England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Sir Christopher Holland
HQ08X00715

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/06/2010

Lord Justice Leveson:

1. This is an appeal from a judgment of Sir Christopher Holland (sitting as a Judge of the High Court), handed down on 12 February 2010, whereby he determined that the Ministry of Justice was in breach of its duty to Ms Cheryl Carter when, on 10^th May 2005, Dr V. Premaratne, a doctor engaged by the H.M. Prison Service, failed to refer her as a non-urgent case to a breast clinic following her complaint of a lump in her right breast. He reached this conclusion notwithstanding that he also found that the doctor had conducted a breast examination and axilla inspection, without detecting any abnormality, in a manner which could not significantly be faulted. A hearing to deal with causation and damages is fixed for 1 July 2010 and, in granting permission to appeal, Lady Justice Smith ordered expedition of this hearing.

The Facts and the Judge's Conclusions

2. During the course of serving a term of imprisonment at HMP Cookham Wood, Ms Carter (who was born on 25 July 1975) frequently attended the Healthcare Department for what Sir Christopher described as "all manner of complaints", although he recorded that she was candid in her evidence that, while in prison, she consulted doctors "for every little thing". He went on to observe that "wariness on the part of Medical Officers (all G.P.s engaged on a part time basis) to accept complaints at face value would not be surprising".
3. Sir Christopher provided a chronology which I gratefully adopt:

11^th March [Ms Carter] submits a written request: "I need an urgent Doctors Appointment." The form specifies "Saw doctor 14.3.05".

14^th March She is prescribed Olanzepine, a tranquilliser. There is no other documentation now available referable to this date.

18^th March There is a record of the prescription of amoxicillin (an antibiotic) and ibuprofen (an analgesic) authorised by a G.P., Dr. Jayasinge. There is no clinical record to explain this.

1^st April She is seen by a G.P., Dr. Munasinghe, who records "States that she is unable to cope in her present room. Her cellmate is annoying her. Also she is unable to breathe as there (is) no windows. Wants a single room. Wants us to recommend a single room. Smokes and advice given. States she has asthma. O/E lungs clear".

13^th April She is seen by Dr. Jayasinge who records "C/o itchy rash of the face – 2/52" and prescribes (illegibly) some treatment.

26^th April She is seen by a G.P. who records "Seen this morning for special sick. C/o headache, coughing and sneezing. Plan: painkillers".

10^th May She is seen by a female G.P., Dr. V. Premaratne, who records:

"1. Bony prominence. ® parietal region for X-ray. Noticed it 4/52 ago. Approximately 1cm or less in diameter.

2. ? breast lump. Was on Depo Provera. Amenorrheic for about a year. Has breast pain for a few weeks. Pain has settled now

O/E [Diagram] – nodularity [depicted in both breasts, above respective nipples]

Review as nec[essary]

3. Ref Inreach. Has seen Peter in the past."

24^th May – 1^st August There are further entries recording attendances for medical advice or treatment – none such are perceived by either party to be presently relevant.

31^st August Having been released from prison, she is seen by her new G.P., Dr. Napolion Issac, who records "She was in prison for 4Y. She don't want to say why. She live with her father. In the Prison she has a baby. She don't see the baby. Need counselling. Referral to Psychiatrist. MD3 6M. Mental illness".

14^th September She is seen by Dr. Issac who records "Mastodynia – pain in breast. Rt breast. Ex normal. Unprotected sex".

24^th September She was admitted to hospital having slashed her wrist being depressed by housing difficulties – and detained until 27^th.

4^th October She sees Dr. Issac complaining of depression.

20^th October She is seen by Dr. Issac who records "Mastodynia – pain in breast 3W. Both breasts mainly Rt. Clinically she is tender at Rt areola. Also she has large axilla gland with cervical gland. Chest clear. Abdomen soft no mass. Need chest X-ray. Ealing to do routine b. test. Referral by handwritten letter to Breast Clinic in Ealing". Only part of this letter survives – it adds nothing to the note.

8^th November She is seen by a Registrar in Breast and General Surgery, Mr. D. Nathaniel, who writes to Dr. Issac: "Thank you for referring this 30 year old lady with bilateral breast pain for about one month. This has gradually improved with time. There is also some associated lumpiness in the right breast over the last few weeks. She has also noticed a large lump in her right axilla in the last six weeks. She has no previous breast history or family history of breast cancer. On examination the left breast was unremarkable. There was significant irregular lumpiness in the lateral aspect of the right breast adjacent to the areola. This was associated with some slight nipple retraction. In the axilla there was a palpable 2cm diameter enlarged lymph node".

21^st November She is seen by a Consultant Radiologist and Oncologist, Dr. Conrad Lewanski, who writes: "I saw this 30 year old lady today in the clinic who has presented with a mass and associated pain in her right breast over the past couple of months. In addition she has a large 3cm palpable right axillary node which has been biopsied and which has confirmed a ductal carcinoma. There is little doubt that she has an invasive cancer in her right breast. Clinically the tumour in her right breast measures 10 x 8 cms and occupies the majority of the upper part of the right breast. She has a forensic history and was released from prison in August of this year and apparently did seek medical advice whilst there as to symptoms in the right breast. She is understandably upset that no action was taken whilst she was in prison . . . " He initiated a treatment programme starting with chemotherapy and proceeding to a mastectomy (undertaken in the event in April 2006).

4. Sir Christopher went on to note both the relative rarity of this cancer in women under the age of 30 and also the appropriate response of a G.P. if consulted with a complaint of a breast lump. This was to take a careful history, closely inspect and systematically palpate both breasts and carefully examine the armpits and lower neck for enlarged lymph nodes. It is also important, at this stage, to record the joint expert evidence of the oncologists that as Dr Nathaniel did not feel a discrete lump in November 2005 and given that neither mammography nor ultrasound showed a discrete lump at that time, on the balance of probability, the lump was not palpable in March to May 2005; there was an issue between the experts as to the probability of whether the lymph nodes would then have been palpable.
5. It is now sufficient to record the primary findings of fact that the judge made. He found that Ms Carter did complain of a lump in her right breast to each of the three doctors, Dr Munasinghe, Dr Jayasinge and Dr Premaratne. He rejected complaints of negligence against Dr Munasinghe and Dr Jayasinge in connection with the examinations which they conducted, notwithstanding the absence of clinical records, not least because Ms Carter had no contemporaneous knowledge of the potential significance of particular examination and because, in any event, there was no evidence that there were signs of the condition that such an examination would have revealed.
6. Although the learned judge accepted (contrary to the evidence of Dr Premaratne) that Ms Carter had complained of a breast lump to her, it was common ground that Dr Premaratne had conducted an examination of her breasts and he rejected the allegation that the doctor had negligently conducted the full examination that was required of her as a consequence of the complaint he found to have been made. He said:

"As to her approach in such terms, I do not understand it [her general approach to breast examination and axilla inspection] to be significantly faulted and I can discern no good basis for a finding that she did not follow such on the instant occasion. True, there is no note of an axilla inspection that she says was negative; true, it is plainly arguable that there should have been such a note; all that said, I am not prepared to find that on this occasion she 'short-changed' [Ms Carter] in terms of inspection and examination – I can think of no reason why she should and the experts cannot discount her sworn evidence on this point."

7. Sir Christopher then went on:

"I am entirely satisfied that the exercise of reasonable care and skill demanded the taking of a history that would have elicited the fact of earlier consultations and established the locus of the possible lump. Had this been done then, as I think, she should and would have made [Ms Carter] the subject of a 'non-urgent' referral to a breast clinic – and her failure to do so was in breach of duty and negligent. … I accept Mr Sachdeva's submission that there is nothing that would mandate such a referral; it is just that on the basis of the history that should have been obtained, the time had come at which the exercise of reasonable care and skill would lead, as I think, to obviating the potential for a future, fourth consultation by a referral for a better informed and founded second opinion. Why 'non urgent'? I point to my earlier finding, as to that which Dr. Premaratne did by way of inspection and examination. Given that such had not elicited anything sinister, there was no basis for 'urgent' referral …"

8. The judge had heard evidence from two oncologists, two histopathologists and two general practitioners observing that he would not rehearse their opinions but that "my indebtedness will appear from my findings". He did not explain how he had taken account of the views of the two experts in general practice namely Dr Ross, for Ms Carter, and Dr Cheng for the Ministry of Justice. Both agreed that if clinical examination confirmed a breast lump or the presence of palpable axillary lymph nodes, urgent referral to a breast clinic would have been required. On the basis that this was the third consultation for the same condition of a reported breast lump, Dr Ross considered that Ms Carter should have been made the subject of a routine referral; in fact, he was of the view that Ms Carter should have been referred after the second consultation. Dr Cheng, on the other hand, was of the view that there was no need to refer her if no lump was detected and there was nothing else to put the G.P. "on suspicion" that there was a real risk of breast cancer, given her age group although he recognised that some G.P.s would have referred her in order to reassure and avoid a complaint or litigation. Having clearly rejected the presence of palpable abnormality (which, by agreement, would have required urgent referral), Sir Christopher said:

"Essentially, and perhaps not unexpectedly, I am steering a course between the two [experts]. Whilst unimpressed with notions of a 'mandated' response and a 'Rule of 3', I am impressed by the overall situation as I find it to be, principally featuring a sustained, unresolved concern as to the state of a breast, which concern was, as we now know, well founded. It is here that I heed the submission of Miss Sparks for [Ms Carter], drawing attention on the one hand to the potential significance of a breast lump if there and on the other hand to the relative ease with which a routine referral could be arranged and carried out – a balance of factors that has parallels elsewhere in the common law, see Morris v West Hartlepool Steam Navigation [1956] A.C. 552, 574."

The Challenge

9. Mr Vikram Sachdeva for the Ministry of Justice describes the context of his challenge on the basis that the learned judge rejected the three main bases on which Ms Carter sought to prove breach of duty, namely, the failure to detect the breast lump, the failure to detect an axillary lump and the failure to refer to a specialist on the second occasion on which Ms Carter reported a breast lump not borne out by examination. He found for her on a fourth ground, not specifically spelt out in the Particulars of Claim but comprised within the general allegations of negligence ("failed, when [Ms Carter] re-presented, to refer her to a breast clinic"). In that regard, it is appropriate to note that, when cross examining Dr Premaratne, Ms Sparks did not investigate her practice in taking a history (either generally or specifically in this case), or the circumstances in which, even without abnormal clinical findings, the doctor should have referred her for specialist consideration. That was because the focus on these issues really emerged during the expert evidence and submissions, emanating as having importance as a result of comments made by the judge himself.
10. Before analysing the main ground of appeal, it is appropriate to deal with a subsidiary submission made by Mr Sachdeva which is to the effect that Sir Christopher reached findings of fact to which he was not entitled and, in particular, having rejected Ms Carter's evidence on critical issues as to whether there was a palpable lump and whether the axillae were examined, he should not have accepted her as credible in other areas. Equally, having accepted that Dr Premaratne's general approach to breast examination and axilla inspection could not significantly be faulted, there being no good basis for finding that she did not follow it, he should not have rejected her interpretation of her own clinical note, still less found that she had failed to seek to obtain a full history (on which she was not challenged).
11. I must admit to having some difficulty about the basis upon which the judge reached these very different findings but I readily recognise that Sir Christopher was charged with the responsibility of assessing the credibility of the witnesses he saw and deciding what he accepted from each; he clearly approached the case with a deep understanding of the likely reaction of those actually involved in the unfolding events. In the circumstances, I have come to the conclusion that these findings of fact were open to him and that there is no basis upon which it would be appropriate to interfere. In that regard, I am very conscious of the observations of Lord Hoffmann in Biogen Inc. v. Medeva Ltd [1997] RPC 1 at 45 when he said:

"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ….. of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

12. Separate from the argument on the facts, the primary ground upon which Mr Sachdeva mounts this appeal is that, in deciding the case on the basis that he did, the learned judge failed to apply the correct test for breach of duty in clinical negligence cases. Far from relying upon the well known dictum of McNair J in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 at 586 ("the standard of the ordinary skilled man exercising and professing to have that special skill … acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art"), he reached a conclusion based upon the unresolved concern of the Claimant and the relative ease of referral for expert opinion. In that regard, he referred to Morris v West Hartlepool Steam Navigation (supra) which concerned the failure to fence an unprotected hold in accordance with a general practice in relation to grain ships in ballast while at sea. It was held that the risk to the deck hand who fell into the hold was obvious and easily avoided and that the consequences of falling into the hold was serious; negligence was thus established.
13. Rather than deal with the case in the way that he did, Mr Sachdeva submitted that he should have followed the approach referred to Bolitho v City and Hackney Health Authority [1988] AC 232 in which Lord Browne-Wilkinson observed (at page 243) that:

"In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that the views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgement which a judge would not normally be able to make without expert evidence."

14. Thus, the judge should have identified the views of "distinguished experts in the field" and considered whether such views were capable of withstanding logical analysis. In the response to the joint meeting of G.P. experts dealing with the scenario (as the judge found to be the case) that the consultation of 10 May was the third presentation of a perceived breast lump although clinical examination did not identify a palpable breast lump or palpable axillary lymph nodes, the note records that the experts did not agree. Their views (effectively unchanged in evidence), were as follows:

"Dr Ross considered that Ms Carter should have been referred on a routine basis as the notes appear to confirm that she had 'irregularity' and that if this was the third presentation, by definition, her irregularity had not resolved. The notes are insufficient to conclude that the 'irregularity' was symmetrical and her 'irregularity' appeared to be at least partially pain associated.

Dr Cheng considers that some GPs would have referred in this situation. However, referral was not mandatory, for some reasonable GPs would not have referred. Indeed, neither the N.I.C.E. guidelines nor the Kent & Medway Cancer network guidelines make referral in such a case mandatory, but leave it to the discretion of the GP. There is an informal unwritten professional practice of 'Rule of 3' whereby if a GP sees a patient three times without diagnosing the problem, there is a tendency to refer to a specialist. This is a pragmatic rule designed to reassure anxious patients and to avoid complaints and/or litigation for the doctor in the future. It is not a rule which no responsible body of general practitioners would fail to follow."

15. As I have noted above, Dr Cheng later repeated that, although some GPs would have referred the Claimant in order to reassure her and to avoid any complaints or litigation, he was of the opinion that there was no need to refer "if no lump was detected and there was nothing else to put the GP on suspicion that there was a real risk of breast cancer, given the age group of the Claimant". Stripping the triple negative from the last sentence of the quotation above, but retaining its sense, would suggest that the so-called 'rule' is not one which a reasonable body of general practitioners would be bound to follow.
16. Further, Dr Cheng pointed to Guidelines promulgated at the behest of the National Institute for Clinical Excellence in June 2005 following consultation with a very large body of interested professionals. These Guidelines included the advice:

"In patients presenting solely with breast pain, with no palpable abnormality, there is no evidence to support the use of mammography as a discriminatory investigation for breast cancer. Therefore its use in this group of patients is not recommended. Non-urgent referral may be considered in the event of failure of initial treatment and/or unexplained persistent symptoms."

17. In a preface to the Guidance by the Chairman of the Council of the Royal College of General Practitioners, it is suggested that whilst greater vigilance was needed, it was "important not to routinely over-investigate or make inappropriate referrals". Equally, the Breast Clinic Referral Pro-forma issued by Kent and Medway Cancer Network (the relevant authority for Dr Premaratne) specifically includes within the group who can be managed 'at least initially' by their GP:

"Women with minor and moderate degrees of breast pain who do not have a discrete palpable lesion."

18. In this case, by the time of her visit to Dr Premaratne, Ms Carter was not complaining of pain (which she said had settled) and there was no palpable abnormality. Thus, on this basis, according to the Guidelines and the Referral Pro-forma, in addition to the professional view of Dr Cheng, whether or not to refer Ms Carter was discretionary such that it was not negligent to fail to do so. Dr Ross, on the other hand, maintained that if a patient complained of the presence of a lump, even if no lump was found on proper clinical examination, by the second such visit to the G.P., there was an unresolved diagnostic problem which had to be referred for further investigation.
19. Although the judge did not refer to the Guidance or Pro-forma and said no more than that he was "steering a course" between the experts, Ms Sparks submitted that this meant only that he had rejected Dr Ross' opinion that the second visit required a referral; given that the judge found that failure to refer after the third visit was negligent, by implication he was rejecting the contrary view and his reference to his indebtedness to the experts appearing from his findings revealed that he had taken all these facts into account.
20. I do not agree that this is an appropriate reading of Sir Christopher's conclusions. It is clear from the words that the judge used that he accepted the submission that nothing mandated (my emphasis) a referral and he specifically expressed himself as unimpressed by the Rule of 3. In other words, he did not consider that a doctor was bound to refer a patient in respect of whom proper (as he also found to be the case) clinical examination revealed no abnormality simply because it was her third presentation. Although foreshadowed by the judge, the situation obtaining in this case (namely that this was a young woman who, because of her circumstances, could attend a doctor without difficulty, as frequently as she wished, and did so "for every little thing") was not mentioned but ought also to be brought into the picture.
21. For my part, I am also concerned that the learned judge brings into his reasoning the fact that the unresolved concern as to the state of Ms Carter's breast was "as we now know" well founded. The judge accepted that Ms Carter had complained about her breast on each of the three occasions and proceeded on that premise. Neither she nor any of the doctors knew that the complaint was well founded: indeed, he specifically found that no abnormality was detected on examination. Although a terrible disaster for Ms Carter, the fact that there was a developing tumour (albeit undetectable on clinical examination) is irrelevant to the issue of referral.
22. Even if I am wrong about my interpretation of Sir Christopher's judgment, the effect of his finding is that he comes nowhere close to concluding that the view expressed by Dr Cheng was not a view held by an expert in the field, still less that it was one that was not capable of withstanding logical analysis (as required by the test in Bolitho). To have reached that conclusion would have required explicit findings of fact and analysis of the reasons given by Dr Cheng in his reports and his evidence to demonstrate that they came within that group of cases exemplified by Hucks v Cole [1993] 4 Med LR 393 which concerned a failure to modify antibiotic treatment for a visible lesion, notwithstanding the ease with which that could be done. As Ms Sparks conceded, unless the judge concluded that Dr Cheng's genuinely held view could not withstand logical analysis and was thus unreasonable, Ms Carter could not succeed. I do not accept that he reached that conclusion; neither do I consider that it was open to him, on the evidence, to do so.
23. I ought to deal with a further argument advanced by Ms Sparks concerning the assessment of the balance of the potential significance of a breast lump against the relative ease of a routine referral. She argued that the judge's reference to Morris v. West Hartlepool Steam Navigation was only to underline the balancing exercise. There is, however, a very important difference. As Mr Sachdeva argued, in employment cases involving safety precautions such as the fencing around an open hatch, the judge is able to impose standards. A referral to a specialist in cases such as this has implications in relation to the pressure of work on this service and, as the judge found, a clinical judgment will always be required before such a step is taken. That clinical judgment takes the case back to an analysis as described in Bolam and Bolitho.
24. Thus, in the light of the judge's findings of fact and, in particular, his acceptance both that Dr Premaratne conducted a clinical examination inspection with care, finding no abnormality in breast or axilla, and that referral for specialist opinion was not mandated by appropriate professional standards simply because this was a third presentation, I am afraid that I see no basis for his conclusion that breach of duty was established; neither do I consider that his reasoning provides such a basis. On the contrary, in the light of the authorities governing allegations of clinical negligence, his decision that referral was not mandated is fatal to the claim.
25. Based on English v Emery Reimbold & Strick [2002] 1 WLR 2409, Mr Sachdeva also criticised the adequacy of the learned judge's reasoning. In the light of my conclusions on the primary ground of appeal, it is unnecessary to analyse this issue further.
26. In the circumstances, I would allow this appeal. I add only that I reach that conclusion with regret and very real sympathy for Ms Carter, recognising, of course, that this feeling will provide absolutely no comfort to her.

Sir Scott Baker:

27. I agree with the judgment of Leveson LJ and in particular would like to associate myself with the remarks in his concluding paragraph. The judge's natural sympathy for Ms Carter led him to a conclusion that is, in my judgment, unsustainable in law. He made a number of findings of fact that are somewhat surprising, but we are bound by them for the purposes of this appeal.
28. It seems to me that it was at paragraph 27 of his judgment that the judge fell into error. He said he was steering a course between the two experts, Dr Ross and Dr Cheng, adding that he was unimpressed with the notion of a 'mandated response' and a 'Rule of 3'. He did not, however, make clear what aspects of their evidence he accepted and what aspects he rejected. Instead he substituted his own view that he was "impressed by the overall situation as I find it to be, principally featuring a sustained, unresolved concern as to the state of the breast which concern was, as we now know, well founded". There are two points to be made here. First, it is completely irrelevant to the issue whether Dr Premaratne was in breach of duty of care that any concern turned out to be well founded. Second, the unresolved concern can, on the evidence, only have been that of Ms Carter and not that of Dr Premaratne.
29. The judge then weighed that concern against the relative ease with which a routine referral could be arranged and, on the basis of the case of Morris decided a referral should have been made. In my judgment, Morris was nothing to the point. Here we are concerned with whether a general practitioner was negligent. In determining what should have been done by Dr Premaratne, the judge was not entitled to impose his own opinion regardless of the practice of the medical profession. The test he should have applied is that explained in the well known cases of Bolam and Bolitho.
30. Furthermore, the judge made no reference to either of the guidelines to which Leveson LJ has referred or, indeed, to the fact that there was, apparently, a responsible body of medical opinion that would not have referred Ms Carter on the facts he found in this case.
31. Sad though the outcome of this case is, I cannot find any breach of duty on the part of Dr Premaratne. In a case such as the present, where a general practitioner has found nothing potentially sinister, the law does not require routine referral for specialist investigation.

Lady Justice Smith:

32. I agree with both judgments and, save to express my sympathy for the respondent, there is nothing that I can usefully add.