Introduction
This case involves two related allegations – that the patient should have been provided with post-operative radiotherapy in October 2017; and that she ought to have been given palliative radiotherapy from early 2018. These failings, it was claimed, caused her unnecessary pain and suffering.
Detail
Mrs Carol Sutton received a diagnosis of breast cancer in March 2017. Following this she was seen by Dr Errington, a consultant in clinical oncology. He advised that she should have neo-adjuvant chemotherapy to reduce the size of the cancerous area and hopefully make it suitable for surgery, namely mastectomy. He considered that this should be followed by radiotherapy to the right chest wall. By July 2017 the tumour mass had reduced considerably with the chemotherapy, but biopsies demonstrated infiltrating malignant disease so the medication was changed and Mrs. Sutton had a right mastectomy on 5 October 2017.
Review by the multi-disciplinary team (MDT) 13 days later concluded that no further chemotherapy was required and Dr Errington on 23 October arranged for adjuvant radiotherapy in November. Unfortunately, biopsies taken when the patient attended for radiotherapy revealed recurrence of cancer, so no radiotherapy was commenced and instead a different form of chemotherapy was instituted.
By 2 January 2018 there had been further cancer infiltration and referral to a medical oncologist identified that cancer had spread to the left breast. By 30 January the cancer was no longer considered curable. Chemotherapy continued, but by October 2018 the cancer had spread to the chest wall and in December the patient was referred for palliative care. She died the following March.
Dr Errington, the treating oncologist, stated that when the patient attended for radiotherapy on 14 November 2017 there was a rash on the right mastectomy scar. This was identified as a recurrence of cancer in the skin. He therefore considered it inappropriate to commence local adjuvant radiotherapy as that was unlikely to control the further spread of cancer.
In cross-examination, Dr Errington was referred to the relevant NICE guideline which states that “radiotherapy is given to the breast after conservation surgery and may be given to the chest wall after mastectomy to complete local treatment”. He replied that the MDT meeting noted the patient had a very aggressive cancer with a high rate of metastatic disease, and that therefore radiotherapy was unlikely to help. Also, it would be difficult to carry out such therapy as it was necessary accurately to identify the area – which would be problematic. The consultant who took on responsibility for Mrs Sutton after Dr Errington had retired, Dr Cliff, agreed and added that later, palliative radiotherapy was considered but rejected because it was considered by both her and another specialist that the tumour was too large for the radiotherapy field.
On the other hand Professor Mangar, an expert oncologist instructed on behalf of the executor, opined that “there was a mandate for post-operative radiotherapy” and that in 2018, “palliative radiotherapy was clearly indicated”. He maintained that it was not detrimental to give concurrent chemotherapy and radiotherapy. Professor Dodwell, the trust’s equivalent expert, fully supported the treatment given, noting that rapid growth of cancer compounds the difficulty of determining an appropriate volume to target with radiotherapy. Further systemic treatment, as occurred, was reasonable.
Decision
Professor Mangar was “surprisingly unwilling to make any concessions about the range of opinions that treating physicians might have about complicated and challenging cancers”. There was no literature to suggest that the decisions of trust clinicians not to use radiotherapy were contra-indicated in Mrs Sutton’s case. The limited literature attached to Professor Mangar’s report did not support his position.
An expert has a duty to consider alternative options and if he or she considers that the alternatives are not appropriate, the expert should explain the logical basis of their disagreement. Professor Mangar had not done so. There was nothing in the evidence before the court to suggest that the treatment fell below the requisite standard.
Professor Dodwell provided clear reasons why clinicians might well conclude that alternatives to radiotherapy at both points were preferable. The court was satisfied that the decision not to give either post-operative or palliative radiotherapy was supported by a reasonable body of doctors and therefore the allegations of negligence failed.
Comment
It must be stressed that it was not argued in court that the patient’s life would have been saved had she received radiotherapy – only that her pain and suffering would have been reduced. This case represents a classic demonstration of the well-known Bolam test in practice, in other words a clinician is not to be found guilty of negligence if what he/she did, or failed to do, would have been supported by a responsible body of clinicians at the time. Judge Carter clearly reached the conclusion that the group of clinicians involved in this case, who worked at a specialist tertiary referral centre, had not been negligent because the claimant’s expert was not supported by the medical literature, whereas the doctors involved were endorsed by someone who the judge considered a fair and logical expert. It is often the case that clinical negligence trials turn upon expert evidence, so choosing the right expert – and testing them rigorously well before the trial begins – can be critical to success.
