England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th February 2013

Simeon Maskrey QC :

Introduction

1. This is a clinical negligence action. Put shortly it is alleged by the claimant that in December 2006 the defendant, her general medical practitioner, failed to alert her to the fact that he was making an urgent referral to St Mary's Hospital for her to be investigated for symptoms that she was displaying. The referral letter was lost. There were no arrangements to ensure that an appointment was received other than to rely on the patient to chase it up. Because the claimant was not aware of the referral she did not question the absence of an appointment from the hospital. It is alleged that as a consequence there was a delay in appreciating that she was in fact suffering from ovarian cancer. The delay is alleged to have been in the order of 5-6 months.
2. It is alleged that as a consequence of the delay in making the appropriate diagnosis the claimant's life expectancy has been reduced; that she suffered an adverse psychological reaction; that she was less well when treatment started and thus less able to cope with the side-effects of chemotherapy; and that she was unable to resume full-time work and/or was unable to work part-time as long as she would have wished. She also alleged that there were a number of other financial consequences, although these claims have now been abandoned.
3. The defendant denies that he failed to tell her of the referral. He accepts that if I find as a fact that he did fail it amounts to a breach of duty on his part. It is agreed between the parties that the system in place, whereby the patient is notified of the referral and then has the responsibility to ensure that an appointment is received, was a reasonable system in 2006 and 2007. It follows that I am not concerned with establishing the proper standards to be adopted by a GP in such circumstances. I am concerned only with whether, on a balance of probabilities, the claimant was made aware of the fact that an urgent referral had been made.
4. The defendant also argues that even if there was a failure on his part to tell the claimant of the referral the delay in diagnosis was not as long as 5-6 months; that whatever delay there was had no impact on life expectancy; that it had no impact on her ability to cope with the treatment and that any adverse psychological reaction was more probably a consequence of the devastating news that she had established and disseminated cancer.

The narrative

5. It is common ground that from September 2006 the claimant experienced stomach cramps, bloating and diarrhoea. She attended the GP surgery on the 31^st October 2006 and saw Dr Phornnarit. There is a suggestion that he asked for a stool sample. If he did (and the claimant does not remember and Dr Phornnarit did not give evidence) no results were ever obtained or sought by the claimant.
6. The symptoms persisted and on the 7^th December 2006 the claimant attended the surgery and saw the defendant. He told me that he has a recollection of this appointment because the claimant looked obviously unwell, that he was surprised that she had waited 5 weeks to return to the surgery having seen Dr Phornnarit and he was surprised that she had not supplied a stool sample. Having examined her he made the decision that he would have a stool sample analysed and if it was normal (thus revealing that the claimant was not suffering an infective process that he would be able to treat) he would refer her for further investigations. He gave evidence that he told her (a) that if the stool sample was normal he would refer her and (b) that she should therefore make a further appointment for a week's time. Under cross examination the defendant accepted that he had not had to consider this consultation until proceedings were brought; that he only had 'islands' of memory; that, for example, he could not recall what explanation the claimant had for not providing a stool sample to Dr Phornnarit.
7. The claimant likewise said that she could remember the consultation of the 7^th December. She gave her evidence by deposition because she was too unwell to attend trial. I saw a video recording of her evidence. I have a transcript of what she said. She made the point that the defendant simply asked her to provide a stool sample. She said that she was absolutely sure he did not tell her to make a further appointment or that if the sample was normal he would have to consider referring her for further investigation. When asked about the consultation with Dr Phornnarit she conceded that it was possible that she had been asked for a sample but it was apparent from how she gave her evidence that she did not believe that she had. It was suggested to her that it was somewhat remarkable that she coincidentally made an appointment to see the defendant on the 21^st December. She explained that (a) she was making an appointment for her son, Thomas, and (b) that because she was attending the surgery in any event she would seek advice as to some moles that were troubling her. It is indeed the case that the record of the consultation on the 21^st December refers to a discussion about moles.
8. It is common ground that on the 12^th December the claimant telephoned the surgery and was told by a Mrs Beatrice Emohare, the practice nurse, that the stool results were normal.
9. On the 21^st December she attended the surgery with her son and saw the defendant. Neither the claimant nor the defendant has any independent recollection of this consultation. Indeed, the claimant did not at first believe that there was any consultation and it was only when documentary evidence established beyond argument that she did indeed attend that she was willing to accept as much. The record of the consultation is not illuminating. It says as follows: "patient reviewed Stool sample NAD, and abdo still not better, so urgent ref to gastro." In fact the defendant had already written the referral letter although his secretary did not type it up until the following day. The defendant says that the note makes it clear that he discussed her symptoms with the claimant and that there would be no reason why he would not tell her that he made or was about to make an urgent referral. The claimant says that if she had been told of the referral she would have asked a lot of questions about it. She would have asked whether she should have the referral via the NHS or whether it would be better or more convenient to be seen privately. She says that she would not simply have ignored the absence of an appointment coming from the hospital. She makes the point that there is no reference in the note to her being told of the referral or of any general discussion.
10. It is clear that the claimant also consulted the defendant about her moles. The note reads as follows: "Mole of skin Numerous moles, none recently changed . raised one on back of". It is evident that the note is incomplete. Whatever advice was given was not recorded.
11. The defendant then dealt with Thomas. The note reads: "Patient reviewed ear no better. No pain. Disch ++. Swab sent."
12. The referral letter to St Mary's hospital was either not received or was lost by the hospital. The claimant did not receive an appointment. Her symptoms persisted and indeed became worse. On the 24^th April 2007 the claimant attended the surgery for a cervical smear test. She did not ask about the referral because, she says, she had no idea that there had been one.
13. On the 29^th June 2007 she attended the surgery again and was seen by Dr Phornnarit. The note reads:

"Patient reviewed . referred urgently by GW in december to SMH but never got a letter. loose stools persist several times a day no blood or mucous. of concern she has lost weight and her appetite also. abdominal swelling ... Examination/Signs distended abdomen ? ascites no LKKS or LN not tender… Agreement of care plan – will see specialist asap. Letter sent to consultant dr teare – perhaps he could look into this".

14. The claimant attended hospital on the 3^rd July 2007. A CT scan was performed on the 5^th July and shortly thereafter the diagnosis of ovarian cancer was made. On the 19^th July she underwent surgery. She was found to have widespread disseminated malignancy with multiple deposits throughout the abdomen. The deposits were described by the surgeon as between 0.5 and 1cm. Mr Farthing, Consultant Gynaecologist, removed as much of the disease as he could. His operation note states that

"There were no spots of disease that were greater than 2cm in diameter and therefore by classification she was optimally de-baulked"^[1].

15. The claimant then underwent adjunct chemotherapy. The course was completed in November 2007. By May 2008 she felt well enough to return to work. In her statement she said that she only felt able to cope with 3 days a week. She said that

"Although I would have been physically up to full time work, psychologically I was not. I felt very angry and distressed by the defendant's failure, and what impact this has had on my prognosis.".

16. The medical records show that on the 29^th October 2007 she reported that she was "Coping ok, not depressed but hsop given sleeping pills". In December 2007 she was described as "optimistic and coping ok at moment. Hoping to get back to work at some time". The sleeping problems persisted and in December 2008 it was recorded that she "worries re: Ca diagnosis, has 2 young children also". By July 2009 she was said to be suffering from "mild depression" and was prescribed Citalopram, a form of anti-depressant^[2]. However, a PHQ9 questionnaire that she filled in on the 4th August 2009, if taken at face value, contradicted a diagnosis of depression. From December 2009 she was described as suffering from anxiety with depression, although again a PHQ9 suggested that any depression that she had was mild/borderline. In April 2010 she relapsed and further chemotherapy was administered. The period of remission was 10 months and in July 2011 she relapsed again. It is apparent that although she coped well with the first course of chemotherapy it became more debilitating as each course was administered. During the second course in July 2010 she lost her hair which she told Ms Agnes Kocsis, an expert Consultant Clinical Psychologist instructed on her behalf she found to be "…psychologically very damaging". However a PHQ9 dated August 2010 did not suggest that she was depressed. By February 2012 she was receiving palliative care. She was seen by Ms Kocsis who described her as "…likely to be suffering from a severe mental disorder". By February 2013 she was not physically well enough to attend Court and her evidence was given by deposition.

The allegation of breach of duty

17. As I have previously indicated I must determine this issue as a finding of fact and on the balance of probabilities. I have considered carefully the oral evidence given by claimant and defendant. I make it plain that I am convinced that both witnesses were trying their best to recollect what had happened in December 2006, over 6 years ago. Both were honest and neither was prone to exaggeration. I have taken account of the arguments that have been raised by both parties. I hope I will be forgiven if I do not recite each argument in this judgment.
18. I have come to the conclusion that the claimant was not told on the 7^th December to make an appointment with Dr Williams for one week hence and she was not told that if the stool sample was normal she would have to have further investigations. Likewise I find as a fact that she was not told by the defendant on the 21^st December that an urgent referral had been or was going to be made and that she should watch out for the appointment letter. My reasons for reaching this conclusion are as follows.
19. First, having seen the claimant I am satisfied that if she had been made aware of the fact that an urgent referral letter was to be sent to the hospital she would have questioned the reason and it would have made a significant impact upon her. Rather than her failure to recall the consultation of the 21^st December undermining her evidence I consider that it supports the suggestion that she was told nothing of significance.
20. Secondly, I do not consider that the claimant would have waited until July 2007 to return to her GP, and waited for so long in the face of persistent and worsening symptoms, if she had known that an urgent referral had been made. It was suggested that she might have been the sort of person who tended to ignore her health or to 'bury' bad news. It was said that support for this argument came from the fact that she did not provide a stool sample to Dr Phornnarit in October 2006 and did not attend the surgery again for 5 weeks notwithstanding persistent symptoms. I see the force of that submission. But in October 2006 she had no reason to believe that very much was wrong with her. If she failed to provide a stool sample (and I am not wholly convinced that she was in fact asked to provide one or failed to do so having been asked) that was because she had no reason to believe anything serious was the matter and was somewhat relaxed about her health. But on the defendant's case she cannot have been left in any doubt that he believed that there might be a serious problem and that he felt it was necessary for it to be investigated urgently. I do not accept that that was the sort of information that she would either ignore or forget.
21. Thirdly, the fact that she sought the stool sample result from the practice nurse tends to support the proposition that she was not asked to make a further appointment and did not appreciate the significance of a normal result. She said that was reassured by what she was told. I thought her evidence on this issue was reliable.
22. Fourthly, although the defendant had some recollection of the consultation on the 7^th December it was apparent to me that he had no more than 'islands' of recollection. He had no reason to consider what had happened at the consultation until he received the pre-action protocol letter of claim in late February 2011, nearly 5 years after the consultation. Ms Kerstin Boyd, counsel for the claimant, made the point that the defendant had no recollection of what would have been significant aspects of the consultation if his evidence were to be correct. By way of example only he said he was surprised that it appeared she had not provided a stool sample in October 2006 and that he would 'probably' have asked her why she did not. Yet he had no recollection of her response. On the other hand the claimant wrote a letter of complaint in September 2007 when she expressly said that she had no knowledge of the letter of referral having been written.
23. Fifthly, the consultation on the 21^st December (which nobody could recall) seems to have been one where the defendant may either have been rushed or distracted. The note dealing with the claimant's moles has not been completed; the period of time that her notes were open on computer was very short, and the defendant's explanation for why that might be was not compelling. He suggested that he might not have opened her notes on computer until well into the consultation. However, he could offer no reason why he would not open the notes and it is apparent that this is a very recent reconstruction designed to explain away what would appear to have been a very short consultation during which very little was said.
24. Sixthly, the notes of the consultation do not undermine the claimant's assertion that she was told nothing of significance. The 7^th December note does not suggest that the claimant had been told to make an appointment in a week's time as one might have expected. Moreover, the fact that by the 21^st December the defendant had already written the letter of referral suggests that he had made up his mind to refer and had little more that he needed to discuss with the claimant. That might provide an explanation as to why he did not say anything about the referral to her, contrary to what I accept was his usual practice.

Causation

25. Mr de Bono, counsel for the defendant, accepted that it was probable that the claimant would have sought a private referral at some stage had she been aware that an urgent referral was being made. He suggested that the claimant would have accepted an NHS referral for the first appointment and then switched to the private pathway. The defendant himself rather thought that a private referral would have provided a diagnosis no sooner than an NHS referral. However, the experts did not agree and Mr de Bono did not invite me to reach such a conclusion.
26. I consider that if the claimant knew that an urgent referral was to be made she would probably have ensured that she obtained an appointment at the hospital (a) quickly and (b) at a time that suited her significant work commitments. I note that in July 2007 she had a friend who worked at St Mary's organise an early appointment for her. She would probably have done the same in December 2006 even if she had used the NHS for the first appointment. I consider that notwithstanding the view of the defendant that it would make little difference she would, one way or another, have had the first consultation by early January 2007 and the diagnosis would have been made by late January/early February. I do not accept the suggestion (which in fairness was not pressed) that because at a later date she sought genetic testing on the NHS this means that she would not have utilised the health insurance benefits that she held. Thus, I consider that surgery would have taken place by early February rather than mid July. Accordingly, the breach of duty on the part of the defendant led to a delay in carrying out surgery of 5 ½ months.
27. It is agreed between the expert Gynaecologists that a delay of 5 ½ months would have made no difference to (a) staging of the disease and (b) the treatment options that would have been offered. In July 2007 the disease was at stage IIIc and it is probable that in February 2007 it was also at stage IIIc. In July 2007 the management was surgery followed by adjunct chemotherapy. The management in February would have been exactly the same. The surgery in February would have had the same objective as surgery in July: namely to remove as much cancerous tissue as possible. It is plain that Mr Farthing, the surgeon who operated in July, did not subscribe to the view held by some American surgeons that radical and extensive surgery should take place. He considered that one should strive to obtain optimal de-bulking, which by his definition was the removal of all aggregates of abnormal tissue that were 2 cm or greater in dimension. He achieved that in July and it is agreed that he would have done so in February. However, the experts agreed that in February he would not have been able to remove all of the macroscopic tumour. In other words, although the claimant would have been left with less residual volume of abnormal tissue had she been operated on in February (a) some would have been left (b) the dimensions of material left would still have been less than 2cm (and if the operation note suggests that all tissue of more than 1 cm was removed in July then it follows that in February the same result would have been achieved).
28. Thus, the first issue for me to determine is whether the fact that more abnormal tissue was left following surgery in July than would have been the case in February translates into a diminution in life expectancy. Mr Herod, Consultant Gynaecologist instructed by the claimant, considered that it probably did. Mr Hammond, Consultant Gynaecologist instructed by the defendant, considered that there was a chance that it would have had that effect but considered that there was no evidence upon which to say that on a balance of probabilities expectation of life was diminished at all.
29. It was agreed that the delay in diagnosis meant that the claimant was left untreated and that she suffered symptoms during that period that she would not otherwise have suffered. The second issue is for me to determine the level of damages appropriate for the pain and suffering over the 5 ½ months avoidable delay.
30. The claimant suggests that she developed a psychiatric disorder and that the knowledge that her diagnosis had been delayed contributed to that psychiatric condition. The third issue for me to determine is whether she has proved that that is the case and if so what damages are appropriate for the contribution made by the breach to the psychiatric disorder she has in fact suffered.
31. Finally, it is alleged by the claimant that she did not engage in full time work in May 2008 because of her psychiatric condition. She alleges that but for the delay in diagnosis and the contribution that made to her psychiatric disorder she would probably have managed full time work. Thus, she claims the difference in earnings between May 2008 and May 2010. In the schedule that is put at £36,170. Upon the basis that an earlier diagnosis would have resulted in an extended period of remission following the first course of chemotherapy a further claim of £31,061 is made upon the basis that but for the breach of duty the claimant would have continued working for a period of 18 months longer. Ms Boyd accepted during the course of her closing submissions that that figure should be discounted by the earnings received from February 2007 until July 2007. During this period the claimant continued to work but she accepted that had she been aware that she had ovarian cancer she would have stopped work immediately. I have not been provided with the figures for her earnings in January 2007 but it is apparent from the schedule that the discount would be in the order of £19,000. Thus, the issue for me to determine is whether the claimant has sustained a loss of earnings in the order of £48,000 as a consequence of the breach.
32. For completeness I should add that Ms Boyd abandoned the other financial claims set out in the schedule.

Diminution in life expectancy

33. Mr de Bono cautioned me that simply because "The idea that delays in diagnosis and treatment of cancer patients adversely affect survival is deeply ingrained in our psyche"^[3] is an insufficient basis upon which to find that the delay did in this case probably translate into a reduction in life expectancy. He also cautioned me not to elevate into a proven fact that which was simply the loss of a chance that fell below 50%. Thus, he pointed out that there is no literature that satisfactorily establishes that leaving residual abnormal tissue but where the maximum dimension of each aggregate or tumour remained less than 2 cm had any impact on life expectancy. On that basis he argued that I could not say that on a balance of probabilities a diminution in life expectancy had been established.
34. Ms Boyd pointed out that the literature established that (a) leaving diseased material where each aggregate was greater than 2cm was associated with a diminution in life expectancy and that removing all macroscopic material was also associated with a better life expectancy. Thus, she argued, there was no reason to suppose that removing a greater proportion of material where each aggregate was less than 2 cm would do anything other than improve life expectancy. She relied upon the concession made by Mr Hammond in cross-examination that her argument was (a) biologically plausible and (b) was what would be expected from a biological point of view. She also relied upon the Chi et al paper (2006) helpfully produced by Mr Hammond.
35. In my judgment there are two inter-related issues. The first is whether removing material so that each remaining aggregate falls below a given size is associated with a change in life expectancy. The second is whether simply removing more volume of diseased tissue is associated with a change in life expectancy.
36. The papers that were relied upon by the experts were generally concerned with the size of remaining aggregates. Thus, the seminal paper by Griffiths et al (1975) was concerned with the relationship between residual tumour diameter and patient survival. The Cochrane review (2011) was concerned with identifying whether the removal of all visible disease had an impact on survival and whether there was a difference in survival when the remaining aggregates were greater or less than 1 cm. Bristow et al pointed out that studies that tended to show that cytoreductive surgery per se was an independent predictor of survival "..had difficulty quantifying the comparative magnitude of this effect" @ 1254. Chi et al specifically stated that "…while volume of disease has been reported to have greater prognostic significance than the size of the largest diameter of individual sized implants, quantification of residual tumour volumes was not able to be adequately estimated in this retrospective analysis" @ 563. Moreover, the papers are inconsistent in their definitions. In the Bristow et al paper it is difficult to determine what is meant by 'optimal' cytoreductive surgery and what the difference is between 'optimal' and 'maximal'.
37. It is perhaps for these reasons, amongst others, that Mr Herod said in the joint meeting of experts that "the body of evidence is relatively weak since the design of the studies which may answer this question is poor" and that he was not aware of a single study "that would specifically address the issue of the prognostic benefit of debulking surgery of varying degrees of success as defined by the volume of residual disease at the end of surgery" (my emphasis).
38. Given that in this case the size of residual tumours would have been the same had surgery been conducted in February 2007 I am not much assisted by studies that demonstrate that the size of residual tumours has a prognostic value. Moreover, I do not believe that it can be said that the individual tumours would have been more resistant to chemotherapy in July as opposed to February. The resistance to chemotherapy is determined by three matters: simple size and the ability of the drugs to penetrate the mass, perfusion of the mass and thus again the ability of the drug to penetrate, and the nature of the cancerous cells and whether they have mutated so as to be resistant to the drug. Because the size of the residual tumours would have been the same in February as in July the first two reasons for the chemotherapy being more or less effective cannot apply in this case. Likewise, the literature does not help, as Mr Herod conceded, when determining whether the volume of abnormal residual tissue has an impact on survival. However, his point that the volume of cells that would have been resistant to chemotherapy would have been less in February 2007 remained a good one.
39. Thus I am, in the end, left with the following evidence that tends to suggest that the volume of residual abnormal material does have an impact on survival. First, Chi et al accepted that there were studies that tended to suggest that the volume of residual disease had an important impact on survival. Secondly, it is what Mr Hammond would expect from a biological perspective. Indeed in the joint meeting he accepted that "in general terms" it is true that the amount of disease left translates into an improved response to treatment and increased life expectancy^[4]. Thirdly, Mr Herod put forward a reasoned explanation as to why the volume of residual abnormal tissue mattered, namely that "the smaller the volume of disease that remains when chemotherapy begins, the less likelihood it is that clones of resistant cells will develop". Mr Hammond did not feel able to contradict that opinion. In my judgment this evidence is sufficient for me to conclude on the balance of probabilities that in general terms the less the volume of cancerous tissue left after surgery the better the prognosis for survival.
40. However, there is no evidence before me as to what proportion of residual cancerous tissue would have been left in February, as opposed to what was actually left in July. The experts did not address the question in their reports and in the joint meeting Mr Hammond stated (without contradiction from Mr Herod) that "slightly less tumour" would have been left at the end of surgery in February. Given the absence of that piece of information I have struggled to understand how Mr Herod has been able to translate the fact of an increased volume of residual cancerous tissue (extent unknown) into a reduction in life expectancy of between 12-18 months^[5], more likely at the upper end of the range. Mr Hammond made it clear that his estimate of a reduction in life expectancy was as between all macroscopic tissue being removed and some macroscopic tissue remaining. In that event, relying on figure 11-16 contained in the textbook 'Clinical Gynaecologic Oncology' he considered that removing all tissue resulted in a statistical increase in life expectancy of 6 months. However, as he emphasised, that is not this case. It is because (a) the difference in volume between what was left in July and what would have been left in February is not known and (b) the absence of any trials evaluating what impact known differences in volume of residual material has on life expectancy, that Mr Hammond concluded that it could not be proved that in this case there was any such difference.
41. In her closing address Ms Boyd said that the estimate of a reduction in life expectancy given by Mr Herod "is not a hunch…or loss of a chance, but an estimate on the balance of probabilities based on an understanding of the disease and the biology, and its treatment. It is also based on his clinical experience, looking at the claimant as an individual in the knowledge of how she has fared to date." I do not accept that submission. I consider that Mr Herod's analysis was accurate in determining that volume of residual disease in general terms was a prognostic indicator. But given that he could not assess the difference in volume of residual material I do not believe that his estimate is anything more than a 'hunch' or a belief that the claimant has lost the chance of such an improvement. Moreover, I do not believe that the claimant's relatively good response to treatment assists in determining the question. Indeed, the fact that her particular cancer may have been relatively slow growing tends to suggest that Mr Hammond is correct when he says that the difference in volume of residual disease as between February and July would have been slight.
42. Gregg v Scott [2005] UKHL 5 makes it clear that damages are not recoverable for the loss of a chance. In my judgment the claimant has to establish that the breach of duty caused or made a material contribution to a measurable degree of loss. See Tahir v Haringey Health Authority [1998] Lloyd's LR (Med) 105. I do not consider that in this case the claimant has proved on a balance of probabilities that the delay of 5 ½ months made a material difference to her life expectancy. It might have done but she has not proved that it has. Moreover, she has not proved that it made a measurable difference to her life expectancy. I have reflected on the case of JD v Mather [2012] EWHC 3063 (QB) but the difference between that case and this is that the negligent delay meant that the staging of the melanoma changed and good quality statistical information was available to show the impact of a change in staging on median life expectancy. Such evidence is simply not available in the instant case.

Pain and suffering between February and July 2007

43. The claimant suffered a period of 5 ½ months of bloating and diarrhoea. There is little in her statements about her symptoms during this period. However, I note the following. First, the symptoms became worse. By the time she attended hospital in July some 8-9 litres of ascites were drained. However her symptoms were not sufficient for her to take time off work. She was not in pain although she was in considerable discomfort. I take into account that although she coped well with the chemotherapy she was less well than she would have been had it begun in February 2007. Her evidence was that this increased her fatigue, a point accepted by Mr Herod. In those circumstances I consider that an award of £2,500 is appropriate.

Psychological injury

44. It is alleged that by April 2008 the claimant was suffering from a psychological injury and that by February 2012 it was severe or moderately severe. Her claim is supported by the evidence of Agnes Kocsis, Clinical Psychologist.
45. I have to say that the diagnosis of the psychiatric illness was difficult to determine from Ms Kocsis' report. However, I am prepared to accept that by February 2012 (when she was examined by Ms Kocsis) the claimant was suffering from moderate depression, anxiety and distress. I am prepared to accept that her condition amounted to a recognisable psychiatric disorder. I am also prepared to accept that from October 2007 she began to have difficulty sleeping and that from July 2009 she was mildly depressed. I gather this information from the medical records rather than from the report from Ms Kocsis. I accept the point made by Mr de Bono that the questionnaires that she completed between August 2009 and August 2010 tended to suggest that she was not depressed. But on balance I consider that when she could the claimant took a positive view of life and this view was reflected in the questionnaires. I do not believe that they prevent me from concluding that she was suffering from mild depression from July 2009.
46. The depression and anxiety clearly worsened as time went on. Although it is not possible to associate accurately the worsening of her psychological state with the relapses that she suffered and the impact of the chemotherapy I am sure that in large measure the deterioration was due to the realisation that remissions would become shorter and treatment would become more unpleasant. Indeed, she herself referred to the fact that losing her hair was psychologically damaging.
47. The claimant has said that she believes her psychological distress was exacerbated by the knowledge that there was delay in her diagnosis and that the delay had an impact on her prospects of survival and her response more generally to the treatment that she experienced. Her evidence is supported by the opinion of Ms Kocsis. She believes that the claimant has suffered "a more intense sense of helplessness than would have been expected".
48. Where I consider that Ms Kocsis' evidence was unsatisfactory was in her attempt to ascertain the contribution of the breach towards the overall psychological suffering. There is no good evidence that Ms Kocsis analysed the medical records in any detail; she was misled as to Mr Herod's opinion of the extent of the reduction in life expectancy; she appears simply to have accepted the claimant's apparent belief that between December 2006 and June 2007 the cancer had "exploded".
49. In truth there is very little reliable evidence as to the extent and nature of her psychiatric illness, its course or the component referable to the delay in diagnosis. Doing the best I can I conclude that she has developed a worsening condition since July 2009; that it is now a moderately severe condition; and that it will not change between now and her untimely death. In such circumstances if it had all been attributable to the delay I would have awarded general damages of £15,000. However, I am quite certain that the bulk of her symptomology would have occurred irrespective of the delay in diagnosis. The impact of the diagnosis was and would inevitably have been devastating for a mother in early middle age with two young children who had hitherto believed that she was healthy and was overwhelmingly likely to remain so. However, I accept that her anger, loss of control and belief (whether misplaced or not) that things may have been different but for the delay made a material contribution to her condition. If I can make an apportionment I should do so. I consider that she would have been more able to adapt to her condition had the diagnosis not been delayed. I consider that she would have tended to look forward rather than back. Thus, I consider that the depression would have been more episodic and would have been less severe. In those circumstances I award general damages of £5,000 for the psychiatric injury attributable to the breach.

Loss of earnings

50. The claim is put in two ways. First that the claimant would have accepted full time work in May 2008 but for her exacerbated psychiatric condition; and secondly that she would have worked for longer as a consequence of a longer period of remission. Given my finding that there is no basis upon which I can find that the delay in diagnosis caused a measurable change in prognosis the second element of the claim must fail.
51. When cross-examined by Mr de Bono it was suggested to the claimant that "…you probably wouldn't have gone back full time whenever the diagnosis had been made". She replied "I don't know. I loved my job….And work made me feel good". She was given a second opportunity to provide an answer to this suggestion and she responded "I don't know. As I say, I don't know how I would have felt".
52. I am urged by Ms Boyd to conclude that in the context of the answers that she was giving during cross-examination she was acknowledging that there was an element of uncertainty about it but she was replying that on balance she would have returned to work full time had it not been for the anger and loss of sense of control that she felt. Sadly, I cannot accept this submission. The claimant was and is a palpably honest woman. I believe that she simply has no idea what she would have done in April 2008 had circumstances been different. Moreover, and more importantly, I do not believe that there is any evidence that she was in fact suffering from depression or anxiety sufficient to prevent her working in May 2008. As I have already indicated, although she had difficulty sleeping in May 2008 there is no evidence of even mild depression until over a year later. I have taken full account of the evidence she gave at paragraph 22 of her statement, but although given the opportunity in cross examination to say that the questionnaires she filled in between August 2009 and August 2010 were not a true reflection of how she felt, she did not take that opportunity. In those circumstances I can only conclude that in May 2008 she chose not to work full time because her cancer had given her a different perception to her work-life balance rather than because she was psychologically incapable of working full-time.

Conclusion

53. In those circumstances there will be judgment to the claimant in the sum of £7,500 together with appropriate interest from the date of the commencement of proceedings.
54. I wish to express my thanks to both counsel for the clear and expeditious way they advanced their separate cases. I have been much assisted by their submissions. I also wish to express my appreciation to both Mr Herod and Mr Hammond.

Note 1   In an undated report Mr Jonathan Herod, Consultant Gynaecological Surgeon said that“at the end of the procedure there was widespread small volume disease with deposits up to 1 cm in diameter”. It is unclear to me whether in fact there were any deposits left between 1cm and 2cm.    [Back]

Note 2   She told Ms Kocsis, Consultant Clinical Psychologist, that she was first prescribed antidepressants in 2008. That appears to be wrong.    [Back]

Note 3   Kirwan @ 657    [Back]

Note 4   Question 18.    [Back]

Note 5   At different times he has given different ranges. In his letter dated 10th December 2012 he gave the range as between 6 months and 24 months. Ms Kocsis was told that“life expectancy might have improved by up to 3 years”.    [Back]