Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB)

Delivering bad news is never easy, but doctors cannot hide from this important aspect of the job. Delaying a difficult conversation may be tempting, but when does that delay become negligent?

Following Montgomery v Lanarkshire Health Board, the prudent-patient test is established as the standard of care for informed consent to medical treatment. But by what standard is a doctor judged when discussing outcomes post-treatment? In Gallardo, the High Court resisted the NHS Trust's attempts to cling to the Bolam test of clinical negligence – whether a reasonable body of medical opinion would support the doctor's actions - and reinforced the patient's fundamental right to be informed.

The Facts - A Decade in the Dark

In January 2001, Raul Gallardo, a Spanish citizen living in London, was hospitalised with severe abdominal pain. Believing he had a bleeding ulcer, he had part of his stomach surgically removed. His luck did not improve post-surgery. Serious complications meant he spent ten weeks as an inpatient, five in intensive care. He slowly recovered and after his discharge, he returned to live in Spain.

In 2010, his abdominal pain recurred. A Spanish hospital diagnosed pseudomyxoma peritonei – a rare cancer of the abdominal lining. Doubting this, he emailed his London surgeon, who mentioned he had cut a large malignant gastrointestinal stromal tumour (GIST) from his stomach in 2001. Mr Gallardo was shocked. He had spent a decade oblivious to the fact he had had cancer. Further tests revealed he had a massive 12cm GIST at exactly the same site. In 2011, he underwent gruelling eleven-hour excision surgery, which was successful.

The Argument – It's All About the Timing

Mr Gallardo sued the Trust for failing to tell him he had cancer. Had he known, he would have had regular CT scans to check for recurrence. His second GIST would have been discovered in 2007, when it would have been much smaller, the excision surgery less complex and his prognosis brighter.

The Trust's first position was that Mr Gallardo was told he had cancer, but he had simply forgotten – a suggestion his lawyer described as "preposterous."

If that failed, the Trust's fall-back argument turned on timing. It relied on an expert, who applied the Bolam test and said a reasonable body of medical opinion would support delaying the conversation until Mr Gallardo's first out-patient follow-up appointment. By that time, he was a private patient and no longer the responsibility of the Trust.

The Decision - The Patient's Right to Know

The court upheld Mr Gallardo's claim. It found he had first learned of his cancer from his consultant's email in 2010.

It also held he should have been told during his inpatient stay. The Bolam test did not apply, so the Trust's expert's opinion had no weight. By analogy, the patient-centred approach to consent adopted by the Supreme Court in Montgomery also applies to the post-treatment discussion. The patient has a right to be informed of the outcome of his treatment, his prognosis, and what the follow-up care and treatment options are. In deciding when to hold that conversation, the doctor must have due regard to the patient's right to be told. The conversation ought to take place as soon as the patient is well enough to take in what he needs to be told and to participate fully in the discussion. The appropriate time in any given case is, as Lord Kerr said in Montgomery, "fact-sensitive, and sensitive also to the characteristics of the patient."

This common-sense decision highlights that in cases concerning the patient's right to be informed, Mongomery reigns supreme. There is no longer any room for medical paternalism, unlike previously under Bolam . In reality, this approach likely reflects the everyday practice of most modern doctors.