Hague & Anor v Dalzell & Anor

In a clinical negligence claim, the claimant must establish on the balance of probabilities that earlier treatment would have prevented the relevant injury or death. General survival statistics for a cohort do not, without more, establish that a particular patient would have survived. Their use is especially limited where the tumour is rare and materially different from the cases underlying the statistics. Evidence based on extrapolating backwards from the growth of an evolved tumour may be unreliable where there is no data supporting a uniform growth rate. The court must assess the particular pathology and prognosis. Here, the delay caused pain and suffering, but the evidence did not establish that earlier diagnosis and surgery would have prevented recurrence and death.

The claimants, acting as executors of Sophie Hague’s estate and as her dependants, sued two general practitioners. The defendants admitted that they had failed to investigate Sophie’s vaginal bleeding adequately and that earlier referral would have led to surgery in December 2009 or March 2010, rather than July 2010.

The central issue was causation: whether, on the balance of probabilities, Sophie would have been cured and survived for five years if the cancer had been diagnosed and treated earlier. The court also considered the estate’s claim for pain and suffering and the dependants’ claim under the Fatal Accidents Act 1976.

1. Negligence and causation. The defendants owed Sophie a duty to exercise reasonable skill and care and admitted breach. The estate established that the breaches caused additional pain and suffering and anguish while the cancer remained untreated. That part of the claim therefore succeeded.
2. Stage of the tumour. The court found that the tumour had passed beyond stage 1a by 24 November 2009. On the balance of probabilities it was a small, early stage 1b1 tumour then and a larger stage 1b1 tumour on 16 February 2010.
3. Statistical evidence. The general cervical-cancer survival statistics did not establish that Sophie would have survived. They concerned cohorts of patients and did not show whether a particular individual would be among those who survived. They also did not adequately reflect Sophie’s rare sarcomatoid squamous cell carcinoma. The court considered the observations in Gregg v Scott [2005] 2 A.C. 176 and Sienkiewicz v Greif (UK) Ltd [2011] 2 A.C. 229 concerning the limited use of statistical evidence.
4. Medical and literary evidence. The attempt to extrapolate backwards from the growth of the evolved tumour was flawed. The small number of reported sarcomatoid cases did not establish a greater-than-even chance of five-year survival. The tumour was rare, poorly differentiated, highly mitotically active and clinically aggressive.
5. Outcome. On the balance of probabilities, the cancer would have recurred even if all malignant cells had been removed earlier. Sophie would not have survived for five years. The death-based aspect of the negligence claim and the dependants’ claim under the Fatal Accidents Act 1976 failed. Judgment was therefore entered for the agreed sum of £15,000 in respect of the injury caused by the negligence.

First-instance judgment. The judgment does not state any prior appellate decision.