Tom Gibson appears in successful ‘misinformation’ psychiatric injury claim

Tom Gibson represented the successful claimant recently in an unusual ‘misinformation’ psychiatric injury claim.

The claimant, a man in his 40s, saw a consultant respiratory physician in clinic at his local hospital, following an x-ray and a CT scan of his chest. The claimant was told, wrongly, that he had “incurable” lung cancer and that he was likely to die within a year.

However – as the lung multidisciplinary team meeting had concluded the day before the consultation – the claimant actually needed further investigations in order “to gain a diagnosis”. After the further investigations were done, 2-3 weeks later the claimant was actually diagnosed with a low grade lymphoma – a much less aggressive form of cancer, which carried good prospects of surviving for more than 10 years.

In the intervening period the claimant suffered psychiatric injury in the form of an Acute Stress Reaction, which later developed into Post Traumatic Stress Disorder. In addition to the claimant’s significant psychiatric injury (suffered after being told, wrongly, that he had less than a year to live), he incurred significant financial losses. Acting on the wrong diagnosis, he pulled out of a house purchase, made a new will, and re-organised his personal affairs, incurring significant costs in the process.

The claimant brought a claim for psychiatric injury. He argued that, although not a ‘primary’ nor a ‘secondary’ victim, he fell within the ‘miscellaneous’ category of psychiatric injury cases (as identified by Charlesworth & Percy on Negligence). He argued that the hospital owed him a duty of care not to communicate false or misleading information about his cancer diagnosis, following the line of ‘misinformation’ psychiatric injury cases of Allin v City & Hackney Health Authority (1996) 7 Med LR 167 and Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458.

The defendant denied liability in full in its letter of pre-action letter of response and in its defence. Nevertheless, the claim settled successfully for a five-figure sum at a mediation, shortly before the first CCMC.

The settlement illustrates that although the law in this area is complicated, appropriate ‘misinformation’ psychiatric injury claims can still succeed. It also demonstrates the need for doctors to take reasonable care when giving information to patients – particularly concerning sensitive and difficult matters like cancer diagnoses.

Tom was instructed by Ali Cloak at Royds Withy King.

Should you wish to instruct Tom or to find out more, contact Paul Barton or Mark Gardner on +44 (0)20 7353 6381 for a confidential discussion.

News 4 Dec, 2019