Tracey King (As Personal Representative of the Estate of Kevin King, Deceased) v South Tees NHS Hospital Foundation Trust [2020] EWHC 416 (QB) (28 February 2020)

On 2 February 2017 the deceased died due to lung cancer. C claim[s]… for damages consequent upon his death. The deceased was aged 56 years at the time of his death, his date of birth having been 15 October 1960. [1]

On 22 May 2016 the deceased attended the D hospital complaining of a number of symptoms. The diagnosis made was of a deep vein thrombosis in the left leg. A number of investigations took place including a chest x-ray… It identified a 3cm. focal area of increased opacification in the left mid zone which had not been obvious on the previous examination of 28 January 2014. Pathology and even malignancy were described as being “difficult to exclude”. A further assessment with CT scanning was suggested. [2]

No further action was taken, however, following this report. [3]

the deceased’s health deteriorated. He suffered from cough, hoarseness, lethargy, loss of weight, reduced appetite and breathlessness. [4]

On 25 November 2016 a further chest x-ray was performed. This showed that the opacity described on the previous image of 22 May 2016 had increased significantly in size. The deceased was urgently referred to a consultation with a respiratory physician who saw him on 6 December 2016. A CT scan was performed. On 14 December 2016 a PET scan was performed. Because of the findings of these scans and the clinical situation, the deceased began chemotherapy in January 2017 but deteriorated quickly and died on 2 February 2017. [5]

C’s case is that the May 2016 chest x-ray should have been acted upon and a diagnosis of lung cancer would have been made in June 2016, some 6 months prior to the actual diagnosis. Breach of duty in this regard is admitted… [6]

The issue to be determined… is how far advanced the cancer was in June 2016. [7]

C’s expert opinion was that the deceased had no regional lymph node metastasis (N0). D’s expert opinion is that the deceased had at least metastasis in the ipsilateral mediastinal and/or subcarinal nodes (N2)… [11]

If C’s expert view is accepted then the oncologists agree that treatment would have been with surgery. Had he been treated with either surgery or chemotherapy, he would not have died in February 2017. He would have been expected to survive some 8 years from the date of surgery. Therefore his life expectancy would have been until June 2024. [12]

If D’s expert opinion is correct then the oncologists agree that surgery would not have been offered in June 2016. Treatment would have been with radiotherapy and chemotherapy. The deceased’s life expectancy would have then been a survival of 29 months from date of diagnosis, such that the deceased would have been expected to live until November 2018. [13]

Having carefully considered all the evidence, in my judgment the position is:

The statistical evidence, on the clear balance of probabilities, suggests that a person with a 3cm primary tumour has a 68-75% probability of being N0.
None of the other literature provides a sound basis for undermining that evidential starting point, taking account of the known progression of the deceased’s disease and his ultimate demise. I accept C’s expert opinion that the results of the December 2016 PET scan are not inconsistent with the deceased being N0 in June 2016…
On analysis as at June 2016 the deceased would have been in the majority of patients who, with a 3cm primary tumour, are N0. [78]

I find for C on the one issue before the court [79]