Muller v King’s College Hospital NHS Foundation Trust [2017] EWHC 128 (QB) (01 February 2017)

In 2012, C 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. (paragraph 2)

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 D… diagnosed a non-malignant ulcer in November 2011, when in fact, as is now agreed, the lump on C’s left foot was a malignant melanoma. (paragraph 3)

D denies that mis-diagnosis was negligent. Alternatively, it denies that C 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… (paragraph 4)

…liability in favour of C… (paragraph 98)

…on the balance of probabilities, the melanoma had already metastasised by November 2011, the cancer would have reasserted itself at some point, and I must accept the D’s argument that C would have had to undergo a sentinel lymph node biopsy and a lymph node dissection at some point, with all the attendant pain and suffering, and approximately the same level of pain, discomfort and disruption, as well as expense and lost earnings, during the recovery phase. (paragraph 136)

C is entitled to damages for the pain, suffering and loss of amenity caused by the unnecessary narrow excision operation. He suffered from January to July 2012 while recovering from the operation… (paragraph 139)

…the correct amount to award is the sum of £12,000 for pain, suffering and loss of amenity. (paragraph 140)

…the total award of damages is £16,500 [to include loss of earnings]. (paragraph 145)