S105 Philp -v- Ryan & Anor [2004] IESC 105 (17 December 2004)

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Cite as: [2004] IESC 105, [2004] 4 IR 241

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Judgment Title: Philp -v- Ryan & anor

Neutral Citation: [2004] IESC 105

Supreme Court Record Number: 134 & 144/04

High Court Record Number: 2002 15012 P

Date of Delivery: 17/12/2004

Court: Supreme Court


Composition of Court: Murray C.J., Fennelly J., McCracken J.

Judgment by: Fennelly J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Fennelly J.
Other (see notes)
Murray C.J.
McCracken J.
Other (see notes)
Murray C.J.


Notes on Memo: (Decision given 7/5/04) Dismiss Defendant's Appeal. Allow Cross Appeal

14


THE SUPREME COURT
134/04 & 144/04

Murray C.J.
Fennelly J.
McCracken J.

BETWEEN
David Philp
Plaintiff/Respondent
and
Peter Ryan & Bon Secours Hospital and
Bon Secours Health System
Defendants/Appellants
JUDGMENT delivered on the 16th day of December, 2004 by FENNELLY J.

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.
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 he found.
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:

· That no damages were awarded for possible loss of life expectancy;· That aggravated damages should have been awarded as a result of the conduct of the defence to the claim.

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 bacterial growth" 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 the body.

This view of the matter was not seriously disputed by the defendants’ 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?
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.
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.
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.
Turning to the question of damages, the learned trial judge said:


When he came to quantify damages, he said: 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 significant degree.
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:
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 had suffered 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.
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 short period.
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.
Firstly, he referred to the evidence of the plaintiff’s expert witness, Dr Shah, to the effect that there was “a definite benefit for early therapy in patients who present with prostate cancer.” He thought that the “critical issue related to diagnosis at earliest possible opportunity.” He was of the opinion that the “advantage of early therapy is somewhere between eight months and three years.” The treatment postulated was hormone therapy. Dr Shah relied on a study of 1997 by the Medical Research Council in the UK. There was, sadly, no question of the plaintiff being completely cured. It was a question of whether his life could have been prolonged. This view was supported by the other medical expert called for the plaintiff, Dr Hardman.
The evidence of Mr Denis Murphy, Consultant Urologist called on behalf of the Appellants was that it was better to defer hormone treatment. He said that there was a very broad spectrum of opinion as to whether hormone treatment should be initiated immediately on diagnosis. He did not think the plaintiff would have had any better prognosis if he had been diagnosed earlier.
Referring to this evidence and to the conflicting evidence in what he called the “academic debate” about the merits of earlier hormone treatment, the learned trial judge said:
He posed the following question:

At one point, the learned trial judge appeared to lean in favour of the plaintiff’s evidence, when he said:
However, in the final analysis, he did not award damages for this aspect of the claim. His approach appears from the following:

It must be recorded, of course, that this issue comes before the court only by way of cross appeal. The appeal has been taken to this court not by the plaintiff but by the defendants. However, the court was quite satisfied that the appeal of the defendants on the ground that the damages were excessive was without merit. The award of €45,000 was amply justified by the findings of the learned trial judge regarding the real anguish and distress suffered by the plaintiff. Furthermore, I fully agree with the judgment of McCracken J that an award of aggravated damages should have been made. The failure of the defendants’ solicitors to inform the plaintiff’s solicitors that the first-named the defendant had falsified the clinical note upon which they had placed such heavy reliance in pre-trial procedures was reprehensible in the highest degree. This behaviour was calculated to deceive the plaintiff, his advisers and the court on a material matter. Regrettably the defendants made a deliberate decision not to correct the false impression they had earlier conveyed to the plaintiff that there would be evidence supported by a genuine contemporaneous note that the plaintiff had been advised to have a further test carried out.
It remains only to deal with the cross appeal relating to the failure of the learned trial judge to award damages for possible or probable loss of life expectancy. The cross appeal alleges that it was wrong not to make an award of damages under this heading once it had been found that it would not be reasonable to assume that the delay of some eight months in making the correct diagnosis had no adverse effect on the plaintiff’s life expectancy.
The learned trial judge appears to have posed a test of probability of success on the Appellant’s entitlement to damages for loss of the opportunity to have hormone treatment. Damages depended on proof that life would probably, not possibly, have been prolonged.
The plaintiff claims an entitlement to be compensated for the loss of an opportunity to elect for treatment of his cancer on the basis of correct diagnosis and appropriate medical advice. Assuming such correct diagnosis, he claims that there was a possibility that his life could have been prolonged to some extent. It is common case that the chances of successful treatment were, at best, problematical. There is no dispute as to the trial judge’s view that medical academic opinion was divided on the benefits of hormone therapy.
The defendants argued that this type of lost opportunity was not valuable in the sense that it should not attract compensation unless it could be proved that the postulated treatment would probably have been successful. Mr Patrick Keane, Senior Counsel for the defendants went so far as to submit that a forty nine percent chance of successful treatment would not confer an entitlement to damages, though a fifty one percent chance would. Asked how this was reconcilable with the universal practice of allowing for percentage risks below fifty of the future development of conditions such as arthritis or epilepsy, he sought to distinguish these examples as being on the debit side only. These were negative possibilities for an injured person, whereas, in the present case, the plaintiff seeks compensation for the loss of a beneficial opportunity.
Before considering the authorities cited by Dr John White, Senior Counsel for the plaintiff, I should say that it seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice. It is commonplace that allowance is made in awards and in settlements for the risk that an injured plaintiff may in the future develop arthritis in an injured joint. The risk may be high or low - a fifteen percent risk is often mentioned – but damages are paid. I cannot agree that this is any different from what is sought in the present case. It does not matter that the damage suffered by the plaintiff consists of the loss of an opportunity to avail of treatment. It might, with equal logic, be described as an increased risk of shorter life expectancy. It seems to me as illogical to award damages for a probable future injury as if it were a certainty, as to withhold them where the risk is low on the basis that it will not happen at all.
This precise matter was dealt with by this Court in Dunlop v Kenny (Unreported, 29th July 1969). O’Dálaigh C.J. delivered the unanimous judgment. It was held that the jury had been misdirected to the effect that the plaintiff would suffer from epilepsy, when the evidence was that there was “a risk of major epilepsy.” O’Dálaigh C.J. held that the trial judge had overstated the risk. He did not, however, state that there should be no award under this heading. The following passage very clearly indicates the correct approach:
This statement applies, of course, only to the assessment of damages for future uncertain events. In respect of past events, whether related to liability or to the causation of damage or loss, the normal rule of proof on the balance of probability applies. These issues were considered by the House of Lords in Davies v Taylor [1974] A.C. 207. That was a claim for damages under the Fatal Accidents, 1846. The plaintiff brought the claim arising from the death of her husband. At the time or the death, she was estranged from him and he had instructed solicitors to commence proceedings for divorce. In support of her claim for loss of future dependency, she said that reconciliation would have taken place. The House of Lords were unanimously of the view that the trial judge had mistakenly held that no sum was recoverable.
Certain passages from the speeches of the Law Lords provide solid support for the approach I have outlined for this case. Lord Reid spoke at page 213 as follows:
Lord Simon at page 220 of Glaisdale spoke to similar effect:
The assessment of future losses is, on occasion, a matter of mathematical calculation. In certain cases, the courts are accustomed to resorting to the evidence of actuaries, who are expert in calculating the present capitalised value of a combination of future events of greater or lesser likelihood. They can build in allowance for the occurrence of a variety of possibilities including likely age of death or retirement. Nobody suggests that their calculations must be posited on the probable as distinct from the possible happening of each event. Their reports would be deeply flawed if they were.
In my view, the plaintiff should receive an award for the loss of the opportunity to be advised correctly and treated accordingly. Taking this element together with the element of aggravation of damage by the judgment of McCracken J, I believe the sum of €100,000 represents to correct level of the award. I would, therefore, dismiss the appeal and allow the cross appeal substituting the sum of €100, 000 for the sum of €45,000 awarded in the High Court, that increased sum to include both compensation for the loss of life expectancy and the aggravation of damage dealt with in the judgment of McCracken J.

7

THE SUPREME COURT

134/04
144/04


Murray CJ
Fennelly J
McCracken J


Between:
David Philp
Plaintiff

AND

Peter Ryan & Bons Secours Hospital
Bon Secours Health System
Defendants





Judgment of Mr Justice McCracken delivered the 17th day of December 2004
__________________________________________________________


In this judgment I propose to deal only with the question of whether the Plaintiff is entitled to aggravated damages by reason of the behaviour of the Defendants in the preparation and presentation of their case.

In Conway v. Irish National Teachers Organisation [1991] 2 IR 305 the circumstances in which aggravated or exemplary damages could be awarded was considered by this Court. In the present case the Plaintiff does not claim exemplary damages such as were ultimately awarded in that case, but does claim aggravated damages. At page 317 Finlay CJ dealt with several types of damages which could be awarded and said:-

In the present case, the Plaintiff relies on the last of these factors as entitling him to aggravated damages. In Swaime v. Commissioners of Public Works [2003] 1 IR 521, where the question of aggravated damages was considered in the light of a claim for negligence against the defendants in exposing the plaintiff to the risk of contracting mesothelioma, Keane CJ said at page 525, after referring to the Conway case:-

He then went on to comment that in a claim for negligence one would not expect the circumstances giving rise to aggravated damages to arise because:-

However, after referring to the English decision of Appleton v. Garrett [1966] PIQR 1 and the Supreme Court decision in Cooper v. O’Connell (unreported 5th June 1997) the Chief Justice continued at page 528:-

It should be said that the authorities referred to by Keane CJ in that passage were not cited in this case either, and the applicability of aggravated damages to actions in negligence was not argued at any length in this Court. However, it must be emphasised that the claim for aggravated damages in the present case is not based in any way on the degree of negligence of the Defendants, but rather on their behaviour subsequent to the negligent acts.

The basis for the aggravated damages in the present case lies in the clinical notes of the first named Defendant in relation to the consultation with the Plaintiff on 12th July 2001. The relevant entry, dated 12/7/01, reads:-

It is quite clear from looking at the notes that they purport to be a contemporaneous account of what occurred on the various dates set out in those notes. The Plaintiff gave evidence that the first line was his shorthand for “removal of catheter at outpatients department today”, that the word “For” was his abbreviation for what he planned to do and that he was to see the Plaintiff in December 2001. In the course of his evidence he conceded that the words “PSA 6/52”, which was intended to convey that the Plaintiff was to have a PSA test in six weeks, was an addition which he made to the notes at a later date, namely in December 2002 when he received a letter from the Plaintiff’s solicitor threatening an action against him.

The Plaintiff’s advisors clearly had doubts as to the authenticity of these clinical records, and had refused to admit them in evidence unproved, although the Plaintiff did admit the hospital records without formal proof. The matter finally came to light on the sixth day of the hearing, during the evidence in chief of the first Defendant. He referred to his clinical notes in relation to a totally different matter and the learned trial Judge, who appears to have assumed that the clinical notes had been admitted, asked to see them. Counsel for the Plaintiff said the notes had not been admitted in evidence and called for the originals to be produced. This was done, and at that stage the first Defendant disclosed that “PSA 6/52” was an addition which I made to the notes at a later date”. He explained this by saying that in December 2002, when he received a letter from the Plaintiff’s solicitor threatening an action against him, he reviewed his notes and he also reviewed his correspondence with the Plaintiff’s general practitioner. In the course of this correspondence in July 2001 he had told the general practitioner that he was going to arrange to have a PSA repeated in about six weeks time. He said that a letter to a general practitioner would normally be a more complete record, and he assumed that he had omitted this from his clinical notes. It should be noted that he did not say in his evidence in chief that he recollected having told the Plaintiff to have an additional test done in six weeks time.

Under cross-examination the first Defendant conceded that:-
Subsequently in the course of cross-examination Counsel for the Plaintiff sought to ask him when was the first time that he had disclosed to anyone that he had altered the document. Through his Counsel, the first Defendant claimed privilege on the basis that he was being asked to disclose a communication between a client and his lawyer, and this objection was upheld. However, in cross-examination he did say that he had realised “recently” that there was a possibility that he did not advise the Plaintiff to have a test done as recorded in the notes and added:-

Subsequently he said that the decision to disclose the fact that the document had been altered was made approximately one week before the hearing and later said:-

He repeated on several other occasions in the course of the cross-examination that, before the action had commenced, he contacted his legal team and discussed the matter with them and sought advice.

The learned trial Judge, having heard all the evidence, stated at page 26 of his judgment:-
This is an extremely serious finding against the first Defendant. It is a finding that the first Defendant deliberately and knowingly altered a document which he must have known would be used in court proceedings with the intention of, as the learned trial Judge said, assisting his case, which in fact means with the intention of deceiving the court, and of attempting to deprive the Plaintiff of damages to which he has subsequently been found to be lawfully entitled.

That matter is of itself extremely disturbing, because obviously the first Defendant had instructed his legal advisors that he had requested the Plaintiff to have a further PSA test in six weeks time. His legal advisors, quite properly at the time, in effect represented to the Plaintiff and his advisors that this was a fact which would be proved by the first Defendant. I will come to these matters later in the judgment.

In addition to misleading his legal advisors, the Plaintiff also sought to, and succeeded in, misleading his own expert witness. He prepared a case summary submitted to Mr Michael Murphy, a consultant urologist who gave evidence on his behalf, which was headed “Case Summary”. In the course of that case summary he made the following statements:-

In my view this was a clear attempt to mislead a witness, who the first Defendant knew was going to give evidence as an expert, and therefore would be regarded by the Court in that light. Through misleading Mr Murphy, the first Defendant was again attempting to mislead the Court. Fortunately, the alteration was discovered before Mr Murphy gave his evidence, and was indeed roundly condemned by him.

The allegation that the Plaintiff had been asked to have a further test done in six weeks time was not just contained in the clinical notes and the report to Mr Murphy. It was also made in a number of ways to the Plaintiff’s legal advisors, albeit, as I have said, at a time when no doubt it was believed to be true by the Defendants’ legal advisors. On 1st July 2003 the Plaintiff was served with a notice to admit facts, and was asked to admit that he had been told by the first named Defendant to arrange to have a test carried out six weeks later. On 7th July 2003 interrogatories were administered to the Plaintiff requiring the Plaintiff to admit on oath that the first named Defendant told him on 12th July 2001 to arrange to have a PSA test carried out six weeks later and that it was important to have the test carried out. On 22nd May 2003 the first named Defendant swore an affidavit of discovery which disclosed his clinical notes, and when production of these were sought, it was the altered notes that were produced. In fact, despite its date, that affidavit of discovery was not furnished to the Plaintiff until the 24th June 2003. On 1st July 2003 the Plaintiff’s solicitors were asked admit the medical records held by the Defendants without formal proof. On 19th July 2003 the Defendants’ solicitors replied to a notice for particulars stating that “on the 12th July 2001 Dr Ryan instructed the plaintiff to have a serum PSA measurement carried out after six weeks in the Middle East and to contact him with the result”.

There is no doubt that faced with these documents, the defence against the Plaintiff’s case must have appeared to the Plaintiff’s advisors as being much stronger than it really was. The main plank of the Plaintiff’s case was that he was not told for some eight months after he became ill in July 2001 that he was suffering from prostate cancer. If in fact he himself had failed to comply with the first Defendant’s request to have a test carried out in six weeks time, then of course much if not all of the blame for the delay would have been attributable to the Plaintiff himself. He might well have been discouraged from proceeding with the action or have settled it at well below its value because of the apparent risk. Furthermore, had the alteration in the document not come to light somewhat fortuitously through the intervention of the learned trial Judge, the Defendants’ expert, Mr Murphy, would have given evidence on the basis that the alleged instruction had been given to the Plaintiff, and the first Defendant himself would not have been subjected to strenuous cross-examination in relation to this instruction. It is quite possible that the learned trial Judge in those circumstances would have found against the Plaintiff.

The truly appalling feature in this case is that it appears that the Defendants’ advisors were told of the alteration by the first Defendant between one and two weeks before the commencement of the action. I find it almost incomprehensible that in those circumstances they did not inform the Plaintiff’s solicitors of the true facts. While a great deal of blame attaches to the first Defendant for having altered the document in the first place, he did at least disclose the facts to his own legal advisors, and in my view at least equal if not greater blame must be attributable to them. It is instructive that they did not seek to use the clinical notes in cross-examination of the Plaintiff or his advisors, although they did suggest in such cross-examination that he had been instructed to have a further test taken in six weeks time. They did not seek to have their own client prove the notes until they were called for by the learned trial Judge, although they knew they were being put on proof of the notes. There must be at least a suspicion that there was a deliberate attempt to keep the true facts from the Court notwithstanding that the altered document had been furnished to the Plaintiff’s solicitors as being genuine, and that the facts stated in the alteration had formed part of the instructions to Mr Murphy.

In reviewing the law at the beginning of this judgment I pointed out that some doubt had been expressed as to whether aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded. The Plaintiff has not given evidence of the effect of the misinformation which he received had on him. This is not something which the Defendants can complain about, because his failure to discover the true facts before he had closed his case was due entirely to what I can only describe as the misconduct of the Defendants’ advisors in not disclosing the alteration.

In the absence of direct evidence, in those circumstances in my view the Court is perfectly entitled to infer the probable effect that this false information had on the Plaintiff. It must be remembered that he is a man who had for the last two years known that he was suffering from prostate cancer and does not have long to live. He has undertaken proceedings based on the worry, anxiety and loss of opportunity which arose due to the negligence of the Defendants. One can only imagine the additional stress and anxiety which he must have suffered in the belief that there was, at least in documents shown to him, a strong defence to his action. The loss for which he has already been compensated due to the negligence of the Defendants has in my view been greatly increased due to the grossly improper behaviour of both the first Defendant and his legal advisors. This is clearly as case where already existing damages have been aggravated by such behaviour and I would award him a sum of €50,000.00 in addition to the compensatory damages awarded in relation to his basic claim, as set out in the judgment of Fennelly J, with which judgment I am in full agreement.


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