More than £1 million pounds costs have been awarded against the NHS after a nine-year cancer misdiagnosis case was settled for £91,300.
In November 2006, David O´Reilly from Chichester in Sussex died from metastatic colorectal cancer – five years after a lesion in his colon was overlooked by a consultant conducting an endoscopy. A second medical opinion the following year misdiagnosed David´s symptoms as bowel cancer when there was still time to treat his condition and prolong his life.
Following David´s death, his widow – Sue – made a compensation claim against the NHS for the premature death of her husband and the emotional trauma she had suffered. Sue also had to move back to her family´s home in Australia so that she could get support caring for her youngest child – Shane – who suffered from cerebral palsy.
Once settled in Australia, Sue applied for the cancer misdiagnosis case to be heard in New South Wales. The NHS Trust objected to the transfer of the case, but – as Sue was unable to travel to the UK while caring for her son – the New South Wales Supreme Court agreed to Sue´s request in 2010. Sadly, soon after the medical negligence case got underway, Shane died due to complications related to his cerebral palsy.
With Sue now able to travel, the Western Sussex Hospitals NHS Foundation Trust requested that the medical negligence case to be transferred back to the UK. The judge presiding over the case – Mr Justice Peter Garling – agreed to the application, and was made a temporary examiner by the Royal Court of Justice so that he could continue hearing the medical negligence claim in the UK.
When the medical negligence case was concluded, Judge Garling found in Sue´s favour and awarded her £91,300 compensation for the Western Sussex Hospitals NHS Foundation Trust´s breach in its duty of care. However, the legal costs of pursuing the claim had run into millions, and the NHS Trust contested that it should not be liable for the full amount.
A proposal was entered that the NHS Trust should only pay 25% of Sue´s legal fees – a proposal that would have bankrupted Sue if it was upheld. However, Judge Garling dismissed the NHS Trust´s argument, and awarded the full amount of the costs of the medical negligence case against the NHS for the misdiagnosis of cancer against the Western Sussex Hospitals NHS Foundation Trust.