Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB)

[2018] EWHC 2227 (QB)Case No HQ18X02900
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/09/2018
Before
MASTER THORNETT
Between
Mr DOUGLAS EDGARD HAGUEClaimantBRITISH TELCOMMUNICATIONS PLCDefendant
Mr Ronald Walker QC (instructed by Fieldfisher LLP) for ClaimantMiss Jayne Adams QC (instructed by BT Legal) for DefendantHearing Hearing dates: 2 nd August 2018
JUDGMENTMaster Thornett:
[1]This is a reserved judgment following a hearing on 2 August 2018 of the Claimant’s urgent application dated 27 July 2018. The Claimant seeks a declaration from the Court that the Defendant is obliged to continue to pay the private costs of immunotherapy treatment pursuant to a compromise agreement reached between the parties on 3 May 2018 [“the Agreement”].[2]The Claimant, Mr Douglas Hague, was born on 26 June 1942 and was diagnosed with malignant pleural mesothelioma in June 2017. He alleged he had contracted mesothelioma when employed by the Defendant. Without the need for court proceedings, the Defendant agreed to settle his claim for a gross sum of £220,000 plus costs. The agreement additionally provided to pay, on terms, for the Claimant’s proposed privately funded immunotherapy treatment.[3]The issue that has arisen between the parties is the scope and extent of their agreement as to immunotherapy funding.[4]Immunotherapy is an innovative and new therapy that aims to stimulate the immune system to promote an anti-tumour immune effect rather than targeting the cancer cells themselves via drug treatment. However, no immunotherapy drugs have marked authorisation for use in mesothelioma either in the UK or elsewhere. There are currently no NICE guidelines that are relevant to the use of immunotherapy at any stage of therapy. Neither the British Thoracic Society nor the American Society for Clinical Oncology recommend immunotherapy for second line treatment of mesothelioma outside of clinical trials. There are few case studies available and these have to be interpreted with caution because of potential selection bias in the patients under review. The therapy remains within a rapidly evolving field.[5]The Claimant had received initial treatment whilst within the NHS with talc pleurodesis and then chemotherapy. Whilst he initially responded to such treatment, by November 2017 his treating consultant Dr Szlosarek anticipated the Claimant would need to progress to immunotherapy. Clinical and radiological progress was indeed such that, in February 2018, the Claimant commenced immunotherapy treatment with pembrolizumab. Four cycles of pembrolizumab saw a partial response but, by July 2018, his condition was deteriorating. Following a total of seven cycles of pembrolizumab, therefore, Dr Szlosarek discontinued treatment with this drug.[6]In a letter dated 25 July 2018 Dr Szlosarek recommended a different form of immunotherapy : a combination of ipilimumab and nivolumab [“the proposed new treatment”]. The 25 July 2018 letter explains how the proposed new treatment is based on the MAPS2 study. His interpretation of the study is that a median survival advantage of 4 months could be achieved. He quotes a cost of £21,714.68 and confirms that such combination immunotherapy is not available in the NHS currently.[7]The immunotherapy treatment with pembrolizumab following chemotherapy is described by both parties as second line treatment. The parties differ, however, as to what that term actually means : both clinically and, more particularly, in the context of the Agreement. The Claimant contends that the proposed new treatment is a continuation of the second line treatment as already applied and is not only consistent with but contemplated by the Agreement. The Defendant disagrees and contends the proposed new treatment is outwith the Agreement. The Defendant describes it as constituting third line treatment for which there is no agreement from the Defendant to fund.

The Agreement

[8]I consider it vital that the decision in this case seeks to reflect as far as possible what the parties have or have not agreed by way of compromise. Whilst the reasonableness or justification of the proposed new treatment from a clinical viewpoint is still relevant for the reasons that follow, this is not a case where the court can be asked to prefer the opinion of one expert to another as if part of a trial process.[9]The relevant elements of the Agreement I regard as follows : Under the “Preamble” : 9.1. In consideration of the Defendant’s admission it was negligent and in breach of statutory duty, the Defendant pays a gross sum of £220,000 “save for the costs of and associated with medical treatment set out in the schedule hereto” : Para 3 9.2. The parties may apply to the QB Division to enforce the terms agreed : Para 8 12. Under the “Schedule to Order Preamble” : 9.3. The parties note that the Claimant is undergoing “private medical treatment by way of immunotherapy with the drug Pembrolizumab” : Para 3. 9.4. “The Defendants have agreed to provide an indemnity under which they will fund the costs of and associated with further reasonable second line immunotherapy treatment recommended by a treating oncologist” : Para 4 9.5. That treatment has commenced but the effect is “as yet, unknown” : Para 5 9.6. “The parties intend that the question of payment for any other treatment (defined as “new treatment”) be the subject of the liberty to apply provisions set out in the Order below, in the event that payment for such treatment cannot be agreed” : Para 6 17. Under the Schedule “Indemnity Provided” 9.7. “The Defendants agree to indemnify the Claimant in respect of reasonable medical and associated expenses arising from second line immunotherapy treatment approved by the Claimant’s treating Oncologist, currently Dr Sziosarek” (sic) : Para 9 9.8. The term “reasonable” shall be construed in accordance with the usual principles applied in relation to proof of loss in personal injury litigation” : Para 10 Para’s10.1 and10.2 respectively list “The cost of any second line immunotherapy” and “The associated medical expenses of that treatment” as costs that are presumed to be reasonable. 9.9. “When a treatment or a change has been recommended and is to be taken up on a private basis the Claimant will obtain from the treating oncologist, within 21 days of such recommendation, written confirmation of…[the Claimant’s current condition, recommended further treatment, the likely benefit, why it is recommended and the cost of that treatment] : Para 12[10]From this arises a straightforward question : what is second line treatment if not a variant of the type of immunotherapy the Claimant was receiving at the date of the Agreement (i.e. Pembrolizumab)?[11]Mr Walker on behalf of the Claimant submits the wording is entirely clear. He refers me to the definition of “Second line therapy” in the National Cancer Dictionary of Cancer Terms as “Treatment that is given when initial treatment (first line therapy) doesn’t work or stops working”. He points out there is no definition of “Third line therapy” in this Dictionary.[12]Miss Adams on behalf of the Defendant submits the proposed new treatment is third line immunotherapy after first line chemotherapy and second line immunotherapy have failed.[13]I am unable to accept the Defendant’s submission as an ordinary matter of contractual interpretation. Whilst it remains possible, as Mr Walker conceded during the hearing, that there might exist a form of third line therapy [he gave the example of surgery], the emphasis of the agreed indemnity is clearly the provision of second line immunotherapy treatment. Although “second line treatment” is not defined as a term of art, it is clear from the Agreement as a whole that second line treatment is not expressly limited to Pembrolizumab but continuing immunotherapy treatment generally. - Para 4 contemplates “further reasonable second line immunotherapy treatment”. It does not say, as it could easily have done, “further” or perhaps “continuing treatment with Pembrolizumab”. - Similarly, Para 6 in the Schedule expressly contemplates “other treatment”, although reserving that if not agreed this be the subject of an application. - So too Para 12 contemplates “a treatment or a change of treatment”. Such a clause would be entirely otiose if the intention of the contract was entirely limited to the provision of funding for Pembrolizumab. - Consistent with this observation is the reference to “any second line immunotherapy treatment” as a presumed reasonable cost under Clause 10.1.[14]I therefore find that the proposed new treatment is not precluded from being sought for payment under the Agreement. The Claimant is entitled to claim indemnity for that treatment providing it is reasonable, pursuant to Paras 9 and 10 in the Agreement.[15]Before discussing reasonableness, however, I turn to an alternative basis for interpreting the Agreement contract in the event I am wrong in its interpretation and there is ambiguity as to what was contemplated by the term “second line immunotherapy treatment”. “The Private Dictionary Principle”[16]The question of how the court might seek to resolve the ambiguity of the phrase “second line immunotherapy treatment” at Para 4 is essentially a legal question in my judgment. It raises as a matter of law whether the court is entitled to look to material extrinsic to the Agreement and, if so, the evidential value or relevance of that material.[17]At the hearing, Mr Walker referred to me in the hearing bundle a telephone attendance note prepared by his instructing solicitor, Mr Williams, on 1st May 2018 when the Agreement was being negotiated and two days before it was concluded. The note records how Mr Williams was chasing for a conclusion of the proposed Agreement with Mr Atkinson of the Defendant. In respect of Mr Atkinson, it records how :
“He has agreed to put in a clause saying that we can have “second line immunotherapy”
. He says he takes that to be as follows :
“By that I meanPembrolizumab, Nivolumab and/or Ipilimumab”
He did not want to be specific however. He has just agreed to “Second line immunotherapy”. “By that I meanPembrolizumab, Nivolumab and/or Ipilimumab”[18]There was no initial procedural objection from the Defendant to the inclusion of this document in the hearing bundle or subsequent objection to the reference to it during the hearing, although Miss Adams clearly rejected throughout the Claimant’s interpretation that the proposed new treatment was encompassed by the phrase “second line treatment”.[19]Following the hearing, I invited Counsel to consider text and authorities referred to in “The Interpretation of Contracts”, Lewison, 6th ed., Chapter 3, pages [114]-[116] that suggests the court can in limited circumstances have regard to contemporaneous extrinsic material when parties to a contract have given their own dictionary meaning to a word or phrase as a matter of common intention. As per Cresswell J in Proforce Recruit Ltd v The Rugby Group Ltd [2007] EWHC 1621 (QB), “Where the agreement is silent as to the meaning of the words in question, and those words have been used in a particular sense in correspondence preceding the agreement (which forms part of the factual matrix), it would be surprising if commercial parties intended to contract on the basis of some other meaning, without saying so in the contract”. The House of Lords examined the principle in Chartbrook Homes Ltd v Persimmon Homes Ltd [2007] EWHC 1621 (QB) as did the Supreme Court of New Zealand in Vector Gas Ltd v Bay of Plenty Energy Ltd NZSC 5, although in each the justification for the exception was justified more in the terms of it being an estoppel preventing the parties from subsequently relying upon an alternative meaning (or as justified rectification) rather than existing wholly in abstract as an approach to interpretation.[20]As the authorities cited in Lewison counsel, such an approach is therefore to be regarded as an exception to the exclusionary rule that evidence of negotiations and subjective intent is inadmissible as a means of interpreting a contract. This is particularly apposite in a commercial contract where the parties might be expected include their dictionary meaning in the contract itself.[21]Following my invitation for further submissions from counsel on the law, Mr Atkinson of the Defendant nonetheless submitted a second witness statement No permission had been given to submit further evidence although the Claimant has since confirmed he does not object to the Defendant’s reliance upon this statement. dated 13th August 2018. His first witness statement, dated 1st August 2018, had featured no particular stance or argument about the Agreement or its terms other than a very brief recitation of the essential facts.[22]In his second witness statement, Mr Atkinson produces his attendance note of the telephone conversation on 1st May. His handwritten notes reads : “I won’t agree his order : not carte blanche for any recommendation. I will agree 2nd line Tt – Pembro, Nivo, Ipili – but not Immuno as an adjunct to chemo or Carte Blanche”.[23]In his post-hearing written submission, Mr Walker takes no issue that as a general rule one cannot look to external evidence as to the subjective intention of the parties, nor to earlier drafts, in order to contradict the plain meaning of the words ultimately used but denies this would be the intention in this case. He adopts the reasoning in the authorities cited in Lewison and as featured at Para 18 above.[24]Miss Adams denies the attendance notes are admissible. However, if they are, she reiterates the principles of the exclusionary rule. In answer to the point canvassed as to application of the dictionary principle, she denies any such definition was agreed. She denies there was an unequivocal representation as to one meaning (of second line immunotherapy treatment) and no course of conduct based on such matters.[25]The Defendant further contends that even if the Court were to look to material outside the Agreement, resort should only be to the expert medical evidence. As such, Miss Adams refers me to the definition of the proposed new treatment by the Defendant’s expert Dr Fisher as third line treatment and remarks how the Claimant’s Dr Szlosarek does not address this definition at all.[26]I have reached the following conclusions.[27]First, I do not accept the Defendant’s submission that the material is inadmissible. I find that the facts of this case fall entirely within the exception contemplated in Proforce Recruit Ltd. The parties have agreed a term with a mutual intention that it should be used as the fundamental criterion in the event that indemnity for further treatment was required and, if necessary, leads to an application for direction and declaration from the court. This is not a case of a party seeking to introduce material generally to elucidate the general object of the contract or to circumvent the ordinary principles of contractual interpretation. To the contrary, this is a specific and focused question whether there was a common intention how this agreed phrase should be defined. In short, to establish not only whether the Defendant’s current stance is factually incorrect but more pertinently that the Defendant is estopped from arguing to the contrary.[28]Secondly, I do not accept that the approach to clarification of the definition should draw upon the approach adopted by the medical experts. Quite to the contrary, the question is an objective factual one whether the parties reached a mutually agreed definition of the phrase “second line immunotherapy treatment” irrespective of whether this did or did not happen to accord with its understood medical definition – if any.[29]As a question of fact, I am clear that on the basis of the two telephone attendance notes the parties had agreed to limit indemnity to Second Line treatment but as might entail at least three known varieties of immunotherapy. They had not limited immunotherapy only to the application of Pembrolizumab. The respective attendance notes are mutually compatible and so I find that there was a common intention as to definition. This resolves the ambiguity I am considering in favour of the Claimant. The critical reservation of Mr Atkinson was that there should be provision to apply to the Court in the event of disagreement. He sought to restrict the Claimant from anything that might seem to amount to a contractual entitlement to unlimited indemnity i.e. “carte blanche”. However, that is neither relevant to the issue in question nor does it assist the Defendant to resolve that issue in its favour. Indeed, it serves to illustrate how the parties instead sought to restrict the definition. I am satisfied that the parties agreed that treatment of the kind proposed falls within the agreed definition of the phrase “second line immunotherapy treatment”. Mr Atkinson’s rejection of “Immuno as an adjunct to chemo” is less clear but irrelevant for the purposes of this analysis.[30]The definition arising from the additional material is entirely compatible with the express wording of the Agreement. There is no further ambiguity and no need to resort to any further material : medical or otherwise.

Reasonableness

[31]The Defendant raises no argument as to the actual cost for the proposed new treatment [a point precluded by Para 10.1 anyway] but instead disputes that the prescription of it by Dr Szlosarek is clinically reasonable. In short, this is not “reasonable” second line immunotherapy under Para 4.[32]The Defendant relies upon a detailed report of Dr Patricia Fisher dated 31st July 2018. The reports present as a detailed review of the current tests and uncertainties in the application of immunotherapy. Dr Fisher describes how, within the privately funded market for immunotherapy therapy, Pembrolizumab is the drug that attracts the most interest. It is difficult to be definitive as to the potential benefit of this particular drug, because comparison between its various medical trials entails comparing differing patient cohorts. However, there is evidence to suggest it can extend life by about 12 months. She discusses the MAPS2 trial of some 125 patients with either nivolumab or nivolumab plus ipilimumab (i.e. the proposed new treatment). There are differing levels of consensus for these choices and Dr Fisher seeks to emphasise that she does not find support within this evolving and limited area of research for the application of both. In critical distinction on the facts of the Claimant’s case, she points out that none of those featured in the MAPS2 trial had already received immunotherapy treatment. Instead, the patients in the trial had progressed to receive immunotherapy following chemotherapy treatment.[33]From this observation, Dr Fisher connotes the proposed new treatment as “third line”. For my reasons expressed above, I do not find the Dr Fisher’s definition of third line treatment relevant to the question of what the parties agreed. I do accept, however, that her distinction is an important facet to her professional opinion that the proposed new treatment is not, in clinical terms, reasonable.[34]Dr Fisher emphasises how “There is no clinical trial evidence to guide oncologists on third line treatment when patients have received chemotherapy followed by immunotherapy due to the fact that, to date, very few mesothelioma patients have been treated in this way”. The “reality”, Dr Fisher comments, is that the Claimant’s condition has progressed quite rapidly following both chemotherapy and pembrolizumab andso has an aggressive tumour. Multiple lines of treatment as further advised by Dr Szlosarek will provide diminishing clinical benefit but also carry increasing levels of toxicity. For example, at Page 6 in her report, Dr Fisher points out that patients of poor performance status (as she contends the Claimant is and was) and patients receiving “third line treatment” have much poorer outcomes with a response rate of only 11%.[35]Because there is no data on sequential lines of immunotherapy in mesothelioma patients, no trials or even anecdotal case reports exist as far as she is aware, neither is Dr Fisher aware of any other oncologist who takes the proposed approach, her conclusion is that there is no clinical evidence base to support the proposal. The approach is accordingly “entirely outside the emerging evidence base and therefore without clinical foundation”.[36]Dr Fisher’s report touches upon a small phase study in the case of non-small cell lung cancer, where immunotherapy is already the standard of care. In that study, the addition of ipilimumab to nivolumab is being explored. However, she maintains this data is not relevant to the clinical circumstances of the Claimant.[37]On the basis of this analysis and opinion, the Defendant submits that because the proposed new treatment is without rational or scientific support, it therefore cannot be deemed to be reasonable. As Miss Adams put it in her skeleton argument, it amounts to asking the Defendant to fund pure experiment. I was referred to extracts from Kemp & Kemp Vol 1, p.1021, as illustrate that compensation in personal injury claims must remain fair, reasonable and just. They must not result in injustice to the defendant, for example, or be in excess to what society as a whole would regard as reasonable. Swift J in Whiten v St George’s Healthcare [2011] EWHC 2066 (QB)[38]Mr Walker submits that the Defendant is precluded from challenging reasonableness by way of Para 10.1. I do not accept this point. Para 10.1 only would preclude the Defendant from challenging the amount or cost of reasonable treatment within the context of the Agreement.[39]The Claimant further argues that even if reasonableness is before the Court, then(i) the primary question is whether the Claimant is acting reasonably(ii) in any event the advice of Dr Szlosarek, as the Claimant’s treating consultant, is objectively reasonable and so(iii) the Claimant is acting entirely reasonably in accepting it.[40]Mr Walker refers to Najib v John Laing Plc [2011] EWHC 1016 (QB) where Davies J applied the test of reasonableness in relation to post therapy ratification treatment. In doing so, the Claimant draws upon Para 10 of the Agreement See Paragraph 9.8 above .[41]In Najib, the claimant had been exposed to asbestos and had contracted mesothelioma. At the assessment of damages hearing, the Defendant challenged his past loss claim for an alternative treatment to chemotherapy. The claimant did not want chemotherapy because of its side effects. His son had researched and discovered on the internet the photodynamic therapy and drop treatment being offered by a Dr Kenyon at the “Dove Clinic”. The claimant’s GP had remarked that this treatment was not available on the NHS and his treating oncologist had remarked that there was no good research to support it. Neither, however, sought to dissuade the claimant from undergoing the treatment. Similarly, the claimant’s medico-legal expert Dr Rudd had acknowledged there was no evidence to demonstrate that the treatment had any clinical value and was well outside mainstream medicine. Indeed, Dr Rudd could not suggest there was “any valid medical or scientific basis for the treatment”. It was accepted by the time of the hearing that the treatment had achieved nothing in terms of reducing the claimant’s tumour or increasing his life expectancy. No claim was made for its efficacy. The sole issue was whether the claimant had acted reasonably in undergoing this treatment and incurring its expense. Mrs

Justice Nicholas Davies allowed the claim :

“20. Dr Kenyon presented with appropriate medical qualifications. When the claimant’s oncologist and general practitioner learnt of the proposed treatment, whatever their own reservations, they did not say “Do not undertake this treatment”
. The claimant, faced with a harsh, painful illness and a short life expectancy, was offered the chance of a longer life. He took it. I am unable to find that in these particular circumstances, the actions of the claimant were unreasonable. The actual cost of the treatment is high, but in the context of an extended life expectancy, it is not. I allow this claim but make clear that in so doing, nothing I have found should be construed as an endorsement of the treatment provided at the Dove Clinic”.[42]Miss Adams seeks to distinguish Najib on the basis that there was no evidence relied upon in that case to challenge the treatment obtained. Neither was there any known risk to the treatment, simply a lack of known benefit. She makes the point that the Court is not in this case retrospectively approving an unchallenged therapy already received but assessing, pursuant to the Agreement, whether the Defendant should pay for something for which Dr Szlosarek had not expressed any percentage of success.[43]Criticism was generally expressed by the Defendant that Dr Szlosarek had insufficiently justified his reasons for the proposed new treatment. In particular, whether he had appropriately considered the limitations of the MAPS2 study data in making his recommendation. The Defendant was not willing to concede that the Court could infer that Dr Szlosarek, in respect of whose qualifications and experience I heard no challenge, must have considered the scope and application of MAPS2 in referring to it. I therefore invited the Claimant to obtain, if possible, clarification on this point from Dr Szlosarek.[44]Dr Szlosarek has done so in a letter dated 13 August 2018. He notes Dr Fisher’s report, which he describes as providing an extensive and excellent review of the literature on mesothelioma research and current management “with which I am broadly in agreement”. He concedes there is currently no published data on the specific issue of re-treatment with PD-1 based immunotherapy. However, based on his experience drawn from privately funded treatment of mesothelioma, he considers this a viable clinical strategy. He argues that support for a positive response rate in combination immunotherapy can be found in two other recent studies (Baas et al, 2018 ; Calabro et al, 2018). Dr Szlosarek cites two of his own patients whom he has treated with combination immunotherapy. Although conceding from a scientific viewpoint these examples have to be described as anecdotal, he remarks how the first patient had a similarly aggressive mesothelioma to the Claimant but improved following the first dose of ipilimumab and nivolumab from a performance status of 2 to 1. The patient currently continues to work. A CT scan and brain MRI has confirmed a partial response. A second patient has received similar treatment but her outcome is pending evaluation of a CT scan. So whilst the results are unknown, she presents as the second example of someone who has received combination immunotherapy. He draws comparison with the more established application and clinical reporting of immunotherapy retreatment in the area of melanoma. He comments how uveal melanoma shares many characteristics with mesothelioma, particularly on a genetic level and its aggressive characteristics. He refers to a recently published case study of a patient with uveal melanoma who had progressed on pembrolizumab but subsequently obtained excellent disease control with combination ipilimumab and nivolumab. “Taken together, and in my oncological experience of using combination immunotherapy (ipilimumab and nivolumab) as a retreatment both in patients with mesothelioma and melanoma, I consider my recommendation to retreat Mr Hague reasonable and appropriate”.[45]In response to this letter, the Defendant has obtained further comment from Dr Fisher. In a short report dated 13 August 2018, Dr Fisher qualifies the relevance of the two additional trials to MAPS2 cited because of their eligibility criteria. She describes the remainder of his letter as “anecdote the lowest level of hierarchy of evidence”. She concedes his first patient example “appears to have done well despite at least 2 relative contraindications to immunotherapy” but correctly points out that the second example currently offers no evidence of benefit. She remarks how the example of the third patient with uveal melanoma is “irrelevant as the patient does not have mesothelioma”.[46]From this material, I reach the following conclusions : i. The proposed treatment of combination immunotherapy may have little if any support from formal clinical research studies but it is not unique, even if only from Dr Szlosarek’s personal clinical experience. ii. Dr Fisher has conceded that one of Dr Szlosarek’s patients appears to have done well, despite contraindications. She concedes, thus, that there is some evidence to justify combined immunotherapy. iii. I do not find convincing, or indeed even helpful, Dr Fisher’s dismissal as simply irrelevant Dr Szlosarek’s comparison and justification by analogy with uveal melanoma patients. Dr Szlosarek provides a rational basis for adopting the treatment in the case of mesothelioma patients by reference to a comparative cohort. Dr Fisher offers no reason to qualify if not rebut this approach. Her distinction that the comparator did not suffer from mesothelioma, with respect, misses Dr Szlosarek’s point. iv. Dr Fisher mentions increased possibilities of toxicity but falls short of asserting that the proposed treatment is accordingly inadvisable. It would be trite to say that the mere presence of risks in (any) proposed treatment does not, at least of itself, render that treatment unreasonable. There needs to be a more convincing evidential basis to conclude treatment is unreasonable, typically because the evidence establishes that the risks so obviously outweigh the potential benefits. v. There is no suggestion from the Defendant that Dr Szlosarek lacks appropriate qualification or experience. Instead, it is that his recommendation is “outside the emerging evidence base and therefore without clinical foundation” Dr Fisher 31.07.18 Report : Summary : Page 12 vi. This is a highly specialised area in which there is no NHS practice or NICE recognition. In this context, the fact Dr Szlosarek draws upon his personal experience within private medicine is to entirely be expected rather than constitute a point for implied adverse criticism. Anecdotal evidence may well be the lowest form of evidential hierarchy but does not, of itself, establish that clinical decisions drawn from it are therefore unreasonable. Indeed, were this the case it would lead to the remarkably concerning proposition that no medical practitioner could justify a decision unless based on peer reviewed clinical studies. Rationalised decisions based on personal clinical experience can surely still be justifiable and hence be reasonable providing any contraindications are not such that no other medical practitioner would consider them reasonable or be likely to take them. vii. Therefore, the absence of there being a supportive clinical base for the proposed new treatment is not decisive. viii. This is clearly not a case of a medical practitioner seeking to embark upon a peripheral if not wholly objectively unjustified course of action. Dr Szlosarek has confirmed he is quite aware of the state of medical understanding and objective findings on this point. ix. I reach my decision on the facts of this case. However, it is difficult to distinguish this claim for indemnity as having less merit than in Najib. In contrast to the treatment in Najib, there is evidence both as to justification and potential benefit from not only an experienced relevant clinical practitioner but the very practitioner contemplated in the Agreement : the Claimant’s treating oncologist. x. The stipulation at Para 4 in the Agreement that any further treatment must be recommended by the treating oncologist does not mean their opinion, once expressed, is automatically decisive. To the extent the Claimant came close to that submission, I reject it. However, where the parties have expressly agreed to be bound by the reasonable opinion of the treating oncologist, I conclude the Defendant is unable simply to introduce alternative medical opinion in order to gainsay the opinion of the agreed oncologist. As I pointed out during the hearing, the decision in this case is not a binary choice as to preference between two experts called at trial. Instead, it is a decision as to whether the recommendation of the agreed medical practitioner (i.e. the Claimant’s treating oncologist) is objectively reasonable, even if still falling within a range of opinion. xi. For the above reasons, I find that Dr Szlosarek’s recommended further treatment is reasonable. xii. I add that I prefer and adopt the phraseology of Dr Szlosarek that the proposed new treatment is re-treatment and not a distinct and separate third line therapy. Dr Fisher’s classification of the proposed new treatment as third-line seems substantially drawn from her unwillingness to accept it constitutes a justified form of immunotherapy and so, it follows, must fall into a new or different category. I have set out my reasons in concluding that it is a justified form of immunotherapy. So, it follows, can there be no justification for classifying it as third-line therapy.[47]I grant the Claimant an order in the terms of the draft sought.[48]Given the hearing was concluded on 2 August 2018 and has necessitated further work, I invite the Claimant to file and serve a revised Statement of Costs and the Defendant to provide any brief written submissions in response. I then propose to summarily assess that on the papers and without a further hearing, unless one or both parties specifically want one. ₰

Cited in 1 later judgment