Scaddon v Morgan

A consultant gynaecologist is negligent if, on the balance of probabilities, a prolapsed fibroid was present during an examination and the examination failed to identify it. Where causation depends on what the defendant would have done, the court must determine the relevant counterfactual by reference to the evidence, including the defendant’s evidence and the applicable professional practice. It is unnecessary to decide whether a proposed treatment plan reflects a responsible body of medical opinion if factual causation is otherwise established. A claimant’s decision to delay treatment will not break the causal chain where, on the evidence, she would probably have acted differently if the material condition and its urgency had been explained.

The claimant brought a claim in negligence and/or contract against the defendant, a consultant gynaecologist, arising from a private consultation on 23 July 2010. She alleged that the defendant failed to identify a uterine fibroid which had prolapsed through the cervix and failed to arrange urgent investigation and treatment.

The defendant denied that the fibroid had prolapsed at the consultation. He also disputed the alleged treatment delay and causation, contending that the claimant’s later holiday and appointment difficulties caused the delay. The central issues were whether the fibroid had prolapsed when the claimant was examined, what would probably have happened if it had been identified, and whether the resulting delay caused compensable injury.

1. Liability. On the balance of probabilities, the fibroid had prolapsed through the cervix by 23 July 2010. The judge accepted the claimant’s evidence as to the difficult and possibly incomplete examination, together with Mr Lane’s expert evidence on the rate of growth. The competing evidence concerning the ultrasound scan, the Mirena coil and the missing threads was logically explicable consistently with prolapse having occurred before the consultation.
2. It was agreed that, if the fibroid had prolapsed, it would have been negligent not to see it. The claimant therefore established breach of duty on her primary case. Her alternative case, based on the history of abnormal bleeding and the failure to arrange a hysteroscopy, did not require determination.
3. Causation. The principles concerning causation where the issue depends on what a defendant would have done, identified in Bolitho v City & Hackney HA [1998] AC 232, applied. The judge accepted that, if the defendant had identified the prolapsed fibroid, the claimant would have understood the matter to be serious and urgent. She would probably have cancelled her holiday and attended the rearranged appointment.
4. The claimant would probably have undergone hysteroscopy by mid to late October 2010 and hysterectomy by early November 2010. The delay was therefore nearly six months rather than seven. It was unnecessary to determine whether the defendant’s proposed treatment plan represented the practice of a responsible body of medical men, because factual causation was established on the counterfactual evidence.
5. The psychiatric evidence supported the conclusion that timely diagnosis and explanation would have made the subsequent generalised anxiety disorder much less likely. Judgment was entered for the claimant for damages of £20,000.