that the first, clinical indications were the increasingly severe abdominal symptoms which, at some point, were explained by the developing secondary tumour ultimately identified in August 2004.

[99]In his view there is nothing particularly unusual about that scenario, save that Ian and his girlfriend were both convinced that he had an abnormality in that testicle, which they both independently identified and for which we do not have an adequate explanation.

[100]He suggests that an adequate explanation is to be found, however, in the alternative hypothesis, namely the Claimant’s case that there was a detectable lump at the time of Dr Enskat’s examination, which had been detected by Ian and Ms Wyan. In this scenario it is not surprising, he states, that, within a few months of October 2002, Ian began to develop a secondary tumour with associated abdominal symptoms. His symptoms progressed until, in August 2004, the primary tumour was identified in exactly the same location as Ian had earlier described it.

[101]The unusual feature of this hypothesis is that this was an undifferentiated, malignant tumour of a kind which generally progresses rapidly, but here changed very little, if at all, over the course of some 22 months.

[102]The point Professor Cullen sought to make was that there are unusual and difficult components present in both these hypotheses. In his view, however, the second hypothesis was more likely to be correct.

[103]He relied, for this view,(a) upon the evidence of Ian and Ms Wyan as to the location of the tumour they say they found; and

(b) upon the unpredictable nature and rate of growth of tumours, such that a primary testicular tumour will not necessarily grow at the same rate as the secondaries, as is well recognised and as is shown by the respective sizes of the primary and secondary tumours identified in this case.

[104]In this view he was supported by Mr Smith and I shall therefore deal first with the second of the factors relied upon, that is what they consider the science can tell us in this case.

[105]Something about the behaviour of a primary tumour, it is said, is different from that of the secondaries and it is difficult to define it. It involves, firstly, the concept of spontaneous necrosis (widespread cell death), whereby cells will die by themselves as a result of the primary tumour outgrowing its blood supply, or where there is a possible immunological effect on the primary tumour, as a result of the body’s response to the secondary tumour. Professor Cullen refers to the fact that necrosis was recorded as a feature of this primary tumour in the histopathology report following orchidectomy.

[106]Secondly, calcification as a result of a pathological process generally indicates chronicity. In this case Professor Cullen considered that the reference to calcification in the ultrasound scan report was reflective of the probability that the tumour identified in August 2004 had been present for some months and possibly years. Necrosis and calcification, he observes, occur hand in hand.

[107]Thus, whilst he accepts that testicular cancers of this kind do not usually stay stable in the testicle for 22 months, these factors tend to suggest that the tumour in this case probably did, given Ian’s description of his lump and its location in 2002.

[108]It is unsurprising, in his view, that clinical experience and medical literature can identify no reported cases where stability for such a lengthy period has occurred, since it would be unethical to test this hypothesis and adopt a “wait and see” approach to tumours, once detected. Normally the testicle will be removed immediately.

[109]In analysing Professor Cullen’s evidence at trial as to the “bizarre behaviour range” of such tumours, it is striking, first, that his opinion appears to have evolved somewhat from that originally set out in his reports and in the joint statement.

[110]In his first report, dated 11 August 2008, before he was asked to consider whether the primary tumour would have been present 22 months earlier, Professor Cullen described Ian’s cancer (malignant teratoma undifferentiated) unequivocally as “a rapidly progressing malignancy”. So too did Dr Mead in his report of 15 August 2008, identifying this as “an aggressive and rapidly growing form of testis cancer”.

[111]Medical literature disclosed and attached to the experts’ reports provided support for this description. See, for example, Pathological Basis of Disease (Robbins and Cotran), referring to germ cell tumours as “highly aggressive cancers that are capable of rapid, wide dissemination …”. Mr Smith’s graphic description in the witness box was of a grossly undifferentiated and terrible tumour – extremely aggressive and “out of control”.

[112]The joint statement of the Oncologists, following their meeting and discussion, contained the following agreed answer to Question 10 (the initials MHC and GM, reflecting the views of Professor Cullen and Dr Mead respectively):

“10. The pathology at orchidectomy confirmed that the testicular tumour was malignant teratoma undifferentiated with vascular invasion. What is the growth rate and pattern of such tumours? MHC/GM: Typically these are rapidly growing tumours with a high propensity to spread. We would expect these tumours to double in size every few weeks.”

[113]Subsequently, Professor Cullen amended this answer, though I note that he did so without first referring back to Dr Mead, to read as follows:

“10 The pathology at orchidectomy confirmed that the testicular tumour was malignant teratoma undifferentiated with vascular invasion. What is the growth rate and pattern of such tumours? MHC: Typically these are rapidly growing tumours with a high propensity to spread. They can double in size every few weeks, but factors including spontaneous necrosis (discussed above) may alter the apparent growth kinetics in some cases. GM: Typically these are rapidly growing tumours with a high propensity to spread. We would expect these tumours to double in size every few weeks.”

MHC: Typically these are rapidly growing tumours with a high propensity to spread. They can double in size every few weeks, but factors including spontaneous necrosis (discussed above) may alter the apparent growth kinetics in some cases. GM: Typically these are rapidly growing tumours with a high propensity to spread. We would expect these tumours to double in size every few weeks.”

[114]I accept that the amendments he made to the joint statement also included changes to the previous answer given to Question 9, to address what he explained was a logical inconsistency, and to which I need not refer because it is not relevant to this issue. That explanation, I accept, applies to Question 9. It does not, however, apply to what appears to me to be a clear change of emphasis in answering Question 10, whereby what had previously been understood to be the agreed expectation of both experts as to the expected rapid growth of these tumours, has become an expectation of Dr Mead alone.

[115]Further, in both his evidence in chief and re-examination, Professor Cullen sought to distinguish, in relation to the growth rate of tumours, between their doubling time and a doubling in volume. He suggested that by “doubling” he was not referring to a tumour doubling in diameter. This, together with an attempt he embarked upon in the witness box to provide some arithmetical formula for assessing a likely growth rate, I found to be confusing, unhelpful and somewhat speculative. It was not in any event supported by any of the literature or by any of the other experts instructed in the case.

[116]In their work, Neoplasms of the Testis, Richie and Steele, in referring to the high growth rate for germ cell tumours, observed that doubling times “usually range from 10-30 days”. Further, in both versions of the joint statement Professor Cullen had himself clearly referred to these tumours “doubling in size” every few weeks. This, in my view, was inconsistent with the distinction he subsequently sought to develop in the witness box.

[117]In assessing the reliability of his opinion, in a case where the Claimant must prove his case on the balance of probabilities, these inconsistencies, even allowing for the element of medical uncertainty in relation to the issues under consideration, weigh against the Claimant, unless adequately explained or unless there is other evidence which supports his case.

[118]The explanation by both Professor Cullen and Mr Smith for the absence of reported cases similar to the present one, namely that no medical practitioner would wait for 22 months to see what happened to a primary tumour like Ian’s, appears attractive at first blush. However, as the medical literature before me shows, the fact is that, in the late 1990s at any rate, many patients were waiting a long time before seeking medical advice for their symptoms. In Testicular Tumours (second edition 1998 – Hendry and Horwich) the authors refer to 37% of 178 patients in one survey having delayed for more than six months before consulting a doctor in respect of a testicular lump. Dr Mead stated that in his experience it was not at all unusual for a man to wait for 18 months or even two years before consulting his GP about a testicular lump.

[119]The same authors also point out in their article that delay does not stop there, because of the problem of initial misdiagnosis in a number of cases, causing further delay. This was reported as a problem, for example, in as many as 56 out of 100 cases “even in the well-supervised ranks of the British army”.

[120]Against this background of late presentation and delay, acknowledged as correct by Professor Cullen, it is in my view significant, when considering the probabilities in this case, that none of the experts in this case, in their combined clinical experience over many years, had ever previously come across a case involving embryonal carcinoma, where the tumour is reported to have been present and stable in the testis for 22 months. Nor have they been able to find references to any such cases, after an extensive search of the relevant medical literature. As Professor Cullen fairly accepted in cross-examination, if his opinion were correct, such a presentation would in his experience be unprecedented.

[121]So far as necrosis is concerned, Professor Cullen accepts that necrosis and haemorrhage are often features of undifferentiated teratomas. As such, and as Doctors Mead and Reynard agree, it cannot therefore logically be regarded as indicative of some form of growth retardation. On the contrary, as Mr Reynard observed, and as I accept, necrosis indicates the scale of the rapidity of growth in an aggressive tumour of this kind, which grows so fast that the blood vessels cannot support it and parts of it therefore die.

[122]Even in the joint statement as amended by Professor Cullen, he expressed his opinion on this matter in tentative terms, observing, for example, that spontaneous necrosis “may” result from cancers outgrowing their blood supply and is a “possible mechanism explaining the rare category of primary testicular cancers which appear not to grow at the expected rate”. He referred, further, to those “very rare cases in which the primary tumour behaves inconsistently”.

[123]Whilst at one stage, as part of his consideration of necrosis, Professor Cullen referred to the possibility of “spontaneous regression” of the primary tumour, whilst the secondaries continue to progress unrelentingly, he accepted that there is no evidence in this case to suggest that Ian’s primary tumour did regress spontaneously. Whilst he considers that stability may be one stage of the regressive phase he accepts that this would be a rare occurrence and he did not pursue this further. Further, the evidence indicates that there was no scarring within Ian’s testicle, Professor Cullen having observed in his letter of 1 September 2008 that occasionally a primary tumour will resolve spontaneously leaving a scar within the testis, despite the secondary tumour growing actively.

[124]Ultimately, the theory of spontaneous regression was not supported by the other experts instructed in this case and I do not accept that it has any application in this case.

[125]Much time was taken up in the evidence before me in relation to the issue of calcification. I have considered all the evidence given in relation to this issue carefully, including the literature produced by the experts. However, in view of the clear conclusion I have reached as to its value in determining the issues before me, I shall deal with this matter fairly shortly.

[126]A major difficulty seems to me to arise in relation to Professor Cullen’s reliance upon calcification as indicative of chronicity, or longevity, because he accepts, first and foremost, that calcification may also be a feature of necrosis, which is itself a common feature of embryonal carcinoma. It is in this sense equivocal.

[127]It is, therefore, not surprising to find evidence of calcification in such a tumour. There is in any event no reliable evidence as to the nature and extent of the calcification identified in this case, the report referring only to an “irregular calcified mass”. Images produced and studied closely at trial were in my view inconclusive. There was a clear difference of opinion between Professor Cullen and Dr Mead as to what they showed in terms of calcification or micro-calcification, and as to the conclusions that could reasonably be drawn from them. No radiological opinion was before the Court.

[128]In my view it is unhelpful, in an already lengthy judgment, to recite all this evidence now. Suffice it to say that, in my judgment, it did not advance the Claimant’s case.

[129]I am not therefore persuaded on the evidence before me that calcification can be relied upon to demonstrate that this tumour was present in 2002. In Andrew Renshaw’s article on Testicular Cancers (November 1998) reference was made to the “relatively high frequency … of calcifications associated with intratubular germ cell neoplasia …”. As Mr Reynard states in the supplemental report of 23 April 2009:

“Since the great majority of germ cell tumours … are rapidly growing and a significant proportion … contain areas of calcification, the presence of calcification cannot be indicative of longevity of such tumours. Put another way, if calcification were an indication of longevity, that would imply that a substantial proportion … had been present for many months prior to clinical presentation as a ‘lump in the testicles’. This is completely contrary to what we know about the behaviour of germ cell tumours as rapidly growing cancers.”

[130]The article produced by Professor Cullen, written in 2004 by Lan Wang and others “Choriocarcinoma involving the pancreas as first manifestation of a metastatic regressing mixed testicular germ cell tumour” was cited by him as providing an example of an aggressive tumour behaving in a bizarre fashion. The difficulty, which in my view he failed satisfactorily to overcome, is that the authors were considering an unusual case of metastatic choriocarcinoma of the pancreas, arising from a regressing testicular mixed germ cell tumour of predominantly seminoma with focal (differentiated) teratoma. The primary tumour was, therefore, of a completely different type from Ian’s, being predominantly seminoma. Professor Cullen himself acknowledged that there were important differences from Ian’s case. He sought to argue that there were nevertheless some similarities, but they were in my view insufficient to persuade me that they provided helpful parallels with Ian’s tumour.

[131]Ultimately, I must consider what is more likely to be the case on all the evidence. Professor Cullen himself, writing in his observations dated 20 April 2009, expressed the view only that the calcification “possibly suggested a long history of infarction and necrosis within the tumour”. He might be correct, but the possibility that this aggressive tumour behaved in what is recognised to be a rare and highly untypical manner is not made more likely by what is, at its highest, only a possibility that the calcification identified here suggests that it did. The Relevance of Ian’s Abdominal Symptoms

[132]It is correct that, from early 2003, Ian was suffering intermittently from abdominal symptoms of varying severity, but I am not persuaded that throughout 2003 these symptoms were, on balance, attributable to the development of his secondary cancers.

[133]In general abdominal symptoms are very common, and intermittent, abdominal problems had featured in Ian’s case before October 2002, episodes of abdominal pain and bowel problems having taken him to his doctor on a number of previous occasions.

[134]Similar symptoms took him to his GP once again in March 2003, but he did not thereafter return in relation to abdominal symptoms until January 2004, when he was noted to have tenderness in the left iliac fossa region. This picture of predominantly left-sided discomfort is, in my view, not consistent with the presentation of the mass detected in August 2004 and the subsequent obstruction of Ian’s right kidney. The fact that his kidney did not become obstructed at an earlier stage, in my view, points away from a long-standing problem caused by the development of secondary cancers.

[135]On referral, on gastroenterological examination in March 2004, Ian’s abdomen was noted to be normal, save for a loaded colon. Just five months later a distinct palpable mass was felt on examination, more indicative in my view of the very aggressive and rapidly developing nature of Ian’s disease.

[136]Mr Smith’s firmly expressed view that Ian’s non-specific, abdominal symptoms were, from 2003 onwards, symptoms of the early stages of lymphatic spread, was in my view unreliable. This was particularly so, given that Mr Smith had not referred at all in his report to the gastroenterological findings or acknowledged the obvious fact that abdominal pain is commonplace. His suggestion, that the gastroenterologist who detected nothing abnormal on abdominal examination, may not have investigated the retroperitoneal space on palpating the abdominal cavity, seems to me to be speculative, rather than probative of there being something there to be found.

[137]In the event both Mr Smith and Professor Cullen accepted in cross-examination that they could not say with any confidence when, in the history, the secondaries would have been responsible for Ian’s increasingly severe abdominal symptoms. On balance I prefer the evidence of Dr Mead and Mr Reynard, that they probably became responsible at some point between March and August 2004.

[138]In my judgment therefore, whilst the science clearly raises a number of complex questions, none of the various factors referred to by Professor Cullen or Mr Smith, whether considered individually or cumulatively, show it to be more likely, on balance, that the behaviour of the primary tumour identified in August 2004 fell outside the usual range of behaviour to be expected from an aggressive and rapidly growing tumour of this kind; or that the primary tumour was already there to be found in October 2002.

[139]Further, the Claimant’s reliance upon Mr Smith’s experience in the 1960s and 1970s, as demonstrating that untreated tumours, like Ian’s, could remain stable for very lengthy periods, proved to be entirely misplaced.

[140]His evidence was that at that time, on referral for suspected testicular tumour, and without the assistance of ultrasound, urological surgeons would undertake an exploration of the testis. On finding a tumour they would usually remove it then and there. These patients would then be followed up by the radiotherapists and oncologists, working in an era where they did not have the benefit of chemotherapy.

[141]In the joint statement Mr Smith had referred to his experience of the natural history of progressive testicular cancer and had stated that he was “able to recall examples of ultimately fatal malignant disease occurring over a two-three year period”. As he made clear in the witness box, however, this did not mean that he had experienced cases of embryonal carcinoma in the testicle, which remained stable for two to three years. Rather, men who had had their primary tumours removed would then often take up to two to three years to die from the secondary cancers, particularly if, as was often the case, they were young, otherwise fit and strong and desperate to survive.

[142]Both experts in any event relied heavily, in advancing these scientific propositions, on the reliability of the description given by both Ian and Ms. Wyan as to the location of this tumour in October 2002, to which issue I now therefore return. Final Conclusions

[143]I reject, first, the pleaded allegation of negligence that Dr Enskat failed to conduct an adequate examination of Ian’s right testicle. On all the evidence I have heard I am satisfied that Dr Enskat carried out a thorough and careful examination. Indeed, this was not seriously challenged during or at the conclusion of the trial. The note he made at the time shows that he examined both testicles and noted nothing abnormal or suspicious; and that he was able to distinguish the epididymis, as I find he did. It is agreed that he examined Ian both lying down and standing up; asked Ian to point out the area of concern; touched and felt that area when Ian did so, as Ian agrees, so that the possibility of misidentification is unrealistic; and then drew a sketch to assist in explaining his findings to Ian and to reassure him. Dr Burton fairly accepted that this was a competent examination and so I find.

[144]The criticisms made of Dr Enskat’s record keeping were not supported by the GP experts and did not advance the Claimant’s case, for the reasons I have already referred to. Given Dr Enskat’s conclusion upon examination, that there was nothing to suggest the presence of testicular cancer, these criticisms were, in any event, not significant in this case.

[145]Mr Smith’s criticisms of him for not recording an actual diagnosis were unsupported by the joint GP expert opinion that it would be reasonable to describe what he said he had found as “thickening”.

[146]Nor do I find proved the pleaded allegations that Dr Enskat failed to consider the differential diagnosis of testicular cancer when examining and advising Ian; or that he failed to arrange tests or specialist referral to exclude such a diagnosis.

[147]It is correct that Ian was in the right age group in terms of risk, but, in my judgement, the evidence shows that Dr Enskat was both well aware of the risks and well used to examining young men complaining of some scrotal abnormality. The examination carried out, supported by the note he made, was clearly aimed at discovering whether or not Ian’s concern was consistent with testicular cancer, or raised a suspicion which warranted further investigation. Both GP experts in this case expressed the view, supported by Mr Smith, that the most important factor, in distinguishing between potentially cancerous or benign pathology in this area, is whether the abnormality is found to be intra or extra testicular.

[148]In this case it is not in dispute that Dr Enskat explained to Ian that the “lump” he had found was separate from the testicle and that he reassured him of this with the assistance of a diagram. The evidence, therefore, shows that Dr Enskat did indeed consider the differential diagnosis of testicular cancer and that he excluded it.

[149]The question is therefore whether, on all the evidence, the Claimant has proved on the balance of probabilities that, notwithstanding Dr Enskat’s competent examination and active consideration of the differential diagnosis of testicular cancer, he nevertheless failed to detect a palpable lump in the lower pole of Ian’s right testicle.

[150]The scientific propositions advanced by the Claimant’s experts were, as they accepted, heavily reliant on the accuracy and reliability of the evidence of Ian and Ms Wyan, including Ian’s own diagram of his tumour.

[151]In relation to this diagram, the evidence shows that the type of tumour that Ian had simply does not present in the way he illustrated, or in the way he described in his evidence, namely as a “bolt-on” to the surface or separate to the testicle. Rather, they are testis confined, presenting as a firm swelling in the body of the testis, an intra testicular ovoid mass limited by the tough investing tunica albuginea (see Neoplasms of the Testis, Richie and Steele).

[152]The majority of testis tumours therefore cause expansion of the whole testis or a part of it, rather than expanding outwards as a discrete mass palpable as a separate mass from the body of the testis. We know from the pathology that Ian’s tumour was confined by the tunica albuginea and, therefore, as Mr Smith acknowledged, difficult to palpate at all, even in the hands of an experienced urologist. It was not, therefore, adherent to but discrete from the testis, as advanced by the Claimant.

[153]Mr Smith fairly accepted that Ian’s diagram could not be correct but, even allowing some leeway for lay, diagrammatic inaccuracy, as he advised, the illustration of the tumour and Ian’s description of it in evidence is so far removed from that ultimately detected as to render it in my judgment unreliable.

[154]It is correct that Ian represented it in his diagram as being situated in the same location as that in which his primary tumour was identified in 2004. However, I cannot accept Mr Trusted’s submission that Ian knew nothing of the scan report, or that his spontaneous illustration in 2007 was untainted by previous descriptions. I note that in paragraph 23 of his first witness statement he stated that he was told by a radiologist in August 2004 that there was a lump “in the bottom of his right testicle”. That is inconsistent with his account in his later statement that he was not shown the scan “or informed of the report on it”.

[155]I do not for one moment consider that there was any attempt to mislead, but it perhaps explains why, at a conference to discuss the difficult issues raised in this case, Ian drew the lump in the position he did. The preponderance of the evidence, however, renders Ian’s diagram and his description of the location of his tumour unlikely in my view to be an accurate and reliable portrayal of the abnormality that took him to see Dr Enskat originally.

[156]That evidence includes essentially the following: Dr Enskat’s contemporaneous note, indicating that Ian’s presenting complaint was of a lump behind his right testicle rather than at the bottom and “more to the front” as he subsequently expressed it; the inherent unlikelihood of Dr Enskat failing to palpate a pea-sized lump in the lower pole, in the course of an acceptedly thorough and careful examination; the likelihood that Dr Enskat was able to and did ascertain that the abnormality he found was outside the testis and in the epididymis, where a cyst had been found in 1998 and was again identified in 2004; the acceptance by Mr Smith that both Ian’s description of the abnormality and Dr Enskat’s note were inconsistent with a tumour in the testis, and his own acknowledgment that caution is needed when interpreting a lay person’s description of their own physical findings; the caution also required in interpreting Ms Wyan’s description, first recalled years after the event and arising from a fleeting touching in the course of an intimate encounter; this, in my view, cannot be regarded as evidence which is to be preferred to the findings of Dr Enskat, noted contemporaneously and after a thorough examination; Ian’s evidence that there was only ever one abnormality that he was aware of and that, on examination, Dr Enskat had identified it and checked with him that that was the right area of concern; the small size and location of the primary tumour identified in 2004, rendering it unlikely that Ian would have become aware of it before it was discovered; and the absence of any persuasive, scientific indices which could be reliably regarded as supporting the Claimant’s case as to the probable presence and location of the lump in 2002.

[157]I am satisfied, on balance, that the “lump” that Ian and his girlfriend felt, and that Dr Enskat identified, was in fact the small epididymal cyst, initially detected in 1998 and which had grown only very slowly, as would be expected, and which was ultimately identified in the head of the epididymis in 2004, measuring just 3.8mm. Such a cyst, fluid-filled and likely to fluctuate in shape when squeezed, as Mr Reynard described, would be likely to present as a difference in calibre or density and would, therefore, reasonably be described by Dr Enskat as “thickening”. Mr Smith’s criticisms of Dr. Enskat in this respect stood alone and, importantly, were not supported by either GP expert. I reject them.

[158]I have to say that I found Mr Smith’s evidence in general to be unpersuasive. His views, firmly expressed in his report, but without the benefit of the relevant GP notes, Ian’s evidence on deposition or the findings of the gastroenterologist, in my view lacked cogency. They were very much out of line with the other expert evidence in the case.

[159]In particular his suggestion, advanced in the witness box, that once there is a suspicion of a testicular tumour based on the history of a patient’s presenting complaint, there should in every case be a referral for ultrasound investigation was not in line with the relevant referral guidelines. Referral was mandated, in his view, even when a GP has satisfied himself, on examination, that the abnormality is extra testicular. This was not supported by either GP expert in this case and was rejected by Mr Reynard.

[160]Mr Smith stood alone in suggesting that, even in that situation, the patient “has a right to expect an ultrasound investigation”. As things stood in 2002, at any rate, the preponderance of medical opinion in this case, including that of Professor Cullen, is against the Claimant.

[161]Further, for the reasons I have already given, I was not persuaded in any event that, even if Ian had been referred in October 2002, ultrasound examination would be likely to have identified the tumour which ultimately developed, unobserved, in his right testis.

[162]That tumour had all the pathological features of an aggressive and “explosive” cancer, as Dr Mead described it, namely haemorrhage, necrosis, vascular invasion, no scarring and calcification. I find, on balance, that it behaved exactly as such a tumour would be expected to behave, and that by the time it was discovered Ian’s life could not be saved. That is a tragedy, but in my judgment Ian’s untimely death was not caused by any negligence on the part of this Defendant.

[163]For these reasons this claim must therefore be dismissed. - - - - - - - - - - - - - - - - - - - - - - - - - - -