Establishing the facts in the face of silence and uncertainty
Shaheen & Ahmed (Estate of Ajaz Ahmed) v Daish [2025] EWHC 3056 (KB)
This case shows how claimants can convince the court that their version of the facts is right despite the contemporaneous record being silent and neither party recalling the detail.
Mr Ajaz Ahmed died of lung cancer in February 2023. He was aged 49. His wife and son brought a claim, alleging that his GP, Dr Daish, failed to inform him that a chest x-ray was required or that he would need to attend a walk-in radiology clinic. The defence case was that he was told both elements of information and for reasons known only to himself, did not attend.
At trial of preliminary issues, Christopher Kennedy KC (sitting as a Deputy High Court Judge) had to determine:
(a) Was Mr Ahmed told about the x-ray and the need to attend?
(b) Would he have attended if he was informed?
(c) Was Mr Ahmed contributorily negligent?
(a) and (b) – factual dispute
On 11 February 2019, Mr Ahmed presented to Dr Daish with worsening breathlessness. Dr Daish ordered a chest x-ray. To receive it, Mr Ahmed would need to attend a walk-in radiology clinic. After he left the appointment, Dr Daish added a prescription of a steroid. It was not disputed that this prescription was not discussed with Mr Ahmed. She did, however, send Mr Ahmed a text message to inform him of the prescription. Mr Ahmed organised a further appointment with the GP receptionist for 27 February 2019.
The contemporaneous record confirmed that the x-ray request was made but contained no note of any discussion. Mr Ahmed wrote and signed a witness statement in 2022. That statement asserted that he was not told that he needed an x-ray. If he was told, he said that he would have gone to the clinic. Dr Daish’s case was that she would have explained the need and the process, consistent with her usual practice. Neither party recalled the detail of the consultation.
Mr Ahmed did not attend the appointment which he had scheduled for 27 February 2019. Despite this undermining the claimants’ argument regarding his otherwise meticulous nature, the Judge found that Mr Ahmed was not told about his appointment and the need to attend [36]. He did so on the basis of evidence that at the time he was worried about his health; had self-organised other medical tests in the past; the possibility of serious cancer made it more likely Mr Ahmed would remember and act; the lack of written record; and the prescription being an afterthought, which made it more likely that the x-ray element also post-dated the consultation.
The judge emphasised that Dr Daish was otherwise caring and competent, and that the omission was atypical.
(c) – contributory negligence
The Judge noted that contributory negligence in clinical negligence cases will be rare: Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 832 at [33]. Generally, patients rely on clinicians for guidance and lack the expertise to appreciate the consequences of non-compliance.
The Judge distinguished two cases which were cited to him. In Pidgeon v Doncaster Royal Infirmary [2002] Lloyd’s Rep Med 130, where contributory negligence was found, the claimant understood the risk of cervical cancer. She instead chose to repeatedly ignore advice to undergo smear tests. Relatedly, in Sims v MacLennan [2015] EWHC 2739 (QB), the Judge indicated that she would have found contributory negligence for not checking his blood pressure. Again, the claimant understood the significance of the advice given. In this case, Mr Ahmed was never told about the x-ray or its purpose so there was no informed decision. In those circumstances, contributory negligence could not be found.
Takeaways for parties
- The Court will scrutinise consultation notes. Clinicians must document their consultations clearly and thoroughly, particularly where investigations are ordered. The absence of any record of advice on investigations can outweigh assertions of usual practice. Silence in the record can be fatal to the defence.
- Contributory negligence requires the making of an informed decision. Liability apportionment depends on evidence that the patient understood the risk of non-compliance.
