An interesting recent case (Bell v Ashford & St Peter’s Hospital NHS Trust, 27 July 2016, LTL 28/7/2016 extempore) concerned a patient who had oesophageal cancer which was being treated. The patient, B, underwent an endoscopy in 2011 during which his oesophageal tumour was perforated. This, unfortunately, caused a serious infection, which in turn delayed chemotherapy to treat his cancer. Subsequent to this, B was diagnosed with a recurrence of his tumour and metastatic spread of the cancer and he died in 2015, some 4 years later. Before the perforation had occurred, various staging investigations of the tumour had not shown any evidence of local spread, spread to the lymph nodes or even of metastatic disease.

The defendant Trust openly accepted that the endoscopy had been performed in a substandard manner and admitted that it had breached its duty of care in that regard. The key issue that the Court, His Honour Judge Allan Gore QC, had to determine, therefore, was what difference the breach had made to the outcome and, accordingly, the appropriate level of damages to be awarded to B’s estate.

B’s estate claimed that absent the breach of duty, B would have made a full recovery, with a normal life expectancy and with B effectively being disease free after 9 months of conventional chemotherapy treatment. Contrary to this, the defendant Trust argued that B probably already had the microscopic metastatic disease by the time of the endoscopy and before the perforation had occurred, such that the Trust’s breach of duty would have made no difference to B’s outcome. However, notwithstanding that argument, the defendant accepted that, even in its best case, at least some damage had been caused by the breach of duty and accepted the value of that damage to be £50,000. The defendant Trust also accepted that, if the claimant succeeded in establishing that there were no micro-metastases prior to the breach, then the value of the claim by the estate was £130,000.

The Court heard from experts in oesophageal cancer for both sides who disagreed with each other about the effects of the perforation. However, in finding for the claimant, the Court preferred the evidence of the claimant’s expert, who argued that the perforation had caused an outpouring of tumour cells, recurrence of the underlying tumour and, ultimately, an increased risk of distant spread. Although the claimant’s expert accepted that it was not possible to know the exact mechanism for this, the defendant’s expert agreed that it was possible and the Court accepted the explanation as medically plausible.

What appears to have been particularly relevant to the Court’s decision was that there had been no evidence of any local or distant spread of the tumour prior to the endoscopy taking place and the perforation occurring, the Court considering that it was not probable that the staging investigations would have failed to have identified the metastatic disease. Accordingly, the tumour recurrence and the metastatic disease would not have occurred, on balance, if the perforation had not occurred.

This is an interesting case as it raises the issue of whether the treated oesophageal tumour would have progressed naturally irrespective of direct damage to the tumour caused by the negligent perforation or whether the direct damage caused by the perforation could be, and in fact was, the cause of the tumour ultimately recurring and spreading.

Oesophageal cancer, even despite radical surgery and chemotherapy, has traditionally carried a poor prognosis (only c.15% 5-year survival), which has often been thought to be due to haematogenous dissemination and seeding of micro-metastases (minuscule metastases generally too small to be detected) even in the absence of any evidence of local disease and even if lymph nodes may be found to be clear. The concept raised by the defendant of micro-metastases is, therefore, well-known in this type of cancer, as well as many others. Notwithstanding this, the claimant, perhaps at first blush slightly surprisingly in light of the prognosis statistics relating to oesophageal cancer, managed to persuade the Court that the claimant’s case was correct, bolstered by the absence on staging investigation of any evidence of spread prior to the negligence which supported the case that the tumour recurrence and eventual metastatic spread was likely to have been due to tumour cells leaking (or outpouring) due to the negligent perforation even in the absence of the exact mechanism being elucidated.

My own clinical experience of such an issue from my medical days is extremely minimal, but I do recall as a house physician one case of a patient who had a lung mass which was causing a large pleural effusion: tapping the effusion was negative, so a needle biopsy of the mass was performed via a posterior approach to try to obtain a tissue diagnosis (and it turned out to be lung cancer). However, over the next week or two following the biopsy, cancer cells from the tumour appeared to spread down the biopsy needle track and begin to “grow” as an external mass on the patient’s back. The patient sadly died a further week or so later, by which time the external, and by now very “knobbly”, the tumour on his back had remarkably grown to the size of a closed fist. This really rather memorable experience so very early on in my medical career always led me to believe that such “disturbance” of tumour cells could potentially result in (possibly very rapid) tumour seeding or spread, with potentially very dramatic effects as in the case of the lung tumour, such that I can readily appreciate the basis behind the claimant’s argument in B’s case, and ultimately the judge’s conclusion in favour of the claimant.