Abstract
History
The Claimant was born on 3 November 1976, and underwent her first smear test on 12 August 1998 where the practice nurse recorded that the cervix was eroded and bled to the touch. However, the Claimant was reassured when she phoned for the result and was told that it was negative and that no repeat test was needed.
The Claimant then went back to her GP in 2001 complaining of irregular periods, a bloated stomach and difficulties in falling pregnant. Endocervical and high vaginal swabs were taken but the smear test was not repeated. The swabs came back normal and the Claimant was diagnosed with irritable bowel syndrome.
Having still failed to get pregnant, the Claimant went back to the doctor later in 2001 and underwent blood and progesterone tests. She saw a gynaecologist on a private basis in January 2002 who referred her for a smear test with her GP.
Before this test was undertaken, the Claimant experienced postcoital bleeding, and informed her GP. The smear test and an internal examination were then done, and it was noted that the Claimant bled profusely during the examination. The GP believed he had identified a polyp on the cervix and therefore referred her back to the gynaecologist.
An examination by the gynaecologist two months later revealed the presence of a solid tumour extending posteriorly and the Claimant was referred for a MRI scan.
On 15 April 2002 a cystoscopy and examination under anaesthetic revealed an advanced Stage 1 carcinoma of the cervix. The Claimant was told that the tumour was large and that it was in need of aggressive treatment. This treatment consisted of sessions of cisplatin chemotherapy, external beam radiotherapy and intra-cavitary selectron treatment at Nottingham City Hospital; this inevitably took a physical and psychological toll and left the Claimant feeling tired and nauseous. She had to be cared for throughout the day and was unable to do any household tasks during the treatment.
In late 2002, the Claimant decided to return to work despite still suffering with related symptoms and exhaustion.
In February 2003 at a review appointment, biopsies were taken and the Claimant was told that the cancer had returned. She was advised that recurrent cervical cancer which was post radiotherapy would be difficult to treat and that her options were very limited. She subsequently underwent a total pelvic exenteration with permanent urostomy and colostomy on 5 June 2003 in surgery which lasted 9 hours.
Liability
Initially, a claim was investigated against the Claimant's GP and two practice nurses who were involved in taking the earlier smear test. Ultimately, the claim was pursued against the Trust alone upon the basis that there had been a failure by the cyto-screeners in the examination of the cervical sample taken in 1998. The sample should have alerted them to the fact that there were abnormal cells present which were suggestive of early stage cancer. Breach of duty was admitted by the Defendant Trust.
Causation
Had the sample not been reported as negative, it was likely that the Claimant would have been recalled for a repeat cervical smear test in 6 months and that the sample then obtained would have contained dyskaryotic cells which would have led to a referral for a colposcopy and a diagnosis of CNN III; treatment at that time would have been by diathermy loop excision of the cervix with a 1 in 200 risk of recurrence and little risk of infertility.
Accordingly, on the balance of probabilities the treatment would have achieved complete cure without the Claimant having to undergo further treatment including the radical surgery she had to endure.
Injuries suffered
The Claimant was left without a bladder, bowel, womb, cervix or vagina, with a permanent colostomy and ileostomy and unable to have vaginal sexual intercourse or children. There was no possibility of vaginal reconstruction. She needed psychological support. She was able to return to work with minimal loss of earnings but a claim was made for labour market disadvantage. She and her husband were seeking to adopt children. Provisional damages were claimed on the grounds that there was a chance that the cancer could recur or that the Claimant could suffer progressive damage to her kidneys. The experts found it very difficult to give estimates in respect of life expectancy as there was such little data to go on.
Settlement
There are few available authorities in respect of quantum for such extensive surgery. The claim was settled in October 2006 following negotiations at a global sum of £340,000. The Claimant's solicitors estimate pain, suffering and loss of amenity at £120,000 with the balance representing substantial past and future care and losses associated with the stomas. The Claimant ultimately decided to settle the claim on a full and final basis without provisional damages.
Note: Since conclusion of the case, the Claimant and her husband have adopted three daughters.