Abstract
Y brought a claim against the Defendant Trust as a consequence of the Trust's failure to diagnose breast cancer after Y presented with a 1.5 cm lump and a history of pain and discomfort in the right nipple area for 12 months.
Background
In April 2005 Y, then aged 46 years old, was referred by his general practitioner (GP) to C, Consultant Surgeon at Hertford County Hospital. Y's GP had found a mass lateral to the right nipple and was concerned that this could be a breast carcinoma. Y's appointment with C took place on 29 April 2005 and it is recorded that he had discomfort in the right nipple area for approximately one year. C found a 1.5 cm smooth mobile swelling just lateral to the right nipple but no nodes were palpable. An ultrasound scan was carried out which C deemed to be non-specific but not suspicious. Subsequently, he took a fine needle aspiration cytology (FNAC) which was reported as non-diagnostic C1.
In an undated letter which refers to a clinic on 29 April 2005, C wrote:
‘Y was one of five “two-week wait” patients added to a 49-patient clinic at Hertford on a Friday morning where I have no registrar. I was therefore somewhat pushed for time to give him a satisfactory service.’
On 23 May 2005 C wrote to Y stating:
‘I am pleased to report that our recent cytology has shown no suspicious features. This is very reassuring.’
A follow-up appointment had been made for 15 July 2005, but upon receipt of the 23 May 2005 letter, Y believed the appointment to have been rendered redundant and therefore did not attend. By December 2005, the lump had become more tender and Y went back to see C as a private patient. The appointment took place on 20 January 2006 at which time C recorded that there was a 1.5 cm unchanged smooth mobile swelling on the right side. He discussed the options of surgery or a watch policy. Y opted for surgery.
On 14 March 2006, C performed a right wide excision of the lump. Histology was reported as showing a 14 mm grade II ductal carcinoma with involved margins. The tumour was oestrogen and progesterone receptor positive (ER/PR + ve) and HER2 negative. Y was given the results of histology on 23 March 2006 and following this sought a second opinion at the Royal Marsden Hospital.
On 29 March 2006, Y was advised at the Royal Marsden Hospital that an abnormal right axillary lymph node had been detected. Ultrasound-guided FNAC was performed and showed the presence of malignant cells (C5). Staging investigations, including a bone scan and CT scan of Y's chest and abdomen, were normal.
On 1 April 2006, Y underwent a right mastectomy and axillary clearance at the London Clinic. Histology was reported as showing no residual invasive cancer. A 1 mm area of high grade ductal carcinoma in situ (DCIS and metastases in 16/16 axillary nodes) was also reported. Other than the development of seroma requiring aspiration, there were no postoperative complications.
Y was treated with adjuvant chemotherapy comprising adriamycin and cyclophosphamide (AC) followed by four courses of taxol. The chemotherapy finished in August 2006 after which a Consultant Clinical Oncologist treated Y with radiotherapy to the right chest wall and subraclavicular fossa (SCF). Y continues to take adjuvant tamoxifen and there has been no evidence of relapse two years later.
Allegations of negligence
Breach of duty
C accepted that he was single-handedly managing 49 patients at the time that Y consulted with him. C erroneously concluded that Y probably had gynaecomastia. It was inappropriate of C to not consider, as Y's GP had done, that Y might have cancer. The Claimant's evidence was that if C had, as he ought to have done, considered this to be a possible cause of Y's problems he should have:
clinically examined Y; performed imaging (mammography/ultrasound); performed tissue diagnosis (FNAC or core needle biopsy).
It seems in carrying out the ultrasound himself, C missed subtle changes which would, on balance, have alerted a consultant radiologist to the fact that the lesion was malignant. Given that the nature of the lump remained unknown, it was asserted that C breached his duty in failing to repeat the FNAC or alternatively to perform an ultrasound-guided core biopsy.
Causation
It was the Claimant's case that Y's cancer ought to have been picked up in April 2005. There was, therefore, a delay in 11 months in diagnosing Y's breast cancer. During that time it is likely that Y's tumour underwent approximately two volume doublings with associated pain, suffering and loss of amenity.
Settlement
Upon receipt of supportive medical evidence, a letter of claim was submitted to the Defendant Trust in which a Part 36 Offer of £15,000 was made. Negotiations commenced with the Trust, but matters were passed to the NHSLA who prepared a letter of response. It was admitted that there had been a six-month delay (July 2005–January 2006), but it was denied that the admitted delay had any causative effect.
It was the Claimant's case that the delay was in fact 11 months. On the Claimant's part, it was accepted that the delay had not influenced his prognosis, but he had suffered a particularly unpleasant time during the ‘undiagnosed’ period. He had taken career decisions that he would not have taken had he had knowledge of his condition. He had generally been out of kilter and his family life had suffered.
The NHSLA made a counter offer of £10,000 and settlement was agreed at £12,500 for pain, suffering and loss of amenity.