Philp v Ryan

• Jurisdiction: Ireland
• Judge: FENNELLY J.,Mr Justice McCracken
• Judgment Date: 17 December 2004
• Neutral Citation: [2004] IESC 105
• Court: Supreme Court
• Docket Number: [S.C.No. 134 & 144 of 2004]
• Date: 17 December 2004

PHILP v. RYAN & BON SECOURS HOSPITAL & ANOR

BETWEEN

DAVID PHILP

Plaintiff/Respondent

and

PETER RYAN & BON SECOURS HOSPITAL and BON SECOURSHEALTH SYSTEM

Defendants/Appellants

[2004] IESC 105

Murray C.J.

Fennelly J.

McCracken J.

134/04 & 144/04

THE SUPREME COURT

Abstract:

Negligence - Professional negligence - Medical profession - Failure in diagnosis - Damages - Quantum - Aggravated damages

The plaintiff sought damages for the defendant's negligence in failing to diagnose prostrate cancer. He recovered Eur45,000 in damages. The defendant appealed the award and the plaintiff cross-appealed claiming aggravated damages as a result of the defendant's conduct in their defence to the claim.

Held by the Supreme Court (Murray CJ; Fennelly and McCracken JJ) in increasing the award to Eur100,000 that the case was an appropriate one for the award of aggravated damages by reason of the grossly improper behaviour of the first defendant and his advisors in their falsification of the first defendant's clinical notes.

Citations:

DUNLOP V KENNY UNREP O'DALAIGH 29.7.1969

DAVIES V TAYLOR 1974 AC 207

FATAL ACCIDENTS ACT 1846

CONWAY V IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305

SWAINE V COMMISSIONERS FOR PUBLIC WORKS IN IRELAND 2003 1 IR 521 2003 2 ILRM 252

APPLETON & ORS V GARRETT 1996 PIQR 1

COOPER V O'CONNELL UNREP SUPREME 5.6.1997 1998/14/4946

1 JUDGMENT delivered on the 16th day of December,2004by FENNELLY J.

2 The Court has already pronounced its decision on this appeal. It has increased the damages awarded to the Plaintiff/Respondent by Peart J in the High Court from the sum of €45,000 to €100,000.

3 The action was one for professional negligence against both defendants arising from the first-named defendant's failure to diagnose that the plaintiff was suffering from prostate cancer and not prostatitis as hefound.

4 Liability was in issue in the High Court, but the appeal by the defendants was limited to the question of damages. The plaintiff lodged a cross appeal claiming that the damages awarded were inadequate. Two points were made in the cross appeal:

5 • That no damages were awarded for possible loss of lifeexpectancy;

6 • That aggravated damages should have been awarded as a result of the conduct of the defence to the claim.

7 On the 26th June 2001 plaintiff was admitted to the Bon Secours Hospital in Cork, having been referred to that hospital by his general practitioner. He complained that he had been unable to pass urine since the previous day and of abdominal pain. Pathology reports in respect of urine samples indicated that there was "no bacterialgrowth" and a seriously elevated PSA level of 168. The first-named defendant diagnosed acute prostatitis. The expert evidence for the plaintiff at the trial was to the effect that, based on his clinical symptoms, the pathology reports, and other factors this could not have been a case of acute prostatitis. In fact, the test results suggested that the plaintiff almost certainly had cancer which had spread - metastased - outside the prostate into other parts of thebody.

8 This view of the matter was not seriously disputed by thedefendants" experts. At this stage, of course, there is no issue but that the plaintiff's condition was disastrously misdiagnosed due to the negligence of the defendants. However, it was also tragically clear that the plaintiff's cancer was, in any event, already at an advanced stage when he first presented to the first-named defendant. The real issue on this aspect of the appeal, therefore, was the extent to which the plaintiff was entitled to be compensated in damages for misdiagnosis, where he was never going to recover fully. Was the plaintiff entitled to recover damages for being deprived, as a result of not being informed of it, of the opportunity to consider possible treatment for his cancer?

9 It is material, firstly, to set out the principal findings of the learned trial judge on the negligence issue. The learned trial judge held that the first-named defendant was negligent in diagnosing prostatitis to the exclusion of any other possibility. Consequently, he did not tell the plaintiff that he was suffering from cancer or arrange any other necessary tests. The negligence of the first-named defendant resulted in the plaintiff not becoming aware that he had prostate cancer until eight months later than he should have. Specifically, he was deprived of an opportunity to have a discussion between July 2001 and March 2002 with the first-named defendant, or indeed any other medical person about his disease and the alternatives for treating him.

10 The arrival of the news in March 2002 that he was suffering from advanced prostate cancer was a great shock to the plaintiff, as was the news that this diagnosis could have been made in July 2001, but had been missed by the first-named defendant.

11 The learned trial judge found that the plaintiff had reasonable grounds for believing that his life expectancy was less than it would have been had the correct diagnosis been made in July 2001, and that this caused him great upset.

12 Turning to the question of damages, the learned trial judge said:

13 "I have no doubt that the plaintiff has suffered great anguish and distress on account of the knowledge that he could have been diagnosed sooner. All the academic medical debate about the advantages and disadvantages of immediate versus deferred treatment, are of little comfort to the plaintiff, who, in my view perfectly reasonably, has reasonable grounds for fearing that his life has beenshortened."

14 When he came to quantify damages, he said:

"As far as damages are concerned, I propose to award a single sum to take account of the distress caused to the plaintiff as a result of the negligence of the first named defendant. The plaintiff's evidence was that on receiving the letter on 10 ^th March 2002 he panicked, and later he was very angry and felt let down about the missed diagnosis, and he was of the view that what he now faces was very different in terms of survival from it might have been. Of course, whether his life has been shortened is a matter perhaps we will never know " (Emphasis added).

15 The plaintiff did not, therefore, recover damages for loss of life expectancy. It was contended, on his behalf that, if his cancer had been correctly diagnosed in the summer of 2001, he would have been advised of the various treatment options that would have been open to him. The principal option would have been hormone treatment. While this treatment was by no means assured of success and could be accompanied by undesirable side effects such as impotence, there was a well-established professional view that life could be prolonged to a significantdegree.

16 The learned trial judge conducted a meticulously detailed analysis of the expert evidence given before him and of the professional literature on this question. His conclusions were that:

17 • there are two well respected schools of thought within the medical profession as to the pros and cons in general of immediate versus deferred hormone treatment in cases of prostate cancer, and that it is not negligent to treat a patient in accordance witheither;

18 • however, it is more likely than not that in relation to this particular plaintiff's disease as of July 2001 that had the correct diagnosis been made, the plaintiff would have had a full discussion with his treating consultant when the advantages and disadvantages of each method of treatment would have been explained in a way which the plaintiff could understand, and the plaintiff would have been able to participate in the decision-making process regarding his treatment and future, and that in the circumstances of this case he was deprived of that opportunity;

19 • if the plaintiff had, in consultation with his treating consultant, opted for a deferral of hormone treatment until the disease had progressed, the plaintiff would nevertheless have been monitored closely. He would in other words have been kept under constant observation in order to see how the disease was progressing;

20 • it was not reasonable, on the evidence, to assume that the delay of eight months in the correct diagnosis had had no adverse impact on the plaintiff's life expectancy and quality of life, and it is not reasonable for the first-named defendant to say that by not knowing that he had cancer, he was better off in the sense that he could go about his life during that eight months free of the worry of knowing that he had a serious condition. That would be to deny the plaintiff his basic right to be informed about a serious matter regarding his health, and his right to plan his future in the light of thatknowledge.

21 On the balance of probabilities, the learned trial judge was of the view that, having been deprived of an opportunity of considering having immediate or fairly immediate hormone treatment in the summer of 2001, a reasonable consequence of that was that the plaintiff hadsuffered distress by having a reasonable belief that his life had been shortened by anything from 8 months to two years, and that on the evidence there was a reasonable basis for that belief. Based on these considerations, he decided to award a single sum to take account of the anger and distress suffered by the plaintiff.

22 However, he did not award any damages for the fact that the plaintiff, not having been informed of his condition in June 2001, was deprived of the opportunity of beneficial treatment. In particular, he did not award any damages for the loss of opportunity to be advised of treatment which might have had the effect of prolonging his life, even by a shortperiod.

23 This is not to say that the learned trial judge did not consider this aspect of the claim. On the contrary, he discussed it with elaborate care and set out the competing views very fully.

24 Firstly,...