XX v Whittington Hospital NHS Trust
| Jurisdiction | England & Wales |
| Judge | Sir Robert Nelson |
| Judgment Date | 18 September 2017 |
| Neutral Citation | [2017] EWHC 2318 (QB) |
| Docket Number | Case No: HQ15C04535 |
| Date | 18 September 2017 |
| Court | Queen's Bench Division |
[2017] EWHC 2318 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Robert Nelson
Case No: HQ15C04535
Claire Watson (instructed by Irwin Mitchell LLP) for the Claimant
Charles Feeny (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 13 th to 15 th June 2017
As a consequence of the Defendant's admitted negligence in failing to detect signs of cancer from smear tests in 2008 and 2012 and biopsies in 2012 and 2013, the Claimant developed invasive cancer of the cervix for which she required chemo-radiotherapy treatment that led to infertility and severe radiation damage to her bladder, bowel and vagina. This trial is quantum only, the Defendant having also admitted causation.
The Facts
The Claimant was 29 when she was diagnosed with stage IIB cervical cancer. She suffered from recurrent urinary tract infections/cystitis type symptoms whilst the cancer remained undiagnosed, and vaginal discharge, offensive at times, from 2011 onwards. She had shooting pains in the vaginal and lower pelvic area with abdominal bloating. She experienced pain and bleeding during sexual intercourse.
The delay in the diagnosis caused the Claimant anxiety and stress, knowing that she was experiencing considerable pain and discomfort and unusual and troubling symptoms which were discounted whenever she attended hospital. When the correct diagnosis was made she experienced shock and anger, which in part she directed against herself, feeling that she should have been firmer with the hospital staff. This was an understandable response, but as she recognized herself, she was not in fact in any sense to blame.
A consequence of the late diagnosis was that the Claimant, because of the increased size of the tumour, was unable to have fertility sparing surgery, which would otherwise have been, and should have been, available to her. She has therefore suffered a complete loss of fertility, which is a terrible blow to her as one of her central ambitions in life was to found her own family. She was so devastated by the news that she would be unable to bear children that she postponed her cancer treatment on two occasions in order to take a second and third opinion on whether fertility sparing surgery was indeed no longer available to her.
It was not, so on 16 July 2013 she underwent a cycle of ovarian stimulation and egg harvest which produced 12 eggs, which have been cryopreserved by vitrification.
On 24 July 2013 the Claimant underwent surgery followed by a course of chemo radiotherapy in August and September 2013. The latter treatment caused irreparable damage to her uterus and ovaries and she is now unable to conceive or become pregnant or bear children. She has entered a premature menopause and before she started hormone replacement therapy experienced bad night sweats and decreased energy.
The Claimant and her partner have decided to have their own biological children by surrogacy. The Claimant has always wanted a large family and would wish to have 4 children, (she also said 3–4 to Dr. Gessler) using donor eggs if her own cryopreserved eggs do not result in a sufficiently large number of children. The Claimant comes from a large family as does her partner; her sister and her husband have 10 children at their home in Scotland, but the Claimant at present finds it difficult to visit them as it is upsetting to her to look at small children when she feels that she may never become a mother herself. Their first choice for surrogacy is California, where XX's partner has a relative, primarily because surrogacy is lawful and binding there and without the problems of partial illegality facing aspiring parents in the UK.
The chemo radiotherapy has resulted in severe physical injuries. The Claimant has vaginal stenosis, atrophy of the vaginal tissues making the area tender and sensitive and penetrative sexual intercourse too painful to have. She uses vaginal dilators but finds them painful and a reminder of the extent of her injuries.
She has numerous and regular problems with her bladder; episodes of urinary urgency, urinary frequency, excessive night time urination, painful urination and blood in her urine. She has been diagnosed with late onset radiation-induced cystitis. As she has episodes of incontinence she has to wear pads, which have to be changed several times a day.
The Claimant suffers from severe problems with her bowels; she has radiation proctitis, bile salt malabsorption and functional diarrhoea. Her condition has led to bowel frequency and urgency, loose stools and occasional incontinence. She has occasional abdominal pain.
One of the consequences of her bladder and bowel problems is that her ability to travel and go where she wishes is severely limited. Every journey has to be carefully planned in advance so that there are stopping points with known toilet facilities. This applies even to relatively short journeys by e.g. tube. She has at present ceased to fly as this causes pain and may cause bleeding. Her occasional incontinence of both bladder and bowel has affected her confidence about what she is able to do and caused her anxiety and embarrassment. When she has a stomach upset her bowel is uncontrollable. Recently she had to return to her house from the bus stop, because of a stomach upset, three times, before she was able to get work. Someone else had to open the store at XX's employer at St. Pancras, where she works, as she was late.
At work the Claimant faces the difficulty that there is no toilet in her store so that she has to go to a public lavatory where she may have to queue. This causes her considerable anxiety about soiling herself but she has coped well at her work, gaining a promotion recently, though she had to turn down an earlier offer of promotion because of the travel problems that would have caused.
The Claimant is able to do much of what she could do before around the house except that she now leaves the heavy work to her partner. She could do even the heavy work, but that and picking up heavy items, may cause pressure on her bladder so that she does less now. She may have a bladder episode causing pain and blood in her urine with a burning sensation on urinating every two weeks or so.
The bladder and bowel problems are likely to persist. The extent to which they cause severe continuing problems will depend on the effect of the various treatments and medication and a controlled and careful lifestyle, but I am sure that her continuing disability arising from the Defendant's negligence will, in any event, cause her considerable difficulties in her life.
It is agreed between the parties that provisional damages should be awarded to the Claimant for the risk, small but undoubtedly real and significant with potentially grave consequences, that she will develop radiation enteritis, a condition which may result in gastrointestinal failure and may cause the need for home parenteral nutrition, i.e. intravenous feeding.
The Claimant also experiences a constant heavy feeling in her legs that interferes with her sleep. This problem is likely to be permanent.
As a result of the failure in diagnosis the Claimant suffered from mild depression and anxiety though this has now been successfully treated. Dr. Gessler, a consultant psychologist who was called on behalf of the Claimant, said that that by the end of her treatment, the Claimant was normal though she considered that there was a risk that the Claimant might, if the surrogacy was not successful, revert to ruminative and intrusive thoughts resulting in a condition worse than to begin with. This would represent some of the symptoms of post traumatic stress disorder but not the full condition. Although Dr. Gessler said that the response to failed surrogacy, if such a response occurred, might be catastrophic, she thought that the condition would not be long lasting, expressing the view that treatment, as it had been in the past both in the Claimant's youth and in respect of her post diagnosis condition, would be successful. She said that she would hope that after one year of psychological treatment no further treatment would be needed.
The overall effect of the failure to diagnose the cancer soon enough were well summed up by Claire Watson on behalf of the Claimant in her closing submissions:
a) The development of invasive Stage IIB cancer, which necessitated surgery to remove her lymph nodes and transpose her ovaries, and chemo-radiotherapy
b) The complete loss of fertility where XX has no children but had always wanted to found a family of her own.
c) Radiation induced bladder injury leading to urinary urgency, urinary frequency, excessive night time urination (nocturia) painful urination (dysuria), blood in her urine (haematuria) and urge incontinence for which she wears pads
d) Radiation induced pelvic pain
e) Radiation induced bowel injury: radiation proctitis, functional diarrhoea and bile salt malabsorption causing bowel frequency and urgency, loose stools and occasional incontinence.
f) Vaginal stenosis and impairment of sexual function
g) A constant heavy feeling in both legs with pins and needles, which interferes with her sleep at night
h) Loss of hormone production leading to premature menopause
i) Anxiety and depression associated with the diagnosis of cancer, the radiation induced injuries to her bowel, bladder and vagina and her inability to conceive or carry a pregnancy
j) The risk of recurrence of cancer and the associated fear of the same.
Pain, suffering and loss of amenity
I have considered the cases referred to by the parties and the Judicial College Guidelines. The latter are as follows:
Chapter 6(F) Infertility,...
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