Gallardo v Imperial College Healthcare NHS Trust

A patient has a right to be informed of the outcome of medical treatment, the prognosis, and the follow-up care or monitoring required. The discussion should take place as soon as the patient is sufficiently well to understand it, subject to therapeutic considerations and the circumstances of the case. A hospital’s duty to provide that information may continue after the patient changes from NHS to private treatment, particularly where the duty arises from NHS surgery and remains undischarged. The duty is not determined solely by medical opinion under the Bolam approach. Failure to provide the information and arrange appropriate surveillance may be causative of loss where earlier monitoring would probably have led to earlier and less extensive treatment.

The claimant underwent surgery at Charing Cross Hospital in 2001 for a gastrointestinal stromal tumour and serious post-operative complications. He later became a private patient at the same hospital under the care of the operating surgeon. The claimant alleged that he was not informed of the tumour’s malignancy, the risk of recurrence, or the need for regular CT surveillance. The tumour recurred and required substantially more extensive surgery in 2011.

The defendant disputed the alleged failures, contended that responsibility passed to the private surgeon, and denied causation. The issues included what information had been given, when it should have been provided, whether the defendant retained responsibility after the claimant became a private patient, and whether earlier surveillance would have reduced the consequences of recurrence.

1. Disposition. Judgment was entered for the claimant. Damages were awarded for pain, suffering and loss of amenity (£27,500), loss of employment opportunity (£5,000), medical expenses (£1,938.75), and additional surgery costs (£4,292.37).
2. Right to information. By analogy with Montgomery v Lanarkshire Health Board [2015] UKSC 11, the claimant had a right to be informed of the outcome of treatment, his prognosis, and the need for follow-up. Information should be withheld only in exceptional circumstances and for clear and persuasive therapeutic reasons.
3. Timing. Timing is fact-sensitive. Relevant considerations include the patient’s condition and ability to participate, the seriousness of the information, the patient’s wish to know, and the availability of family support. In this case, the claimant had been out of intensive care for 25 days before moving to the private wing. The discussion should have occurred during that period and, in any event, before 30 March 2001.
4. Responsibility. Applying the principles concerning non-delegable duties explained in Armes v Nottinghamshire County Council [2017] UKSC 60, the defendant owed a continuing duty to advise the claimant. The duty arose from NHS treatment and the relevant histopathology report. It was not discharged when the claimant moved to the private wing, nor was responsibility transferred merely because he continued treatment privately with the same surgeon.
5. Breach and causation. The claimant was not properly informed and neither he nor his GP was given adequate written advice about regular CT surveillance. The court accepted that regular monitoring would probably have detected the recurrence in 2006, leading to surgery in 2007. That surgery would probably have been less extensive and complex, and the claimant would have avoided four years of additional pain and discomfort.
6. The claimed subrogated treatment costs did not flow from the negligence as pleaded. The claimant could recover only the proved additional cost of the more complex surgery.

First-instance judgment. No appellate history was stated in the judgment.