NHS Found Negligent in Claim for the Misdiagnosis of Metastatic Colorectal Cancer

An Australian woman has been successful in her claim for the misdiagnosis of metastatic colorectal cancer and awarded £91,300 at the High Court.

Sue O´Reilly from Sydney in Australia brought her claim for the misdiagnosis of metastatic colorectal cancer following the premature death of her fifty-five year old husband – Dr David O´Reilly – in November 2006. Claiming that David would have lived longer if doctors attached to the Western Sussex Hospitals NHS Foundation Trust had correctly diagnosed his condition sooner, Sue claimed compensation for the premature loss of her husband and her emotional trauma.

Prior to David´s death, the couple had been living in Chichester, Sussex, and in 2003 David had undergone an endoscopy to detect the cause of symptoms he was experiencing. The consultant surgeon who conducted the endoscopy overlooked a lesion in David´s colon and, the following year, the family´s GP misdiagnosed David with irritable bowel syndrome.

After David´s death, Sue returned to Sydney with her severely disabled son Shane so that she could get support with his care from other members of the family. She attempted to have the claim for the misdiagnosis of metastatic colorectal cancer heard in Australia, but the NHS Trust against whom the claim was made disputed the viability of her actions.

In 2010, the New South Wales Supreme Court agreed to hear the claim in Sydney because of Sue´s commitment to her son but, as the case progressed, Shane died unexpectedly from complications relating to cerebral palsy. The Australian judge hearing the case – Mr Justice Peter Garling – agreed that, as Sue now had no commitments to prevent her from travelling to the UK, it would be more cost-effective to hear evidence from witnesses in London.

Because of the legal similarities between Australia and the UK, Mr Justice Peter Garling was appointed as a temporary examiner by the Royal Court of Justice so that he could continue to hear the claim for the misdiagnosis of metastatic colorectal cancer and ultimately he found the NHS Trust in breach of its duty of care – awarding Sue £91,300 compensation for the premature loss of her husband – but nothing for her emotional trauma, on the grounds that David would have died within five years (instead of three years) had the condition been diagnosed correctly.

More importantly for Sue, Judge Garling dismissed the NHS Trust´s application to pay only 25% of Sue´s legal costs – which had run into almost a million pounds over the nine years she had been fighting the claim for metastatic colorectal cancer. The NHS Trust argued that the legal costs were disproportionately high in comparison to the award of compensation, but Judge Garling disagreed and attributed the full amount of the costs to the NHS.