GREENFIELD
- v -
(1) SOUTHAMPTON UNIVERSITY HOSPITALS NHS TRUST
(2) DR LAWRENCE RICHARD ARTO DAY

CASE REPORT

Case settled. Trial listed for 25th November 2002 for seven days to be heard in the High Court, Queen’s Bench Division. The assigned Master was Master Ungley.

The Facts
1. On 25th September 1996 the Claimant attended the Second Defendant, her GP with a four week history of intermittent bloody discharge from her left nipple. The Second Defendant did not carry out an examination but did refer her to a Consultant Breast Surgeon, Mr Royle, employed by the First Defendant who saw her on 21st October 1996.

2. Although he did examine her briefly Mr Royle did not attempt to elicit any discharge from her left breast nor did he ask the Claimant if she was able to elicit discharge.

3. Following the appointment he wrote to the Second Defendant in terms:
"I am pleased to report that her left sided nipple discharge has now stopped. The physical examination today was normal. I have organised a left sonomammogram..."

4. On 3rd December 1996 he wrote to the Claimant:
"I am pleased to confirm that your recent left-breast ultrasound shows no abnormality. I would be happy to see you again in the future if I can be of further help...."

5. On 2nd December 1996 the Claimant visited the Second Defendant following a blow to her left breast complaining of recurrent pain and discharge. During the course of the appointment the Claimant informed the Second Defendant:

(a) that she was continuing to bleed from her left nipple both spontaneously and when pressure was applied;
(b) that she had pain and lumpiness in the breast;
(c) that she had woken up that morning to find her left arm smeared in blood from her upper arm to her wrist;

6. The Second Defendant informed the Claimant that she was suffering from mastitis, that her distress was undoubtedly caused by the illness of a grandparent and that she could not possible be suffering from breast cancer. He prescribed antibiotics but once again failed to examine her. He subsequently alleged that he had felt it inappropriate to examine the Claimant because she was so distressed about family matters.

7. On 9th December 1996 the Claimant attended the Second Defendant again. Once again he did not carry out any examination of her breasts. On 6th February 1997 the Claimant re-attended the Second Defendant and during the course of the appointment complained that:

(a) the pain and lumpiness in her left breast was increasing such as to interfere with her sleep;
(b) she had daily discharge from her left nipple;
(c) the discharge was now staining he clothes and causing her difficulty and embarrassment;

8. The Second Defendant reassured her but did not carry out any examination of her breast. On 13th January 1998 the Claimant attended her GP Practice complaining of further bloody discharge from her left nipple and was referred urgently back to Mr Royle. He carried out Fine Needle Aspiration Cytology ("FNAC") which was suspicious of malignancy. On 12th February 1998 he carried out a core biopsy which confirmed the presence of breast cancer.

9. The Claimant underwent chemotherapy and other treatment but on 18th August 1998 her left breast was removed during a modified radical left mastectomy.

10. The Claimant issued proceedings alleging negligence which can be summarised as follows.

As against the First Defendant (that Mr Royle):
(a) failed to inform the Claimant during the appointment on 21st October 1996 that she should return to him if the bloody discharge continued and in his follow up letter to the Second Defendant of 25th October 1996 he failed to make such a recommendation.

(b) similarly in his letter of 3rd December 1996 to the
Claimant he failed to make such a recommendation;

(c) by closing his letter of 3rd December 1996 with the words: "I would be happy to see you again in the future if I can be of further help" he wrongly gave the impression that the symptoms complained of at her previous visit were not such as to justify her re-attendance.

As against the Second Defendant
(a) On numerous occasions he failed to examine her at all;

(b) Despite later advancing the suggestion that he had not wanted to cause her distress he failed to raise with her at all the issue of whether she was content to undergo a breast examination either then or at some later date and instead decided not to carry out an examination;

(c) He failed to take proper account of her continuing complaints of bloody discharge;

(d) He failed to refer her back to Mr Royle.

11. Pursuant to permission granted by the Court the parties obtained the expert evidence of a jointly instructed histopathologist. It was clear from his evidence and that of the oncologist instructed for the Claimant that her statistical chances of long term survival had been dramatically altered. The change in survival can best be summarised as follows:

- the tumour was invasive by February 1997 and was probably invasive in December 1996

- in February 1997 there would have been between a 35% and a 40% chance of nodal involvement. On the balance of probabilities therefore there was no nodal involvement at that time

- if diagnosis had been made by December 1996 the
Claimant would have been in Moderate Prognostic Group I with a 10 year survival of 70%

- if diagnosis had been made by February 1997 the
Claimant would have been in the Moderate Prognostic Group II with a 10 year survival of 51%

- by the time of diagnosis in February 1998 there were
4 positive nodes

- likewise, by the time of diagnosis the Claimant was in the Poor Prognostic Group with only a 19% probability of surviving 10 years.

The Proceedings
12. Proceedings were issued on 11th January 2001. Defences were served and the case was ultimately set down for trial for 25th November 2002 for seven days. Three weeks before trial the Second Defendant paid into Court the sum of £110,000. That payment-in was sufficient to discharge the claim advanced. The Second Defendant was of course responsible for the costs incurred in pursuing him to trial but understandably refused to cover the costs incurred in pursuing the First Defendant.

13. Solicitors for the First Defendant refused to make any offer of payment in respect of those costs. The joint meeting between the breast surgeon experts then took place. The important conclusions were that:

(a) Mr Royle should have asked the Claimant to express or attempt to express a discharge from the nipple;
(b) in the absence of any other indication to the
Claimant to attend surgery in the event of further bleeding it was incumbent on Mr Royle to make it clear to the Claimant specifically that she should re-attend on him if she were to suffer any further bleeding.
(c) It was reasonable for him to rely upon the First
Defendant Trust to ensure that a leaflet explaining the importance of attendance was sent out
(d) Failure to send out the leaflet would be negligent.

14. The Claimant's evidence on this point was clear and unambiguous. At no point before her 1998 appointment had she seen the leaflet described by the First Defendant. Her evidence on this point was clear and corroborated by her partner. The First Defendant could not prove that a leaflet had been sent to her and was ultimately reduced to suggesting that a leaflet would have been available in the waiting room before her 1996 appointment. The Claimant denied seeing a leaflet there.

15. Notwithstanding delivery of the joint report together with the witness statement dealing with the leaflet issue the First Defendant maintained its refusal to pay for those costs incurred by the Claimant in pursuing it to trial. This would have left the Claimant in the unenviable position of having to cover those substantial costs out of her damages award. An open letter was therefore sent by the Claimant's solicitors in terms that:

- the amount recovered from the Second Defendant covered the damages claim in total;
- but she was still entitled to judgment for nominal damages as against D1 ;
- which she would pursue to trial in order to secure an entitlement to costs; It was emphasised that the costs of pursuing the matter through trial would almost equal those incurred at the time of drafting the letter and the Claimant's solicitors looked forward to explaining that position to the Judge at the conclusion of the trial.

16. The case had been set down for mediation but due to timetabling difficulties this had been pushed back and was due to take place only two days before the trial began.

17. Despite being informed specifically that briefs were to be delivered before the mediation the First Defendant's solicitors failed to make any offer in respect of costs. Briefs were delivered and the Claimant's solicitor suggested that in light of the claim now only being in respect of nominal damages and in order to reduce costs the documents in the trial bundles could be kept to a minimum.

18. Once again the First Defendant's solicitors refused and advised that a full trial bundle needed to be prepared indicating that liability and quantum remained fully contested.

19. The Claimant continued to prepare for trial. On the day before the mediation had been scheduled, but not confirmed by the First Defendant, the First Defendant confirmed finally that it was prepared to pay the Claimant's reasonable costs.

Commentary
20. There were two interesting points arising in this case. There were two Defendants, both of whom had demonstrably caused her injury. She had quite properly pursued them both to trial. Ultimately one of them had paid in a sum which was sufficient to discharge her claim in damages. The other refused to pay any of the costs incurred in pursuing it to trial despite the clear evidence of negligence, causation and damage. The Claimant was unable to accept the 2nd Defendant’s offer of £100,000 due to the operation of the provision of Part 36.17, which indicates that the automatic effect of accepting the payment in from one defendant is that the Claimant is liable to pay the costs of the other defendant. In this case it was resolved by the rejecting the 2nd Defendant’s payment in and settling by consent for a nominally higher figure than the payment in. This allowed the Claimant to pursue the 1st Defendant to trial if need be and resulted in the each defendant paying their share of the Claimant’s costs. It is submitted that a trial Judge is unlikely to be sympathetic to a Defendant in these circumstances who continues to defend the matter to trial and beyond on the basis that the claim for damages has been settled. Despite that settlement it clearly cannot be right that the Claimant should cover her own costs of pursuing the remaining Defendant where those costs have been reasonably incurred. It would appear in this case that the solicitors acting for the First Defendant agreed ultimately with that point of view. It was nonetheless regrettable that a Claimant who had been so critically affected by the Defendants' negligence should be put through such an ordeal on the basis of a technical point which was not, in the event, pursued at or to trial.

Michael Mylonas of 3 Serjeants' Inn, London instructed by Colum J Smith of McMillan Williams, New Addington for the Claimant. Beachcroft Wansbroughs (Winchester) for the First Defendant; The Medical Defence Union for the Second Defendant.