Carter v Ministry of Justice [2010] EWHC 60 (QB)

Case No HQ08X00715[2010] EWHC 60 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 th February 2010
Before
SIR CHRISTOPHER HOLLAND(Sitting as a Judge of the High Court)
Between
CHERYL CARTERClaimantMINISTRY OF JUSTICEDefendant
Paula Sparks (instructed by Christian Khan) for ClaimantVikram Sachdeva (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 7th – 15th December 2009
JudgmentSir Christopher Holland :INTRODUCTION
[1]The Claimant, Miss Cheryl Carter, is now aged 34. She claims damages for pain, suffering and loss of amenity in the following circumstances. In 2005 and up to the 19th August she was an inmate of the Defendants’ H.M. Prison, Cookham Wood in Kent. She contends that on three occasions in, respectively, March, April and May she consulted a Medical Officer as to the significance of a lump in her right breast; and that on no such occasion did she have a response that was consistent with the exercise of all reasonable care and skill. Had there been such a response she would have been referred for specialist treatment so as to achieve a breast cancer prognosis materially better than the one resulting from the eventual referral in November 2005 at the behest of her then G.P. This claim is strongly resisted.[2]In response to an interlocutory direction the parties came before me for a trial as to liability – in the event of a finding for the Claimant, quantum can be the subject of agreement, alternatively there can be a future hearing. In the course of the hearing before me, Mr Sachdeva for the Defendants intimated a possible causation issue – I directed that any such should be addressed along with quantum. My essential focus is consequently upon the alleged breach of the duty of care.

CHRONOLOGY

[3]I set out a chronology as is established by the now available documentation, setting such out without comment. That done, I will be able to identify the issues, and review the evidence additionally bearing upon such. 11th March The Claimant submits a written request:
“I need an urgent Doctors Appointment.”
The form specifies “Saw doctor 14.3.05”. 14th March She is prescribed Olanzepine, a tranquilliser. There is no other documentation now available referable to this date. 18th March There is a record of the prescription of amoxicillin (an antibiotic) and ibuprofen (an analgesic) authorised by a G.P., Dr. Jayasinge. There is no clinical record to explain this. 1st April She is seen by a G.P., Dr. Munasinghe, who records “States that she is unable to cope in her present room. Her cellmate is annoying her. Also she is unable to breathe as there (is) no windows. Wants a single room. Wants us to recommend a single room. Smokes and advice given. States she has asthma. O/E lungs clear”. 13th April She is seen by Dr. Jayasinge who records “C/o itchy rash of the face – 2/52” and prescribes (illegibly) some treatment. 26th April She is seen by a G.P. who records “Seen this morning for special sick. C/o headache, coughing and sneezing. Plan: painkillers”. 10th May She is seen by a female G.P., Dr. V. Premaratne, who records:
“1. Bony prominence. ® parietal region for X-ray. Noticed it 4/52 ago. Approximately 1cm or less in diameter. 2. ? breast lump. Was on Depo Provera. Amenorrheic for about a year. Has breast pain for a few weeks. Pain has settled now O/E [Diagram] – nodularity [depicted in both breasts, above respective nipples] Review as necc 3. Ref Inreach. Has seen Peter in the past.”
O/E [Diagram] – nodularity [depicted in both breasts, above respective nipples] Review as necc 24th May – 1st August There are further entries recording attendances for medical advice or treatment – none such are perceived by either party to be presently relevant. 31st August Having been released from prison, she is seen by her new G.P., Dr. Napolion Issac, who records “She was in prison for 4Y. She don’t want to say why. She live with her father. In the Prison she has a baby. She don’t see the baby. Need counselling. Referral to Psychiatrist. MD3 6M. Mental illness”. 14th September She is seen by Dr. Issac who records “Mastodynia – pain in breast. Rt breast. Ex normal. Unprotected sex”. 24th September She was admitted to hospital having slashed her wrist being depressed by housing difficulties – and detained until 27th. 4th October She sees Dr. Issac complaining of depression. 20th October She is seen by Dr. Issac who records “Mastodynia – pain in breast 3W. Both breasts mainly Rt. Clinically she is tender at Rt areola. Also she has large axilla gland with cervical gland. Chest clear. Abdomen soft no mass. Need chest X-ray. Ealing to do routine b. test. Referral by handwritten letter to Breast Clinic in Ealing”. Only part of this letter survives – it adds nothing to the note. 8th November She is seen by a Registrar in Breast and General Surgery, Mr. D. Nathaniel, who writes to Dr. Issac:
“Thank you for referring this 30 year old lady with bilateral breast pain for about one month. This has gradually improved with time. There is also some associated lumpiness in the right breast over the last few weeks. She has also noticed a large lump in her right axilla in the last six weeks. She has no previous breast history or family history of breast cancer. On examination the left breast was unremarkable. There was significant irregular lumpiness in the lateral aspect of the right breast adjacent to the areola. This was associated with some slight nipple retraction. In the axilla there was a palpable 2cm diameter enlarged lymph node”. 21st November She is seen by a Consultant Radiologist and Oncologist, Dr. Conrad Lewanski, who writes: “I saw this 30 year old lady today in the clinic who has presented with a mass and associated pain in her right breast over the past couple of months. In addition she has a large 3cm palpable right axillary node which has been biopsied and which has confirmed a ductal carcinoma. There is little doubt that she has an invasive cancer in her right breast. Clinically the tumour in her right breast measures 10 x 8 cms and occupies the majority of the upper part of the right breast. She has a forensic history and was released from prison in August of this year and apparently did seek medical advice whilst there as to symptoms in the right breast. She is understandably upset that no action was taken whilst she was in prison . . . ”
He initiated a treatment programme starting with chemotherapy and proceeding to a mastectomy (undertaken in the event in April 2006).

BREAST CANCER

[4]Before I set out the respective cases as to breach of duty it is helpful briefly to summarise the evidence as to the appropriate response of a G.P. on being consulted as to a breast lump. Dr Michael Ross in his report as an expert G.P. contended that there should be “a systemic and detailed assessment”, which assessment should include:
“ - the taking of a careful history - close inspection of both breasts - systematic palpation of both breasts - careful examination of the armpits and lower neck for enlarged lymph nodes” - close inspection of both breasts - systematic palpation of both breasts - careful examination of the armpits and lower neck for enlarged lymph nodes”
[5]In the event this contention had total support from Drs. Premaratne and Issac by way of their evidence to me. The other G.P. who gave evidence as an expert, Dr. William Cheng, readily accepted that what Dr. Ross had set out constituted good practice, but drew attention to the potential impact of the practical exigencies of general practice upon examination and its record, essentially urging me to distinguish good practice from mandatory practice.[6]I can usefully add at this stage a further point made by the experts: the relative rarity of this cancer in women under the age of 30.

THE CLAIMANT’S CASE

[7]By way of her oral evidence the claimant advances the following: a) In March 2005 when in her cell she thought that she detected a lump in her right breast in the vicinity of the nipple, she filled out the appropriate application form requesting an urgent appointment with a doctor. In the event, she was seen by an Asian male doctor. He examined her breasts; he did not check the axillary regions, that is, under her armpits. “I was told that there was nothing to worry about. I was given two explanations. One that I had lumpy breasts and the other that the lump was related to my periods. At the time I was taking Depo Provera as a long acting contraceptive and did not have periods.” b) In about April 2005 when consulting with another Asian male G.P. about some other problem, she again complained of a lump in her right breast and received a similar examination, such excluding an axillary inspection. She was similarly reassured. c) On 10th May 2005 when consulting with Dr Premaratne she renewed her complaint of a lump in her right breast. There was no axillary inspection and “ … I had noticed a lump below the nipple in my right breast. I think she told me it was a skin tag. I was not given any advice about coming back. I was not asked about Depo Provera and I was not referred to hospital for any further examination”. Again, she was reassured. d) As to Dr Issac’s examination of 14th September, this did not include axillary inspection. e) As to Dr Issac’s examination of 20th October, her initial complaint was that there was a swelling in her right armpit and it was this that prompted him to make the axillary inspection that admittedly took place.[8]Her further case is to this effect: at all material times her complaint as to a growth in her right breast was, as was subsequently demonstrated, well founded – had the three medical officers successively seen in prison, or any one such, exercised reasonable care and skill there would have been a timely referral to a breast clinic, in turn resulting in the earlier implementation of treatment and a substantially better prognosis in terms of life expectancy. On each occasion the exercise of reasonable care and skill demanded the taking and recording of a full history, followed by an appropriate examination, such including axillary inspection, with the findings, positive and negative, duly recorded. In the event, there should have been referral to a breast clinic – or, at the least, advice as to future conduct and specifically self-examination. Finally, as at 10th May, had a full history been obtained so as to establish an undiagnosed, potentially very serious condition that had persisted for at least two months, then a referral to a breast clinic was mandated, a fortiori when, as is claimed by Dr Premaratne, her differential diagnosis was ‘? breast lump’.

THE DEFENDANTS’ CASE

[9]With respect to the alleged consultations with, respectively, Drs. Munasinghe and Jayasinge, the Claimant is put to proof that such were made. As to this, neither of these practitioners was called so as to give contradictory oral evidence, but the Defendants were able to point to the total absence of any record of any such consultations. Further, when Dr Premaratne took a history on 10th May, the resultant record does not include reference to any prior consultations. Yet further, given Dr Premaratne’s largely negative findings, there is no good basis for concluding that at any earlier consultation anything significant could and should have been ascertained.[10]With respect to the admitted consultation with Dr Premaratne the latter was called as a witness. In the result it is the Defendants’ case that she exercised all reasonable care and skill so that there was no breach of duty. In terms, she contended that there was no complaint to her of a suspected breast lump. In the course of a consultation initiated by a complaint of a lump on her head, the Claimant had added a complaint of now settled breast pain, as is recorded in the clinical note. That complaint triggered the standard response of an experienced G.P., namely careful breast examination followed by an inspection of the axilla for palpable enlarged lymph nodes. In the event, the breast examination revealed nothing but the symmetrical irregularities as noted in her record – the axilla inspection revealed nothing, hence the absence of any record of such. As to the note ‘? breast lump’, that recorded her own identification of the potential problem, not the complaint. Finally, she is confident that there was nothing to justify referral to a breast clinic – the situation called for, and got, advice to the Claimant to come back if there was further breast pain or any difference discernible upon self-examination.[11]In further support of this case, the Defendants point to expert evidence to the effect that Dr. Premaratne’s contention that she carried out breast and axilla examinations with reasonable care and skills cannot be gainsaid simply by her respective failures to discern a lump and a palpable lymph node. In short, assuming reasonable care and skill on her part, her contention stands, whether surprising or not.

EXPERTS

[12]I had the advantage of written and oral evidence from experts: respectively, Dr. Michael Ross, Dr. William Cheng, Dr. Margaret Spittle, Dr. Nick Plowman and Professors Nicholas Wright and I. O. Ellis. I am grateful for their respective contributions. I trust that it will not appear discourteous if I do not now rehearse their respective opinions – my indebtedness will appear from my findings.

PREFACE TO MY JUDGMENT

[13]By way of preface to my judgment two aspects of this case require specific attention. First, I remind myself that I am concerned not with the conduct of G.P.’s practice, but with the conduct of the Healthcare Department of a Prison. True, it is readily conceded that the standards by which I am to judge the latter’s exercise of care and skill are those to be expected of the former, but when it comes to factfinding on balance of probabilities it is essential to have in mind some of the realities of a Prison environment. The Healthcare Department had a transient patient population of frequent attenders – the frequency being dictated by malingering, alternatively by pressures weighing upon and personal to a prisoner’s circumstances, no doubt exacerbated by the opportunity to brood during the long hours spent locked in a cell, further or alternatively by a preference for attendance at the Department as a break from other activities. Perusal of the Claimant’s Prison medical records readily evidences frequent attendances for all manner of complaints to an extent that, but for a Prison environment, would be surprising for one then aged under 30. Indeed in evidence she candidly admitted “ … when in Prison I consulted Doctors for every little thing”, and it is notable that once released there was markedly less frequent attendance at Dr Issac’s surgery.[14]How does this bear upon factfinding? First, it is obvious that the Healthcare Department, relying on handwritten records, had inevitable difficulties in maintaining records that were complete and explicit. Again, there is a graphic contrast between the Prison’s medical records and Dr Issac’s computer-based record – one can at least be confident that the latter fully records the Claimant’s attendances and respective complaints. Second, wariness on the part of the Medical Officers (all G.P.s engaged on a part time basis) to accept complaints at face value would not be surprising.[15]The other matter to be addressed by way of preface is the Claimant’s credibility as a witness. As to this, she must accept that I am obliged to approach her evidence with caution. First, there is a personal history that, as at the material period of 2005, included an erstwhile crack cocaine addiction, a conviction for the offence of robbery with seriousness reflected in what was then a long term sentence and continued incarceration in a closed Prison necessitated by absconding from an Open establishment. True, Mr Sachdeva for the Defendants sensibly did not attack her credit on the basis of this material, but such cannot be ignored by the factfinder. Granted a proven capacity for dishonesty and irresponsible conduct, is she now telling what she perceives to be the truth? How reliable is her recollection?[16]Second, similarly bearing on the weight to give to her evidence is the daunting fact that the history that she now gives is at odds with every history that she is recorded as giving in 2005, that is contemporaneously.[17]All this said, when the Claimant did give evidence there was much to admire. Plainly, the often traumatic period since August 2005 had served to bring maturity to her character. Whether in chief or under cross-examination she gave evidence well, with dignity and in measured terms. Taken broadly, I discerned no reason not to regard her as a potentially truthful, reliable witness. I write ‘broadly’: I discount her presently professed ability to remember the minutiae of each of the various examinations and I assess evidence as to detail with caution.[18]Whilst on this topic I draw further attention to two matters potentially bearing upon her evidential capacity. First, Dr Lewanski’s letter of 21st November 2005 serves to record an early complaint as to the Prison’s response to her concerns. Second, it was not until mid-2006 that she went to see a solicitor and then, so she told me, in pursuit of an apology. Arguably I am concerned with grievance and not greed.

JUDGMENT

[19]I address the issues systematically.[20]First, did the Claimant complain of a lump in her right breast? As to this, she gave me a circumstantial account of an occasion in her cell in February/March 2005 when she first discerned what she thought was a lump so as to set in train her pursuit of advice and, if necessary, treatment. She identified a site behind the right side of her right nipple and it is to be noted that Mr. Nathaniel’s examination of 8th November elicited ‘lumpiness’ in about this area. For their part, the Defendants are sceptical, pointing out that no ‘lump’ was found on earlier examinations and citing the joint opinion of the oncologists that on balance a breast lump would not have been palpable in March to May 2005. I have given these contentions careful consideration but, reminding myself that I am concerned with the Claimant’s subjective perception of the state of her breast and not that which was not ascertained by way of clinical examination, I answer this first question ‘Yes’. I cannot equate the Claimant’s persistent pursuit of medical advice with respect to her breast as entirely fuelled by periods of breast pain – the probabilities favour a perception that she had a breast lump and thus something of real concern.[21]Second, did she consult Dr. Munasinghe, complaining of a breast lump? As to this, she says she did. Dr. Munasinghe did not give evidence: there is therefore no evidence in direct contradiction. That said, the Defendants contend that I should answer the question ‘No’, given a complete absence of any record of any such consultation in the records. This would have been a powerful argument were I able to have confidence in the records. Alas, I do not have that confidence. They reflect the pressures already identified by way of preface and I note, first, that from 27th January 2005 onwards there appear to have been two concurrent clinical record sheets (were there more?) and that on about 18th March 2005 the Claimant was prescribed an antibiotic and an analgesic without explanation by way of clinical note. Of course, her complaint should have generated a clinical record: perhaps it did, only to be subsequently lost; perhaps it did not, because the Doctor thought that this was, as it were, a Prison timewaster. Either way I am satisfied on balance that the answer to the question should be ‘Yes’, the absence of direct contradiction being underpinned by the Claimant’s recollection of the advice that was given. If she did not hear such advice from Dr. Munasinghe, from whence did it come?[22]Third, has negligence on the part of Dr. Munasinghe been proved? My answer is ‘No’. The absence of clinical record may (or may not) betokencarelessness, but on that sole basis there is nothing that could justify a finding that there was a failure on the part of Dr. Munasinghe to exercise reasonable care and skill. I appreciate that the Claimant says that he did not examine her axilla but, as already indicated, I am not prepared to accept her present evidence as to the detail of the Doctor’s examination as reliable, not least when she had no contemporaneous knowledge of the potential significance of this aspect. Further and in any event there is no good evidence such as would enable me to identify signs that were there to be elicited only to be overlooked. The situation as presented to him is now wholly speculative.[23]Fourth, did she consult Dr. Jayasinge, complaining of a breast lump? As with Dr. Munasinghe, the answer is ‘Yes’. I can find nothing to distinguish this issue.[24]Fifth, has negligence on the part of Dr. Jayasinge been proved? As with Dr. Munasinghe, the answer has to be ‘No’.[25]Sixth, did she consult Dr. Premaratne, complaining of a breast lump? A preface is called for. This Doctor did make a clinical record; she did give evidence. She pointed out that she was a well qualified, very experienced G.P. and I had a clear impression of her as being caring and conscientious. She pointed out that when she had written her admirably legible note she had not done so ‘defensively’, that is so as to withstand the stern forensic analysis to which in the event it has been subjected. I have every sympathy with her but the issues that I have to resolve inevitably demand careful, hopefully fair and realistic analysis of that which she wrote. On the basis of what I hope is such analysis, I am satisfied that the Claimant did complain of a breast lump, notwithstanding Dr. Premaratne’s present recollection. As to why, several points weigh with me: a) ‘? breast lump’ concisely reflects a consultation initiated by ‘I think I may have a breast lump’ b) The alternative as a complaint is, as recorded, a few weeks of breast pain which had now settled – a history that does not readily justify this consultation c) The balance of the note recording an examination which did not serve to identify a lump is at one with the concluding ‘Review as necessary’ d) Dr. Premaratne’s present contention that ‘? breast lump’ represented not the complaint but her differential diagnosis has no support from the balance of the note. Given that there were no findings consistent with a breast lump, on what could any such diagnosis be based?[26]Seventh, has negligence on the part of Dr. Premaratne been proved? As to this, she described her standard approach to a presentation of a possible breast cancer and contended forcefully that she had followed such on the instant occasion. That approach embraced both a breast examination and an axilla inspection, each to be conducted with care. As to her approach in such terms, I do not understand it to be significantly faulted and I can discern no good basis for a finding that she did not follow such on the instantoccasion. True, there is no note of an axilla inspection that she says was negative; true, it is plainly arguable that there should have been such a note; all that said, I am not prepared to find that on this occasion she ‘short-changed’ the Claimant in terms of inspection and examination – I can think of no reason why she should and the experts cannot discount her sworn evidence on this point. Where she is vulnerable – as I suspect she realises, hence the issue as to ‘? breast lump’ – is as to history taking. On the findings so far made the Claimant complained of a breast lump successively, with this being the third occasion. I am entirely satisfied that the exercise of reasonable care and skill demanded the taking of a history that would have elicited the fact of earlier consultations and established the locus of the possible lump. Had this been done then, as I think, she should and would have made the Claimant the subject of a ‘non urgent’ referral to a breast clinic – and her failure to do so was in breach of duty and negligent. I comment further as follows. I accept Mr. Sachdeva’s submission that there is nothing that would ‘mandate’ such a referral; it is just that on the basis of the history that should have been obtained, the time had come at which the exercise of reasonable care and skill would lead, as I think, to obviating the potential for a future, fourth consultation by a referral for a better informed and founded second opinion. Why ‘non urgent’? I point to my earlier finding, as to that which Dr. Premaratne did by way of inspection and examination. Given that such had not elicited anything sinister, there was no basis for ‘urgent’ referral; per contra, ironically, if ‘? breast lump’ was a differential diagnosis, as she now contends.[27]Before departing from this finding, I would emphasise that I have taken into account the respective opinions of Drs. Ross and Cheng. Essentially, and perhaps not unexpectedly, I am steering a course between the two. Whilst unimpressed with notions of a ‘mandated’ response and a ‘Rule of 3’, I am impressed by the overall situation as I find it to be, principally featuring a sustained, unresolved concern as to the state of a breast, which concern was, as we now know, well founded. It is here that I heed the submission of Miss Sparks for the Claimant, drawing attention on the one hand to the potential significance of a breast lump if there and on the other hand to the relative ease with which a routine referral could be arranged and carried out – a balance of factors that has parallels elsewhere in the common law, see Morris v West Hartlepool Steam Navigation [1956] A.C. 552, 574.[28]I have not so far made reference to the evidence of Dr. Issac. Apart from illuminating the subsequent history, he did support the evidence of Dr. Premaratne as to the standard response to a complaint of breast lump in terms of examination of breasts and axilla. His failure to find any untoward features on 14th September, whilst surprising, did nothing to undermine the significance of Dr. Premaratne’s like failure on 10th May.

CONCLUSIONS

[29]Had Dr. Premaratne exercised reasonable care and skill the Claimant would have been the subject of a routine referral so as to be seen at a breast clinic after (say the experts) 6 to 8 weeks – say, 1st July 2005. To this extent breach of duty is proved.[30]There remain issues of causation (so Mr. Sachdeva says) and quantum. I reiterate that which I said to the parties: what is mandated is, if at all possible, settlement. On the one hand, the Claimant did not initially seek compensation as much as an apology and, taking into account potential difficulties in distinguishing her case from that of the Claimant in Gregg v Scott [2005] A.C. 176, the quantum of her claim may at best be moderate. On the other hand, the Defendants are, or should be, acutely aware of the potential in terms of costs of a contested quantum hearing – there must be scope for negotiating a result that takes into account the public purse as well as the Claimant.[31]I am arranging for this judgment when in draft to be circulated. Responses in terms of identification of typographical errors and an agreed order will be welcomed. Hopefully, the judgment can then be handed down without attendance by the parties.