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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Broughton v Liverpool Women's NHS Trust [2002] EWCA Civ 1426 (8 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1426.html Cite as: [2002] EWCA Civ 1426

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
LIVERPOOOL DISTRICT REGISTRY
(MR JUSTICE McCOMBE)

		Royal Courts of Justice Strand London, WC2 Tuesday, 8 October 2002

1. LORD JUSTICE SIMON BROWN: This is the claimant's application for an extension of time in which to appeal against the order of McCombe J made on 13 May 2002 and for permission to appeal against that order, by which the judge dismissed the applicant's claim for damages for negligence against the respondent Trust. The extension of time is not a problem. The real application is that for permission to appeal.
2. With the court's permission the applicant has been represented today by Mr Broughton, her ex-husband. I would echo what the judge below said as to his conduct of her case having been skilful, able and courteous.
3. The claim is based on a complaint that the respondent Trust negligently failed for a period of months in 1996 to detect cervical cancer, which was eventually diagnosed in about April 1997. The central facts of the case are that, following heavy bleeding in late 1995, the applicant was referred by her GP to the Trust in February 1996. She attended in May and was seen by Dr Blanch. She explained to him her problems, which included excessive bleeding, clots and flooding, intermenstrual bleeding and occasional post-coital bleeding. No provisional diagnosis was recorded, although Dr Blanch's actual provisional diagnosis was one of dysfunctional uterine bleeding ("DUB") and she recommended the applicant to have a hysteroscopy and dilation and curretage.
4. The operation was carried out on 12 June 1996 by Dr Coughlin and a follow-up appointment was made for 25 July. On that day the applicant was seen by Dr Coughlin. There was a dispute of fact as to whether the applicant identified her problem to the doctor as being intermenstrual and post-coital bleeding, that issue being resolved in the applicant's favour. In the event the doctor prescribed a drug called Cyklokapron and directed a review after four months, that is in November. There was a further dispute of fact as to whether the applicant attended the appointment with Dr Veladez at the Trust on 28 November. That issue was resolved in the defendant's favour on the basis that Dr Veladez did not in fact start work at the Trust until 27 February 1997 and so could not have seen the applicant as alleged.
5. The applicant then visited her GP a number of times in early 1997 and in February was referred back to the Trust. On 27 February 1997 Dr Veladez saw the applicant and changed her prescription. In March the applicant again saw her GP and returned to the Trust when she saw Dr Hewitt, who referred her to theatre for biopsy. That took place on 2 April 1997 and on 10 April Dr Hewitt informed her that she had cancer of the cervix and the tumour was in its second stage. She was then referred to a clinic for radiotherapy, which was carried out throughout June and July and indeed continued for a year and a half. In January 1999 she had a full hysterectomy and her bladder and six inches of bowels were removed.
6. The negligence alleged really fell into three parts, each of them concerning a failure to diagnose cervical cancer and to carry out the appropriate treatment. These were, respectively: first, prior to 25 July; secondly, on 25 July; and, thirdly, in late 1996 or early 1997. As stated, the judge dismissed the claim. He found that the allegations of negligence prior to 25 July were bound to fail on the grounds that cervical examination and smears were not a proper part of the hysteroscopy procedure carried out on 12 June, and no criticism could be made in that regard. As to the allegation of negligence on 25 July, the judge applied the test whether the hospital's response was that of the ordinary skilful and competent medical practitioner in gynaecology. There were joint experts and both of them resolved that all-important question in the affirmative, subject to certain reservations expressed by Dr Monaghan, the appellant's expert. They were, first, the timing of further review would have to be adjusted to allow for the fact of intermenstrual and post-coital bleeding; secondly, whilst the primary diagnosis would have been a DUB, Dr Monaghan thought that carcinoma of the cervix was a lesser possibility; and, thirdly, the prescription of Cyklokapron was the ordinary practice in the treatment of heavy bleeding with a background of regular cycles, usually not associated with intermenstrual bleeding and post-coital bleeding. In oral evidence Dr Monaghan took the view that he would have favoured some different investigative process, possibly around the middle of the cervix, or continuous monitoring of the effect of the drug prescribed.
7. In his careful and thoughtful judgment the judge below dealt with that issue of negligence in the following way:

"Taking that evidence as a whole, including Mr Monaghan's misgivings late in the day, I think it is impossible in to say that decisions taken at this consultation in July 1996 fell below acceptable medical standards. While the evidence suggested that the drug prescribed was primarily designed for the treatment of heavy regular bleeding and that a detailed cervical examination had not occurred, there was no basis for concluding that what the experts concluded in their joint report as being acceptable medical practice was in some way insufficiently underpinned in logic."

8. As to the allegations of negligence after 25 July, having found that the applicant was mistaken about her attendance on 28 November, the judge reached his conclusion by reference to the question of causation:

"It is clear that from November 1996 matters ought to have taken a more direct course towards the diagnosis of cervical cancer. However, it is equally clear on the evidence, and it is accepted by Mrs Broughton, that from January 1997 onwards her treatment and its consequence with regards to recurrence and to her lifestyle would almost inevitably have been the same as ultimately she underwent, when the correct diagnosis was made in the following year."

9. The applicant now accepts, through Mr Broughton, the judge's conclusions that the allegations of breach of duty in respect of the period up to 25 July 1996 must fail, and it is also accepted that from January 1997 onwards the treatment and its consequence would almost inevitably have been the same. The real issues sought to be raised are with regard to the conduct and recommendations of the doctor on 25 July and as to the significance of the missed appointment in November.
10. There are four grounds of appeal. I paraphrase them:

(1) the questions and answers in the joint medical report should not have been referred to in the judgment as evidence in the light of the conclusion that the respondent's diagnosis on 23 May 1996 was DUB;

(2) the questions and answers in that report should not have been referred to as evidence in the light of a conclusion that the claimant's evidence as to what was said on 25 July was preferred;

(3) in the light of the conclusion that the claimant did not attend the 28 November appointment, there was no evidence to support the view that she would have been diagnosed with cervical cancer had she attended; and

(4) the claimant was denied a fair hearing in a complicated case in circumstances where she should have been represented by counsel to compensate for her profound deafness and financial disadvantage.

11. As to the first two of those grounds, the contention that the judge should not have referred, or at any rate given the weight he did in his judgment, to the questions and answers in the joint medical experts' reports, in my judgment those contentions cannot succeed. The fact is that the judge had before him all the evidence in the case. He had the joint experts' written questions and answers and he also had the advantage of hearing their evidence, an advantage which is always and inevitably denied to any appeal court, and it was for him to reach his conclusions upon that material. The fact is that question (3) in terms sought to address the issue as to what would have been the proper response even had the patient reported, as the judge found she did, her actual symptoms. I have already quoted the judge's conclusion on the question raised by the expert evidence and in my judgment it is plainly unimpugnable.
12. As to the third ground, the contention which the applicant now seeks to raise, namely that even had she attended her appointment on 28 November 1996, she would not have been properly diagnosed, that, as I sought to explain to Mr Broughton in the course of his brief argument, is misconceived. The Trust has to be shown, on the balance of probabilities, actually to have been in breach of its duty to the claimant. It is not sufficient to show that it would have been in breach had she attended on the particular day, when she did not.
13. The fourth and final ground, as to the withdrawal of public funding for this claim, is in my judgment also doomed to failure. Having regard to what the experts had already reported, it is perhaps not altogether surprising that the funding was withdrawn, but at all events the judge had before him all the material which it is plain that he had been at pains to tease out for himself, and it is impossible for this court to conclude that only by way of publicly funded representation could a fair trial have been achieved here.
14. Sympathetic though inevitably one is to someone in the applicant's position, in my judgment this proposed appeal has no reasonable prospect of success and accordingly the present application must be refused.
ORDER: Applications refused