Supreme Court allows cross appeal increasing negligence damages from €45k to €100k for misdiagnosis and aggravated conduct.

THE SUPREME COURT

134/04 & 144/04

Murray C.J.

Fennelly J.

McCracken J.

BETWEEN

David Philp

Plaintiff/Respondent

and

Peter Ryan & Bon Secours Hospital and Bon Secours Health System

Defendants/Appellants

JUDGMENT delivered on the 17th day of December, 2004 by FENNELLY J.

1. The Court has already pronounced its decision on this appeal. It has increased the damages awarded to the Plaintiff/Respondent by

Peart J in the High Court from the sum of €45,000 to €100,000.

2. The action was one for professional negligence against both defendants arising from the first-named defendant’s failure to diagnose

that the plaintiff was suffering from prostate cancer and not prostatitis as he found.

3. Liability was in issue in the High Court, but the appeal by the defendants was limited to the question of damages. The plaintiff

lodged a cross appeal claiming that the damages awarded were inadequate. Two points were made in the cross appeal:

· That no damages were awarded for possible loss of life expectancy;

· That aggravated damages should have been awarded as a result of the conduct of the defence to the claim.

4. On the 26th June 2001 plaintiff was admitted to the Bon Secours Hospital in Cork, having been referred to that hospital by his

general practitioner. He complained that he had been unable to pass urine since the previous day and of abdominal pain. Pathology

reports in respect of urine samples indicated that there was "no bacterial growth" and a seriously elevated PSA level of 168. The

first-named defendant diagnosed acute prostatitis. The expert evidence for the plaintiff at the trial was to the effect that, based on

his clinical symptoms, the pathology reports, and other factors this could not have been a case of acute prostatitis. In fact, the test

results suggested that the plaintiff almost certainly had cancer which had spread - metastased - outside the prostate into other

parts of the body.

5. This view of the matter was not seriously disputed by the defendants’ experts. At this stage, of course, there is no issue but that

the plaintiff’s condition was disastrously misdiagnosed due to the negligence of the defendants. However, it was also tragically clear

that the plaintiff’s cancer was, in any event, already at an advanced stage when he first presented to the first-named defendant.

The real issue on this aspect of the appeal, therefore, was the extent to which the plaintiff was entitled to be compensated in

damages for misdiagnosis, where he was never going to recover fully. Was the plaintiff entitled to recover damages for being

deprived, as a result of not being informed of it, of the opportunity to consider possible treatment for his cancer?

5. It is material, firstly, to set out the principal findings of the learned trial judge on the negligence issue. The learned trial judge held

that the first-named defendant was negligent in diagnosing prostatitis to the exclusion of any other possibility. Consequently, he did

not tell the plaintiff that he was suffering from cancer or arrange any other necessary tests. The negligence of the first-named

defendant resulted in the plaintiff not becoming aware that he had prostate cancer until eight months later than he should have.

Specifically, he was deprived of an opportunity to have a discussion between July 2001 and March 2002 with the first-named

defendant, or indeed any other medical person about his disease and the alternatives for treating him.

7. The arrival of the news in March 2002 that he was suffering from advanced prostate cancer was a great shock to the plaintiff, as

was the news that this diagnosis could have been made in July 2001, but had been missed by the first-named defendant.

8. The learned trial judge found that the plaintiff had reasonable grounds for believing that his life expectancy was less than it would

have been had the correct diagnosis been made in July 2001, and that this caused him great upset.

9. Turning to the question of damages, the learned trial judge said:

“I have no doubt that the plaintiff has suffered great anguish and distress on account of the knowledge that he could have

been diagnosed sooner. All the academic medical debate about the advantages and disadvantages of immediate versus

deferred treatment, are of little comfort to the plaintiff, who, in my view perfectly reasonably, has reasonable grounds for

fearing that his life has been shortened.”

10. When he came to quantify damages, he said:

“As far as damages are concerned, I propose to award a single sum to take account of the distress caused to the plaintiff as

a result of the negligence of the first named defendant. The plaintiff's evidence was that on receiving the letter on 10th March

2002 he panicked, and later he was very angry and felt let down about the missed diagnosis, and he was of the view that

what he now faces was very different in terms of survival from it might have been. Of course, whether his life has been

shortened is a matter perhaps we will never know” (Emphasis added).

11. The plaintiff did not, therefore, recover damages for loss of life expectancy. It was contended, on his behalf that, if his cancer

had been correctly diagnosed in the summer of 2001, he would have been advised of the various treatment options that would have

been open to him. The principal option would have been hormone treatment. While this treatment was by no means assured of

success and could be accompanied by undesirable side effects such as impotence, there was a well-established professional view

that life could be prolonged to a significant degree.

12. The learned trial judge conducted a meticulously detailed analysis of the expert evidence given before him and of the professional

literature on this question. His conclusions were that:

• there are two well respected schools of thought within the medical profession as to the pros and cons in general of

immediate versus deferred hormone treatment in cases of prostate cancer, and that it is not negligent to treat a patient in

accordance with either;

• however, it is more likely than not that in relation to this particular plaintiff's disease as of July 2001 that had the correct

diagnosis been made, the plaintiff would have had a full discussion with his treating consultant when the advantages and

disadvantages of each method of treatment would have been explained in a way which the plaintiff could understand, and the

plaintiff would have been able to participate in the decision-making process regarding his treatment and future, and that in the

circumstances of this case he was deprived of that opportunity;

• if the plaintiff had, in consultation with his treating consultant, opted for a deferral of hormone treatment until the disease

had progressed, the plaintiff would nevertheless have been monitored closely. He would in other words have been kept under

constant observation in order to see how the disease was progressing;

• it was not reasonable, on the evidence, to assume that the delay of eight months in the correct diagnosis had had no

adverse impact on the plaintiff's life expectancy and quality of life, and it is not reasonable for the first-named defendant to

say that by not knowing that he had cancer, he was better off in the sense that he could go about his life during that eight

months free of the worry of knowing that he had a serious condition. That would be to deny the plaintiff his basic right to be

informed about a serious matter regarding his health, and his right to plan his future in the light of that knowledge.

13. On the balance of probabilities, the learned trial judge was of the view that, having been deprived of an opportunity of considering

having immediate or fairly immediate hormone treatment in the summer of 2001, a reasonable consequence of that was that the

plaintiff had suffered distress by having a reasonable belief that his life had been shortened by anything from 8 months to two years,

and that on the evidence there was a reasonable basis for that belief. Based on these considerations, he decided to award a single

sum to take account of the anger and distress suffered by the plaintiff.

14. However, he did not award any damages for the fact that the plaintiff, not having been informed of his condition in June 2001,

was deprived of the opportunity of beneficial treatment. In particular, he did not award any damages for the loss of opportunity to be

advised of treatment which might have had the effect of prolonging his life, even by a short period.

15. This is not to say that the learned trial judge did not consider this aspect of the claim. On the contrary, he discussed it with

elaborate care and set out the competing views very fully.

16. Firstly, he referred to the evidence of the plaintiff’s expert witness, Dr Shah, to the effect that there was “a definite benefit for

early therapy in patients who present with prostate cancer.” He thought that the “critical issue related to diagnosis at earliest

possible opportunity.” He was of the opinion that the “advantage of early therapy is somewhere between eight months and three

years.” The treatment postulated was hormone therapy. Dr Shah relied on a study of 1997 by the Medical Research Council in the UK.

There was, sadly, no question of the plaintiff being completely cured. It was a question of whether his life could have been prolonged.

This view was supported by the other medical expert called for the plaintiff, Dr Hardman.

17. The evidence of Mr Denis Murphy, Consultant Urologist called on behalf of the Appellants was that it was better to defer hormone

treatment. He said that there was a very broad spectrum of opinion as to whether hormone treatment should be initiated immediately

on diagnosis. He did not think the plaintiff would have had any better prognosis if he had been diagnosed earlier.

18. Referring to this evidence and to the conflicting evidence in what he called the “academic debate” about the merits of earlier

hormone treatment, the learned trial judge said:

“What is beyond any doubt is that there are two respectable schools of medical opinion in relation to a general question as to

whether it is better to hormonally treat a patient as soon as a diagnosis of localized prostate cancer has been made, or

whether it is more beneficial to the patient to wait until that disease has progressed to other parts of the body, or indeed

whether it is better to wait beyond that until the patient has actually developed symptoms.”

19. He posed the following question:

“But what is important to deal with is whether, by reference to the studies and material and the evidence adduced in relation

to this matter, it is on the balance of probabilities likely that this particular plaintiff, Mr. Philp, given his particular

characteristics of disease in July 2001, has had his life shortened by his treatment being delayed until March 2002, resulting

from the missed diagnosis in July 2001, or is Mr Ryan on the balance of probabilities correct when he submits that he would,

according to the school of thought to which he adheres, have been correct or justified in any event to have deferred hormone

treatment until March 2002 and without any adverse consequences for the plaintiff as far as life expectancy is concerned.”

(emphasis added).

20. At one point, the learned trial judge appeared to lean in favour of the plaintiff’s evidence, when he said:

“I believe there is ample support for the plaintiff's belief that in all probability he, given his specific condition, at least had a

more than 50% possibility that immediate hormone treatment in July 2001 would have been beneficial. Such treatment would

have to have been discussed with the plaintiff, and I believe that if Mr Ryan had failed to discuss these options with the

plaintiff in July 2001, he would have been in breach of his duty of care. I am not going so far as to say that if Mr Ryan

recommended deferred treatment to the plaintiff, and the plaintiff took that advice, that Mr Ryan would be negligent in so

recommending. I am simply pointing to the need to have the options clearly placed before Mr Ryan so that an informed

decision could be made by the plaintiff in relation to the options. It is always open to a patient to not take advice from his

doctor once he has been fully informed as to all relevant considerations – especially in a situation such as the plaintiff's where

there is no unanimity in medical opinion as to the correct course of treatment.”

21. However, in the final analysis, he did not award damages for this aspect of the claim. His approach appears from the following:

“I cannot make a definitive conclusion in relation to whether his life has been shortened, or by how long, simply because the

whole question is the subject of such debate, as I have shown, but I can conclude that on the balance of probabilities, the

fear that his life has been shortened is a reasonable fear, and the distress caused to the plaintiff in that regard is reasonable,

and for which he entitled to be compensated.”

22. It must be recorded, of course, that this issue comes before the court only by way of cross appeal. The appeal has been taken to

this court not by the plaintiff but by the defendants. However, the court was quite satisfied that the appeal of the defendants on the

ground that the damages were excessive was without merit. The award of €45,000 was amply justified by the findings of the learned

trial judge regarding the real anguish and distress suffered by the plaintiff. Furthermore, I fully agree with the judgment of McCracken

J that an award of aggravated damages should have been made. The failure of the defendants’ solicitors to inform the plaintiff’s

solicitors that the first-named the defendant had falsified the clinical note upon which they had placed such heavy reliance in pre-trial

procedures was reprehensible in the highest degree. This behaviour was calculated to deceive the plaintiff, his advisers and the court

on a material matter. Regrettably the defendants made a deliberate decision not to correct the false impression they had earlier

conveyed to the plaintiff that there would be evidence supported by a genuine contemporaneous note that the plaintiff had been

advised to have a further test carried out.

23. It remains only to deal with the cross appeal relating to the failure of the learned trial judge to award damages for possible or

probable loss of life expectancy. The cross appeal alleges that it was wrong not to make an award of damages under this heading

once it had been found that it would not be reasonable to assume that the delay of some eight months in making the correct

diagnosis had no adverse effect on the plaintiff’s life expectancy.

24. The learned trial judge appears to have posed a test of probability of success on the Appellant’s entitlement to damages for loss

of the opportunity to have hormone treatment. Damages depended on proof that life would probably, not possibly, have been

prolonged.

25. The plaintiff claims an entitlement to be compensated for the loss of an opportunity to elect for treatment of his cancer on the

basis of correct diagnosis and appropriate medical advice. Assuming such correct diagnosis, he claims that there was a possibility that

his life could have been prolonged to some extent. It is common case that the chances of successful treatment were, at best,

problematical. There is no dispute as to the trial judge’s view that medical academic opinion was divided on the benefits of hormone

therapy.

26. The defendants argued that this type of lost opportunity was not valuable in the sense that it should not attract compensation

unless it could be proved that the postulated treatment would probably have been successful. Mr Patrick Keane, Senior Counsel for

the defendants went so far as to submit that a forty nine percent chance of successful treatment would not confer an entitlement to

damages, though a fifty one percent chance would. Asked how this was reconcilable with the universal practice of allowing for

percentage risks below fifty of the future development of conditions such as arthritis or epilepsy, he sought to distinguish these

examples as being on the debit side only. These were negative possibilities for an injured person, whereas, in the present case, the

plaintiff seeks compensation for the loss of a beneficial opportunity.

27. Before considering the authorities cited by Dr John White, Senior Counsel for the plaintiff, I should say that it seems to me to be

contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent

diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of

treatment which might improve his condition. I can identify no contrary principle of law or justice. It is commonplace that allowance is

made in awards and in settlements for the risk that an injured plaintiff may in the future develop arthritis in an injured joint. The risk

may be high or low - a fifteen percent risk is often mentioned – but damages are paid. I cannot agree that this is any different from

what is sought in the present case. It does not matter that the damage suffered by the plaintiff consists of the loss of an opportunity

to avail of treatment. It might, with equal logic, be described as an increased risk of shorter life expectancy. It seems to me as

illogical to award damages for a probable future injury as if it were a certainty, as to withhold them where the risk is low on the basis

that it will not happen at all.

28. This precise matter was dealt with by this Court in Dunlop v Kenny (Unreported, 29th July 1969). O’Dálaigh C.J. delivered the

unanimous judgment. It was held that the jury had been misdirected to the effect that the plaintiff would suffer from epilepsy, when

the evidence was that there was “a risk of major epilepsy.” O’Dálaigh C.J. held that the trial judge had overstated the risk. He did

not, however, state that there should be no award under this heading. The following passage very clearly indicates the correct

approach:

“In cases such as this, where there is an issue of possibility or probability of some disability or illness arising or developing in

the future, the damages to be awarded should be commensurate with, and proportionate to, the degree of that possibility or

probability as the case may be. If the degree of probability is so high as to satisfy a jury that it remains only barely possible

that the condition will not occur, a jury would justified in acting upon the assumption that it will occur, and should measure

the damages accordingly. On the other hand, if the probability that no such event will occur is so great that it is only barely

possible that it would occur, damages should nevertheless be awarded, but should be proportionate the degree of risk, small

though it might be.”

29. This statement applies, of course, only to the assessment of damages for future uncertain events. In respect of past events,

whether related to liability or to the causation of damage or loss, the normal rule of proof on the balance of probability applies. These

issues were considered by the House of Lords in Davies v Taylor [1974] A.C. 207. That was a claim for damages under the Fatal

Accidents, 1846. The plaintiff brought the claim arising from the death of her husband. At the time or the death, she was estranged

from him and he had instructed solicitors to commence proceedings for divorce. In support of her claim for loss of future dependency,

she said that reconciliation would have taken place. The House of Lords were unanimously of the view that the trial judge had

mistakenly held that no sum was recoverable.

30. Certain passages from the speeches of the Law Lords provide solid support for the approach I have outlined for this case. Lord

Reid spoke at page 213 as follows:

“When the question is whether a certain thing is or is not true- whether a certain event did or did not happen – the court

must decide one way or the other. There is no question of chance or probability. Either it did or did not happen. But the

standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is

proved that it did in fact happen.

But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her

husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think

that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually

100 per cent ; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see

much difference between a probability of 51 per cent and a probability of 49 per cent.

“Injury” in the Fatal Accident Acts does not and could not mean loss of a certainty. It must and can only mean loss of a

chance. The chance may be a probability of over 99 per cent but it is still only a chance. So I can see no merit in adopting

here the test used for proving whether a fact did or did not happen. There it must be all or nothing.

If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent

and a 40 per cent probability? The 40 per cent case will get nothing but what about the 60 per cent case.? Is it to get a full

award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical

result. I can see no ground at all for saying that the 40 per cent case fails altogether but the 60 per cent case gets 100 per

cent. But it would be almost absurd to say that the 40 per cent case gets nothing while the 60 per cent case award is scaled

down to that proportion of what the award would have been if the spouses had been living together. That would be applying

two different rules to the two cases. So I reject the balance of probability test in this case.”

31. Lord Simon at page 220 of Glaisdale spoke to similar effect:

“…But this is one of those cases where a balance of probabilities is not the correct test. If the appellant showed any

substantial (i.e. not merely fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being

deprived of that possibility. The damages would, of course, be scaled down from those payable to a dependant spouse of a

stable union, according as the possibility became progressively more remote. But she would still e entitled to some down to

the point where the possibility was so fanciful and remote as to be de minimis.”

32. The assessment of future losses is, on occasion, a matter of mathematical calculation. In certain cases, the courts are

accustomed to resorting to the evidence of actuaries, who are expert in calculating the present capitalised value of a combination of

future events of greater or lesser likelihood. They can build in allowance for the occurrence of a variety of possibilities including likely

age of death or retirement. Nobody suggests that their calculations must be posited on the probable as distinct from the possible

happening of each event. Their reports would be deeply flawed if they were.

33. In my view, the plaintiff should receive an award for the loss of the opportunity to be advised correctly and treated accordingly.

Taking this element together with the element of aggravation of damage by the judgment of McCracken J, I believe the sum of

€100,000 represents to correct level of the award. I would, therefore, dismiss the appeal and allow the cross appeal substituting the

sum of €100, 000 for the sum of €45,000 awarded in the High Court, that increased sum to include both compensation for the loss of

life expectancy and the aggravation of damage dealt with in the judgment of McCracken J.