Raul Guiu Gallardo v Imperial College Healthcare and Another
| Jurisdiction | England & Wales |
| Judge | Peter Hughes |
| Judgment Date | 08 December 2017 |
| Neutral Citation | [2017] EWHC 3147 (QB) |
| Court | Queen's Bench Division |
| Date | 08 December 2017 |
| Docket Number | Case No: HQ13X05534 |
[2017] EWHC 3147 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Peter Hughes QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: HQ13X05534
Conrad Hallin (instructed by Hodge, Jones & Allen LLP) for the Claimant
Richard Mumford (instructed by Capsticks LLP) for the Defendant
Hearing dates: 23 rd, 24 th, 25 th, 26 th and 27 th October 2017, 8 th November 2017
His Honour Judge Peter Hughes QC:
Introduction
Whatever uncertainty there may have been in the past, the requirement of informed consent to medical treatment is now a fundamental and settled principle of the law in both England and Wales and Scotland 1.
This case is concerned with what should happen following treatment and the duty to inform the patient of its outcome, the prognosis, and of any requirement for follow up and further treatment or monitoring.
The Claimant, Mr Guiu Gallardo (to whom I will refer throughout as "The Claimant") underwent major abdominal surgery at the Charing Cross Hospital in 2001. A malignant gastrointestinal stromal tumour (GIST) was removed. It is his case that he was never informed of the malignancy and the risk that it might recur. Neither was he told that he would need regular monitoring and CT scans.
The cancer did recur and, in 2011, he underwent further major surgery. His condition is now closely monitored, and he is likely to have another operation in the near future.
The Defendant's primary case is that the Claimant was properly informed after surgery of the malignancy and the risk of recurrence. The question of liability is further complicated, though, by the fact that in the post-operative period the Claimant moved from the NHS into a private room at the hospital and was thereafter treated by his surgeon, Mr Nikitas Theodorou, as a private patient.
Mr Theodorou died in 2014. He has played no part in these proceedings 2. The Defendant contends that any breach of duty occurred when the Claimant was a private patient and that it is not the responsibility of the hospital trust.
The Claimant maintains that he should have been informed of the outcome of his surgery before he became a private patient, but even if this is not found to be so, it does not absolve the Defendant from liability.
Outline of the basic facts
The Claimant is Spanish. He is now 46 years of age. He came to the United Kingdom in 2000, at the age of 28 to work in the computer software industry.
In late November 2000, he was admitted to Charing Cross Hospital and treated for a gastric ulcer. He is recorded as suffering from chronic anaemia secondary to a peptic ulcer. He was discharged from hospital after 12 days, on the 12 th December 2000.
On the 23 rd of January 2001, he was re-admitted having fainted at work and been taken by ambulance to the Accident and Emergency Unit.
He was initially treated conservatively but on the 30 th January 2001 a CT scan was carried out. This revealed a mass on his stomach. The radiological report concluded with the following comment:-
" The most likely diagnosis is that this is a GI stromal tumour. Particularly in the context of recurrent bleeding and non-healing ulceration."
The Claimant was advised to undergo surgery. After some hesitation, and reflection overnight, he agreed to this. The operation was performed by Mr Theodorou on the afternoon/evening of the 31 st January 2001 assisted by his surgical registrar, then Doctor, now Mr Umughele.
While recovering from the operation, the Claimant suffered a rupture of the appendix and developed peritonitis. On the 6 th February 2001, he underwent a laparotomy and, three days later, a further operation to resection part of the small bowel. His condition was grave and he was moved into intensive care. For some time he was intubated and on a ventilator. His family came over from Spain to be with him. It was an anxious period and there were fears that he would not survive.
The Claimant left intensive care and returned to the ward on the 5 th March 2001. He was still in pain and had a wound infection that was resistant to treatment, but gradually he regained his strength and was allowed to mobilise. On the 30 th March, he was moved to the private wing of the hospital, on the 15 th floor, after it had been realised that he had private health insurance.
As a private patient, the Claimant continued to benefit from the nursing and other services provided by the Defendant, but was billed for these services 3. Mr Theodorou charged separately for his services.
The Claimant was finally discharged from hospital on the 9 th April 2001. His GP records include a copy of the proforma issued on discharge by the hospital. It is dated the 9 th April and bears a received date stamp of the 12 th April. The form is signed by Mr Theodorou. It reads –
"Diagnosis:
(1) Gastric leiomyosarcoma
(2) Post op acute perforated appendicitis
(3) 2 laparotomies for sepsis/obstruction
Recommendations for Future Management
See us in 10/7
3/12 B12 1000ug injections please
Drugs to be continued Folic Acid"
The form shows the Claimant as being discharged from the 15 th floor, but this is the only indication on its face that he was a private patient.
Also in the Claimant's GP records is a letter dated the 19 th April 2001. It is on NHS notepaper, and is addressed in capital letters 'TO WHOM IT MAY CONCERN'. The author of the letter was Mr Umughele, but it was signed on his behalf by someone else. The signature appears to be that of Mr Theodorou. An unsigned copy of the letter is in the Claimant's NHS hospital records.
The letter gives a brief description of the Claimant's admission and treatment. It refers to a diagnosis of "malignant gastric stromal tumour", but later, in reciting the details of his treatment and stay in hospital, it includes the statement –
" CT scan carried out on admission showed a large stromal tumour about 7cm, the appearances were compatible with malignant leiomyosarcoma. He went on to have a sub total gastrectomy."
It goes on to state that the claimant was discharged on the 9 th April 2001, and continues
" On discharge his medication include three monthly vitamin B12, daily folic acid and multivitamin preparations."
It contains no reference to the need for regular check-ups or CT scans.
The Claimant saw Mr Theodorou privately, as an out-patient on the 23 rd April 2001. Mr Theodorou advised him that he was now well enough to travel to Spain to continue his recuperation. He left on the 26 th April 2001, returning to the UK in late June or early July and then resuming work.
The Claimant saw Mr Theodorou again on more than one occasion; possibly in September 2001 although no record of this has been traced, but definitely, on the 1 st February 2002, and the 1 st March 2002. Between the two appointments he had a further CT scan, and Mr Theodorou would have had the results of the scan at the consultation on the 1 st March.
One outstanding non-urgent matter that needed to be attended to when the Claimant was well enough was an operation to repair a hernia. The Claimant wished to have the surgery in Spain. On the 1 st March 2002, Mr Theodorou reviewed the new CT scan and advised the Claimant that he could now go ahead and arrange the surgery and to arrange to see him again on his return to the UK.
The operation was carried out in Zaragoza in July 2002. The Claimant believes that he saw Mr Theodorou for the last time when he came back to the UK 4.
Outline of subsequent history and treatment
In the period between 2002 and 2006, the Claimant lived for periods in London, Barcelona, Helsinki, and from October 2004 back in London.
In August 2006, he attended A & E at Charing Cross Hospital with abdominal pain. Subsequently, his GP referred him to New Victoria Hospital. An ultrasound was performed. This revealed no cause for concern.
In August 2009, he moved back to Spain and started a new job based in Gibraltar. In July, the following year he attended A & E at La Linea de la Concepcion in Spain complaining of abdominal pain. He subsequently saw his GP in Gibraltar. The GP arranged blood tests and an MRI scan. The Claimant was given a diagnosis of Pseudo myxoma Peritonei 5.
Doubting the diagnosis, the Claimant referred himself, first to a hospital in Vitoria, northern Spain, where the diagnosis was confirmed, and then, still doubting it, to a specialist cancer hospital in the UK, the Christie Hospital in Manchester.
The Christie Hospital were concerned to have access to the records of the Claimant's treatment in 2001. By this time Mr Theodorou no longer worked at Charing Cross Hospital. It appears that contact was made with him and, on the 20 th November 2010, he sent the Claimant the following message by email. I quote it in full because it is central to the Claimant's case.
"I received a call last night from Charing Cross Hospital to let me know your notes have been retrieved from archives. They are extensive but clearly there are important areas of information of which, with your permission, your doctors should be aware.
Perhaps you can let me know how best to communicate this information and to whom. I have already sent a copy of the histology of your appendix to Dr Deardon [the Claimant's GP] but in the light of the new information received I think it is unlikely to be helpful.
We did not have the opportunity to discuss the nature of your current situation but in the light of the information I now have to hand it is possible that this might be related to the reason for your operation on the stomach in 2001 and it is important for your doctors to be aware that your original...
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