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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Flowers v Mallett [2007] EWHC B14 (QB) (30 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/B14.html Cite as: [2007] EWHC B14 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		30 November 2007

1. This is a claim brought by the Claimant Jennifer Flowers, on behalf of the estate of Roger Flowers deceased under the Law Reform (Miscellaneous Provisions) Act 1934, and on her own behalf (and on behalf of her son Toby Flowers) as dependants of the deceased under the provisions of the Fatal Accident Acts. Roger Flowers died on 29th November 2003. It is a claim in negligence against the Defendant, Dr Mallett, a consultant dermatologist.
2. This is the trial of liability. Causation has been conceded. Depending upon the decision on liability, quantum would be tried on another day.

Summary of the respective cases of the parties

3. The Claimant's case: Clinical negligence is alleged. The Claimant's case may be summarised as follows. The deceased was referred by his General Practitioner Dr Oliver Stovin to Dr Mallett for examination and treatment. He had facial lesions which required treatment. But he also had, on the back of his neck, a particular mole about which he and his wife shared a concern. Mrs Flowers had noticed that it appeared to be growing and changing shape. He attended for a consultation with Dr Mallett on 6th April 2001 and expressly brought this mole (where it is necessary to do so, I shall call it "the relevant mole") to Dr Mallett's notice because of the concern which he and his wife shared. Dr Mallett examined the relevant mole and made a note about it. The note read "?mole looks benign - watch". He gave the deceased an appointment for 4 months' time. He wrote to Dr Stovin without making any mention of the relevant mole. Four months later, on 10th August 2001, Dr Mallett discharged the deceased from his care with the single word "settled" (which clearly related to the facial lesions) in his note, and no mention of the relevant mole. He again wrote to the GP but did not refer to the mole. In July 2002 the deceased returned to Dr Mallett because the mole was bleeding. It was removed and found to be malignant. But, by this time it had metastasised to other parts of the body, and later caused the deceased's death.
4. It is alleged that Dr Mallett was negligent in a number of respects on the 6th April and /or 10th August 2001. In a nutshell, he should have investigated the mole further, and / or removed it and / or subjected it to biopsy. He should not have discharged the deceased when he did; but (if he was not going to excise it at an early stage) he should have kept it under review. It is also alleged that Dr Mallett was negligent at the later appointment in July 2002, but it is agreed that any such negligence, if established, was not causative of the death.
5. The Defendant's primary case is this. The mole was not brought to his attention by the deceased. It was not mentioned in the letter of referral from Dr Stovin. The focus of his attention was upon the facial lesions, which he treated successfully. He did, however, examine the deceased's upper torso and he saw the mole. It was unremarkable and showed none of the signs which might lead to concern. It appeared to be benign. It deserved no mention in the notes; it was no more noteworthy than many other moles which were on the deceased's torso. However, it was mentioned in the notes, but only because it happened to be alongside a small red nodule which the Defendant thought might be a cellular naevus (mole) and which, although it appeared to be benign, he wanted to keep under review. The words in his note "?mole looks benign - watch" referred to this red nodule and not to the relevant mole. The relevant mole was only to be found in the note as an aide memoire - a reference or mapping point - to enable him to find the nodule at the review appointment in four months' time. When the deceased returned in August 2001 the facial lesions had healed, and the red nodule had disappeared. The relevant mole was again not mentioned in the notes, and that could only be because it still gave every appearance of being benign. He thus discharged the deceased from his care.
6. I can interpolate this. Mr Wilson-Smith very realistically conceded, on behalf of his client, that if I found (i) that the deceased did not expressly draw the attention of the relevant mole to Dr Mallett and if (ii) the true interpretation of the note was that it referred to the red nodule and not to the relevant mole, then the claim could not succeed.
7. The Defendant has a secondary case. If I find those two issues in favour of the Claimant (that the note was intended to refer to the relevant mole and that the deceased had specifically asked Dr Mallett to look at it) there should still be a finding in his favour. He relies upon the expert medical evidence and specifically upon the joint statements of the experts. Even with a history of concern by the patient and his wife, and even with the benefit of a proper examination, it was perfectly reasonable for Dr Mallett to mark up the relevant mole as looking benign and to be reviewed in four months' time. There was no need for more at the April appointment. If there had been no change in the mole between April and August (as it appears there probably was not) there was still no need to do more, and it was reasonable for Dr Mallett at that stage to discharge Mr Flowers with the advice (which he gave) that he should return at any time if he developed a concern about any other lesions.

Witnesses

8. Before I look at the history and the evidence, I propose to say something about the witnesses and, in particular about the expert witnesses.
9. Witnesses of fact: As far as the lay evidence is concerned, I had a signed witness statement from the deceased dated 14th July 2003 which was put before me under the provisions of the Civil Evidence Act. I also heard from the Claimant and from the Defendant. Additionally three witnesses were called on behalf of the Claimant. They were the General Practitioner Dr Stovin as well as Mrs Belinda Coaten and Mr Paul Joyce. The evidence of these last two witnesses was of very little assistance to the issues with which I have to deal.
10. Expert witnesses: The parties had been given permission to adduce expert evidence. On behalf of the Claimant, the expert witnesses were: Dr Russell Ead, a consultant dermatologist, Professor R E Mansel, a professor of surgery and Dr John Grant, a consultant histopathologist. The expert witnesses for the Defendant were Dr Cameron Kennedy, a consultant dermatologist, and Professor Martin Cook a consultant histopathologist. In the event, the Defendant chose not to call Dr Kennedy to give evidence.
11. The evidence of the histopathologists was relevant to causation. In the event, the issue of causation was conceded but it was felt that these experts would be able to help in respect of some of the factual disputes, and they were thus called to give evidence, albeit briefly. For reasons which need not be recited here, their evidence was taken, back to back, but out of turn, before Dr Mallett had been called. Their evidence was of some but limited assistance.
12. The Claimant called both Dr Ead and Professor Mansel. I was not sure why Professor Mansel's evidence was required. Nor was I sure why permission had been given in a case management conference for it to be adduced. It appeared to reproduce and reinforce the evidence of Dr Ead; and it seemed to me that a surgeon, even an eminent and widely experienced surgeon such as Professor Mansel, was not the correct expert to give evidence about the likely or reasonable behaviour of a consultant dermatologist. However he did give his evidence, but was not subjected to any cross examination. So far as I could see, he did not add anything to the evidence which was given by Dr Ead.
13. As previously mentioned, Dr Kennedy did not give evidence. That was because Mr Hopkins, who appeared on behalf of the Defendant, was content with the answers which were given by Dr Ead. I do, however, have the evidence of Dr Kennedy in an indirect way. He and Dr Ead were in agreement about many aspects of the case, and their joint statement was put before me. I thus do have that limited part of his evidence.

The history and evidence to 6th April 2001

14. I must now look at the history in a more detailed way. I am assisted by the deceased's Civil Evidence Act witness statement, to which I have already referred. I also have evidence from the Claimant herself. Much of the history is clear and uncontroversial. Some of it is disputed.
15. Roger Flowers had been brought up in Zimbabwe with much exposure to the sun. He was of fair complexion, and his skin had many marks / blemishes and, specifically, moles. He also played a lot of golf, with short sleeved and open necked shirts, and further sun exposure.
16. The Claimant and the deceased had met in 1994 and were married in 1997. In October 2000 or thereabouts, they had a holiday in Mauritius, and it was about this time that Mrs Flowers first began to have a nagging worry about what I have called the relevant mole. It was on the back of her husband's neck near to the right shoulder. She told me that it appeared to be getting larger, that it was developing an irregular shape or outline, and that it appeared to be a different colour from his other moles. It was a light "pinky brown" colour, lighter than the other moles. She had a worry about it, which was all the greater because her mother had suffered a basal cell cancer to her leg, which had required surgical removal. Roger Flowers himself was less concerned than she was. At the same time, there were red coloured marks on the deceased's face, under the left eye. These had been there for some time.
17. In parentheses I can record that in early 2001 Mrs Flowers was pregnant with her first child. Toby Flowers was born in August 2001.
18. The attendance at the GP 15.02.01: Thus it was that Roger Flowers, with encouragement from his wife, attended his General Practitioner Dr Oliver Stovin, on 15th February 2001. Mrs Flowers did not attend the appointment with him but was, coincidentally, at the surgery in connection with her ante natal care. Evidence about the appointment thus comes from the witness statement of the deceased, and from Dr Stovin himself. Roger Flowers said this; "On 15th February 2001 I saw Dr Stovin. He looked at the mole on my neck and also the skin blemishes which had appeared on my face. My GP thought that the skin marks on my face were solar keratosis. I had taken my shirt off and Dr Stovin also noticed a mark on my left arm as well as the left cheek. He did not seem worried about the mole but did say I should be referred to a dermatologist." (B1/43)
19. At the end of the consultation, Mrs Flowers was called into the room. That was to discuss the possibility of her having an amniocentesis in respect of her pregnancy. According to Roger Flowers' statement; "Dr Stovin repeated that he was not concerned about the mole and thought the marks on my face and arm were due to solar keratosis. He assured us that Dr Mallett would look at all of the marks." (B1/43) Mrs Flowers said that Dr Stovin "thought there was nothing to worry about with the mole" (B1/53-4). He was more concerned with discussing the pregnancy.
20. Dr Stovin gave evidence. He had no recollection of any of this. Nor did his notes or referral letters help him. In those, he made no mention of any mole at all.
21. It is often the case that a doctor, faced with evidence of what occurred at a consultation, is unable to give the same strength of evidence as the patient. The patient hangs on every word; it is his / her sole medical consultation. The doctor on the other hand sees many patients. Unless there is some reference in the notes, the doctor is unable to say. He is reduced to saying what was his normal practice; what he would have done in any given situation.
22. Before considering what Dr Stovin had to say, I should consider the documentation. The old Lloyd George cards have, in most surgeries, been overtaken by computer entries. Dr Stovin's entry for 15th February 2001 reads "face 2 years, ?solar keratosis." (B2/84). That was intended to convey that there were marks on the face which had been there for 2 years, and were possibly solar keratosis. There was no reference to any mole.
23. Dr Stovin wrote a letter of referral dated 19th February 2001 to the Dermatology Department at Peterborough Hospital (B1/154). "I would be grateful if you could see this man who has a number of lesions on his face. They are basically erythematous patches with slight scaling over. I wonder whether they are early solar keratosis. He does play a lot of golf and being outside. I have no great concerns and I am sure this can wait. He has no other past medical history." It appears that, on the basis of this letter, Mr Flowers would not get a NHS appointment for many months and so, a few days later, on 28th February 2001, he wrote an identical letter (omitting only the penultimate sentence) to Dr Mallett in order to obtain a private appointment (B1/145). It may again be noted that there was no reference to any mole.
24. Faced with the fact that there was nothing in his note, Dr Stovin (who was called to give evidence on behalf of the Claimant) was only able to say; "I do not remember seeing Roger Flowers when I made the decision to refer him….. I have seen a copy of the witness statement signed by Roger Flowers…… which states that …… I looked at the mole on his neck…….I have no recollection of seeing the mole nor do I recall asking Jennifer Flowers to come into the room to speak about her pregnancy……I would have expected the dermatologist to carry out a general check of any marks which Roger was concerned about in any event…… At the time it is likely that I was only concerned about the solar keratosis….. Therefore it is entirely feasible that I could have seen and discussed the mole with both Roger and Jennifer Flowers without mentioning it in my referral letter". (B1/ 66-7). One might also add; "or in my computer note entry".
25. When Dr Stovin gave evidence it was entirely clear that he was well aware of the signs for which one should look when examining a mole to see if it gave cause for concern. These included, as he told me: evidence of change or growth; a dark colour or a variation of colour within the boundaries of the mole; crusting or bleeding; that the patient was subjectively aware of the mole either because it caused itching or because he could feel it; a raised as opposed to flat surface; absolute size in excess of about 1 centimetre; and an irregular shape / outline. He was asked about these in cross examination. He was firm in his evidence that, if (which he could not remember) he had been referred to this mole, he would definitely have recorded it, if it bore any of these signs. If, for example, he had been told that Jennifer Flowers had noted recent changes or growth, he would have recorded this in both his note and the letter of referral. He would also have recorded any irregular shape to the mole. He could therefore only conclude that, if he had in fact been referred to the mole, he had not been told of recent changes and his examination of the mole had convinced him that it was entirely benign, showing none of the features mentioned above.
26. It is as well to note what the Claimant herself remembered about the mole. It was flat, level with the surrounding skin. It was a light but uniform colour; that is to say there was no variation of colour within the confines of the mole. That in itself is perfectly normal in a benign mole. It had none of the other risk factors with only two possible exceptions - recent growth, and a recent change in shape from a smooth to an irregular outline. Dr Stovin clearly understood the importance of an increase in size as well as the irregular shape. He was clear in his evidence. Although he had no memory, if he had examined the mole (as Mr Flowers said he had) he was unaware of the history of recent change, and, moreover, the mole could not have had the so- called irregular outline. Otherwise it would be inconceivable that he would have failed to record it, or to make reference to it in his referral letter.
27. At the end of his evidence, Dr Stovin was re-examined by Mr Wilson-Smith in an attempt to see whether he might accept that he was a careless note taker and that, by oversight, he had failed to record these important matters. He conceded that his note taking was often not of the best, but would have been surprised if he had failed to record that there was a report of growth. Similarly he would be surprised if he had seen a mole which was irregular in outline (or displayed any other of the features for concern) and had failed to record it, or, more particularly, to report it in the letter of referral. I judged that his re- examination came close to being cross examination.
28. Of course, any factual issue concerning the appointment with the General Practitioner has no direct impact upon the wider case. Negligence is alleged against Dr Mallett and not Dr Stovin. Whatever happened at the GP's surgery does not alter the fact that, when Mr Flowers arrived to see Dr Mallett, there was nothing in the referral letter to alert him to a concern about the mole.
29. However, what happened at the GP's surgery may shed some light upon the wider picture; it may be noted that, insofar as Dr Stovin was unable from his notes to identify any reported concern about the relevant mole, this is mirrored in the evidence of the Defendant. I will, of course, return to this.
30. The first appointment with the Defendant; 6th April 2001: Jennifer Flowers did not accompany her husband to the first appointment with Dr Mallett on 6th April 2001. The evidence thus comes from three sources: the Civil Evidence Act witness statement of the deceased; the oral evidence of the Defendant; and the contemporaneous notes.
31. In his statement, Mr Flowers said this; "I referred Dr Mallett to the marks on my left arm and the left side of my face as well as the mole on my shoulder that Jennifer had been concerned about…..asked me to take off my shirt…..looked at my shoulder and I remember him drawing diagrams…..used a magnifying glass for my shoulder as well as for my face and arm….. He seemed very relaxed about the mole on my shoulder and that there was absolutely nothing to worry about at all despite the changes which Jennifer had noticed" (B1/ 44).
32. Like Dr Stovin before him, Dr Mallett had no recollection of being told that there was a concern about the mole. He in fact noted two lesions in the relevant area; the mole itself and a small red nodule adjacent to the mole, which he thought might itself be a small cellular naevus (mole). He thought that it was he who had noticed these two lesions when he came to make his examination, rather than having them, or either of them, brought to his attention. "I do not believe he indicated any history or problem with the lesions before, otherwise this would have been noted" (B1/ 127). Of course, without the benefit of a replay camera or recording, he was unable (like Dr Stovin) to say positively that Roger Flowers had not pointed out the mole. He could only say that, having regard to his notes, his limited memory and his normal practice, he would be surprised if he had been told.
33. Let us look at his note. It is the most important document in this case. It is at B1/142. It begins with the patient's name and the date - 6th April 2001. It records in shorthand that he was a 38 year old male and played a lot of golf; also that he was a manager at Thomas Cook.
34. The next two lines record what Dr Mallett says he was told by the patient. In translation the two lines read respectively "18 months 3 marks left cheek" and "18 months lesion left forearm". These are significant entries because, if Dr Mallett is correct, they are there to record what the patient reported, before any physical examination took place. It is to be noted that (a) the report of the lesion on the left forearm must have come from Roger Flowers, because there is no reference to that lesion in the GP referral letter; and (b) there is no record of the deceased's having reported a mole. The entry is at the top of the note and would have been at the start of the appointment at a time when the patient was given the opportunity to explain his condition to the doctor.
35. There follows a list of five formal pieces of history, which were initiated by questions from the Defendant. No past skin history; no family skin history; no medical history; no drug treatment history; and no allergies. This was the second phase of the appointment where Dr Mallet went through his check list.
36. The third phase of the appointment was the examination. It is headed "O/E" (on examination). Here Dr Mallett has drawn a diagram of a face and has marked upon it the position of the three facial marks with a note which reads as follows: "telangiectasia +/- AK x 3 LN2 1 x 5". In translation that means that there were three actinic (solar) keratoses treated with a 5 second freeze of liquid nitrogen to each. There is nothing contentious about that part of the entry.
37. Beneath this diagram, and still forming part of the physical examination, there are further entries. After examining the face, Dr Mallett had required Roger Flowers to remove his shirt and he then examined the arms and upper torso. The next entry reads over two lines (in translation) "Actinic (solar) keratosis right upper arm; Actinic (solar) keratosis left forearm; both given a 10 second freeze of liquid nitrogen". This entry is also non contentious, but it demonstrates that Dr Mallett, by his examination had noted a further lesion which had not been reported to him by either the patient or the GP. This is the first reference to the lesion on the right upper arm.
38. The examination continues with "Back of neck". Beneath this entry Dr Mallett has drawn two circles adjacent to each other. There is a small circle which he has labelled "small red nodule" and to the right of it there is a larger circle labelled "mole". This larger circle is the relevant mole which was or became malignant. The inference from the note (its position on the page and absence of any previous reference) is that this nodule and mole were noted by Dr Mallett's examination, rather than having been flagged up by Roger Flowers. Immediately alongside the words "small red nodule" Dr Mallett has written, "?Mole looks benign - watch". This is the specific entry which has attracted much attention in the course of the trial.
39. It is the Claimant's case that this phrase refers to the larger of the two lesions; the relevant mole. It is the Defendant's case that it refers to the small red nodule.
40. At first glance, the Claimant's interpretation would appear to stand muster. Certainly, that is the interpretation which all the medical experts in the case put upon that entry when they first reviewed the papers and before they were aware of the Defendant's own evidence. The entry refers to a mole and not to a nodule. The mole shown on the drawing is the very mole which was to lead to Roger Flowers' death. It is marked as suspicious in that, although it looked benign, it should be watched.
41. According to the Defendant, however, the larger lesion was unsuspicious and he was not interested in it except insofar as it provided a point of reference for mapping purposes; to give him the position of the small red nodule. It was this nodule which he had marked as looking benign and which he wanted to watch. He considered that the nodule might be a small reddish cellular naevus (mole) and that is why the word "mole" was preceded by a question mark. This is a crucial issue and one to which I will need to return.
42. To complete this part of my Judgment I can observe that the note also contains two further short entries; "LN2 (liquid nitrogen). Warn SE (side effects). Warn scar" and "4/12 (return in 4 months)".
43. Before making my findings, I should deal with the rest of the evidence concerning the consultation. I have already noted that the deceased, in his Civil Evidence Act statement, claimed to have pointed out the mole to Dr Mallett, but that Dr Mallett had no recollection (or note) of his doing so. Mr Flowers also said that Dr Mallett had used a magnifying glass to inspect the mole. In fact this was an episcope which the Defendant used routinely for examination. I was shown such an instrument. It provides tenfold magnification as well as illuminating the point of examination. Dr Mallett told me that he would certainly have examined the nodule (the possible small mole) using the episcope, because it was this lesion with which he was concerned. He may or may not have examined the larger lesion (that is to say the relevant mole) in this way. His drawing of the relevant mole shows a smooth outline, and not what we have called an irregular shape. He told me that he did not regard it as suspicious in any way, and he may have looked at it without the episcope.
44. A word or two about the shape. An irregular shape is one potential risk indicator. But what is meant by "irregular"? A circular or oval shape with a smooth edge is clearly not indicative of risk. A modest deviation of the outline of a mole is also entirely consistent with a benign lesion. On the other hand an outline with a jagged edge would indicate that a lesion may present a risk. It was Dr Grant, I think, who first described this appearance as "like the map of a coastline", a description with which all agreed. I took it to mean a coastline such as the South Cornish coast, as opposed to, say, the broad sweep of Morecambe Bay. But the reality is this; there are many shapes between a smooth circle at one end of the spectrum and a jagged irregular edged shape at the other. As Dr Mallett himself explained to me, a skilled and experienced consultant dermatologist, who has examined many lesions over many years of practice, will frequently observe a mole or other lesion and develop a concern for it. He will not analyse all the risk factors. He will look at it, and instinct and experience will inform him. Sometimes perhaps, a mole will not bear any of the hallmarks of risk; but the experienced doctor may conclude that something is not quite right, and may wish to keep the particular lesion under review. But the short point is this. There are degrees of irregularity in the shape. It is only when the outer edge becomes like a rocky coastline map that the alarm bells need to ring.
45. There is a further point. A single one of the signs (those which I have termed the risk factors or risk indicators) may not give any cause for real concern. The real concern may arise upon a combination of the risks. On the evidence of the Claimant herself, the mole was not large; it was pale and uniformly coloured; it was flat, level with surrounding skin; it was not itching, bleeding or crusted; it was not causing discomfort, nor was her husband aware of it. At the most (from the point of view of the Claimant's case) she had noticed a change in size and shape. With that in mind, the experts were agreed that even if (a) there was evidence of recent growth (which would have had to be reported by the deceased) and (b) the shape could be described as "irregular", the mole, without more, would raise a relatively low index of concern. It would not be unreasonable to fail to remove it and to mark it for review in 4 months time. Although Dr Ead had initially said in his report that the mole should have been removed there and then, it was now agreed that the management was reasonable. It was reasonable to keep the lesion under review and to arrange a further appointment in 4 months' time. This, I repeat, was upon the assumption that there had been these changes in shape and size, and that these had been expressly reported to Dr Mallett.
46. No more need be said about the consultation of 6th April 2001. The note was made, and the solar keratoses were treated. It was agreed or arranged that Mr Flowers would return in 4 months time. If Dr Mallett is to be believed, he had marked the small red nodule for review when Mr Flowers returned. If I accept the Claimant's case, it was the relevant mole which was marked for review.
47. I should also say this, however. Dr Ead was particularly critical of Dr Mallett's note taking, and his communications with the General Practitioner. These criticisms were made against the background that he, Dr Ead, believed that it was the relevant mole, and not the so-called red nodule which, although apparently benign, was being marked up for review with the word "watch". He also made the assumption that Dr Mallett had had his attention drawn to this mole and had been told of the Claimant's worries about it. I think he ultimately agreed that, if he was wrong about that, many of his criticisms would fall away. I will need to return to the note taking later in this Judgment.

Findings up to 6th April 2001

48. Findings re the GP consultation: Before moving forward in time to the second consultation and beyond, I propose to make my findings of fact in relation to the issues so far. I note, to begin with, that Roger Flowers was less concerned about the relevant mole than was Jennifer Flowers. She was not present at either the appointment with Dr Stovin or at the consultation with Dr Mallett. Her only direct evidence touching on what was reported comes from that short time when she was called in to Dr Stovin's room to discuss a possible amniocentesis and, at the same time, as she remembers, a brief word about the mole. Although there is nothing in Dr Stovin's note or memory, I am satisfied, if I need to be, that Mr Flowers did draw the mole to Dr Stovin's attention. He may have mentioned that his wife wanted him to do so. But, in my judgment, it is clear that he did not report any change in size or shape. If he had done so, it could not have failed to go into the notes or the letter of referral. I find that Dr Stovin probably looked at the mole and satisfied himself that it had all the appearances of being benign. As we know from all the evidence, it was flat, pale and uniformly coloured, and less than 1cm wide. I also find that it was not irregular in shape - or, if there was some irregularity, it was minimal. A GP is perfectly able to make judgments upon such things; and Dr Stovin had no concerns. That is the only satisfactory explanation for the lack of any mention of the mole in his notes or letter. Of course, it may be that his attention was not drawn to the mole at-all. But, on balance, I hold that it probably was.
49. In his witness statement Roger Flowers said that Dr Stovin looked at the mole and did not seem to be worried about it. Of more interest is what Roger Flowers did not say in that statement. He did not say that he gave Dr Stovin any history of recent change in size or shape. This, it seems to me, confirms the finding which I have made. The focus of attention was clearly the face. It must be remembered that solar keratoses are potentially serious lesions from which squamous cell carcinoma may develop. I suspect that Roger Flowers may have asked Dr Stovin to look at the mole, almost en passant, and that Dr Stovin felt able to reassure him. It may be that Dr Stovin repeated this re- assurance to the Claimant when she came into the room. She would not have been aware that her husband had not given the doctor the full story of her concerns. That he had not done so is consistent with his relative lack of concern.
50. Findings re the consultation of 06.04.01: What of the consultation with Dr Mallett? There are two main questions which I have to ask myself; (i) am I satisfied on the balance of probabilities that Roger Flowers brought the mole to Dr Mallett's attention ["I referred Dr Mallett to the marks on my left arm and the left side of my face as well as the mole on my shoulder that Jennifer had been concerned about " (B1/ 44)]?; and (ii) what are my findings in relation to Dr Mallet's note? Do the words "?Mole looks benign - watch" relate to the small red nodule or to the relevant mole? These two issues cannot be dealt with in isolation. The answer to one of them will inform the other.
51. I have reached the conclusion that, in spite of what he said in his witness statement, the deceased did not draw Dr Mallett's attention to the mole. I have to make the finding upon the whole of the evidence and, of course, sadly, the deceased's evidence about this cannot be tested. All the rest of the evidence points in the opposite direction. Mr Wilson-Smith suggests that it would be bizarre (I think that was his word) if the deceased, knowing of his wife's concern, should fail to mention it. However, it is known that he took this much less seriously; and, one might surmise, he possibly thought she was making too much of a fuss, particularly as (i) he had had reassurance from Dr Stovin and (ii) the real focus was on the facial marks, which clearly did need treatment. And, again, there is nothing in his statement to the effect that he told Dr Mallett that his wife thought the mole had grown or changed shape, unless it is to be implied by the final sentence of paragraph 10 of his statement on page B1/ 44. I am afraid that, having considered the whole picture, I have to reject that part of the deceased's evidence.
52. Dr Mallett's own evidence of course is that he had no recollection one way or the other. But, if the mole had been drawn to his attention, he would have recorded the fact. The upper part of his note (B1/ 142) supports him in this. The note begins with entries where, according to the usual practice, the patient is invited to report his symptoms. The significant point is that Dr Mallett noted the lesion on the left arm. This must have been reported by Mr Flowers because there is no mention of it in the referral letter and at this stage (prior to the entry OE - on examination) there can be no other source. Why would Dr Mallett note the deceased's report of a lesion on the left arm, and not his report of a suspicious mole? There is a strong suggestion that the report was not made. There is a further significant entry during the examination phase. Having noted the facial lesions, there are entries showing lesions on both arms. Again these have not come from the GP. The lesion on the left arm has been reported by the deceased, but what of the entry re the right upper arm? This, it seems, can only have been disclosed by Dr Mallett's examination. This only adds credence to the view which I have formed that the next entry (to the lesions on the back of the neck) also arose from that examination, and not from Mr Flowers reporting it. The entry about the back of the neck is within the "OE" section of the note and is not to be found elsewhere in the note. I should also say that my finding (see below) about the important entry ("?Mole looks benign - watch") gives further support for this conclusion.
53. I have reached the firm conclusion that those words ("?Mole looks benign - watch" ) refer expressly to the small red nodule and not to the larger lesion (the relevant mole) which has been labelled simply "mole". This is the most significant finding which I have to make in this case.
54. I reach that conclusion for a host of reasons. First and foremost I reach that conclusion because Dr Mallett told me that that was what he meant. It goes without saying that the person who makes a note is the best person to decipher it. There are only three possibilities: (i) Dr Mallett is accurate and truthful; (ii) Dr Mallett is deliberately misinterpreting his own note and is untruthful; or (iii) he is genuinely and innocently misinterpreting the note. It is just possible that the witness might misinterpret his own note after a passage of time; but it is unlikely.
55. I watched Dr Mallett carefully when he was giving his evidence. I found him to be a thoroughly reliable and honest witness. His evidence was given carefully and with clarity. He did not attempt to pretend that he could remember details which he could not remember. I formed a wholly favourable view of him, as a witness and as a doctor. He has an impressive CV and is a highly qualified and experienced consultant dermatologist. He clearly understood the reason why he was being blamed. He understood that the deceased had been through his care and that the relevant part of the deceased's torso had been examined by him a year or so before a malignant melanoma was found on a part of the body which he had examined and recorded. However, he was firmly of the view that his examination had been proper and thorough, and that there was nothing for which he needed to blame himself. If the mole had shown signs of malignancy, if it had shown any of the "risk features" he would have seen them. If he had been told of any concern about recent growth or other change, he would have kept the mole under review. He was, as I find, a reliable and honest witness.
56. It follows from what I have said, that I acquit him of any charge that he was deliberately misleading the court. But might he be mistaken? Is it possible that, looking back at the note after this passage of time, he has misinterpreted what he intended by it? I think not. It was not something about which he had any doubt. His explanation of the note also made complete sense. I found his evidence on this point (as well as all others) to be wholly honest, and wholly accurate.
57. But there are other reasons, as well as Dr Mallett's own assurance, for accepting that the material note related to the nodule and not to the larger lesion.

(i) The position of the note on the page is important. The words follow on from "small red nodule" which has a line pointing to the smaller lesion. On the other hand the word "mole" stands in isolation, with no follow-on phrase.

(ii) The position of the question mark between "nodule" and "mole" (immediately before the word "mole") is shorthand, in the usual way for "Query mole". The larger lesion was a known mole not a "query mole". The alternative interpretation (that the entry means "query if the mole looks benign") would likely have been written as "mole ?looks benign - watch" or possibly "mole looks benign? - watch".

(iii) Why, if the entry was intended to refer to the larger lesion, was it necessary to mention it twice? If Dr Mallett had been concerned as to whether the larger lesion might be suspicious and needed to be watched, why did he not write "looks benign - watch" immediately adjacent to the first word "mole"? Why did he find it necessary to repeat the word "mole"?

(iv) If the words (as the Claimant contends) related to the larger lesion, why should the red nodule make an appearance at-all? Dr Ead, the Claimant's expert dermatologist, told me that the overwhelming likelihood was that the nodule was of no significance, an angioma or folliculitis. This was to support his contention that the words must relate to the larger lesion; although he had not seen the red nodule, it was most unlikely to have raised the query that it might be a mole. But, I ask (as I asked Dr Ead) if his interpretation was correct, why on earth would the red nodule be marked? Undoubtedly it would not be needed for mapping purposes to identify the position of the mole. And if it was an unremarkable insignificant transient lesion, why would the Defendant have put it in his notes at-all? Dr Ead did not know. Neither do I. (In spite of Dr Ead's reluctance from the witness box to concede that the nodule could have been a mole, he did, I note refer to it as a mole in his report at page B!/ 213 paragraph 26 where he refers to "the two moles")

58. But, I repeat, of most significance was Dr Mallett's own evidence, which I found to be compelling, truthful and reliable.
59. I do not overlook the fact that all other experts in the case had assumed in their reports that the words referred to the relevant mole. This is understandable, and, at first glance is a reasonable interpretation to place upon the words. All five of the expert witnesses had written their original reports adopting that interpretation. The two histopathologists maintained that opinion. It is interesting to note, however, how Dr Grant dealt with this in his initial report. In reviewing Dr Mallett's note of 6th April, he said this: "Dr Mallett's notes also show a diagram of the back of Mr Flower's neck which shows one small lesion and a further larger lesion labelled 'mole' with a further comment describing the smaller lesion which states 'small red nodule ? mole looks benign - watch'" (my emphasis). That is revealing. It appears to state in plain English that the 'further comment' describes the smaller lesion and not the relevant mole. Nevertheless, the witness, as did Dr Ead and Professor Cook, told me that he believed that the comment related to the relevant mole and not to the smaller lesion. In the end, one man's interpretation of what another writes is no more than that. The person who knows is the Defendant himself. For the reasons I have given, I accept his evidence. However, if I were faced with this document, in the absence of any explanation from the maker, I would undoubtedly have reached the independent conclusion that the reference was to the red nodule. It is not something which is marginal on the balance of probabilities test. The balance is very strongly in favour of that interpretation, whatever the other doctors might think. Incidentally, I note that Dr Kennedy changed his mind on this question. I assume that is because he revisited it when he was told what Dr Mallett had said in his witness statement. I know that he changed his mind from my reading of the joint report, even though Dr Kennedy did not give evidence.
60. I also make further findings. Having dealt with the main area of concern, namely the solar keratoses, and having found further similar lesions on the arms, Dr Mallett went on to make an examination of the torso. As I have already decided, he was not directed to the relevant mole by the deceased. The only lesion he found which gave him any concern was the small red nodule which he considered to be benign, but which he thought may be a small mole which required review, just in case it turned out to be a cause for worry. His index of concern (as we have called it during the trial) was low. He could review that nodule when the patient returned to have the solar keratoses reviewed in four months' time. It was a mere coincidence that the marginally suspicious small lesion lay alongside the relevant mole; and it was also coincidental that the mole appeared in the note. It was included in the diagram solely to enable Dr Mallett to find the nodule as and when the patient returned. I find that the mole was indeed unremarkable and showed none of the signs or indicators for concern. It was flat, evenly and lightly coloured, not oversized, and there was no evidence that it was troubling the patient. As I have found, the Defendant was not told that the deceased's wife thought it a worry - that it had changed in size or shape. I find that it was not of an irregular shape in the sense of being a cause for concern (ie like a coastline). I am satisfied of this last point for four reasons. First, Dr Mallett drew it on his diagram as a regular oval shape with no wavy outline or other irregularity. Second, if it had been an irregular shape in that sense, as an experienced and skilled consultant dermatologist, it would have registered with him (after all it was for just such a reason that he was examining the deceased's torso) and he would have noted it for review. Third, it had (as I find) been examined by Dr Stovin who had also given it a clean bill of health. And finally, when it was eventually excised in July 2002, it was not found to be irregular in shape, even then.
61. To make matters absolutely clear, there was nothing, in my judgment, in the absence of any express report from the deceased, to alert Dr Mallett to a problem with the relevant mole. It appeared wholly unremarkable and benign. That finding is also consistent with the larger part of the evidence of Jennifer Flowers.
62. Dr Mallett wrote to Dr Stovin on the same day: "Many thanks for asking me to see this chap with three probable solar keratoses on his left cheek which I have frozen with liquid nitrogen and a further one on his right upper arm and one on his left forearm. These I have also frozen. Checking him to the waist he has got quite marked sun damage on a fair skin that has had a fair amount of skin (sic) over the years. I couldn't find any other suspicious lesions. I have discussed the need to avoid excessive sun exposure with him and warned him about the side effects of liquid nitrogen and treatment and will see him in 4 months time to see how he has got on". He did not mention the red nodule, and he expressly stated that he could not find any other suspicious lesions. That, he explained, was because (a) his concern about the nodule was minimal; he considered it highly likely to be benign, and (b) he would himself review the nodule in 4 months' time and could report any worries at that stage if it turned out to be significant. He did not require the doctor to review it.

The history and evidence to August 10th 2001

63. I move on to consider the consultation on 10th August 2001. Of this appointment Roger Flowers said this: "I would estimate that (this) appointment only lasted 10 minutes. I again recall taking my shirt off. Dr Mallett looked at my arms and face. He did also have a quick look over my body. I do not recall discussing the mole on this occasion but assumed he would be checking me generally including the mole that I had specifically referred him to at the last visit. Again Dr Mallett reassured me that everything was fine and said he would now discharge me but if I was ever concerned, there was no need to go through my GP for referral." (B1/ 45)
64. Dr Mallett's note of this visit was short; "10.8.01 Settled". It made no mention of the mole; or indeed of any nodule. He wrote to Dr Stovin on the same day: "This patient's solar keratoses have settled following cyrotherapy. I have discharged him at present but told him I would be more than happy to review him if he has any further suspicious lesions." (B1/ 147) Again no mention of a mole.
65. As one might expect, Dr Mallett had no independent recollection of this consultation. It is common ground that he examined the face and the arms and declared that the solar keratoses had settled. There is no reason to doubt that he would have followed his normal practice of reviewing the previous notes. He clearly did re-examine the deceased's torso, and there is equally no reason to doubt that he looked to see what had happened to the small red nodule. It was no longer to be seen. He would have made a cursory visual check, no doubt, of the relevant mole. He would have had no reason to look at it with particular care, unless it showed some new signs or indications for concern.

Findings re the consultation of 10.08.01

66. In respect of this consultation, I make the following findings. Doctor Mallett had, as was his normal practice, pre-read his notes from the previous appointment, and he would have noted the reference to the small red nodule. He undoubtedly examined the deceased's torso. He would have looked for the nodule; indeed I find that he did do so. There was nothing to see. The nodule turned out to be a transient lesion (it was the opinion of all experts that it had most likely been a folliculitis and I so find). As he looked for the nodule he could not help but observe the relevant mole. As before (and based upon my earlier findings) he was unconcerned about it. That is not to say that he was not looking for suspicious lesions. If he had seen anything suspicious about the mole (or indeed any other mole or lesion) he would have dealt with it. I find as a fact that there was no discernible change in the relevant mole between April and August 2001. I am reinforced in that finding by the evidence of Mrs Flowers at B1/ 56 paragraph 17. Certainly Roger Flowers did not refer Dr Mallett to the relevant mole on August 10th 2001. In those circumstances, the solar keratoses having healed, and there being no further lesions of a suspicious nature, Dr Mallett discharged the deceased with the sensible advice that he should return if he had any further concerns at any time.

Note taking

67. I have already mentioned that Dr Ead was critical of the Defendant's note taking. I listened with care to his evidence. It is probably immaterial in view of the findings which I have made, but I have to say that I was not impressed by Dr Ead. It was his opinion that the Defendant's note taking was negligently defective. He seemed to be unable to answer any question without referring to the note taking. It also seemed to me that he wanted to advocate on behalf of the Claimant rather than to give a straight answer to a simple question. Any cursory reading of a transcript of his evidence would not fail to persuade the reader that this was the case. Of course, his evidence was largely based upon his belief that the note "?Mole looks benign - watch" referred to the relevant mole and not to the nodule. He was critical of a number of things. First, the Defendant had not taken a history of the mole. If he had done so, he would have been told that Mrs Flowers was concerned about it, and particularly that it had appeared to be growing and changing shape. Secondly, he had failed to take a history of the deceased, and specifically had failed to discover that the deceased had been brought up in the sunshine of Southern Africa. Thirdly, he had failed to record a measurement of the mole so that, on review he would be unable to make a comparison, to see if the mole had grown or changed shape. On the second consultation there was no reference to the mole at-all.
68. Dr Ead also criticised the Defendant's communications with the GP. In his letter following the April consultation he made no reference to the relevant mole. Dr Ead would have wanted the Defendant to refer to whichever lesion he was labelling "looks benign - watch". And in the letter of 10th August 2001 he should have expressly referred to the fact that the mole was no longer a cause for concern, if that was the case. In either event, he, Dr Ead, would have expected the letters to the GP to have painted a fuller picture.
69. These criticisms, it seems to me, would have some force if I had found that it was the relevant mole which looked benign and should be watched. In those circumstances one would have expected a detailed description of it in the notes including shape and measurements, given that it would be important to see what, if any changes had occurred, when reviewed in four months' time. One would also have expected a history of the mole ("he tells me that his wife has noted changes…. size…. shape…. and is concerned about it"). It seems to me that the fact that these notes were not made is yet further support for my finding that the mole was not the focus of attention. One would also have expected this to be reported to Dr Stovin.
70. It is, I think, fair to say that Dr Mallett's note taking could have been better. However, the point was made that these notes were intended only for him. This was a private consultation, and, unlike an appointment within the NHS, the notes were not intended to be read by the next doctor to see the patient. Also it is fair to say that some doctors regard it as necessary to record only matters of concern; they would not necessarily record that they had checked a previously suspect lesion and found it to have healed completely. It is unfortunate that the notes did not make express reference (for example) to the check for the nodule on the second appointment and a report that it had cleared. However, I find nothing in these criticisms to support a suggestion that, in his note taking the Defendant was negligent; much less that any failure of note taking was causative, directly or indirectly, of the death.
71. In view of my findings (and Mr Wilson-Smith's acceptance that the Claimant's case cannot be sustained upon those findings) that is sufficient to dispose of this case. However, if only for the sake of completeness, I should deal briefly with other matters. In particular I should complete the history.

The subsequent history, evidence and findings

72. In the early part of 2002 the relevant mole started to bleed and Roger Flowers returned to see Dr Mallett on 5th July 2002. It did not seem to Dr Mallett that the mole was likely to be malignant. He considered that it was probably a traumatised compound naevus (or mole) with no features to suggest a melanoma. He shave excised the mole. The excised tissue was sent off for histology.
73. The first pathology report was inconclusive, and this was reported to Mr Flowers when he attended Dr Mallett on 2nd August 2002. The sample was sent away for further analysis. On 9th August 2002, Dr Mallett wrote to Dr Stovin to bring him up to date. He expressed the view in this letter that there was just the possibility (though he thought it "highly unlikely") that it may be a melanoma.
74. A supplementary report dated 12th August 2002 disclosed the melanoma. When he received this report Dr Mallett telephoned Mr Flowers and broke the bad news. He also informed him that further surgery would be needed and possible adjuvant therapy. In layman's terms, a deeper excision would be necessary, in case all the malignant tissue had not been removed by the shave excision. On 16th August, the deceased, accompanied by the Claimant, saw Mr Malata, a surgeon (B1/ 178); on 20th August 2001 a deeper and wider excision was performed; histological examination of the specimen showed complete excision with clear resection margins. Unfortunately a small lymph node was subsequently discovered in the neck and a radical neck dissection was performed in September. As already recorded, Mr Flowers died as a result of a secondary spread.
75. There was a further appointment with Mr Mallett on 19th August 2002, when the deceased was accompanied by the Claimant. This was a difficult meeting. Mrs Flowers was particularly upset. She gave evidence that the Defendant told her that "we all make mistakes and this one is mine". Little turned on this evidence. Dr Mallett accepted that he would have acknowledged that he had not diagnosed this condition, that he had missed it. This was not an admission of fault, only mistake.
76. In respect of the appointment on 5th July 2002 there was further criticism of Dr Mallett although it was acknowledged that the negligence alleged was in no way causative. It is said, first, that Dr Mallett would not have excised the mole at-all in July, having formed the view that it was still benign, and that he only did so at Roger Flowers' insistence. That is rigorously denied. Dr Mallett told me that shave excision would have been his automatic response, even if he had been completely sure that the mole was benign, if only to prevent it from traumatising again. This is not a dispute which I need to resolve, but if it is necessary for me to say so, I am satisfied that he would have excised the mole on that date without any urging from Roger Flowers. Secondly, it is alleged that a shave excision was inappropriate and that he should have undertaken a deep excision at this stage. In fact this was not pursued by Mr Wilson-Smith and, in any event the later incision showed that the shave operation had succeeded in removing all malignant tissue.
77. It is not necessary for me to dwell any further upon the events from July 2002 onwards, except to note briefly that there was some modest support in the evidence from the histopathological evidence for some of my earlier findings. It was the opinion of the experts that the growth of the mole had been in thickness (getting deeper) rather than in width. It was still only about 0.7 x 0.5 cm in diameter at the time of excision and there was no report of irregularity of shape.
78. One final word before I reach the bottom line. Much time was spent in the course of the trial looking at the agreed report between the dermatology experts, and the wide agreement which they had reached (I can note that Professor Mansel was also a party to that document). This occupied most of the time when Dr Ead was giving evidence. It was the Defendant's case that, even if I made the crucial findings of fact in favour of the Claimant, there was still no proved causative breach of duty. This was what I called the Defendant's secondary case near the head of this Judgment. In the circumstances, I decline to take the journey along that route, satisfied as I am that the Defendant succeeds on his primary case.

Final conclusions

79. In summary conclusion, I am satisfied that the relevant mole was not expressly brought to the Defendant's attention. He was not offered any history of concern. There was nothing upon his examination of the deceased on either of the consultations in 2001 to alert him to the possibility that the relevant mole might develop malignancy; the mole appeared to be safely benign.
80. I should not conclude this Judgment without saying that I would not wish the Claimant to think that I am in any way unsympathetic to her. She has lost her young husband in difficult circumstances, and she has been left alone with a small child. I am sure that Toby is a great comfort to her, and she will see Roger Flowers in him. I could see that Mrs Flowers is herself a loving and caring person. She was accompanied through the trial by her admirable father. I can well understand that she will find this Judgment difficult to take, accepting as I do that she was concerned about this mole, and that she knows that it was seen by a consultant dermatologist who failed to detect any problem. It is also a matter of regret that the handing down of this Judgment, by coincidence occurs so close to the anniversary of Roger Flowers' death. I have the greatest sympathy, but I know she will understand that I can only award damages in a case where a breach of duty has been proved.
81. Accordingly, there must be judgment for the Defendant.

Alistair MacDuff

30.11.07