Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery

In this post, Christopher Fleming of 12KBW discusses the recent decision in Metcalf v Royal Devon and Exeter NHS Foundation Trust [2019] EWHC 3549 (QB).

The case concerned a hypothetical situation that would have existed had the Claimant been referred for necessary investigations sooner. The test to be applied was set out by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46. The two-stage test, as applied to this case, was:

(a) what would the treating clinicians have done had the breach of duty not occurred? And

(b) if the treating clinicians had not discussed with the Claimant the option of surgery or radical radiotherapy, would that have been negligent?

The Court held that the Bolam test has no relevance to the first of those questions but was relevant to the second question, however, it should now be considered by reference to the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

The claim arose following a negligent failure to diagnose the deceased, Mr Metcalf, with lung cancer in 2010. Mr Metcalf died in June 2014 after the primary lung cancer had spread to the cervical vertebrae and brain.

Breach was not in issue, D admitted that they had failed to offer Mr Metcalf a biopsy of the lesions identified in a CT scan, and that a biopsy would have confirmed the presence of lung cancer.

Causation remained in dispute. C’s pleaded case was that but for D’s breach, Mr Metcalf would have been offered and undergone surgery or radiotherapy treatment, thereby avoiding tumour progression and metastasis. D’s case was that Mr Metcalf would not have been offered surgery or radiotherapy and that in any event neither treatment would in any event have been curative.

At trial, the court dealt with C’s case by considering not only whether Mr Metcalf would have been offered treatment (which was the way that C had worded their case in their Particulars of Claim), but also whether Mr Metcalf should have been offered treatment. The question for the court thus became not only what the treating clinicians would have said to Mr Metcalf with regards to treatment following a prognosis, but also whether a) a failure to discuss treatment options with Mr Metcalf was negligent, and if so b) if such options had been properly discussed with Mr Metcalf, would he have chosen to undergo treatment, and if so c) would such treatment have been successful.

Factual Evidence
Treating medical evidence consisted of witness statements from Dr Sheldon and Dr Toy, consultant clinical oncologist, who were cross examined, and Mr Froeschle, cardio-thoracic surgeon, who did not attend trial.

Although breach was admitted, D’s evidence was that even if a diagnosis had been made, Mr Metcalf would not have been considered a suitable candidate for surgery or radiotherapy due to his symptoms and co-morbidities.

Dr Sheldon, the consultant physician in respiratory medicine, gave evidence that no treatment would have been offered unless or until Mr Metcalf developed symptoms related to the lesion.
He stated that Mr Metcalf would therefore have been referred to Dr Toy, consultant clinical oncologist, for consideration of further treatment.

Dr Toy’s evidence was that she would not have offered radiotherapy due to the radiological evidence of lung fibrosis. The absence of symptoms in 2009 would also have meant that Dr Toy would not have offered chemotherapy. Her evidence was that her preferred treatment would have been to watch and wait.

The cardio-thoracic surgeon, Mr Froeschle, gave evidence that had Metcalf been referred to him in early 2010 for consideration of the excision of the tumour, he would not have considered him fit enough to undergo surgery due to his co-morbidities and would have referred him to Dr Toy to consider non-surgical options.

Claimant’s expert evidence
Mr Lau, consultant thoracic surgeon, considered that Mr Metcalf’s co-morbidities did not preclude surgery, and that he would have been offered surgery with all the risks and benefits explained to him.

Dr Plowman, consultant oncologist, considered that if surgery had not been offered then radiotherapy would have been. He accepted that any mycobacterial infection would have to be under control before proceeding to radiotherapy. However, he believed that Mr Metcalf’s lung capacity and cardiac condition would not have prevented radiotherapy.

Dr Steele, consultant oncologist, stated that had Mr Metcalf undergone surgery in March 2010, he would have lived for a further 6.9 years.

Defendant’s expert evidence
Mr Steyn, consultant thoracic surgeon, considered that Mr Metcalf’s measured diffusion capacity DLCO of 38% would have led to a recommendation against surgery, as the risk of death arising following surgery due to pulmonary compromise would have been prohibitive.

Dr Falk, consultant clinical oncologist, considered that the presence of significant fibrosis was a relative, if not absolute, contraindication for radiotherapy.

Discussion / Decision
In considering causation, the court applied the test set out in Bolitho v City and Hackney Health Authority [1997] UKHL 46:

a) What would the treating clinicians have done if the breach had not occurred; and
b) Would the treating clinicians have been negligent if they had not discussed the option of surgery or radical radiotherapy with Mr Metcalf (per Montgomery v Lanarkshire Health Board [2015] UKSC 11)

Dealing with the first question, the court was satisfied from the evidence of the treating clinicians that Mr Metcalf would not have been offered surgery or radical radiotherapy in early 2010.

In relation to the second question, C’s case at trial was that if the biopsy had revealed the presence of a lung tumour, the treating clinicians should have explained the full range of treatment available to Mr Metcalf, and Mr Metcalf would have chosen to undergo treatment. The treatment would have been curative, and Mr Metcalf would not have died when he did. C relied on a statement from Mr Metcalf’s wife that Mr Metcalf had “never been averse to surgery” and that he would have “fought to live”. They also relied on the fact that Mr Metcalf had shown himself to be willing to undergo a biopsy and had undergone minor operations subsequently.

The court found for C on the first point but not on the second. The judge’s view of the evidence was that Mr Froeschle and Dr Toy should have discussed the options for surgery and radiotherapy with Mr Metcalf, while also warning him about the substantial risks associated with both options.

However, the Court found it more likely than not that Mr Metcalf would have headed the warnings regarding the risk of treatment and would have opted to wait and see how the tumour developed [71]. The claim was therefore dismissed.

Although the court did not accept that Mr Metcalf would have opted to undergo treatment, they did prefer C’s evidence on the likely outcome of the treatment and found that if surgery or radiotherapy had been instituted, they would have been successful in eradicating or slowing the development of the tumour. Accepting Dr Steele’s evidence, it found that Mr Metcalf’s life would have been extended by 2 years and 6 months had he received treatment. On this, the court remarked that it was noteworthy that D had not submitted any alternative figure for life expectancy.

C’s pleaded case on causation was that if a biopsy had been undertaken, then C would have been offered treatment. D submitted that in arguing that C would have been offered treatment, rather than should have been offered treatment, they had pleaded a purely factual case. The court considered that it was open to them to not restrict the meaning of ‘would’ such as to exclude ‘should’, taking into consideration the following:

a. C had not made any application to amend the pleadings (which it would have been prudent to do once the Montgomery issue became clear at trial).
b. D did not raise the issue until final submissions and no objections were raised at trial.
c. The issue of whether the treatment ‘would’ and ‘should’ have been offered was dealt with by the experts in their evidence.
d. D was not therefore prejudiced by this interpretation of C’s pleadings.

While the court was generous in its interpretation of C’s pleaded case, this nonetheless stands as a good reminder of the risks associated with not pleading a case clearly from the start. The Court’s decision to interpret C’s case more generously is also a reminder to raise objections early. If D had not waited until closing submissions to take issue with C’s pleaded case it may be that the court would not have been so lenient.

The decision also highlights the significant hurdle claimants are likely to face when seeking to establish causation in failure to inform cases brought posthumously, particularly where the evidence was that the treating clinicians would have advised against the treatment. C’s evidence regarding whether or not Mr Metcalf would have opted for treatment was largely limited to Mrs Metcalf’s statement noted above. While D did not cross examine her on her evidence, it was not sufficient evidence to demonstrate that Mr Metcalf would have undergone treatment. This is unsurprising. It would be a high bar to convince the court that Mr Metcalf would have gone against the advice of his treating physicians and undergone surgery despite the number of risks involved.

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