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
		16 June 2017

HHJ WORSTER:

Introduction

1. This is a claim for damages in negligence and/or breach of contract against a Consultant Gynaecologist in the course of his private practice. It arises from a consultation on 23 July 2010. I heard the evidence and submissions over 2 days and reserved judgment. The factual evidence came from the Claimant and the Defendant. The parties both relied upon expert evidence from an Obstetrician and a Psychiatrist. The Psychiatrists (Dr Salter and Professor Tyrer) were almost entirely in agreement and were not called. The Obstetricians (Mr Lane and Mr Forbes) both gave oral evidence. References in this judgment to numbers in square brackets are to the pages of the trial bundle; numbers preceded by the letter M are references to the medical records.
2. The Claimant's primary case on liability is that, during his examination of her, the Defendant failed to see that a uterine fibroid had prolapsed through her cervix. As a consequence, it is said that there was an unacceptable delay in the investigation and treatment of her condition. The Claimant's positive case is that an urgent hysteroscopy should have been organised within 2 weeks or so. That would have enabled the nature of the fibroid to be identified, and revealed the need for a hysterectomy, which would have been carried out within another 6 weeks or so – 2 months from the consultation. In the event, the Claimant's condition was not diagnosed until 28 February 2011, and a hysterectomy not performed until 26 April 2011, some 9 months after the consultation of 23 July 2010.
3. The issue on this primary case reduces to a question of fact. Had the fibroid prolapsed through the cervix by 23 July 2010? The Claimant says that it had, and the Defendant that it had not. The parties agree that if it had prolapsed, it would have been negligent not to see it. Whilst that is a question of fact, I heard expert evidence on a number of issues which inform the weight I should give to certain facts, and the inferences I can or should draw from them.
4. The Claimant's secondary case on liability is that, even if the fibroid were not there to be seen on 23 July 2010, the Claimant's history of abnormal vaginal bleeding for 17 weeks prior to the consultation on 23 July 2010, and her medical history was such that it was negligent of the Defendant not to arrange for a hysteroscopy. Once again, this would have revealed the need for a hysterectomy, which would have been carried out quickly.
5. As to causation, whilst it is agreed that the Claimant would have required a hysterectomy in any event, the Claimant's case was that the delay in the diagnosis and treatment of her condition caused her to suffer the continuing physical symptoms of her condition for an additional 7 months, and to develop a Generalised Anxiety Disorder.
6. There is no doubt that the Claimant did suffer in those 7 months, and it is apparent from what I have read and from her evidence in the witness box that the anxiety which she reports had a significant effect upon her. The psychiatric experts agreed almost everything, and whilst they were asked to consider one further issue before a final agreement was reached, I was told at the beginning of the trial that there would be no need to call them. On the basis of their evidence, the parties agreed quantum on the Claimant's primary case at £20,000. Counsel agreed that if I was not satisfied of the primary case on liability and causation, I was free to assess damages on the evidence I had. That was a sensible and proportionate way of dealing with the issue.
7. The Defendant's case on the issue of liability is that he performed an adequate examination, and that the fibroid had not prolapsed on 23 July 2010. He also denies that the Claimant's history mandated a hysteroscopy. As to causation his case is that, even if he had seen the fibroid, the treatment plan would have remained the same. He would have arranged for an ultrasound scan to check for the whereabouts of an inter-uterine coil (as he did), and when he had the results from that scan, would have listed her for a hysteroscopy within weeks. His case is that he was not negligent, but that even he if he was, that did not cause any significant delay. The causes of that delay are neatly summarised by Mr Holl-Allen as (i) the Claimant's status after 23 July 2010 as an NHS patient and therefore subject to NHS not private timescales (ii) her re-booking of appointment dates on 9 September 2010 and 7 October 2010 (iii) her decision to opt for hysteroscopy otherwise than by general anaesthetic; see paragraph 11 of his skeleton argument.
8. Mr Rathod accepts that the starting point on an issue of causation in a case such as this is to ascertain what the Defendant would have done. But he does not accept that the Defendant's factual evidence of what he would have done had he seen the fibroid is an answer to the claim on causation. The Claimant's case is that if the Defendant had seen the fibroid, the proper discharge of his duty to the Claimant required him to arrange for an urgent hysteroscopy. Mr Rathod submits that whilst there may be a body of professional opinion which would support the Defendant's approach, that opinion was not capable of withstanding logical analysis, and that I should hold that it was neither reasonable nor responsible. In those circumstances, he submits, and despite the Defendant's evidence as to what he would have done, causation was made out.
9. At paragraphs 28 and 29 of his opening note Mr Rathod sets out extracts from the speech of Lord Browne-Wilkinson in Bolitho v City & Hackney HA [1998] AC 232 @ 239 and following. Those passages identify the legal principles which apply where causation depends upon what the Defendant in a case such as this would or would not have done. It is agreed that those principles apply. I need not set them out in detail in this judgment.
10. The Defendant's case, in relation to the treatment plan he would have followed even if he had seen a prolapsed fibroid, is supported by Mr Forbes and challenged by Mr Lane. I heard evidence from both on that issue. In the event, whilst I have reviewed that evidence in the course of preparing this Judgment, it is unnecessary for me to refer to it in any detail.

The Facts – pre 23 July 2010

11. The Claimant was born on by 24 September 1960, so that in July 2010 she was approaching 50. She is married and has had 4 children, all by natural birth. In 1989 she had laser treatment of her cervix to remove abnormal pre-cancerous cells. That treatment was successful. Her regular smear tests had not revealed anything of concern since that time, although the sample in 2009 was inadequate, and it had not been possible to carry out her test in 2010.
12. In 1996 she had a Mirena coil fitted. Mr Forbes described this as a T shaped device, which is placed into the uterus. The arms of the T sit in the upper part of the uterine cavity, and the stem of the T should be central in the cavity if the coil is in the right place. When the coil is fitted, the threads are cut after placement. Mr Lane agreed that they would be cut fairly close to the external os of the uterus, although he was at pains to say that they must not be cut too long or too short. In the joint memorandum at [189] Mr Lane's opinion is recorded in the following terms at 1.3(a):

" … the threads protrude through the cervix into the upper vagina where they are seen and felt without necessarily visualising the cervix"

I return to the question of the threads late on in this judgment.

13. On 19 March 2010 the Claimant began to suffer from heavy vaginal bleeding. She remembers the date because it was her parents' wedding anniversary. To begin with she put up with it, but she was not suffering from menopausal symptoms and thought this virtually continual bleeding was unusual. From around April she began to experience pain in her stomach, side and down her leg, which caused her to sweat and to be sick. Sometimes the pain was intense. In the witness box she said that the pain would heighten and then settle, and demonstrated the intense pain by squeezing her fist hard, and the lesser pain by squeezing it less hard. This lasted until the events of 14 July 2010 (see below). Some of her work colleagues suggested that she get her coil checked out.
14. On 4 June 2010 she went to see her GP Dr Pal. The note at [M6] appears to have been swapped with the note of her attendance on 5 June 2010. The fact that her smear was overdue was noted, and she was prescribed some drugs to control the bleeding. The GP also referred her for an NHS Gynaecological clinic. The hospital subsequently gave a clinic appointment for 12 August 2010.
15. The Claimant's bleeding continued. On 14 July 2010 she had a particularly bad day. She was at work, and at about 2pm telephoned the GP out of hours clinic. The note of her call is at [M15]:

Symptoms: vaginal bleeding for 16/52 has been seen by own gp was prescribed medication but pt could not take as pt familys has history of blood clots pt has been referred to gynaecologist apt on 12/8/2010 but today feel terrible thinks some thing may burst in her side.

16. In fact the history of clotting was hers (from her pregnancies). More importantly, her evidence was that what she said on the telephone was that she " … had felt that something had burst inside me"; see paragraph 16 of her witness statement [77]. In her evidence she referred to the pain of the experience, and that it lasted 24-48 hours - her evidence would suggest nearer 24 than 48. She said that it was worse than childbirth, and that when it subsided, there was a different but still constant type of pain.
17. The advice was to call an ambulance, but she did not want to go to the hospital the ambulance would have taken her to, so she called her husband who took her to a different hospital. The notes of that attendance are not available, but the letter to her GP is at [M16] and records her arrival at 4.20 pm, her discharge with no follow up, and her presenting complaint as "PV BLEED 16/52". On 16 July 2010 she saw her GP and asked to be referred privately [M5]. The referral letter is at [M33]. This refers to the bleeding, the medication prescribed, the inadequate smear in 2009 and the absence of a test in 2010.

23 July 2010

18. The Claimant saw the Defendant in his private clinic on 23 July 2010. The Defendant's handwritten note is at [M31-2] and his letter to Dr Pal (dated the same day) at [M34]. It is acceptable practice to use the notes and the letter as a record of the consultation.

The handwritten note is as follows:

49 [female]

Smear 2006 N

? IUS – 15 yrs

C/o continuous PV loss

HPC for ~ 17 weeks nearly continuous PV loss

Regular up until 2 yrs ago

Then frequent

PMH COLPS/Laser – Mr Chandler

DVT x 4 when pregnant

POH Para 4 – ND x4

Allergy/ penicillin drugs nil

PA [diagram] soft

PV/PS – no threads seen

For USS – NHS

[Discharged]

The letter says this

Thank you for asking me to see this 49 year old lady with continual vaginal bleeding. Her cycles were regular up until two years ago and then her periods became quite frequent. For the last 17 weeks she has bled nearly continuously. She has had laser treatments and coloscopy in the 90s by Mr Chandler and has had four DVTs whilst pregnant. She has a coil in situ which she tells me is a Mirena coil and this was put in about 15 years ago.

She was quite tense and difficult to examine but on speculum examination I could not see the threads of the coil. I did not do a bimanual examination in view of her anxiety.

I have organised an ultrasound scan of the pelvis which will be done on the NHS as she is not insured.

19. The Claimant's evidence was that when she left the consultation she felt that it had been rushed. She says that some of the history was taken whilst she was undressing and lying on the examination table. The Defendant has no independent recollection of this consultation. I would not expect him to. He relies on his records and his usual practice. He denies that he would have taken the history in this way. His usual practice would be to take the history from his patient whilst they were sitting, then obtain their consent and the presence of a chaperone, and then perform a physical examination.
20. It is worth noting that the detail of the history in the note the Defendant made and the letter he wrote to the GP, have been elicited from the Claimant at the consultation. None of it appears in the GPs referral letter. Whilst brief, it is an accurate record. The Claimant says that she told the Defendant of the bursting sensation she experienced on 14 July 2010. He cannot recall such a description, but if it had been given he says that it would not have affected his management of her, and he would not has seen it as indicative of a prolapsed fibroid. Given that this was the event that led to the request for a private referral, and had occurred only a week or so before this consultation, the likelihood is that the Claimant did mention it. The explanation for it not being noted is that the Defendant would not have seen it as relevant.
21. The note is compared with the note made by Mr Kundodyiwa on 28 February 2011 [M36-7]. But whilst the note of the examination made on 28 February 2011 is more extensive, that may be explained by the fact that it was on this occasion that the fibroid was noted. In terms of history there is not much between the two.
22. The evidence of rushing is, however, relevant to the adequacy of the examination the Defendant undertook. The usual practice at a consultation such as this would be to perform three complementary examinations. The first is an abdominal examination, palpating the stomach. The experts (and the Defendant) agree that is a relatively quick examination. The diagram on [M32] shows that it was done. The word "soft" accompanies the diagram.
23. The second examination is the speculum examination. That is the most painful and unpleasant of the three, and involves the insertion of an instrument. The purpose of doing so is to visualise the cervix. There was a speculum examination. The Claimant gives evidence about it at paragraph 23 of her witness statement [78]. She says that she was bleeding and very embarrassed and closed her eyes to try and block out what was happening. When the speculum was inserted she describes the pain as intense. She goes on to say that the Defendant told her that she was very tense and that he could not perform the examination. He then asked her to get dressed again. She understood this to mean that he could not perform the speculum examination.
24. As I say, the Defendant relies upon his note and his letter to the GP, rather than upon an independent recollection. The letter to the GP refers to the Claimant being tense and difficult to examine "but on speculum examination I could not see the threads of the coil". His case is that the subsequent reference to not being able to complete the examination is a reference to the fact that he did not perform the third part of the examination, which was the bimanual examination. He accepts that element of the examination was not undertaken because of the Claimant's anxiety.
25. He was asked about why he had not undertaken that third element – the suggestion being that it was the second element which he had not completed. The Defendant's response was to the effect that he did not want to cause her more distress. It was agreed that the bimanual examination is far less intrusive and painful that the speculum examination, and an important part of the whole process. It is not something that takes much time. Mr Rathod's question was - why not wait a little for the Claimant to compose herself and proceed with this less painful element? The Defendant's evidence was to the same effect as his letter at [M18].
26. There is a measure of agreement as to the length of the consultation and the examination. Overall the consultation lasted in the region of 10 minutes, and the examination about 1-2 minutes. As I understood the Claimant's evidence, she says that the entire physical examination lasted 1-2 minutes, whereas the Defendants case is that this would have been the speculum element. But as the abdominal examination is so quick, there is little to be taken from that difference between the parties. Mr Forbes would say that 10 minutes was a reasonable time, Mr Lane would say that it was short.
27. It is not by any means the only point, but the most important point to draw out from this part of the evidence is the evidence of what the Defendant saw on his examination of the cervix. He noted "no threads seen". There is no note to the effect that the cervix had been seen. Both parties rely upon that lack of reference. The Claimant would say that, taken in conjunction with her evidence that the Defendant said that he could not perform the examination, it suggests that the cervix was not seen.
28. Mr Holl-Allen submits that given the purpose of the speculum examination is to visualise the cervix, if there was an attempt to do so which failed, that would have been noted. That point is supported by the fact that the Defendant was also looking for the threads of the coil, and has noted that he could not see the threads. Mr Holl-Allen's next point is that, if the Defendant was looking for the threads, which he evidently was, he would have looked for them where they should have been, which is fairly close to the external cervical os.
29. The expert Obstetricians agree that if this uterine fibroid had prolapsed through the cervix when the Defendant examined the Claimant on 23 July 2010, it would have been "starkly evident"; see Forbes [159], or "easily visible" and "so distinctive" it could not have been missed by a competent Consultant Obstetrician; see Lane [118]. Mr Holl-Allen turns that point around and asks rhetorically – was this examination so perfunctory and so deficient that the Defendant could have missed something so obvious? This was not a subtle finding. He submits that to find that the fibroid had prolapsed on 23 July 2010 means (in effect) rejecting the evidence of the Defendant.
30. Mr Holl-Allen makes an important point. The Defendant is a professional man and an experienced Consultant. His professional life is spent caring for people. Is it likely that he would have missed such a prolapse? But the issue of whether the fibroid had prolapsed on 23 July 2010 is not to be considered simply by posing Mr Holl-Allen's question and considering whether I should prefer his case on the interpretation of the notes over the Claimant's recollection of this examination. Those matters need to be considered with the rest of the relevant evidence, and in particular (i) the findings on other examinations, (ii) the Claimant's symptoms, and (iii) the expert evidence about the growth rate of such a fibroid.

Post 23 July 2010

31. I begin by setting out the history subsequent to the consultation of 23 July 2010. On the same day, the Defendant referred the Claimant for an ultrasound scan on the NHS to look for the Mirena coil. There is no criticism of the decision to refer her for a scan to look for the coil as such. Mr Lane would say that this should have been done urgently and in conjunction with other investigations which would have identified the presence of the prolapsed fibroid. The Claimant went onto a waiting list for a scan on 30 July 2010 and the scan was undertaken at St Helens and Knowsley Hospital on 16 August 2010, some 3 weeks or so after the consultation. The report is at [M80] and says this:

The anteverted uterus appears normal with IUCD in situ which appears to be in a good position.

32. The Claimant then telephoned for an appointment with the Defendant. She was given one on 9 September 2010, so 3 weeks after the scan, and nearly 7 weeks after the consultation. She had previously booked a holiday in Spain for that week, and so decided to rearrange the date of the appointment with the Defendant. In cross examination she said that she had no travel insurance and thought that a week in the sun would do her good. She contacted the hospital, cancelled her appointment on 9 September 2010, and was given another on 7 October 2010. She says that she did not receive a letter from the Hospital about either appointment.
33. Pausing there, whilst it is not something she deals with in her witness statement, in chief Mr Rathod asked the Claimant what she would have done had she known that she had a prolapsed fibroid. Her response was that had she known what she was subsequently told by Mr Kundodyiwa she would not have gone on holiday.
34. On 7 October 2010 she went to St Helens and Knowsley Hospital to see the Defendant, assuming that the appointment would be at the hospital where she had had her scan. When she arrived and gave her name the staff could not find her on the system and after checking came to the conclusion that she was at the wrong hospital. She should have been at Whiston. The Defendant's evidence is that there is a shuttle service between the two hospitals. The Claimant says that she did not know that and no one told her. Given that she had attended for this appointment it is probable that if someone had told her she would have got on the shuttle. Once again the appointment was rearranged, this time for 18 November 2010.
35. On 18 November 2010 the Claimant saw the Defendant at Whiston Hospital, having checked that was where the appointment would be. His note is at [M35] and says this:

USS normal

Doesn't want GA

Write to Tim

36. Again, whilst brief, this note reflects the effect of the consultation. A letter to the Claimant's GP to similar effect was sent the next day [M87]. The Defendant's view was that the scan was normal, showed the coil in situ, and did not appear to show any signs of any masses, fibroids or excess fluid. His evidence was that the next step would be for the Claimant to undergo a hysteroscopy, a D and C, and the removal of the coil. He suggested that she be listed for that procedure, which was one he carried out under a general anaesthetic. The Claimant was unwilling to have a general anaesthetic, and consequently the Defendant referred her to Mr Tim Kundodyiwa, who was able to undertake the procedure without a general anaesthetic. The referral letter is at [M88].
37. Throughout this time the Claimant continued to suffer bleeding and pain. She deals with the detail of that in her witness statement, and there is no real challenge to the nature of her symptoms or to the effect upon her. She made a number of appointments to see her GP during that time, in particular on 1 and 19 October 2010, 31 December 2010, 21 January 2011, and 4 February 2011. On 9 February 2011 she was given an appointment with Mr Kundodyiwa, who saw her in his clinic on 28 February 2011. This was a little over 7 months from her consultation with the Defendant on 23 July 2010.
38. Mr Kundodyiwa undertook a pelvic examination. His findings are set out in a letter at [M21].

On pelvic examination there was a large penduculated polyp extruding through the cervical os distending the endocervical canal. The polyp appeared quite haemorrhagic hence it was not suitable for outpatient procedure today. I have discussed the possibility of having this removed in theatre under spinal anaesthetic as this lady is petrified of having a general anaesthetic

39. The Mirena coil could not be seen on an ultrasound scan. The scan did reveal uterine fibroids, one measuring 3cm near the cervix, and one in the posterior uterus measuring 2.7cm. Mr Kundodyiwa arranged for an X ray to locate the Mirena coil, but again it could not be seen. That finding has a relevance to the issue of when the prolapse occurred. The Defendant's case is that the presence of the coil in August but its subsequent loss suggests that it was pushed out by the fibroid as it grew and prolapsed. Mr Holl-Allen submitted that the fact that the coil was there in August suggests that the prolapse occurred at some point after the examination on 23 July 2010.
40. On 15 March 2011 the Claimant was listed for the removal of the fibroid. However, it was seen that it was attached to the fundus of the uterus and was not suitable for resection or removal. Mr Kundodyiwa's operation note is at [M55]. He has drawn the polyp, and noted as follows:

Uterine cavity now obscured by a large endometrial polyp with a very large broad base attached to fundus & completely filling uterine cavity.

The Claimant was told that she would need a hysterectomy [M23]. A biopsy confirmed that the growth was benign. A hysterectomy was undertaken on 26 April 2011 from which the Claimant made an "uneventful recovery".

The Growth of the Polyp

41. This is a large polyp. It grew from the fundus and on examination after the hysterectomy in April 2011 was found to be 80mm in maximum dimension. The photograph at [M61] shows the bisected uterus, with the fibroid prolapsed through the cervical os. The polyp has a base, a stalk and a tip. The photograph shows the endometrial cavity on the inside of the stalk as you look at the photograph in a landscape view. Mr Lane and Mr Forbes both gave evidence about what is shown in that photograph. In opening the case Mr Rathod described the various parts of the fibroid by using the terms, "wrist", "forearm" and "fist", and Mr Forbes adopted those terms when giving his evdience. The wrist and the forearm are the stalk, and the fist is what he describes as the fibroid, which is obviously wider than the stalk. His evidence was that the measurement on pathology at 80mm would have been from the tip of the fist to the top of the stalk; in other words from fundus to tip. Of that slightly over half is "stalk", so that the fibroid itself he would say was 3-4cm. That was what the experts agreed in their joint report at [194].

5.4 Both experts agree that the fibroid plus stalk was 8cm; the fibroid itself was less than half of this in diameter, <4cm.

The joint report then poses this question at 5.5

How long would it have taken for the fibroid to become detectable with clinical examination.

42. As the evidence progressed, this seemed to me to become a very important question, and one which turned on the rate of growth of a fibroid such as this one. The answers to 5.5 in the joint report are as follows:

GL will say that with an adequate examination it would have been visible on clinical examination in August 2010

PF: This depends on the rate of growth. It grew 1cm in two months and therefore may have been 1-2cm diameter in November 2010. It would only have been clinically detectable on examination once it was coming through the cervix ie when the total length was >4cm. This could have been in November 2010 assuming doubling every 4 months.

As to rate of growth, the joint report asked this:

5.2 How fast does a fibroid of this type grow? Please provide details

Both experts agree that fibroid growth is very variable. GL will add that it is however highly unlikely that the fibroid grew from being so small that it was not visible on the ultrasound of 16 August 2010 to a 8 cm lesion at the time of a hysterectomy in April 2011.

43. The experts where then asked for their opinion as to when the fibroid prolapsed (on the balance of probabilities):

GL will say at time when Mrs Scaddon described bursting sensation on 14 July 2010

PF: November 2010.

44. Mr Lane was asked about the rate of growth in chief, and asked to respond to the view expressed by Mr Forbes in his answer to these questions in the joint report. My note of his evidence is as follows:

I don't agree with that. I think that if it was 1-2cm in July 2010, for it to double or quadruple in diameter between July and November 2010 would require such a large rate of growth – that would not be compatible with a benign fibroid. Not 1-2 to 4. For it to double in 4 months, I would not agree. These doubling times are for tumour volume. The literature about [benign] fibroids suggests a growth of a third every year – the diameter would increase less than that – it would be the cube root – it is inconceivable that it would have grown that rapidly.

45. He went on to work out some very rough doubling times in his head. From 1cm in August to 4cm in February would be a doubling time of 18 days, which was faster that a uterine cancer. Doubling in 4 months was (as he put it) a cancer doubling time.
46. Mr Holl-Allen cross examined Mr Lane carefully, and explored a number of areas of his evidence which might have cast doubt upon it before coming to this important point. It related to the scan of 16 August 2010, which showed the coil in situ. Mr Lane agreed that this would mean that the coil was central. He was asked how that could be if, on 23 July 2010, there was a prolapsed fibroid and stalk in the uterus. Mr Lane's evidence was that the stalk had grown past the coil, and may have pushed it upwards into the endometrial cavity, which he showed on the photograph at [M61]. He suggested that that might also explain why the strings were not visible. The point was not in his reports, but he said that it was something he had considered in correspondence with the Claimant's solicitors.
47. Mr Holl-Allen then asked why it was that the 16 August 2010 scan did not show the fibroid or the stalk. Mr Lane's evidence was that the stalk would have been beyond the field of vision of the ultrasound scan. How then, he was asked, did he explain how later scans suggest that the coil had been pushed out of the uterus, when the fibroid was plugging the os. His evidence was that the canal was not plugged but dilated. So that instead of there being a small canal, there was a wide and dilated os with gaps all the way round through which the coil could come out, particularly if bleeding was heavy.
48. This was an important part of the evidence, not just for the evidence which Mr Lane gave, but for the purposes of assessing him as a witness. In his submissions, Mr Holl-Allen submitted that I should approach his evidence with care. In particular he suggested that Mr Lane's evidence about growth rates had "firmed up" from the more moderate evidence he had given in his reports - "highly unlikely" had become "inconceivable", and what had been seen as possible was now being described (on one occasion) as a "biological absurdity". Once again, Mr Holl-Allen makes a good point well. But despite this "firming up", I was impressed by Mr Lane as a witness. The evidence I refer to at 46 and 47 above is not the evidence of a witness who has been caught out. These were considered responses to the issues which arose on a detailed consideration of the evidence and where it led. He had obviously given these matters some thought before he came into the witness box, and he dealt with the careful points Mr Holl-Allen made in a convincing way. Moreover, it was apparent from his evidence and the way he gave it, that he was very familiar with growths such as this, malignant and benign, and with their investigation. The rate of their growth is an obviously important factor in such an investigation.
49. Mr Forbes was also asked about rate of growth in chief. His evidence was that it can vary between individuals. By that he meant not only that the rate of growth varied from person to person, but that a particular lesion in the one person could grow at different rates over time. He disagreed with the view Mr Lane had expressed in the witness box. They agreed that growth (of a benign fibroid such as this one) was variable, but Mr Forbes's evidence was that the scale was from very slow to rapid, and whilst slow may be more frequent than rapid, rapid growth "can and does occur".
50. Mr Rathod established a number of points in his cross examination of Mr Forbes in relation to rate of growth. The first was that Mr Forbes agreed that Mr Lane had a greater experience of growth rates in malignant and non- malignant tumours, and in the investigation of masses of an unknown status. The second arose from the content of Mr Forbes report at [158], where he describes the process of the pedicle stretching and the cervix dilating (prior to prolapse) as a "… slow not sudden processes". What he refers to is the process of prolapse rather than simply growth rates of the fibroid.
51. The third and most significant point related to what he had said about doubling times in the joint report. The key point here is the point Mr Lane had made in chief, to the effect that doubling times were a question of volume, and not just length. Mr Forbes' approach in the joint report to the calculation of a doubling time was flawed, as he accepted. I recognise that in accepting this point, in one sense, Mr Forbes enhances his credibility. Mr Holl-Allen made the point in closing, that this was a man who made proper concessions.
52. Mr Rathod's response to that is a simple one. The issue appears first of all in Mr Forbes' evidence in his answers in the joint report. It is an important point, and he has made a basic mistake. Mr Rathod put to Mr Forbes that to get from a 2cm diameter fibroid to a 4cm diameter fibroid in the 6 months between November 2010 and April 2011 would involve a doubling time of 60 days, which (it was suggested) was absurd. Mr Forbes did not entirely accept the point, but did accept that slower growth was more common. I do not discount that evidence on this issue, nor do I discount the expert opinion evidence of Mr Forbes on other issues. But on the question of growth rate I must prefer the evidence of Mr Lane, who is the more experienced and expert.
53. I should not accept Mr Lane's evidence about the growth of this fibroid without considering the two matters which Mr Holl-Allen explored with him in cross examination: why the stalk does not appear on the August 2010 scan, and why the coil is seen but then lost. Again, it was plain from his evidence that these were issues which Mr Lane had considered before coming to his concluded view as to the growth of the fibroid and thus its presence in July 2010. The failure of the scan to detect the stalk is explicable because it would not show up as abnormal on such a scan, being like normal uterine muscle and so giving the same signal. The presence of the coil can be explained if it is pushed up, leaving it still central in the plane through which the scan was taken, and then lost as Mr Lane describes, through the dilated os during heavy bleeding. The pushing up of the coil might also explain why the threads of this coil were not apparent, if the coil was still there. I have concluded that Mr Lane's evidence on these points is to be accepted. It is logical and consistent.

14 July 2010

54. The final piece of the evidence which has a relevance to this central issue is the "bursting" sensation the Claimant experienced on 14 July 2010. Mr Lane's evidence in the joint report is that on a balance of probability, this is when the fibroid prolapsed through the os; see 6.4 [195]. Mr Forbes did not consider that this was related to a prolapsed fibroid; see his answer to question 1.7 in the joint report at [190]. He thought the symptoms the Claimant was noted as describing were more suggestive of a rupture or haemorrhage into an ovarian follicle or cyst.
55. It is important not to over emphasise this issue, but it played a part in the case and it is right that I refer to it in the judgment, and to the effect it has had on my decision. In the course of cross examination Mr Holl-Allen asked Mr Lane if his evidence was that a feeling that something had burst inside her suggests to a reasonably competent Gynaecologist that there is a prolapsed fibroid. His answer is an example of the clarity of his thinking, and the fairness of his approach:

No – bleeding and pain almost invariably occur with a uterine fibroid – a bursting feeling doesn't mean anything. But it happened around that time, and there was a prolapsed fibroid, and it doesn't seem unreasonable that it explains the situation when the fibroid burst out of the cervix.

56. Once again there are points of dispute. I do not intend to review all the evidence on this issue, but the major point is this. Mr Forbes would say that the process of the prolapse would be a slow, or gradual one, and would not cause a sudden sensation. In effect Mr Lane would agree, but there would be a point at which the fibroid pushed through. If the process was one which led to a bursting in July, how, asked Mr Holl-Allen, does Mr Lane account for the symptoms the Claimant was reporting from March to July? Mr Lane anticipated that this was the fibroid being pushed up against the internal cervical os. This extract from the exchanges illustrates a point I have already made in this case. When the issues which arise on Mr Lane's evidence are skilfully explored, there is a response which answers the point, and which has the hallmarks of having been considered.
57. It is also right to record that the note of the telephone call in which the Claimant described it [M15] does not tally exactly with her evidence. The note says "something may burst", whereas she says she was saying that something had burst. For what it is worth I would accept her evidence. The note is not so different, and her account would make this sort of call more likely. There is no reference to bursting on the report sent to the GP [M16]. But it is a very short record, and it makes no mention of pain either, when it seems from the other evidence that she would have been experiencing pain.
58. I do not give much weight to the evidence about bursting. It is part of the story, and it seems to me that Mr Lane gives it its proper place, by concluding that it is not unreasonable to see it as the point when the prolapse occurred. There is no evidence to support the alternative theories, and what the Claimant says is at least consistent with a prolapse. As a piece of evidence on its own it would not show a prolapse, but taken in the context of everything else, it would be consistent with the Claimant's case.

Discussion

59. This is a case where the evidence is certainly not all one way. I can see the force of the points Mr Holl-Allen makes about how unlikely it is that an experienced consultant would miss such a prolapse, and how the fact that the threads were seen would make it likely that (in the process) the cervix had also been visualised. The lack of a note to the effect that the cervix had been seen is certainly not fatal to the Defendant's case. His interpretation of his note and the letter to the GP at [M18] are entirely tenable. The presence of a coil at the scan in August 2010 and its absence from the later scan is consistent with it being pushed out by the prolapsing fibroid at some point after 23 July 2010. Equally Mr Lane explains why that may not have happened.
60. The evidence I have of the examination on 23 July 2010 from the Defendant is based upon his note, his letter and his usual practice. I would not expect him to have an independent recollection of this consultation. The Claimant has a recollection of the Defendant telling her that he could not perform the examination and of it being rushed. I accept the honesty of her evidence, but I obviously have to proceed carefully. She may have misunderstood or misremembered what the Defendant said, and her evidence may be explained by the Defendant's case that it was the bimanual examination that was not undertaken. That said, the evidence before me does provide a basis for finding that, because the Claimant was so tense and anxious, this was a speculum examination that was so difficult to perform that the Defendant was unable to complete it, or to compete it to the required standard. That is not his case, but I can see that is a real possibility.
61. That is an important point, because whilst I see the force of Mr Holl-Allen's central submissions, the problem for the Defendant is the evidence about the growth of a fibroid such as this one. The one fact that I can be sure of is that in February 2011, there was a large prolapsed fibroid. There is factual evidence as to its size in April 2011, and findings which inform the experts evidence of its rate of growth between February and April 2011. The evidence of its rate of growth prior to February 2011, and therefore its likely size on 23 July 2010, is a matter of expert evidence. For the reasons I have set out above, I clearly prefer Mr Lane on this issue. His evidence is that the fibroid had prolapsed by 23 July 2010. I have concluded that I should accept that evidence. The fact that there is a tenable explanation for the Defendant to have cut short his speculum examination lessens the weight to be given to Mr Holl-Allen's central submissions. On the balance of probabilities, I find that the fibroid had prolapsed on 23 July 2010. It follows that the Claimant succeeds on her primary case and establishes breach of duty. In those circumstances, it is unnecessary to consider her secondary case.

Causation

62. The Defendant's case is to the effect that the presence of a prolapsed fibroid would have made no difference to his treatment plan, and that the subsequent delay results from other factors stemming from the Claimant's decision to cancel her appointment on 9 September 2010 and go on her holiday. I heard evidence and argument about whether that course of action would have represented the proper discharge of his duty towards the Claimant. Mr Forbes said that it was an acceptable course to take, Mr Lane said that it was not. However, the more I have considered the issue of causation, the more I am satisfied that the issue rests upon a relatively simple issue of factual causation.
63. If the Defendant had carried out his examination properly and seen the prolapsed fibroid, there can be no doubt that he would have told the Claimant that she had a prolapsed fibroid. I have no doubt that she would have seen that as a serious matter which needed to be dealt with urgently. Accepting for these purposes that the Defendant would then have listed her for a scan to find the coil before listing her for a hysteroscopy (a course seriously challenged by the Claimant) what would have happened? The Claimant's evidence was that if she had been told then what she was told in February 2011 she would have cancelled her holiday and attended the appointment on 9 September 2010. I accept the honesty of that evidence. Knowing what she knows now I have no doubt that that is what she thinks she would have done. I have to consider what she would have done without the benefit of the hindsight of the past 5 years.
64. She is a sensible woman. She had suffered for years, and resolving this problem was very important to her. She attended for her scan on 16 August 2010. Her holiday, which she had paid for and for which she had no insurance, was also important, for she thought that a week in the sun would do her good. But it is at least more likely than not that had she been told that there was a prolapsed fibroid, she would have understood that this was something serious which needed to be sorted out urgently, and that a week in the sun was nothing in comparison. I am satisfied that as she says, she would have cancelled her holiday and attended her appointment on 9 September 2010.
65. She would then have been listed for a hysteroscopy. There may have been some delay in obtaining an appointment with Mr Kundodyiwa, but the problems which arose in October would have been averted, and on the evidence I heard she should have been seen within another 6 weeks or so; that is by mid to late October 2010. She would then have been listed for a hysterectomy within the next 2 weeks or so. I am satisfied that the Claimant would have regarded this matter as urgent, and that the delay in treatment would have been to early November 2010, rather than to 26 April 2011.
66. Having reached those conclusions on the basis of what would have happened, it seems to me unnecessary to consider the issues raised as to whether the Defendant's treatment plan was one which reflects the practice of a responsible body of medical men.

Quantum

67. The claim is put on the basis of a 7 month delay in treatment, and damages were agreed at £20,000 on that basis. Counsel agreed that if I found for the Claimant but for a shorter period I should assess damages. I have found the period of delay is one of nearly 6 months rather than 7 months. There are two elements to the award for general damages. The first is the additional physical discomfort and the prolonged heavy bleeding she suffered during that time. The second is that psychiatric injury. The experts agreed that if she had been treated promptly the likelihood of her developing a generalised anxiety disorder would have been very low [197]. As it was she did, and that lasted until June 2016. In a supplementary report the experts agreed that if she had received a timely diagnosis and an explanatory framework of the interventions planned or likely the subsequent development of her GAD would have been much less likely [201]. There was some minor difference between the experts as to her future vulnerability, but that is at the margins of this case.
68. In addition there were claims for special damages including items such as care, some items of clothing and the like and some very modest travel. Plainly those special damages claims were much discounted in the agreed figure of £20,000.
69. The difference between the effect of a delay of 6 and 7 months, when the cause of the psychiatric injury is the lack of timely diagnosis and explanation, and the period of the anxiety disorder is measured in years, is so minimal as to be discounted. There may be some small adjustment to be made to the special damages award and the award for the physical effects of her condition. But again, overall that will be next to nothing. I am minded to assess damages as agreed at £20,000. Given that (quite sensibly) I did not hear evidence or submissions on the issue, that is as good an assessment of the value of her claims as any I could make.
70. There will be Judgment for the Claimant for damages in the sum of £20,000. May I thank Counsel for their assistance.