JD v Mather [01.11.12]

Failure to diagnose cancer caused life expectancy to be reduced by three years; damages should be awarded on that basis.

Comment

This case reiterates the decision of the House of Lords in Gregg v Scott [2005] that claimants cannot recover for loss of a chance of cure in circumstances where the prospect of long-term survival, with non-negligent treatment, was already below 50 per cent.

The case demonstrates once again the willingness of courts to entertain alternative claims made shortly before trial - in this instance, the argument (supported by an addendum report of one of the Claimant’s experts) that the delay in diagnosis of the Claimant’s cancer led to a reduction in his life expectancy of three years. This is of course compensatable under general principles.

It is hard to see how the Defendant’s lawyers could have run the defence differently given the narrow way in which the case had been pleaded. It begs the question whether, with a little more forward planning and exhaustive exploration of the evidence on the part of the Claimant’s legal team, that alternative case could/should have been pleaded at an earlier stage. It is possible (and we go no further than this) that this case could have settled before trial and that the cost and anxiety to the Claimant (who, we must remember, has a short life expectancy because of his condition) could have been avoided.

Background

The Claimant consulted the Defendant, who was his GP, in March 2006 because he was concerned about a growth in his right groin. The Defendant examined the area of the lesion and formed the view that it was a seborrhoeic wart. The Claimant visited the surgery again in October 2006 and was seen by the Defendant’s father. He removed the lesion, which was found to be a malignant melanoma.

The Defendant admitted that she had been in breach of her duty of care in March 2006, but no admissions were made in relation to causation.

Decision

Mr Justice Bean held as follows:

  • On balance the tumour was already the subject of malignant ulceration in March 2006.
  • It was far more likely than not that by March 2006 the Claimant’s tumour had spread, with at least microscopic regional lymph node involvement.
  • Even without the delay in diagnosis, the Claimant's chances of surviving a further 10 years were below 50 per cent. Accordingly, following the decision in Gregg v Scott, the Claimant's principal claim failed.
  • An alternative claim, that the delay had caused a reduction in the Claimant’s median life expectancy, succeeded. On the balance of probabilities, the failure to diagnose the tumour in March 2006 had caused the Claimant’s life expectancy to be reduced by three years. Quantum should be determined on that basis.