Mr Desmond Muller v King's College Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 01 February 2017 |
| Neutral Citation | [2017] EWHC 128 (QB) |
| Docket Number | Claim No: HQ14C04620 |
| Court | Queen's Bench Division |
| Date | 01 February 2017 |
[2017] EWHC 128 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Judgment handed down at:
Civil Justice Centre,
Manchester M60 9DJ
Mr Justice Kerr
Claim No: HQ14C04620
Robert Kellar (instructed by Slater & Gordon (UK) LLP) for the Claimant
Tom Gibson (instructed by Kennedys) for the Defendant
Hearing dates: 13 th, 14 th, 15 th and 16 th December 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimant (Mr Muller), born on 19 May 1947, lives with his wife in Beckenham, Kent. For most of his life he has been an active and vigorous man. Well into his sixties he would take regular exercise, walking, swimming, playing golf and football. He has twice played the lead role, Tevye, in the incomparable musical, Fiddler on the Roof. He used to work full time as a mental health social worker until his retirement in 2007. After that, he worked freelance for local authorities and NHS bodies as a lecturer in mental health law.
Mr Muller has also survived cancer. In 2012, he was diagnosed with a malignant melanoma on the sole of his left foot. It was excised by surgery. However, by then it had spread, as demonstrated by a procedure called sentinel lymph node biopsy. Secondary metastases were removed. Fortunately, his six monthly scans have shown him to be clear of cancer since then, and it is now agreed that his life expectancy is normal.
He claims that his cancer should have been diagnosed earlier and that, if it had been, he would have been spared pain, suffering and loss of amenity, various expenses and loss of earnings. He claims damages against the defendant (the Trust) as the employer of a histopathologist, Dr Rashida Goderya. She diagnosed a non-malignant ulcer in November 2011, when in fact, as is now agreed, the lump on Mr Muller's left foot was a malignant melanoma.
The Trust denies that Dr Goderya's mis-diagnosis was negligent. Alternatively, it denies that Mr Muller sustained any loss or damage, and disputes the quantum of the loss claimed. It argues that if the cancer had been diagnosed in November 2011, the outcome would have been much the same: the cancer had already spread by then; Mr Muller would have accepted advice to have the same operations he later had: a sentinel lymph node biopsy, lymph node dissection and a split skin graft. He would not have avoided those procedures, nor the expense and lost earnings claimed, the Trust argues.
The Facts
Mr Muller was on holiday in Cyprus when, on 26 July 2011, he felt that he injured his left foot while bathing in the sea. The injury is variously attributed to stepping on a sea urchin or scraping his foot on a rock. The sea urchin theory later gained the most currency but, in truth, the cause of the injury was not known apart from its possible marine origin. He sought medical advice from a nurse in Cyprus, who advised him to see his General Practitioner (GP) in England if the wound did not heal.
When it failed to heal, Mr Muller sought medical advice in this country. He visited an accident and emergency department where pus was expressed from the wound. Then on 1 August 2011, he saw a GP, Dr Linsmaier, who thought the wound was healing. However it did not, even with antibiotics, though the discharge temporarily stopped. He referred himself to a podiatrist, who treated the wound as an ulcer. The wound then started to discharge again.
On 4 November 2011, Mr Muller's GP, Dr Akiri, made a routine referral to a dermatology referral centre, noting "recurring infections and an area of ulceration that has failed to heal", and that an ultrasound scan had found "nil of note". Three days later, a podiatrist, Ms Nicol, faxed Dr Wells, another GP at the practice, mentioning the possible presence of a "foreign body" in Mr Muller's left foot.
On 9 November 2011, Mr Muller was seen by a dermatologist at Orpington Hospital, Dr Karen Watson. She took a small punch biopsy for histological examination. This is a very painful procedure which requires an injection deep into the foot. The punch biopsy then came before Dr Goderya for histological examination.
She is a consultant histopathologist. Her work at the time involved reporting on specimens of many kinds, including samples of tissue of a gynaecological nature, and specimens comprising skin, breast, gastro-intestine, ear, nose, throat and endocrine (thyroid). She worked normal working hours, according to a rota which required her to report on particular types of specimen on particular shifts.
Dr Goderya estimated that she reported on about 3,500 samples each year. When examining specimens under a microscope, she would be looking at the samples on a glass slide, examining cells rather than tissue. Of the specimens she examined, about 700 each year would be skin specimens. She would report on about 25 to 30 samples each working day. Some samples (though not Mr Muller's) would comprise more than one glass slide with tissue on it.
The method used was to stick a thin section of cut tissue to an illuminated glass slide. The tissue would be stained to bring out contrasts between nuclei and other structures of the cells. The staining agent is blue. The nuclei (centres) of the cells appear blue, while the cells around them tend to be pink in appearance, to help the reporting histopathologist to differentiate between the two.
Most of the preparatory work of preparing and staining tissue for examination is carried out by laboratory technicians. Accompanying the prepared slides would be a written request form with details of the patient, relevant clinical information and a note of the questions raised for the histopathologist to address in her report, made after examining the sample. Mr Muller's single slide was prepared by the technicians and placed before Dr Goderya, who viewed it on 16 November 2011.
The slide had several pieces of tissue from the punch biopsy stuck to it. The request form had gone missing by the time of the trial, so I have not seen it. Dr Goderya had it, and recalls that it referred to a sea urchin bite. Her evidence was that she would have viewed the slide first with the naked eye, and then with increasing degrees of magnification under a microscope. The levels of magnification (which are not linear), are denoted by the numbers 4, 10, 20 and 40, in ascending order.
Dr Goderya reported in writing the same day. The punch biopsy was described as 5 mm in diameter, 3 mm deep and "[b]isected". A punch biopsy is only a small portion of the lesion from which it is taken. She reported an "ulcer with underlying granulation tissue and scarring. Granulomata are not seen. The features are of an ulcer consistent with the history of trauma". She included in her brief written report everything she considered relevant. The absence of "granulomata" indicated to Dr Goderya, correctly, that certain infections such as tuberculosis were not present and that there was no foreign body.
She did not detect a malignant melanoma, though it is agreed that there was one. It was of a type she had never seen, known as an acro-lentinginous melanoma, or "ALM" (also sometimes referred to as an "acral lentinginous melanoma"). "Acro" or "acral" refers to the location being in the skin of the hands and feet. The adjective "lentiniginous" refers to the way in which the abnormal cells are proliferating, dividing in a linear manner at the junction of the dermis (the inner layer of skin) and the epidermis (the outer layer of cells forming the surface, overlaying the dermis).
On 22 November 2011, Dr Watson wrote to the Claimant and his GP to notify him of Dr. Goderya's findings in the following terms: "….when the skin was examined under the microscope the features were of an ulcer consistent with a history of trauma. There was no evidence of any other pathology". Mr Muller saw Dr Watson on 4 January 2012, and again on 1 February 2012.
At first, Mr Muller thought the wound was at last healing. He was able, with difficulty, to fulfil his contractual commitments as a lecturer, and to drive; although his normal active life had been severely disrupted. However, in March 2012, the wound was deteriorating and very painful. On 9 March, Dr Watson referred him to Mrs Jenny Geh, a plastic surgeon at Orpington Hospital, for consideration of surgery in the form of a "small excision".
Mr Muller saw Mr Anirban Mandal, a member of Mrs Geh's plastic surgery team, on 16 May 2012. Mr Mandal recommended excision under general anaesthetic, to be performed at St Thomas' Hospital in London. That operation was performed on 3 July 2012. The immediately affected area of the wound was excised. An "excision biopsy" was taken for histological examination. Mr Muller believed that once he had recovered, he would be free of the problem. He was therefore optimistic about returning to sports after recovery from the operation.
During the healing phase, the wound required frequent dressing at St Thomas's Hospital, requiring morning hospital transport for Mr and Mrs Muller from their home in Beckenham to central London, followed by wheelchair transport within the hospital. By the time they got home, this process took up much of the day, until Mrs Muller was able to change the dressings herself at home.
The excision was later described as "incomplete" because it did not include a margin of 2 cm around the wound which would have been standard practice if it were known that the affected area was cancerous. The excision biopsy, a fuller and better specimen than a punch biopsy, was received the next...
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