Otu v Vivek Datta [2022] EWHC 2388 (KB)
When will a patient be partly at fault for not following up when their doctor negligently fails to arrange an appointment? That was the question asked of the High Court in Otu v Datta, a case concerning the death of the Claimant’s husband (“the Deceased”) from colon cancer with metastatic spread to the liver.
Facts
In May 2014, the Deceased was seen in the Defendant’s clinic after suffering from intermittent bowel problems over the previous few years, including haemorrhoids, bleeding, and severe pain when passing stools. He was diagnosed with an anal fissure and prescribed Diltiazem cream.
Despite being “sure” that the fissure was the cause of the symptoms, the Defendant wrote the following in a discharge letter to the Deceased’s GP, copied to the Deceased: “I think at some point, because he has change in bowel habit, he ought to have a colonoscopy and we will arrange this in a few weeks’ time” [32]. The colonoscopy was never arranged.
The Deceased applied the cream as instructed and his symptoms went away for some eight months. In fact, the anal fissure had masked the presence of colon cancer, which was eventually diagnosed in August 2016 following a series of further medical appointments. By that time, it had already metastasised to the liver.
In September 2016, the Deceased’s serum carcinoembryonic antigen (“CEA”) was measured at 23 which, while indicative of cancer, is relatively low on the scale, and cancer was found in 13 of 33 lymph nodes. Despite aggressive treatment which, by April 2017, had successfully stabilised the cancer, Mr Otu subsequently deteriorated and the cancer was found to have metastasised to his lungs, bones and again to his liver. He died from his condition on 24 January 2019.
The Defendant admitted only a breach of duty for the failure to arrange the colonoscopy, leaving the court with three issues to determine.
Factual causation
The first issue – whether the Deceased would have in fact attended a colonoscopy if he had been invited to do so – was dealt with briefly in the Claimant’s favour. There was simply no reason to believe that a patient who had never missed an appointment would have skipped this one, notwithstanding the fact that his symptoms had resolved thanks to the cream, and that colonoscopies are distinctly unpleasant.
Medical causation
The second issue was whether, following the notional colonoscopy which would likely have taken place in July 2014, subsequent treatment would have been curative. To answer this, the primary question was whether metastatic spread to the Deceased’s liver had already taken place by July 2014. It was accepted by the Defendant that, if there had been no such spread by that date, then the claim would succeed.
Despite finding, firstly, that the cancer was likely to have already spread from the colon to between one and three lymph nodes by July 2014, the Court concluded that, on the balance of probabilities, it had not yet metastasised to the liver.
In reaching that conclusion, it is worth noting that Mrs Justice Stacey explicitly paid no heed to the scientific literature on tumour doubling time (“TDT”) and the timing of metastatic spread in the life of a primary tumour, which was provided by the parties’ oncology experts Dr Bessell and Dr Falk (about whom she was extremely complimentary at [19]-[21]). Due to their theoretical basis, lack of proven application to the Deceased himself, and, in the case of TDT, known insufficiencies, the papers referenced on those topics were described by the Court as “of very limited use” [56] and as simply reinforcing of each expert’s contrasting view “rather than of evidential value” [68].
Instead, Mrs Justice Stacey was persuaded of her conclusion on medical causation by the clinical picture that could be established of the Deceased at the material times. This included the “particularly significant feature” that the Defendant’s expert could not explain why the CEA reading in September 2016 “would be so low if there had already been liver metastases for two years” [83].
Further, the lymph node incursion found to have taken place by 2014 was “minor” [78], and at that time he had no red flag indicators of cancer such as significant weight loss, fatigue, fever, nausea, or loss of appetite [82]. It was also relevant that he underwent several examinations between July 2014 and 2016, none of which identified cancer up until the eventual diagnosis [79].
Contributory negligence
Finally, the Defendant argued that the Deceased was partly to blame for the lack of colonoscopy, as he had been informed of the plan to undergo the procedure and should therefore have pursued the clinic when it was not arranged.
The Court rejected this argument by asking what an objectively reasonable patient would have done in the Deceased’s position. Crucially, the plan for the colonoscopy was made “out of an abundance of caution”, rather than with a “sense of urgency”, and the Defendant had been confident in his diagnosis of an anal fissure such that the Deceased “would not have felt unduly troubled or left with the impression that he might have cancer” [33]. The fact that the Deceased had not told his wife of the suggested colonoscopy or the possibility of cancer, which the Defendant likely mentioned at consultation “in passing” [33], was further proof that the Deceased did not consider a colonoscopy to be a “serious possibility” [34]. Moreover, after applying the prescribed cream, the Deceased’s condition cleared up. It was reasonable to believe, therefore, that “the problem was resolved” [92].
Full liability therefore lay with the Defendant, and the Claimant was awarded agreed damages of £700,000.
Comment
On the facts, it is hard to disagree with the Court’s conclusion on contributory negligence. But it is not to so difficult to imagine cases in which the line would be less clear cut.
Consider a scenario in which the Defendant had told the Deceased: “I am certain that you don’t have cancer, but I strongly recommend that you undergo a colonoscopy to rule it out, which I will arrange”. Would such a statement impose some level of responsibility on a patient to chase the clinic if the colonoscopy was never organised, potentially leading to a finding of contributory negligence?
The focus of Mrs Justice Stacey’s analysis in Otu was on the Deceased’s understanding of his diagnosis, rather than the Defendant’s plan for further investigation: it was reasonable for the Deceased not to have followed-up on the colonoscopy principally because the Defendant expressed their certainty as to a separate diagnosis and mentioned the colonoscopy merely in passing.
But in the above scenario, would the doctor’s certainty of diagnosis still hold sway? The answer to that question depends on what precisely is expected of an objectively reasonably patient. If the expectation is that they make decisions based on what the doctor has told them about their condition and the likelihood of severe illness, then it may be reasonable for a patient to conclude that the doctor’s colonoscopy advice, however forcefully communicated, was superfluous. After all, if there is such certainty as to the lack of cancer, and the patient is never in fact invited for a colonoscopy, wouldn’t the objectively reasonable patient conclude that the procedure was unnecessary after all?
On the other hand, one might conclude that a reasonable patient is expected to act in accordance with the crux of the “next steps” advice communicated to them by their doctor. If that advice is unequivocal as to what should be done notwithstanding the given diagnosis – in this scenario, that the patient should undergo a “just-in-case” colonoscopy – then it could be said that a reasonable patient would not go behind that clinical judgment.
Inevitably, the answer likely lies somewhere between the two. Counsel for the Defendant in Otu unsuccessfully prayed in aid the concept of patient autonomy, submitting that “medical treatment is not a matter for the doctor alone” [91]. This judgment reminds us that identifying the point at which any such patient autonomy will begin to erode a doctor’s duty of care requires a close analysis of the facts: of what the patient knew, of the context in which the advice was given, and of the interaction between that advice and the later development of the patient’s condition.
