Metcalf v Devon and Exeter NHS Trust [2019] EWHC 3549 (QB)(19 December 2019)

This is a claim for damages arising from a negligent failure to diagnose lung cancer. [1]

M died as result of lung cancer, which had metastasised, on 9 June 2014. He was born on 9 August 1931 and was 82 years old. [2]

Breach of duty is admitted. It is admitted that there was a failure to offer M a biopsy of the lesions identified on a CT scan of 1 November 2009 and a PET scan of 15 December 2009 and a failure to repeat the CT scanning of M’s chest at an interval of 3 months. It is admitted that a biopsy would have demonstrated bronchial carcinoma and the tumour would have been staged as T1b N0 M0 (stage 1a). [3]

The pleaded issue between the parties is whether, with a diagnosis of lung cancer having been made, M would have been offered (and would have undergone) curative treatment which would have avoided the development of the tumour and occurrence of metastases which led to his death on 9 June 2014. [4]

C’s position is that M would, as a question of fact, have been offered and undergone curative surgery or in the alternative curative radiotherapy, which would have avoided tumour progression and metastasis and would have lived to around 31 January 2017, an additional 2.6 years beyond his actual date of death. D’s case is that M would not have been offered either surgery or curative radiotherapy as he would have been considered high risk because of his reduced lung function and co-morbidities. It is also denied that either surgical excision or radical radiotherapy would have been curative.

This case is concerned with the hypothetical situation that would have existed had M been referred for a biopsy in January 2009 and a CT scan by March 2010. The test to be applied was set out by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46;. the two-stage test, as applied to this case, is: (a) what would the treating clinicians have done had the breach of duty not occurred? And (b) if the treating clinicians had not discussed with M the option of surgery or radical radiotherapy, would that have been negligent? The Bolam test has no relevance to the first of those questions but it is relevant to the second question, however, it should now be considered by reference to the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11. [52]

D would not have offered Mr Metcalf the option of surgery with curative intent [55]

D would not have offered the option of radical radiotherapy to M [57]

in 2009, or the first half of 2010, D should have discussed with M the options of surgery and radiotherapy [69]

The hurdle that C must then surmount is whether M would have accepted the treatment, either surgery or radical radiotherapy with curative intent, if either had been offered to him. [70]

the probability is that M at his age, would have settled for living with an initially asymptomatic small tumour rather than run the risks of surgery or radical radiotherapy. In fact… he lived for another three to four years without signs or symptoms of the tumour without any treatment. The symptoms from which he did suffer were from his other co-morbidities… [72]

…I dismiss the claim [73]