Hague & Anor v Dalzell & Anor [2016] EWHC 2753 (QB)

Case No Claim No. HQ14C04789[2016] EWHC 2753 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2016
Before
THE HONOURABLE MR JUSTICE LEWIS
Between
SUZANNE LOUISE HAGUEClaimantsDAVID CHARLES RICHClaimant( 1) DR JOHN DALZELLDefendantsDR DANIEL GILES HENRY FISHDefendant
ADAM KORN (instructed by Irwin Mitchell Solicitors) for ClaimantNICHOLAS A. PEACOCK (instructed by MDU Services Ltd) for DefendantsHearing Hearing dates: 19, 20 and 21 October 2016.
JudgmentTHE HONOURABLE MR JUSTICE LEWIS:INTRODUCTION
[1]This is a claim for personal injuries brought on behalf of the estate of Sophie Hague. The claim is brought by the two executors of her estate, her mother, Mrs Suzanne Hague, and her fiancé, Mr David Rich. The Defendants, Dr Dalzell and Dr Fish, are two general practitioners whom Sophie consulted in November 2009 and February 2010 respectively. There is also a claim by the claimants, as dependants, under the Fatal Accidents Act 1976 (“the 1976 Act”).[2]In summary, Sophie consulted each of the doctors as she was experiencing abdominal pains and vaginal bleeding. The two defendants admit that they failed to explore adequately the nature and extent of the bleeding. Had they done so, they would have referred Sophie for further examination which would have revealed that Sophie had a malign, cancerous tumour of the cervix. Surgery would have followed within two to four weeks of such a referral. In the event, the tumour was not diagnosed until the end of June 2010, when a scan (arranged by Sophie’s mother not the defendants) revealed the existence of the tumour. Surgery was carried out in July 2010, some seven months later than it would have been had Sophie been referred for further examination by the first defendant in November 2009 and four months later than it would have been if referred for examination by the second defendant in February 2010. The cancer recurred in October 2010. Sophie died on 19 November 2011.[3]The two defendants admit that they owed Sophie a duty to exercise reasonable care and skill in their treatment of her and admit that they failed to exercise such care and skill. The sole issue to be determined in the present case is whether, on a balance of probability, the claimants have established that, if the defendants had not been negligent in their treatment of Sophie and if she had had surgery in about December 2009 or March 2010, then Sophie would have been cured and would have survived. The expert witnesses called on behalf of the claimants contend that the prognosis was good if there had been early diagnosis. The expert witnesses called on behalf of the defendants contend that, given the particular features of this rare type of cancer, the cancer would have recurred and Sophie would have died even if the cancer had been diagnosed and surgery carried out earlier.[4]The parties are agreed on the amount of compensation payable subject to the findings of this court on causation. If the court determines that, on a balance of probabilities, Sophie would have survived if she had been diagnosed earlier, then the amount of compensation payable would be £225,000. If, however, the court finds that the negligence on the part of the defendants did not cause Sophie’s death, then the parties agree that the appropriate compensation to be paid by the defendants is a sum of £15,000. That reflects the injury to Sophie as a result of the pain and suffering caused by the fact that the symptoms of the cancer were not treated between November 2009 and July 2010, and the fact that that pain and suffering was made worse by the anguish of knowing that the cancer could have been detected earlier.[5]I had reports, together with appendices, and heard oral evidence, from four expert witnesses. In addition there is a written record setting out the matters agreed, or the views expressed by particular expert witnesses, at a joint meeting of the four expert witnesses. Two were called on behalf of the claimants, namely Mr Patrick Soutter, who had been a Reader in Gynaecological Oncology at the Imperial College Faculty of Medicine and a consultant gynaecologist at the Hammersmith Hospitals NHS Trust until his retirement in 2006, and Professor Sir Nicholas Wright, who is a Professor of Histopathology at Queen Mary College, University of London. Two were called on behalf of the defendants. One was Professor John Shepherd who is a consultant surgeon and gynaecological oncologist. He is currently an emeritus consultant surgeon at the Royal Marsden Hospital, and an Emeritus Professor of Surgical Gynaecology at St Bartholomew’s and the Royal London Hospitals School of Medicine and Dentistry, Queen Mary, University of London. The other was Professor Michael Wells who is an emeritus Professor of Gynaecological Pathology at the University of Sheffield. I had written statements from Mrs Hague (Sophie’s mother), Mr Rich (Sophie’s partner) and Ms Abbey (a good friend of Sophie). It was not necessary to call them and there was no cross-examination on their statements as their evidence was not challenged. In addition, it was agreed between the parties that Sophie’s medical records and the reports and joint statement of Professor Whitehouse and Dr Sadhev, who were radiologists, should be adduced as evidence and no one challenged the accuracy of that evidence.[6]I set out below the relevant facts. The majority of the facts are not in dispute and appear from the contemporaneous documents. Two factual issues are relevant to causation, namely the stage which the tumour had reached in November 2009 and February 2010, and the question of whether the claimants have established that Sophie would have survived for five years if she had been treated appropriately in either November 2009 or February 2010. Those issues are dealt with separately. THE FACTS The Events Between May 2009 and 27 July 2010

THE FACTS

[7]Sophie Hague was born on 8 May 1986. In 2009, when she was aged 23, she suffered from irregular vaginal bleeding, bleeding during and after intercourse and abdominal pains. Sophie mentioned to her friend during a holiday in May and June 2009 that she had periods of heavy bleeding between periods. Mr Rich confirmed that Sophie had daily blood spotting between her periods from her return from holiday in June 2009 and that continued. She attended her local general practitioners surgery and saw Dr Dalzell, the first defendant, on 24 November 2009. The note of that consultation records that she had an irregular menstrual cycle and had taken three packs of a particular contraceptive pill back to back. Dr Dalzell considered that the bleeding was likely to have a hormonal cause, changed her contraceptive pills to a different brand and advised that Sophie attend a local genito-urinary medical clinic and return in 3 months if matters had not improved.[8]Sophie visited her GP surgery again on 16 February 2010 and saw Dr Fish, the second defendant, again with symptoms of irregular bleeding. The note of the consultation records that there was bleeding and that the doctor had recommended another change of contraceptive pill.[9]The symptoms worsened between February and May 2010. Sophie saw a third doctor at her GP surgery who recorded that Sophie had an irregular menstrual cycle.[10]Sophie was concerned at the way that her condition had been dealt with by the doctors. She told her mother about the symptoms in June 2010. An ultra sound scan was then carried out at the Chelsea & Westminster Hospital on 28 June 2016 at the request of Sophie’s step-father who worked as a radiographer at the hospital. The scan showed a 6.8 x 4.1 centimetre mass in the cervix. An urgent MRI scan was advised and that was performed on the same day. That showed a large irregular mass measuring 5.7 centimetres by 4.4 centimetres extending laterally, anteriorly and below the cervix and filling up half of the vagina.[11]Examination under anaesthetic on 30 June 2010 revealed a large cervical tumour at least 5 centimetres in diameter. A biopsy revealed that it was a malignant tumour.[12]Sophie underwent surgery on 27 July 2010. That involved a radical hysterectomy with bilateral pelvic node dissection and transposition of the ovaries.

The Characteristics of the Tumour

[13]In brief, the cervix is covered with a layer of cells known as the epithelium. That layer of cells is squamous, that is, it comprises flat cells piled on top of each other. A tumour arising from cells in the epithelium, and which has penetrated the underlying connective tissue (or stroma), is known as a squamous cell carcinoma.[14]A tumour may arise from cells in the connective tissue (not the cells contained in the epithelium) and such tumours are known as sarcomas. Certain tumours arising from the squamous epithelium do not in fact resemble the cells in the epithelium but are composed of spindle- shaped cells with protein markers which indicate that they have some of the characteristics of a sarcoma.[15]A histological report was prepared on the tumour in Sophie’s case. The histology indicated that the tumour was a poorly differentiated squamous cell carcinoma but with spindle-cell morphology. By poorly-differentiated is meant some of the cells in the tumour resembled cells in the epithelium and some did not. The tumour demonstrated high mitotic activity (that is, splitting of cells). The presence of spindle-cells, and the analysis, indicated that the tumour had acquired proteins characteristic of a sarcoma. Such sarcomatoid squamous cell carcinomas are known to act in a clinically aggressive manner, that is the tumour has the capacity to invade other areas and to metastasise. The poorly-differentiated nature of the tumour and high mitotic activity would have resulted in the tumour being graded as grade 3, that is likely to demonstrate rapid growth. (Grading is relevant to treatment of the cancer; staging, discussed below, is relevant to prognosis). Such tumours are extremely rare. There have, it seems, been only 17 such reported cases. There was no evidence of the cancer having metastasised, or spread, to the lymph nodes or other tissues. The margins around the excised area of tissue appeared to be clear indicating that all the malignant cells had been removed.

The Events of October 2010 to 19 November 2011

[16]On 13 October 2010, Sophie underwent a further examination under anaesthetic and biopsies were performed. These revealed the presence of a poorly differentiated squamous cell carcinoma in the cervix. The tumour was large, about 8.5 x 5.2 x 7.1 centimetres, making the tumour about 164 cubic centimetres in volume.[17]There was an issue at the hearing as to whether the tumour observed in October 2010 was a recurrence of the tumour thought to have been completely removed by the surgery undertaken in July 2010. Three of the expert witnesses were clear that what must have happened is that, although the surgeon and the pathologist believed that all the malignant cells present as at July 2010 had been removed, some malignant cells must have remained and grown rapidly between 21 July 2010 and 13 October 2010. Professor Shepherd was of the view that that was possible but he thought it more likely that all the malignant cells had been removed in July 2010 and that the tumour detected in October 2010 was the result of further, previously healthy, cells becoming cancerous and a new primary tumour therefore developed between 21 July 2010 and October 2010. The basis for his belief was that the histology report indicated that the margins around the excised tissue were clear indicating that all the malignant cells had been removed.[18]Professor Wright considered that to have previously non-malignant cells develop in the way indicated between 21 July 2010 and 13 October 2010 would be, as he expressed it in oral evidence, quite impossible. Further, the characteristics of the tumour detected in October 2010 had the same features as the tumour removed in July 2010, indicating that some malignant cells must have been left behind and not removed in July 2010 and those malignant cells developed into the tumour detected in October 2010. As Professor Wright observed in his written report such tumours, or lesions, “are aggressive and can be widely infiltrative, and tumour must have been left behind to cause the recurrence”. Mr Soutter also considered that some malignant cells must have been left behind and thought the chances of a new tumour developing in the same place were, as he put it, vanishingly unlikely. Professor Wells agreed that, in the case of Sophie’s tumour, the likelihood is that the tumour resulted from the growth of malignant cells from the original tumour which had not been removed in July 2010 but was more guarded about the precise mechanism by which such malignant cells remained. Professor Wells did not consider that the tumour in October 2010 resulted from cells which were healthy at the time of the surgery subsequently becoming malignant.[19]I accept the evidence of Professor Wright, Mr Soutter and Professor Wells on this issue. Given the speed of growth of the tumour, and the fact that it had the same characteristics as the tumour removed in July 2010 and was located in the same place as that tumour, the overwhelming likelihood is that, despite the belief that all the malignant cells had been removed by surgery in July 2010, some malignant cells must have remained and grown into the tumour detected in October 2010. I find as a fact that, on the evidence before this court, the tumour detected in October 2010 was the result of the fact that not all the malignant cells had been removed in July 2010. Some malignant cells must have remained, notwithstanding that the medical team believed that all the malignant cells had been removed, and those cells grew between 21 July and 13 October 2010 into the tumour detected on that date.[20]Sophie received radiotherapy treatment which was completed in January 2011. In March 2011, scans showed recurrent and persistent disease in the pelvis extending out to both pelvic side walls. Sophie received chemotherapy as part of a clinical trial. In September 2011, after six cycles of chemotherapy, scans showed the disease as stable.[21]On 22 September 2011, Sophie was admitted as an emergency patient to the Royal Marsden Hospital with bleeding from the vagina and bladder. Bleeding continued and Sophie’s renal functions deteriorated. On 4 October 2011, Sophie underwent emergency surgery involving a total pelvic exenteration. A histopathology report showed recurrence of the cancer. On 27 October 2011, Sophie was discharged from hospital and was provided with palliative care.[22]On 19 November 2011, Sophie died at home.

LEGAL FRAMEWORK

[23]There are two claims in the present case. The first claim is brought on behalf of Sophie’s estate alleging that Sophie suffered injury by reason of the negligence of the two defendants. Although Sophie has died, that claim continues to exist (see section 1 of the Law Reform (Miscellaneous) Provisions Act 1934). In terms of the requirements of negligence, professionals, such as general practitioners, owe a duty to their patients to exercise reasonable skill and care in the treatment of patients. If they fail to exercise such care, and if they cause injury to the patient, damages, that is financial compensation, will be payable for the injury that has been caused.[24]In the present cases, both defendants accepted that they owed a duty to exercise reasonable skill and care in their treatment of Sophie when she attended their surgery on 24 November 2009 (so far as the 1st defendant, Dr Dalzell is concerned) and 16 February 2010 (so far as the 2nd defendant, Dr Fish is concerned).[25]Dr Dalzell contended in the pleadings in this case that he had exercised reasonable skill and care and had not been negligent. Eventually, by letter dated 12 October 2016 (that is, a week before the trial in this case was due to start) he admitted that he had failed adequately to explore the nature and the extent of any bleeding and any associated symptoms when he saw Sophie on 24 November 2009. He admitted that a pelvic examination was required then or shortly after and, as the cervix would not have looked normal, Sophie would have been referred to a gynaecologist within two weeks. It is agreed that Sophie would then have been diagnosed as having cervical cancer and surgery would have been performed within a short period of time. It is agreed that Sophie would have had the relevant surgery some time in mid to late December 2009, some seven months before she actually underwent surgery in July 2010.[23]Dr Fish admitted in the pleadings in this case that he had been negligent in that he should have ensured that Sophie had undergone a pelvic examination either at the appointment on 16 February 2010 or shortly thereafter and Sophie would have been referred and undergone surgery within two to four weeks of the appointment, that is, at some stage in March 2010, some 4 months before Sophie actually underwent surgery.[24]In terms of the injury caused to Sophie, it is accepted by the defendants that injury was caused to Sophie as a result of the pain and suffering occurring by reason of the fact that the symptoms of the cancer were not treated between November 2009 and July 2010, and that that pain and suffering was made worse by the anguish of knowing that the cancer could have been detected earlier, (applying the approach outlined by Baroness Hale in Gregg v Scott [2005] 2 A.C. 176 at paragraph 206). To that extent, the claim for negligence on behalf of Sophie’s must succeed.[25]The central issue remaining in this case, however, is that the claimants contend that, on a balance of probabilities, Sophie would have been cured, and would have survived if the two defendants had not been negligent and if she had been referred for further examination and then surgery in either December 2009 or 2010. If that were the case, then it is agreed by the parties that the amount of compensation payable would be £225,000. The figure for compensation is, however, less important than what that finding would mean. If such a finding were to be made, then it would indicate that Sophie’s death was preventable, and would have been prevented, if her condition had been diagnosed earlier and appropriate treatment provided. That is why the issue is of such importance to Sophie’s family and partner.[26]The issue in this case is therefore whether the claimants have established, on a balance of probabilities, that Sophie would have been cured (that is, survived for five years after diagnosis), and would not have died, if the two defendants had treated her appropriately in either November 2009 or February 2010. That in turn, involved the determination of two issues:(1) What stage had the tumour reached in November 2009 and February 2010?; and(2) Whether the claimants have established, on a balance of probabilities, that Sophie would have been cured of the cancer, that is that she would have survived for five years after diagnosis and would not have died, if she had been treated appropriately and had surgery in December 2009 (or March 2010)?[27]The second claim is a claim brought by Mrs Hague and Mr Rich as dependants of Sophie under the 1976 Act. That action is based upon a claim for the wrongful death of Sophie. In the event, the parties agreed that the amount of damages of £225,000 would represent the appropriate amount of damages both for the negligence claim for Sophie’s estate and the claimants’ own claim under the 1976 Act if I found, on a balance of probabilities, that Sophie’s death would have been avoided if the defendants had treated her appropriately and the court would not be asked to make any apportionment of the amount between the two claims.

THE FIRST ISSUE – THE STAGE OF THE TUMOUR

[28]Consideration of the first issue requires consideration of the method of classifying carcinomas by the stage of development. The International Federation of Gynaecologists and Obstetricians (known by its French initials as “FIGO”) have developed a method for classifying carcinomas in four stages, represented in the following table which was relied upon and used by the claimants’ and the defendants’ expert witnesses:
“Table 1 Carcinoma of the cervix uteri: FIGO nomenclature (Montreal, 1994) Stage 0 Carcinoma in situ, cervical intraepithelial neoplasia Grade III. Stage I The carcinoma is strictly confined to the cervix (extension to the corpus would be disregarded). Ia Invasive carcinoma which can be diagnosed only by microscopy. All macroscopically visible lesions – even with superficial invasion – are allotted to Stage Ib carcinomas. Invasion is limited to a measured stromal invasion with a maximal depth of 5.0 mm and a horizontal extension of not > 7.0 mm. Depth of invasion should not be > 5.0 mm taken from the base of the epithelium of the original tissue – superficial or glandular. The involvement of vascular spaces – venous or lymphatic – should not change the stage allotment. IaI Measured stromal invasion of not > 3.0 mm in depth and extension of not > 7.0 mm. Ia2 Measured stromal invasion of > 3.00 mm and not > 5.0 mm with an extension of not > 7.0 mm. Ib Clinically visible lesions limited to the cervix uteri or preclinical cancers greater than Stage Ia. Ib1 Clinically visible lesions not > 4.0 cm. Ib2 Clinically visible lesions > 4.0 cm. Stage II Cervical carcinoma invades beyond uterus, but not to the pelvic wall or to the lower third vagina. IIa No obvious parametrial involvement. IIb Obvious parametrial involvement. Stage III The carcinoma has extended to the pelvic wall. On rectal examination, there is no cancer-free space between the tumor and the pelvic wall. The tumor involves the lower third of the vagina. All cases with hydronephrosis or nonfunctioning kidney are included, unless they are known to be due to other cause. IIIa Tumor involves lower third of the vagina, with no extensions to the pelvic wall. IIIb Extension to the pelvic wall and/or hydronephrosis or nonfunctioning kidney. Stage IV The carcinoma has extended beyond the true pelvic or has involved (biopsy proven) the mucosa of the bladder or rectum. A bullous edema, as such, does not permit a case to be allotted to Stage IV. IVa Spread of the growth to adjacent organs. IVb Spread to distant organs.”
Carcinoma of the cervix uteri: FIGO nomenclature (Montreal, 1994) Ia Invasive carcinoma which can be diagnosed only by microscopy. All macroscopically visible lesions – even with superficial invasion – are allotted to Stage Ib carcinomas. Invasion is limited to a measured stromal invasion with a maximal depth of 5.0 mm and a horizontal extension of not > 7.0 mm. Depth of invasion should not be > 5.0 mm taken from the base of the epithelium of the original tissue – superficial or glandular. The involvement of vascular spaces – venous or lymphatic – should not change the stage allotment. IaI Measured stromal invasion of not > 3.0 mm in depth and extension of not > 7.0 mm. Ia2 Measured stromal invasion of > 3.00 mm and not > 5.0 mm with an extension of not > 7.0 mm. Ib Clinically visible lesions limited to the cervix uteri or preclinical cancers greater than Stage Ia. Ib1 Clinically visible lesions not > 4.0 cm. Ib2 Clinically visible lesions > 4.0 cm. IIa No obvious parametrial involvement. IIb Obvious parametrial involvement. IIIa Tumor involves lower third of the vagina, with no extensions to the pelvic wall. IIIb Extension to the pelvic wall and/or hydronephrosis or nonfunctioning kidney. Stage IV The carcinoma has extended beyond the true pelvic or has involved (biopsy proven) the mucosa of the bladder or rectum. A bullous edema, as such, does not permit a case to be allotted to Stage IV. IVa Spread of the growth to adjacent organs. IVb Spread to distant organs.”

Carcinoma of the cervix uteri: FIGO nomenclature (Montreal, 1994)

[29]The first issue that arises is as follows: have the claimants established on the balance of probabilities, that Sophie would have had a tumour that was classified under the FIGO system as Stage 1a as at November 2009 (or February 2010)? The importance of the issue is this. If the tumour were stage 1a, the surgery required would have been different from that likely to be required if it were a stage 1b1 tumour (a cone bioscopy if it were stage 1a, as opposed to the radical hysterectomy with dissection of the bilateral pelvic node and transposition of the ovaries, that was required in July 2010). Further, the staging might be relevant to the prospects of Sophie surviving the cancer for five years as, in general, a patient with a Stage 1a tumour has better prospects of surviving for five years. As no examination was undertaken in November 2009 or February 2010, there is no contemporaneous medical data or analysis classifying the stage of the tumour at either of those dates. The four expert witnesses have, therefore, provided their views, with their reasoning, as to what they consider would have been the most likely classification of the stage of the tumour at those dates. The Views of the Expert Witnesses[30]Mr Soutter, on behalf of the claimants expressed the view in his written report that the tumour as at 24 November 2009 would have been 2 cubic millimetres in volume and would have been classified as a stage 1a1 tumour using the FIGO classification. In oral evidence, Mr Soutter confirmed his view that the tumour would have been a stage 1a1 tumour as at November 2009 but he accepted that classification as 1b1 would be a reasonable conclusion. In his written report and in the report of the meeting of the expert witnesses, Professor Shepherd was of the opinion that it was a stage 1b1 tumour (and was less than 2 centimetres in diameter) and Professor Wright considered it a small 1b1 tumour. Both confirmed that view in their oral evidence. Professor Wells in his written report described the tumour as an established cancer in November 2009 and, in oral evidence, he confirmed that he considered it was definitely not 1a1 but had reached a stage beyond that. It is necessary to consider the reasoning of the expert witnesses.

Mr Soutter’s Reasoning

[31]Mr Soutter based his view of the likely size of the tumour in November 2009 and February 2010 by reference to what had happened to the tumour between surgery on 21 July 2010 and 29 October 2010 when the recurring tumour was the subject of an MRI scan. He calculated the likely rate of growth of the tumour between those latter two dates and extrapolated backwards to calculate the size of the tumour in November 2009. He assumed, as the histological report after surgery indicated that the tumour had been excised (although, in fact, some malignant cells must have remained), that any remaining malignant cells were clinically undetectable on 21 July 2010 (he suggested in oral evidence that would be likely to be less than 1 cubic centimetre). By 13 October 2010, the tumour was 164 cubic centimetres in volume. He calculated that the volume must have doubled seven times in the fourteen weeks between the surgery on 21 July 2010 and 29 October 2010, suggesting that the tumour was doubling in size every two weeks.[32]Mr Soutter then took the size of the tumour as at 28 June 2010, when an MRI scan showed it to be approximately 5.9 x 4.3 x 5.6 centimetres in size and 74 cubic centimetres in volume. Assuming that the tumour had doubled in size every two weeks, he extrapolated backwards. The tumour would need to be about 2 cubic millimetres in volume on 24 November 2009 to reach a size of 74 cubic centimetres by volume on 28 June 2010. Translating the extrapolated measurements of volume into the measure of invasion in the FIGO table, the tumour would be a tumour with invasion of the underlying tissue (the stroma) of not more than 3 millimetres in depth with an extension of not more than 7 millimetres. That would result in a tumour classified as stage 1a1 using the FIGO method. Similarly, in February 2010, the tumour, he considered, had to have been 150 millimetres in volume if, assuming it doubled in size every two weeks, it reached a size of 74 cubic centimetres by 28 June 2010. That would give a volume of 150 cubic millimetres which, translated into FIGO classification terms, would give a tumour of stage 1a2. Mr Soutter also undertook the same exercise, using a doubling time of 4 weeks, rather than 2 weeks, to allow for imprecision and limitation in the methodology used.[33]Mr Soutter used the measurements relating to the actual tumour for the period 21 July 2010 to 29 October 2010 in calculating the size and the stage of the tumour. He did not rely on scientific literature relating to doubling times but he pointed out that his approach was consistent with the work of Steel on the growth kinetics of tumours. That work indicated that, in a data set of 62 cases of squamous cell carcinomas which had metastasised in the lung, the mean doubling time was 52.4 days (the range showed a doubling time of 42.7 to 64.3 days). That indicated a doubling time of approximately seven weeks. Sophie’s tumour was growing at a faster rate than that. The implication of the reference to this work was that doubling times of cancer was a useful tool for assessing the size of a tumour although Mr Soutter emphasised in his oral evidence, that he was not using or relying on Steel’s work. He had based his calculation on the actual figures for growth for Sophie’s tumour between 21 July 2010 and 29 October 2010.[34]All three other expert witnesses considered that seeking to extrapolate backwards from the figures in July and October 2010, and assuming that the tumour had doubled in size every two weeks between November 2009 and June 2010 for the purpose of determining the stage of the tumour in November 2009 was flawed. The views of Professor Wright, the expert witness called on behalf of the claimants, and of Professor Wells expressed at the joint meeting of the expert witnesses, is recorded in the following terms: “[Professor Wright] considers that it is inadvisable to use tumour doubling times in this particular tumour because there is no reliable data for the volume doubling time of this tumour or any primary cervical carcinoma growing in situ. He would advise that the growth kinetics of tumour after resection are not always applicable to the primary tumour because of the natural history of primary tumours. However, there is little doubt that this was a rapidly growing tumour. “[Professor Wells] considers that [Mr Soutter’s] approach is fundamentally flawed because it is not based on any data on cervical tumours and takes no account of host (patient) responses to any particular tumour during the course of the disease”.[35]Both Professor Wright and Professor Wells confirmed in oral evidence that that remained their view. Professor Wright further explained that the tumour was already fully evolved in July 2010. It was not appropriate to take the growth rate for a tumour that was fully evolved and use that to calculate the growth rate of a tumour that is growing and has not yet fully evolved. Professor Wells said that the approach used by Mr Soutter was flawed and would be misleading and there would be no clinical situation in which it would be appropriate to extrapolate backwards to determine the size of the tumour. Furthermore, the Steel table (although not actually relied upon by Mr Soutter) does not assist as it deals with metastasised carcinomas in the lungs not primary tumours in the cervix. Professor Shepherd also expressed the view in oral evidence that it would not be appropriate clinically to use doubling time to determine the size of this particular cervical tumour at dates in November 2009 or February 2010. There were no actual data available for that period. There were no tables available for this type of cancer and, furthermore, he considered that each tumour would be unique and it would not be appropriate to extrapolate backwards or to assume a uniform growth rate over the period from November 2009 to July 2010. He would base his view on the clinical picture, that is the symptoms and any clinical information available, and experience.[36]I accept the evidence of Professors Wright, Wells and Shepherd on this point. I consider that the process of taking data about the size of an evolved tumour and then seeking to extrapolate backwards over an earlier period to seek to determine the size of the tumour at an earlier stage is flawed essentially for the reasons they give. For that reason, it is not appropriate to use Mr Soutter’s methodology.

The Likely Classification of the Tumour in November 2009 and February 2010

[37]There remains the question of seeking to determine, as far as one can in the absence of data, the likely size of the tumour in November 2009, and later in February 2010. There is no data available for those dates. There is evidence of the size of the tumour as at the time of the MRI scan on 28 June 2010, and all the experts agree, that shows a tumour measuring 5.7 x 4.4 centimetres, with evidence of early parametrial extension, along the whole length of the cervix, which would have been classed as a stage 2b tumour. There is an inconsistency between that and the clinical findings at the time which indicated a stage 1b2 tumour. All the experts agree, however, that this was a rapidly growing tumour and it would have been smaller in November 2009 and February 2010 than it was in June 2010.[38]Professor Shepherd gave his view that the tumour was likely to be stage 1b1 and was likely to be less than 2 centimetres in size in November 2009. He based that view on the symptoms displayed by Sophie between May and November 2009. At that stage, Sophie was bleeding from the vagina which he considered, in his experience, was more consistent with the tumour having passed beyond stage 1a1 and having reached stage 1b1. Professor Shepherd is a very experienced consultant surgeon and gynaecological oncologist. He disagreed with Mr Soutter’s view that vaginal bleeding was more consistent with stage 1a1. Similarly, Professor Wells was firm in his opinion that vaginal bleeding of the sort described was inconsistent with the tumour being at stage 1a1. Professor Wells is not a clinician and does not treat patients. He has, however, very considerable experience over 30 years in the reporting and giving opinions on gynaecological cancers. He has participated in many multi-disciplinary team meetings reviewing the cases of cancer patients. He has been involved with the national cervical screening process. His evidence was that stage 1a tumours are normally asymptomatic. They are detected by the screening process not by patients presenting with symptoms. Sophie did have symptoms in the form of vaginal bleeding which he considered was inconsistent with the tumour being a stage 1a tumour in November 2009. Professor Wright expressed the view that the tumour would probably have been an early stage 1b tumour. Mr Soutter, although he considered the tumour was probably stage 1a (based on the extrapolation of data in the way described above) said in oral evidence that a conclusion that the tumour was a stage1b would be a reasonable conclusion.[39]I accept the evidence of Professor Wells and Professor Shepherd that the tumour that Sophie had passed beyond the stage of 1a as at November 2009. Their evidence is based on considerable experience of tumours over many years, and considerable experience indicating that persons with stage 1a tumours are usually asymptomoic whereas by November 2009 Sophie was already demonstrating symptoms in the form of bleeding from the vagina (and also abdominal pain). That view is consistent with the views expressed by Professor Wright. It is less easy to determine how far beyond stage 1a the tumour had progressed in November 2009. However, Professor Shepherd and Professor Wright would classify it as a small, or early stage 1b1 tumour and Mr Soutter would consider that a reasonable conclusion. Professor Wells was reluctant to express a view other than the firm and unequivocal view that the tumour had passed beyond stage 1a. Given the evidence and the views of the expert witnesses, the probability is that the tumour was an early stage 1b1 tumour in November 2009. It would have increased in size between November 2009 and February 2010 and all the expert witnesses agree that it was a rapidly growing tumour. Professor Shepherd considered that it would have been a small stage 1b1 tumour in November 2009 (less than 2 centimetres) and a larger 1b1 tumour in February 2010 (2 to 4 centimetres). Professor Wright is recorded at the meeting of the expert witnesses as expressing the opinion that the tumour would have progressed but it would still have been a stage 1b1 tumour in March 2010.[40]I find as a fact, therefore, that the tumour had, on the balance of probabilities, passed beyond stage 1a as at 24 November 2009. I find as a fact, on the balance of probabilities, that the tumour was a small, early stage 1b1 tumour on 24 November 2009 and was a larger stage 1b1 tumour on 16 February 2010.

THE SECOND ISSUE – THE PROSPECTS OF SURVIVAL

[41]The second issue concerns the prospects of Sophie’s survival if the two defendants had provided appropriate treatment in November 2009 or February 2010 and if Sophie had received surgery within two to four weeks of those dates. The question here is whether the claimants have established, on a balance of probabilities, that Sophie would have been cured of the cancer and survived, and would not have died if treated appropriately and had surgery been undertaken in December 2009 (or March 2010). Cured and survived means, in this context, if the tumour had been removed and not recurred and Sophie had survived for 5 years from the date of diagnosis. The expert witnesses all proceeded on the basis that a person who had had a tumour treated, and where the disease had not recurred within 5 years, would be “cured”.[42]In considering this issue, the arguments fall, essentially, into four groups, namely,(1) the statistics governing survival rates for cancer of the cervix, relied upon in particular by Mr Soutter as indicating that Sophie had a better than 50% chance of surviving;(2) the literature governing sarcomatoid squamous carcinomas of the cervix (the kind of tumour that Sophie had), identified, and relied upon in particular, by Professor Wright;(3) the size of the tumour at the date of surgery; and(4) the particular features of the tumour that Sophie had.[43]By way of preliminary, it is agreed by all the expert witnesses that Sophie had a sarcomatiod squamous cell carcinoma. The cells were poorly-differentiated and displayed high mitotic activity and was graded as grade 3, that is likely to grow rapidly. Such cancers are very rare and highly aggressive, that is they are likely to be invasive and to metastasise.

The Statistics

[44]Dealing first with the statistics, Mr Soutter in his written report relied upon statistics contained in a chapter of a book written by Kosary. In essence, an American institute known as SEER collected data on all invasive and in situ cancers (save for certain types not relevant to this case) in the United States between 1988 and 2001. The figures show that for squamous cell carcinoma of the cervix, there were 3,293 cases classified as stage 1b. The survival rate at 5 years was 85.3%. and at 10 years it was 83.1% That means that just over 85 patients out of a group of 100 with a stage 1b squamous cell carcinoma of the cervix would have survived after 5 years and just over 83 out of every 100 such patients would still have been alive after 10 years. Mr Soutter also relied upon tables submitted to FIGO in about 2006 for patients treated by surgery only and that showed 1422 patients with a stage 1b1 carcinoma of the cervix had a 5 year survival rate of 94.8%, that is out of every 100 such patients, approximately 95 would still be alive after 5 years. Mr Soutter sought to contrast that with the prospects of survival for those patients who had a stage 2b tumour of the cervix which had been treated whether by surgery or any other form of medical treatment such as chemotherapy or radiotherapy, using the FIGO statistics. There the figure in respect of stage 2b tumours was that 65.8 % of patients survived at 5 years (the figures provided by Kosary showed in respect of 2b tumours a 49.6% survival rate after 10 years). If Mr Soutter had used the FIGO figures for patients treated with surgery only (as he had with stage 1b tumours) the survival rate for 5 years for stage 2b tumours was 82.1%.[45]Mr Soutter then sought to infer that the chances of Sophie surviving for 5 years if she had been treated in November 2009 (or February 2010) with a stage 1b1 tumour would have been good with a 94.8% chance of surviving for 5 years and an 83.1% of surviving after 10 years.[46]In my judgment, there are a number of features which render the use of these statistics unreliable in seeking to determine whether or not, on a balance of probabilities, Sophie would have survived if she had had surgery in December 2009 (or March 2010) when the tumour would have been classed as a stage 1b1 tumour.[47]First, reliance on the figures provided by Kosary and FIGO are inappropriate as they deal with all cases of squamous carcinomas of the cervix, not the particularly rare, sarcomatoid squamous cell carcinoma that Sophie had. There have been only 17 such cases reported in the literature. Such cancers are clinically highly aggressive. Mr Soutter accepted that the FIGO and Kosary figures were unlikely to have included a tumour such as Sophie’s tumour. In my judgment, it would be inappropriate to use the data for cervical cancers generally as a tool for seeking to predict the prospects of survival after surgery on patients with this particular rare and highly aggressive tumour.[48]Secondly, the proposed use that Mr Soutter seeks to make of the statistics is, in my judgment, inappropriate for the following, additional and separate reasons. The figures are intended to show prospectively the likelihood of survival. They are not designed to be applied retrospectively to predict the likelihood of whether any particular individual would have survived if treated by a particular date. Further, the statistics are intended to show likely survival rates for a cohort of people. The statistics show that of a group of 100 patients with a stage 1b1 tumour (such as Sophie had in November 2009), a particular number of people are expected to survive. In the Kosary table of patients with a stage 1b carcinoma of the cervix, which shows a 85.3% survival rate after 5 years, that demonstrates that it is expected that just under 85 such patients out of every 100 will be alive after 5 years. It does not assist in determining whether or not a particular individual will be one of the 85 patients who survive or one of the 15 who do not. Similarly, in the FIGO table for those with a 1b carcinoma of the cervix treated with surgery only, there is a 5 year survival rate of 94.8% survival rate. That demonstrates that just under 95 out of a hundred such patients would be alive after 5 years. It does not assist in determining whether or not a particular patient will be one of the 95 patients who survive or one of the 5 who do not.[49]The limitations on the use of these statistics is further shown by consideration of the position of those with a stage 1b2 or a stage 2b tumour. According to the FIGO figures, those with a stage 1b2 cancer of the cervix who were treated with surgery only would have been predicted to have an 87.4 % chance of surviving for 5 years, that is in a group of 100 such patients, 87 would have survived for 5 years and 13 would have died. Those with a stage 2b tumour would have been predicted to have an 82.1% chance of surviving for five years, that is 82 such people out of 100 would survive and 18 would die. The statistics do not assist in determining which individual would be in the group of 87 (or 82) who would survive or the group of 13 (or 18) who would die). As at June 2010, Sophie’s tumour was, according to the MRI scan a stage 2b tumour although the clinical analysis indicated a stage 1b2 tumour (the claimants suggest treating it as a tumour which straddled stage 1b2/2b). Assuming that Sophie had a stage 1b2 tumour or a stage 2b tumour, and given that Sophie had surgery, then, using the FIGO figures for persons with cancer of the cervix treated with surgery, the statistics would have suggested a survival rate of 87.4%, or if a stage 2b tumour, a survival rate of 82.1%. Sadly, however, Sophie was not in the group of 87 or 82 people who survived. Sophie was in the group of 13 or 18 who died. That indicates that the statistics are not of assistance in determining whether or not a particular individual will survive for five years. Some other factor, such as the nature of the tumour, is likely to be relevant in explaining why Sophie died.[50]Mr Soutter preferred to use the FIGO tables for those with cancer of the cervix who were given any form of treatment. There the five-year survival rate for stage 1b2 tumours was 75.7% and for stage 2b it was 65.8%. Sophie would, using those tables, have been predicted to have a 75.7% or 65.8% chance of surviving after the operation in July 2010. But Sophie, sadly, was not in the group of 75 or 65 who survived. Sophie was in the group of 25 or 35 who died. That again indicates that the statistics are not of assistance in determining whether or not a particular individual will survive for five years.[51]For those reasons, I do not consider that the statistical data relied upon by Mr Soutter does establish, on a balance of probabilities, that Sophie would have survived, rather than died, if she had been diagnosed and treated earlier, whether in December 2009 or March 2010.[52]For completeness, I note that Professor Wright did not rely on the statistics relied upon by Mr Soutter, and he based his conclusions on the literature dealt with in the next section of this judgment. He confirmed in oral evidence that the statistics were not designed for retrospective use in the way that Mr Soutter had used them.[53]Mr Peacock, for the defendants, also relied upon dicta of Lord Phillips of Worth Matravers in Gregg v Scott[2005] A.C. 176 especially at paragraphs 153 to 157 and Lord Rodger of Earslferry in Sienkiewicz v Greif (UK) Ltd. [2011] 2 A.C. 229 especially at paragraphs 156 to 157 which deal with the limited circumstances in which it may be possible to infer from statistical evidence that a particular factor was causative of a particular event. Further observations are made on this topic by Lord Phillips of Worth Matravers, especially at paragraphs 96 to 102, Baroness Hale, especially at paragraphs 170 to 173, Lord Mance especially at paragraphs 190 to 195, Lord Kerr of Tonaghmore, especially at paragraphs 205 to 206, and Lord Dyson especially at paragraphs 217 to 223. For the reasons given above, I do not consider that the statistical evidence in this case does assist in establishing whether or not, on the balance of probabilities, Sophie would have survived, or would have died, if the tumour had been detected and treated earlier. Furthermore, and additionally, there are particular factors in this case, relating to the particular nature of this sarcomataoid squamous cell carcinoma, which would need, in any event to be taken into account. The statistical evidence is not the only relevant evidence in this case. For those reasons, I do not consider it appropriate to seek to infer from the statistical data governing squamous cell carcinomas whether or not Sophie, who had a sarcomatoid squamous cell carcinoma, agreed to be particularly aggressive, would be likely to have survived if she had had surgery earlier than she did.

The Literature

[54]The second strand of the claimants’ case rests upon certain literature dealing with sarcomatoid squamous cell carinomas referred to in Professor Wright’s written report. Such carcinomas are agreed to be rare. There have, it seems, been just 17 reported such cases. Professor Wright identified the relevant literature dealing with those cases. Professor Wright’s view that if the tumour, as an early stage 1b1 tumour, had been diagnosed in November 2009 or February 2010 then it could have been treated effectively is based on that literature, as is clear from his written report and the opinion he is recorded as expressing at the joint meeting of the expert witnesses. Professor Wright reproduced a table setting out the details, such as they were known, of those 17 cases. He concludes in this report that from an inspection of the table “it can be seen that those patients who were diagnosed and treated in Stage 1 of the disease did well but those who were diagnosed at later times did badly”.[55]The details of the cases set out do not, however, support either part of that proposition, as Professor Wright acknowledged in cross-examination. There are in fact only 6 cases where it is known that the tumours were classified as 1b1 or 1b2. In one case, the patient had died at 12 months. In two cases, the length of survival was not known but both had had a recurrence of the disease (and it was accepted by Professor Wright that recurrences would tend to be resistant to treatment). Only in 3 cases were the patients recorded as surviving, but the available data showed only that 1 had survived for 5 months, one for 18 months and 1 for 42 months. No other data were available and, in particular, no data for survival at 5 years. Therefore, in one-half of a very small sample (6 cases), death or a recurrence of the disease had occurred; in the other half of the cases, survival was known to be at least 5, 18 or 42 months. Professor Wright accepted in oral evidence that that did not in fact show that those treated at stage 1 did well. The outcome of those cases as recorded in the literature certainly does not establish, on a balance of probabilities, that Sophie would have survived, that is lived for 5 years, if she had been diagnosed in November 2009 or February 2010 and treated shortly thereafter.[56]Similarly, the literature does not evidence that those who were diagnosed later, at least those with stage 2 tumours, did badly, as Professor Wright accepted in oral evidence. There were three such patients. Two had a stage 2a tumour and had survived to 22 months and 40 months, respectively, with no recorded recurrence of the disease to that date (no further data was available). One patient was diagnosed with a stage 2b tumour and had survived for 10 months with no recorded recurrence. Of the patients with a stage 3 tumour, one had died at 2 months and one was recorded as having survived for 6 months with no recorded recurrence.[57]In his written report, Professor Wright cites an extract in italics which says “that the survival of patients that were detected at early stages is reassuring. Patients who are diagnosed at Stage 1 have a higher survival rate at 5 years approaching 90%”. The footnote refers to a paper by Brown but only the abstract is attached to his report and that does not include the quotation. The words are, however, identical to a passage in a chapter by Anderson and others also annexed to Professor Wright’s report. No data is cited to explain the 90% figure in that work or in any other work identified and relied upon by Professor Wright.[58]For the reason given above, I do not consider that the literature relied upon by Professor Wright establishes that a person with a stage 1b1 tumour, as Sophie had in November 2009 and February 2010, would be more likely to survive than die within 5 years. At most, the literature leaves open the possibility that some persons with a stage 1, or even a stage 2, tumour might have survived for lengthy periods (and possibly for 5 years although there is no data on survival for such periods).

The Size of the Tumour

[59]Mr Soutter also relied upon the size of the tumour. He did so in, essentially, two ways. First he considered that the smaller the tumour, the greater the prospect of surgery completely removing the tumour. He says in his written report that the tumour would have been very much smaller if operated upon shortly after November 2009 or February 2010 and surgery would have been far more likely to excise the tumour and to result in a cure. In oral evidence, Mr Soutter elaborated on the point and explained that there was in his opinion a limit to the amount of tissue around the cervix that could be removed and that if the tumour occupies only a small area, it is more likely that the surgery would encompass that area and that surgeons would go as far as they could and remove everything they were able to.[60]There is, however, no indication in the reports prepared after the operation that the size of the tumour had in fact in any way restricted the ability of the surgeon to carry out the operation. There is nothing in the note of the record of the operation to indicate that there were problems in removing what was believed to be all of the tumour. The notes of the multidisciplinary team who discussed Sophie’s case on 2 August 2010 noted that the tumour had grown considerably and become a mass filling the vagina. Despite the size of the tumour, the pathologist reported that the margins of excision were all clear and adequate and that more than thirty pelvic lymph nodes were clear of disease. Nevertheless, the notes record that the tumour looked particularly aggressive. There is nothing in the medical records to indicate that the size of the tumour prevented the surgeon who carried out the operation from removing all that she considered formed part of the tumour. There is no suggestion that the surgeon was in any way negligent. Rather, despite the tumour apparently having being completely removed some malignant cells must have been left somewhere in the body and the tumour recurred.[61]I also accept Professor Shepherd’s evidence on this issue. He is an extremely experienced surgeon with experience of surgery on gynaecological cancers (Mr Soutter agreed that Professor Shepherd was far more experienced than he was in the area of surgical treatment of cervical cancers and that he (Mr Soutter) had limited experience of the surgical management of recurrent tumours). Professor Shepherd explained that, firstly, the surgeon would have not operated if it were thought that the tumour were too large to be removed by surgery, rather other treatment methods, such as chemotherapy or radiotherapy, would have been used. Secondly, the surgeon would have opened the abdomen and examined the tumour in the pelvis. If the surgeon had found that the tumour was extending out into the parametrium (that is the tissues alongside the cervix), then the surgeon would have closed the abdomen and referred the patient for radiotherapy. Thirdly, at the time of the surgery, there would be a note made and that would highlight any problematic issues with the margins of excision, incomplete resection or if the surgeon had had to cut through the area, the area would be marked to aid post-operative treatment. None of that had happened here. On the evidence, therefore, I do not consider that the claimants have demonstrated on a balance of probabilities that, if the tumour had been surgically removed in about December 2009 or March 2010 when it was smaller, rather than in July 2010, that all the malignant cells would have been removed. In any event, for the reasons given at paragraphs 63 to 67 below, I consider that, on a balance of probabilities, this tumour would have recurred even if all the malignant cells had been removed in July 2010.[62]Secondly, Mr Soutter contended that the size of the tumour was a better predictor of outcome than stage, relying on a paper written by him and others in 2004 and which he produced for the first time at the hearing. So far as size is concerned, that is a component of the staging exercise. It is clear that the primary thrust of Mr Soutter’s written evidence was that the tumour would have been a stage 1a1 and, in any event, the survival rates for a stage 1b1 tumour (derived from FIGO and Kosary) showed good 5 or 10 year survival rates not that size was the better predictor of outcome. Mr Korn, for the claimants refers to the fact that Mr Soutter and Professor Wright both refer to size and stage as the best predictors of survival, referring to their recorded answer to question 9 at the joint meeting of the expert witnesses. Professor Wright does say that size and stage are the best predictors but makes it clear that because individual experience with these rare tumours is so limited, the accumulated literature should be relied upon to determine likely outcome. I have dealt above with that literature. I do not regard Professor Wright as having relied upon size as the predictor of outcome in the case of this particular type of tumour. It is also right to note that all the expert witnesses accept that this particular tumour was aggressive and had a poor prognosis. I do not accept that the 2004 paper produced by Mr Soutter does demonstrate that, on a balance of probability, that Sophie would have survived for 5 years if her particular tumour had been diagnosed in November 2009 or February 2010 and treated shortly after diagnosis.

The Characteristics of the Tumour

[63]All the expert witnesses agree that the tumour in the present case was a sarcomatoid squamous cell carcinoma. The histology report indicated that the cells were poorly differentiated with high mitotic activity. Such tumours are extremely rare. All the expert witnesses agreed that such tumours are known to act in a clinically aggressive manner, that is, the tumour has the capacity to invade other areas and to metastasise. The tumour also demonstrated rapid growth.[64]Professor Wells gave considered and impressive evidence on the nature of this particular tumour. He has considerable experience of cases of gynaecological cancer and has reported on thousands of cases of gynaecological cancer over 30 years. He explained that the tumour in the present case was not simply poorly-differentiated: it was at the most poorly-differentiated end of the spectrum. In terms of mitotic activity, experts normally consider the number of mitoses in 10 high powered fields and more than 8 mitoses in a single field would be significant. Here, Sophie’s tumour had 90 mitoses in a single high powered field. Such tumours were known to behave in a highly clinically aggressive manner. For those reasons, Professor Wells’ opinion was that Sophie had a highly aggressive sarcomatoid variant of squamous cell carcimona and such was the highly malignant nature of the tumour the cancer was likely to recur even if it had been completely removed in November or December 2009 or in February or March 2010. For that reason, Professor Wells considered that the delay in treatment did not affect the outcome for Sophie as, on a balance of probabilities, the cancer would have recurred.[65]Professor Wright in his written report agreed that this was “undoubtedly a poorly differentiated squamous carcinoma with a sarcomatoid component” and that such tumours had a “very poor prognosis, short disease-free intervals, and is diagnosed later”. His opinion was that “Even with optimal treatment and follow up, these lesions recur rapidly and metastasize to regions such as the peritoneum, kidney and subcutaneous tissue”. He further noted that “In general, the prognosis of this is very poor. It is a very aggressive cancer, usually diagnosed at a later stage, and most recur within one year despite aggressive combined therapy.” The reasons why Professor Wright considered that, despite the nature of this particular cancer Sophie would have survived for 5 years, was the literature that he relied upon. For the reasons given above, that literature does not, in fact, lead to the conclusion that, on a balance of probabilities, that someone such as Sophie, with a stage 1b1 tumour, would have survived for 5 years. In the circumstances, therefore, in my judgment. Professor Wright’s evidence confirms that this tumour was a highly aggressive cancer, with a poor prognosis and the cancer was likely to recur even if treated.[66]Professor Shepherd also gave his opinion in his report, and at the joint meeting of experts and orally in evidence. His evidence was that someone coming to surgery with a 1b1 tumour shortly after the appointment on 24 November 2009 would have been given a 94.8% chance of survival for 5 years and an 83.1% of survival after 10 years, using the tables in FIGO and the Kosary chapter respectively. However, once the histology report on the tumour had been received following the operation, that would have revealed that it was a sarcomatoid squamous cell carcinoma. He would have been particularly concerned by the sarcomatoid feature as that was a key feature indicating aggressiveness. For that reason, he said at the meeting of the joint experts that “given the nature of Sophie Hague’s tumour he would have offered a guarded prognosis with a 50% chance of recurrence”. A 50% chance of recurrence would not, of course, indicate that on a balance of probabilities Sophie would have survived. Indeed, Professor Shepherd in his oral evidence indicated that when giving a prognosis of recurrence he would have been talking to Sophie (and possibly her family) and he would probably have given an underestimate of the likely chance of recurrence and, in fact, the risk of recurrence was likely to be greater than 50%. Professor Shepherd’s evidence, therefore, is consistent with the evidence of Professor Wells that the nature of this particular tumour was such that the cancer would have been likely to recur in any event and that Sophie would have died.[67]Given all the evidence in this case, I am satisfied that, on a balance of probabilities, the tumour in the present case was a highly aggressive, rare form of cancer, namely a sarcomatoid squamous cell carcinoma and that such tumours have a poor prognosis and are likely to recur. The immediate reason why the tumour recurred between July and October 2010 was that some malignant cells were left in the body after surgery and those cells grew rapidly. Even if all the malignant cells had been removed, however, such was the nature of this particular tumour, the likelihood is that the cancer would have recurred and, on a balance of probabilities, Sophie would not have survived for 5 years. Summary[68]In summary, therefore, in my judgment, the claimants have not, on the evidence they rely upon, established that Sophie would, on a balance of probabilities, have survived if the cancer had been diagnosed in November 2009 or February 2010. Furthermore, and additionally, on the evidence, and given the nature of this particular tumour, on a balance of probabilities, the cancer would have recurred even if all the malignant cells had been removed in July 2010 and Sophie would not have survived for 5 years.

ANCILLARY MATTERS

[69]Mr Korn, for the claimants submitted that I should disregard the evidence of both Professor Wells and Professor Shepherd on the grounds that they had failed to discharge their duties and responsibilities as expert witnesses. In written and oral submission, Mr Korn submitted that they lacked impartiality and strained to support a particular case and descended into the arena to argue a case, provided expert evidence outside their area of expertise and presented bald, unreasoned assertions, without evidence. Mr Korn gave a number of instances which, he submitted, were examples of such behaviour.[70]In my judgment, Professor Wells or Professor Shepherd did not in fact fail to discharge their duties as submitted. In my judgment, they remained impartial, expert witnesses, seeking to assist the court on the basis of their expertise and experience and they did not resort to unreasoned or un-evidenced assertion. Where I have disagreed with an aspect of their evidence (notably with Professor Shepherd’s view that the tumour that grew between July and October 2010 was probably not the result of malignant cells remaining in the body, although he recognised that as a possibility, but was the result of healthy cells becoming malignant after the surgery), I have explained my reasons for disagreeing with that particular aspect of the evidence. That does not cause me to doubt Professor Shepherd’s evidence in other regards. Generally, I found him to be a highly experienced, capable and balanced expert. Similarly, I found Professor Wells to be a highly impressive witness. He had considerable expertise in the area of gynaecological cancers, acquired over 30 years, and his conclusions were based on reasoned conclusions drawn from the evidence. 71 Furthermore, I would in any event have found that the claimants had not established that Sophie would have survived for five years if the tumour had been diagnosed in November 2009 or February 2010 and treated shortly thereafter even if I had disregarded the evidence of Professor Wells and Professor Shepherd. I did not accept the evidence of Mr Soutter that the tumour was likely to be a stage 1a tumour for the reasons given. The evidence of Professor Wright, the other witness called on behalf of the claimants, was that the tumour was an early stage 1b tumour. I did not accept Mr Soutter’s use of statistics, or his evidence on the relevance of the size of the tumour, so far as prediction of the outcome of surgery was concerned nor did I accept Professor Wright’s reasoning based on the literature referred to in his report for the reasons given above. In those circumstances, and given the accepted evidence that this was a sarcomatoid squamous cell carcinoma which was particularly aggressive, I would have found, on a balance of probabilities, that the tumour would have recurred and Sophie would not have survived even if surgery had been carried out seven months earlier.[72]Counsel for all parties in their skeleton arguments, oral submissions and closing submissions have made a large number of points, and referred to a number of documents. I have sought in this judgment to deal with what I consider to be the principal points raised and the principal evidence relating to those matters. The claimants and the defendants, can be assured however, that I have carefully considered all the points made and all the documents relied upon in reaching my conclusions.

CONCLUSION

[73]The two defendants in the present case failed to exercise reasonable skill and care in their treatment of Sophie in November 2009 and February 2010 respectively. If they had treated Sophie appropriately, Sophie would have been referred for further examination and a malign, cancerous tumour of the cervix would have been discovered and Sophie would have undergone surgery in either December 2009 or March 2010 rather than in July 2010 as actually happened. That failure resulted in pain and suffering to Sophie in that her symptoms were untreated for seven months and that pain and suffering was made worse by the anguish of knowing that the cancer could have been detected earlier. To that extent the claim for negligence on the part of Sophie’s estate succeeds. On the balance of probabilities, however, the cancer would have recurred and Sophie would not have survived for five years but would, sadly, have died. That aspect of the claim for negligence, and the claim under the 1976 Act do not succeed. As indicated, the parties have agreed that the appropriate compensation for the injury caused by the negligence of the defendants is £15,000.