Tom Gibson in unusual ‘non-Bolam’ clinical negligence trial

Tom Gibson represented the defendant NHS hospital trust in Muller v King’s College Hospital NHS Foundation Trust, a High Court clinical negligence trial on breach of duty, causation, and quantum.

The case involved an allegedly negligent 8-month delay in diagnosing an acral lentiginous melanoma (a very rare type of skin cancer).

On breach of duty, Mr Justice Kerr decided that, at law, the Bolam test did not apply to the reporting of a punch biopsy sample by a consultant pathologist. Instead, as a “pure diagnosis” case, the Court of Appeal case of Penney v East Kent Health Authority [2000] PNLR 323 (concerning the inapplicability of the Bolam test to questions of objective fact) should be followed.

Applying the law in this way, Kerr J found himself “impelled to reach the conclusion that there was a breach of duty” by the pathologist [judgment paragraph 93]. However he stressed that he did not “intend to cast doubt” on the general competence of the pathologist, who had “given many years of excellent and, I do not doubt, competent service to the NHS” [paragraph 98].

On causation, Kerr J preferred the evidence of the Trust’s expert pathologist and oncologist. He found that the claimant’s cancer had “already metastasised to a detectable extent” by the impugned date of treatment, such that an earlier diagnosis would still have resulted in the need for the same excision surgery [para 123].

As a consequence, on quantum the Claimant was entitled to £16,500 for general and special damages (rather than the Claimant’s claim for around £109,000 for special damages alone) [paras 99 and 145].

Kerr J granted permission to the Defendant to appeal his decision on breach of duty to the Court of Appeal.

Tom was instructed by Balraj Sihota at Kennedys.

News 22 Feb, 2017