Preliminary issues on patient communication, attendance and contributory negligence: Shaheen & Anor v Daish [2025] EWHC 3056 (KB)

The judgment in Shaheen and Ahmed (As Executors of the Estate of Mr Ajaz Ahmed) v Dr Joanna Daish [2025] EWHC 3056 (KB) from 28 November 2025, concerns the tragic death of Mr Ajaz Ahmed at the age of just 49 from lung cancer, and the allegation that an opportunity for earlier investigation and treatment was missed in primary care. Sitting as a Deputy High Court Judge, Christopher Kennedy KC tried three preliminary issues. The court was asked to decide whether the general practitioner, Dr Joanna Daish, told Mr Ahmed that a chest X-ray had been requested and what he needed to do to obtain it, whether Mr Ahmed would have attended for the X-ray if properly informed, and whether there was contributory negligence. Causation and quantum are listed for a five-day hearing in May 2026.

The factual matrix was typical of busy primary care practice. On 11 February 2019 Mr Ahmed attended urgently with breathlessness that had worsened over months following a lower respiratory tract infection. Dr Daish examined him, diagnosed an exacerbation of asthma, prescribed inhaled therapy and steroids, and generated an ICE request for a chest X-ray. In that system no appointment is created. The patient must attend a walk-in radiology department. There is no automatic follow up. A crucial dispute emerged. The claimants said Mr Ahmed was never told that an X-ray had been ordered nor what steps to take. The defendant said her usual practice was to explain both the request and the process and that she would have done so here.

The records and witness evidence

The contemporaneous notes were careful on examination, measurements and medication but did not record any discussion of the X-ray or its purpose. By contrast other GP entries in 2018 and 2020 did record further investigations being requested and advice given. A text at 11:33 on the day of the consultation alerted Mr Ahmed to an additional steroid prescription that had been added after he left, which showed that elements of the clinical plan were indeed completed once the patient had departed. A follow up was booked with the nurse for 27 February 2019 but Mr Ahmed did not attend.

Mr Ahmed’s own statement, signed in January 2022, asserted that no X-ray was mentioned in 2019, though understandably his recollection of detail was limited. Family members and a friend described him as meticulous and health conscious. The defendant had no independent memory of the consultation and relied on her usual practice. She accepted that ruling out serious pathology including cancer was a purpose of the X-ray and that, in general, she would explain that to patients. Time pressure was acknowledged but she maintained that ten minutes sufficed for the examinations, history and an explanation of the X-ray.

Issues (a) and (b). Communication and likely attendance

On the balance of probabilities the court found that Mr Ahmed was not told that the X-ray had been requested nor how to obtain it. Seven features were identified as carrying greater weight than the defendant’s case.

First, the evidence that Mr Ahmed was actively worried about his health in late 2018 and early 2019 made it more likely that he would have pursued an investigation if it had been recommended.

Second, he was familiar with the process of patient led follow through from previous blood tests. That familiarity made it more probable that he would have attended for radiology if he had known.

Third, there was no evidence of any prior X-ray. This was a new investigation and there was no reason to think he would have dismissed it.

Fourth, had cancer been mentioned as a differential he would likely have sought reassurance and attended both the X-ray and the follow up.

Fifth, the absence of any reference to the X-ray discussion in the consultation note or plan contrasted with other doctors’ entries that did include investigations and advice. The defendant herself said she generally noted X-ray advice, which supported the inference that the request was not dealt with in the patient’s presence.

Sixth, the asserted link between a two-week review and the X-ray result did not appear in the record, unlike a later entry in January 2020 where advice to book a follow up with results was clearly recorded.

Seventh, the additional steroid prescription was added after the patient had left. That afterthought made it more likely that the X-ray request was also completed post consultation and therefore not communicated.

Having found non-communication, the court had no difficulty concluding that Mr Ahmed would probably have attended for an X-ray had he been properly informed. The combination of health anxiety, the significance of ruling out cancer and his previous compliance with test processes made attendance likely.

Issue (c): Contributory negligence

The defendant relied on authorities including Dalton v Southend University Hospital, Pidgeon v Doncaster Royal Infirmary and Sims v MacLennan to argue that failure to attend follow up and asthma review constituted contributory negligence. The court rejected the defence. Those cases involved claimants who understood the significance of not following medical advice. On the findings here there was no proof that Mr Ahmed appreciated the consequences of non-attendance. Without that understanding, and particularly where symptoms may have improved with treatment, non-attendance could not fairly be characterised as negligence. The burden on the defendant was not discharged.

Findings

The defendant failed to inform Mr Ahmed that a chest X-ray was required and how to obtain it. Mr Ahmed would have attended for the X-ray if properly informed. There was no contributory negligence.

Comment

This careful and humane judgment is rooted in what the records do and do not say. It illustrates how courts will weigh usual practice against documentary silence where communication is central to care. The ICE workflow places responsibility on the patient to act. That is workable only if clear instructions are given, recorded and reinforced. For claimants this decision emphasises the power of contemporaneous absence, comparative entries by other clinicians and the logical consequences of a cancer ruling out pathway. For defendants it is a reminder that usual practice is not a substitute for a note and that small systems features can become determinative.

The causation hearing will address the more difficult question whether earlier detection would have altered the disease course. The preliminary findings will frame that debate. The legal and clinical takeaway is simple. In any patient led process, communication is not an accessory. It is the intervention.

Six key takeaways for solicitors:

• Record centred analysis
  When a clinician relies on usual practice but the record is silent on the specific advice allegedly given, the court may prefer the documentary absence, especially where other entries show investigations and advice being routinely recorded.
• Patient led workflows
  Where the system requires the patient to take the next step, the duty to explain the process and the purpose is heightened. Evidence of that explanation should be contemporaneously documented and, where possible, reinforced by written communication.
• Logical inference from seriousness
  If the stated purpose of a test is to exclude serious pathology such as cancer, courts may draw a logical inference that a concerned patient would have attended if properly informed. This can support findings of both non communication and likely attendance.
• Contributory negligence remains rare
  Defences of contributory negligence in clinical cases require proof that the claimant understood the significance of not following advice. Mere non-attendance, particularly in primary care contexts and with symptomatic improvement, will usually be insufficient.
• Comparative note analysis
  Judges may compare entries within the same record across different clinicians and dates. Consistent notation of investigations and advice elsewhere can undermine a claim that such advice was given but simply omitted on the crucial day.
• Afterthought entries as indicators
  Additions made after a patient leaves can be double edged. They show diligence but can also indicate that parts of the plan were formed post consultation. In disputes about what was said, this may support a finding that key steps were not communicated in person.